Judge opposes mandatory sentence in Child Haven case

Erica D. Johnson

Monday, March 24, 2003 | 9:24 a.m.

District Judge Donald Mosley ruled Friday that there is enough evidence to warrant a trial for a former Child Haven teacher charged with lewd conduct involving a pupil.

But Mosley strongly disagreed with the mandatory sentence that 36-year-old Duane C. Johnson faces if convicted.

Johnson is accused of exposing himself to the girl at the the Clark County home for neglected and abused children. Johnson also is accused of elbowing the girl's breast and touching the crotch area of her pants with a piece of paper.

Johnson faces a prison term of 10 years to life if convicted.

"The penalty is staggering," Mosley said. "This is a perfect example of the Legislature meddling in the sentencing process that could cause an injustice."

Anyone who thinks a life sentence is fair punishment for someone who elbows someone in the breast has "a misconception of what the world is all about," Mosley said.

Johnson in December was indicted on two felony counts of lewdness with a child under 14 and one gross misdemeanor count of open or gross lewdness. He was suspended from the Clark County School District in 2001 pending an investigation.

Defense attorney William Terry had argued Friday that prosecutors should have posed further questions to a member of the grand jury that indicted Johnson. That grand jury member's husband worked at Child Haven. Chief Deputy District Attorney Eric Jorgenson said he asked the juror specific questions, including whether she would be biased in rendering a decision.

"She didn't know anything about (the incident)," he said. "She said it wouldn't have changed her decision one way or another."

Terry also argued that charges against Johnson should be dismissed because the alleged victim's testimony at the grand jury proceeding was sketchy.

"Her testimony is not specific that this was an intentional act," he said. "What are we talking about here? This is not a hand grope or fondling."

Jorgenson said the girl, who now resides in a group home, clearly thought the touching was intentional.

Jorgenson read portions of the teen's testimony from a transcript of the grand jury proceedings: "He elbowed me in the breast," the girl testified. "I think he kind of did it on purpose."

The girl later testified, "I was kind of mad about that and upset, but he said he was sorry when he did it."

Jorgenson said further questions should be dealt with at trial.

"If it was accidental we wouldn't be charging him," he said.

His trial is scheduled to begin Nov. 17.

Johnson was previously dismissed from a teaching job in Utah amid allegations that he had impregnated a high school senior, according to previous new reports.