TACOMA, Wash. (CN) - Evidence does not support the luring conviction of a man who asked a 9-year-old boy, "Do you want some candy? I've got some at my house," a Washington appeals court ruled.
According to the trial record, 9-year-old C.C.N. was walking to a store to buy milk for his mother when Russell Homan rode a child's Superman BMX bicycle past him and asked, "Do you want some candy? I've got some at my house."
Homan then rode away without stopping.
When C.C.N. returned home and told his mother, she called the police. They located Homan, who admitted to riding his bike near the store. He was charged with one count of luring, convicted in a bench trial and sentenced to 120 days.
On appeal, Homan challenged the evidence presented by the state as well as the constitutionality of the luring statute, which prohibits a person from luring a minor or a person with a developmental disability into any area or structure that is obscured from or inaccessible to the public or into a motor vehicle.
A divided three-judge panel reversed Tuesday.
Previous cases, including State v. McReynolds and State v. Dana, have set a higher standard for luring convictions, which require the state to establish "more than an invitation alone; enticement, by words or conduct, must accompany the invitation," according to the lead opinion.
"In McReynolds, the defendant's act of slowing his truck beside a child walking along a road and signaling her to come over was insufficient to prove that he was attempting to get her into the truck, and Division Three of this court reversed his conviction for luring," Judge Pro Tem C. C. Bridgewater wrote for the majority.
By contrast, in State v. Dana, a man was convicted of luring after stopping his car near two girls and asking them to get in while he exposed his genitals.
"That the girls were upset rather than enticed did not undermine the sufficiency of the evidence supporting the defendant's luring conviction," Bridgewater wrote.
Homan's offer of candy was "ill-advised," but that does not qualify as luring under the statute, according to the ruling.
"We disagree with the state that Homan's statements demonstrate both an invitation and an enticement to lure C.C.N. into a nonpublic structure," Bridgewater wrote. "Rather, they show an offer of candy and a statement regarding its location. Furthermore, there is no conduct that elevates these statements to either an invitation or an enticement. Homan was riding by C.C.N. as he made the statements, and he did not slow or stop as he made them or even look back afterward. While Homan's statements were ill-advised, they did not constitute a felony, and we remand to the trial court to reverse his conviction with prejudice."
Judge J. Robin Hunt dissented.
"Homan stated that he had candy in his house and asked the child if he wanted some," Hunt wrote. "Although Homan did not expressly ask the child to come to his house, a rational trier of fact could find beyond a reasonable doubt that Homan invited the child to his house to receive the offered candy."
The court declined to address Homan's challenge to the breadth of the law.