photo by: Kansas Department of Corrections

On a spring evening in 2015, at Fuzzy’s Taco Shop in downtown Lawrence, a drunken 42-year-old man walked up to a 10-year-old girl who was standing at the restaurant’s drink station. He put his hand on her shoulder and whispered in her ear:

“Will you come into the (males’) restroom with me?”

The man stepped back, using body language the girl interpreted as “come on.” He kept staring at her as he moved toward the bathroom.

Creepy?

No question.

Criminal?

That’s been debated in multiple courts over the past three years, and the debate has now been sent back to Lawrence.

A local judge freed the man two and a half years ago, but this month he was re-arrested because the Kansas Court of Appeals ruled the case’s dismissal was a mistake. Now 46, Lawrence resident Jonathan S. Nelson is back in Douglas County District Court facing his original felony charge of aggravated indecent solicitation of a child, for allegedly inviting the girl to a secluded place to commit an unlawful sex act.

“What makes this case unique is that neither Nelson’s statement nor his actions provide proof of what specific unlawful sex act he intended to commit,” the appeals judge wrote. “Fortunately, the girl’s mother intervened, so nothing further happened.”

Former District Court Judge Robert Fairchild dismissed the charge in April 2016, siding with Nelson’s appointed attorney, Joshua Seiden. Seiden had argued that without explaining which sex act Nelson intended, prosecutors couldn’t show probable cause for the charge.

The state appealed the dismissal, saying it was not required to be that specific. Prosecutors’ theory, the appeals court summarized, was that Nelson planned to commit “any sex crime he could pull off.”

Also, prosecutors argued, Nelson had a history — a previous conviction for sexual exploitation of a child stemming from the possession of child pornography.

The appeals court said that is enough to proceed with the case.

“An adult man does not approach a young preteen girl he does not know, place his hand on her shoulder, put his face close to hers, invite her to join him in the men’s restroom, and then give a look indicating she should follow him without some nefarious intent,” the appeals court said.

Based on those actions and Nelson’s predisposition to commit a child sex offense, “an ordinarily prudent person could reasonably believe that Nelson asked the girl to join him in the bathroom with the intent to commit any or all of the enumerated unlawful sex acts,” the appeals judge wrote.

According to an affidavit prepared by police investigators, the girl’s mother called police right after the encounter at the restaurant, and officers arrested Nelson there.

Police said Nelson was very drunk, having consumed two pitchers of beer with a third on his table. He also had sat down uninvited next to a grandmother and her grandson at their table, making uncomfortable comments about that child.

Nelson told police that he got up to get himself a Coke and made an “innocuous” comment to a child but that he didn’t remember what it was. Nelson also told police that he was out drinking “in celebration of his recent release from parole.”

Nelson went to prison in 2010, after being convicted in Johnson County District Court of sexual exploitation of a child. According to Kansas Department of Corrections records he was released on parole — moving to Arizona for a time before settling in Douglas County — and his sentence expired in May 2015, less than a week before the Fuzzy’s incident.

Nelson fought the results of that case, including by filing a civil complaint against the U.S. Attorney General and an appellate case in federal court.

In 2006, FBI and KBI agents questioned Nelson about his subscription to a website called “Little Virgins” and found images of nude children in sexually suggestive poses on his computer, leading to the Johnson County charge, according to the federal court documents.

Nelson admitted that he was sexually aroused by children, specifically girls between 12 and 15, the documents say. He also admitted to downloading around 200 images of children between the ages of 5 and 15.

Nelson described the pictures as “child erotica,” not child pornography, and had argued that they were protected under the First Amendment. His argument was not successful.

“Nelson knew he was downloading staged, nude photos of underage girls — that he did not see what was wrong with this is both irrelevant and deeply troubling,” a judge in one federal case wrote.

U.S. District Court Judge Erick Melgren continued, “the Court feels compelled to address Nelson’s assertion that ‘when a person isn’t intending to break the law, it is unfair to ruin his life.’ But it is much more unfair that every day, young children — like those featured on the site ‘Little Virgins’ — have their lives ruined when they are victimized and used as objects in child pornography. As far as injustices go, the law is far more concerned with the latter.”

In Nelson’s pending Douglas County case, the court of appeals reversed the dismissal in June 2017. The Kansas Supreme Court denied Nelson’s petition to review the matter in June of this year, and the case was then sent back to Lawrence in July.

Nelson’s lawyer said he respectfully disagreed with the appeals court.

“It goes to the sufficiency of evidence,” Seiden said. “Judge Fairchild was there. He heard the testimony. He was in the best position to assess whether there was evidence to proceed to trial, and he was right when he dismissed the case.”

With Fairchild retired, Nelson’s case is now before District Court Judge James McCabria.

After booking into jail Nov. 5, Nelson was released on a $100,000 personal recognizance bond with pretrial monitoring and an order not to contact anyone under 18, according to court records.

Nelson’s new jury trial date currently is set for Jan. 14.