United States of America v. Christopher Harcrow

United States Court of Appeals
For the Eighth Circuit
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No. 24-1096
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United States of America
Plaintiff - Appellee
v.
Christopher Harcrow
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: December 16, 2024
Filed: April 29, 2025
[Published]
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Before SMITH, GRUENDER, and STRAS, Circuit Judges.
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PER CURIAM.
A jury convicted Christopher Harcrow of enticement of a minor, in violation
of 18 U.S.C. § 2422(b). The district court1 sentenced Harcrow to 120 months’
imprisonment, followed by 10 years’ supervised release. Harcrow appeals, arguing
1 The Honorable Kristine G. Baker, Chief Judge, United States District Court
for the Eastern District of Arkansas.

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that the evidence was insufficient to sustain the conviction. He also argues that he
was entrapped as a matter of law, that there was a variance from the indictment, and
that he was denied his right to a fair trial because of a misstatement of law by a
government witness and inflammatory remarks made during closing arguments. We
affirm.
I. Background
In June 2017, Chad Meli, an investigator for the Faulkner County Sheriff’s
Office in Arkansas, located a Craigslist ad in the casual encounters section of the
website seeking out young boys interested in spanking. Meli, posing as a 15-year-
old named “Connor,” contacted Harcrow. When “Connor” first told Harcrow that he
was 15, Harcrow broke off contact, but he then resumed contact 12 days later to
inquire when “Connor” would turn 16. Harcrow and “Connor” continued discussing
spanking as well as further sexual contact, such as anal and oral sex. Harcrow and
“Connor” continuously discussed plans to meet up, how they could conceal their
relationship, and the various sex acts that they could do together.
Harcrow and “Connor” came up with a plan to meet on June 27, 2017. When
Harcrow arrived, law enforcement surrounded his vehicle and arrested him. During
an inventory search of Harcrow’s vehicle, law enforcement found a grocery bag
containing a personal lubricant with a receipt showing that it was purchased just
prior to arriving at the meeting location.
Harcrow was then charged with one count of enticement of a minor, in
violation of 18 U.S.C. § 2422(b). The indictment charged that “[f]rom on or about
June 5, 2017, through on or about June 27, 2017,” Harcrow “did knowingly attempt
to persuade, induce, entice and coerce an individual, J.D., who had not yet attained
the age of 18 years, to engage in any sexual activity for which a person can be
charged with [sexual assault in the fourth degree] in violation of A.C.A. § 5-14-127.”
R. Doc. 1.

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Prior to trial, the government filed a motion in limine to foreclose the defense
of entrapment, but ultimately the district court gave the jury instruction. During trial,
Meli testified that the casual encounters section of Craigslist is often used for
anonymous sexual contacts. Meli testified that if Harcrow had sexual contact or
sexual activity with “Connor,” it would have been sexual assault in the fourth degree
under Arkansas law. He also testified that spanking itself is not a crime but that
spanking done for the purpose of sexual gratification is sexual conduct under
Arkansas law.
After the close of the government’s case, Harcrow moved for judgment of
acquittal, which the district court denied. The jury then found Harcrow guilty of one
count of enticement of a minor, and the district court sentenced Harcrow to 120
months’ imprisonment, followed by 10 years’ supervised release.
II. Discussion
On appeal, Harcrow alleges four reversible errors. First, he argues that the
district court erred in denying his motion for acquittal based on the sufficiency of
the evidence. Specifically, he alleges that the government failed to prove beyond a
reasonable doubt that Harcrow had the specific intent to persuade, induce, entice, or
coerce “Connor” to engage in illegal sexual activity. He also denies that the record
shows that he took a substantial step toward committing the crime. Second, he argues
that the government’s conduct constituted entrapment as a matter of law and that he
was not predisposed to commit the charged crime. Third, Harcrow argues that the
evidence created a material variance from the indictment. He asserts that the
indictment charged him for a crime against “J.D.,” while the evidence introduced
actually related to “Connor.” Fourth, Harcrow alleges that the government misstated
the law and made improper, inflammatory remarks during closing arguments that
deprived him of his right to a fair trial.
A. Sufficiency of the Evidence
We first address Harcrow’s argument that the district court erred in denying
his motion for judgment of acquittal based on insufficiency of the evidence. This

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court “review[s] de novo the sufficiency of the evidence to sustain a conviction,
viewing the evidence in a light most favorable to the verdict and accepting all
reasonable inferences supporting the verdict.” United States v. Colton, 742 F.3d 345,
348 (8th Cir. 2014) (per curiam). This court will overturn a conviction “only if no
reasonable jury could have found [the defendant] guilty beyond a reasonable doubt.”
United States v. Bell, 477 F.3d 607, 613 (8th Cir. 2007).
Harcrow was charged with violating 18 U.S.C. § 2422(b), under which the
government must prove that the defendant
(1) used a facility of interstate commerce, such as the internet or
telephone system; (2) knowingly used the facility of interstate
commerce with intent to persuade or entice a person to engage in illegal
sexual activity; and (3) believed that the person he sought to persuade
or entice was under the age of eighteen.
United States v. Joiner, 39 F.4th 1003, 1008 (8th Cir. 2022) (quoting United States
v. Shinn, 681 F.3d 924, 931 (8th Cir. 2012)). “A conviction based on attempt requires
proof that the defendant intended to commit the predicate offense and conduct that
constitutes a substantial step towards the crime’s commission.” Id. (quoting United
States v. Kempter, 29 F.4th 960, 965 (8th Cir. 2022)). “We look to state law to
provide the underlying criminal offense.” United States v. Langley, 549 F.3d 726,
730 (8th Cir. 2008).
The underlying charge that the government charged Harcrow with was sexual
assault in the fourth degree under Arkansas law. Arkansas fourth-degree sexual
assault occurs when a person, at least 20 years old, engages in deviate sexual activity
or sexual contact with another person that is less than 16 years old and not the
person’s spouse. Ark. Code Ann. § 5-14-127(a). “Deviate sexual activity” is an
act of sexual gratification involving:
(A) The penetration, however slight, of the anus or mouth of a
person by the penis of another person; or

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(B) The penetration, however slight, of the labia majora or anus
of a person by any body member or foreign instrument
manipulated by another person.
Id. § 5-14-101(1). “‘Sexual contact’ means: (A) [a]n act of sexual gratification
involving the touching, directly or through clothing, of the sex organs, buttocks, or
anus of a person or the breast of a female.” Id. § 5-14-101(12).
Harcrow first argues that the evidence did not establish that he sought out
minors to engage in illegal sexual activity. He asserts that the initial advertisement
that he placed was not sexual in nature. However, Meli testified that the ad was
posted to a section of Craigslist usually used for anonymous sexual contact. Meli
additionally testified that spanking could constitute “sexual contact” and that the
conversations between Harcrow and “Connor” related to spanking were sexual in
nature. Viewing the evidence in a light most favorable to the verdict and accepting
all reasonable inferences, Meli’s testimony provides sufficient evidence that
Harcrow intended the initial ad to ultimately be sexual in nature.
Harcrow next argues that Meli, posing as “Connor,” was the one who initiated
all the conversations about sex. The evidence presented at trial belies this assertion.
After the initial text conversation, Harcrow stated that “Connor” would have to wait
to contact him until he was older. Harcrow, however, reinitiated the conversation
with “Connor” just 12 days later. He asked “Connor” when he would be 16, as he
believed that was the legal age of consent. A reasonable jury could infer from
Harcrow’s question and his belief that a 16-year-old could consent that Harcrow was
interested in having sex with “Connor.” It could also conclude that he wanted to
know when he would be able to have sex with “Connor.” The day after Harcrow
reinitiated contact with “Connor,” they discussed how they could keep their contact
secret. Harcrow, not “Connor,” segued the conversation from people discovering
their relationship to what they could do together if they met up. R. Doc. 60, at 56–
57 (Harcrow: “As far as what all do I want to do, well.” Meli, as “Connor,” asked:
“Huh?” Harcrow: “You would definitely get a spanking session. Anything other than
that is relatively up in the air. In five months nothing would be a problem.”).

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In a later texting session, Harcrow brought up his age but stated: “When it
comes to [sex], that can usually be a problem.” Id. at 59. Meli, as “Connor,” replied:
“I don’t care.” Id. Harcrow responded: “As long as you’re sure.” Id. Harcrow
brought up anal sex and preparing for anal sex prior to “the real thing.” Id. at 61. In
another conversation, Harcrow stated that he was not totally comfortable with
“Connor’s” age. Meli, as “Connor,” asked, “Okay. Do you wanna do it now or wait
till I turn 16?” Id. at 64. Harcrow responded: “I would prefer to do it soon, but I
would feel better in November. Not sure I want to wait that long because this could
be a great thing.” Id.
Ultimately, these conversations show that “Connor” did not pressure or
persuade Harcrow. Harcrow, not “Connor,” instigated many of the conversations
about sex. Harcrow argues that this evidence is insufficient to show that he acted
with a specific intent to “transform or overcome” “Connor’s” will or to obtain
“Connor’s” assent to sexual activity. See United States v. Hite, 769 F.3d 1154, 1161
(D.C. Cir. 2014) (“The ordinary meanings of the verbs persuade, induce, entice, and
coerce demonstrate that § 2422(b) is intended to prohibit acts that seek to transform
or overcome the will of a minor.”). However, we have rejected Hite’s definition of
“persuade, induce, entice, and coerce,” and held that “a defendant can be found to
persuade or entice even a seemingly willing minor.” United States v. Zupnik, 989
F.3d 649, 654 (8th Cir. 2021) (internal quotation marks omitted).
Zupnik is on point. Zupnik held that, in an attempt case, the requisite intent to
persuade could be shown even though the minor victim responded to the defendant’s
online advertisement. Id. at 654–55. The court found that the defendant persistently
sent messages to the victim with expressions of his sexual interest in her and
descriptions of specific sex acts that he would like to perform with her, even after
learning that she was under the age of legal consent. Id. at 654. Harcrow’s
interactions with “Connor” are similar, in that “Connor” responded to the ad, but
Harcrow consistently indicated that he was sexually interested in “Connor” and
described the sex acts that he would perform with him even though Harcrow believed
“Connor” was under the age of consent. See United States v. Riepe, 858 F.3d 552,

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559 (8th Cir. 2017) (holding that the evidence was more than sufficient to establish
intent when the defendant “discussed specific sex acts that he would like to perform
with [the minor],” “ultimately arranged to meet [the minor],” and “arrived at the
specified location”); see also Shinn, 681 F.3d at 931 (“In attempted enticement of a
minor cases, the defendant’s intent can be inferred when the defendant has online
conversations of a sexual nature with a minor.” (internal quotation marks omitted)).
Harcrow also took a substantial step toward committing the offense. He avers
that the conversations with “Connor” show that they could just meet and talk. This
court, however, has held that a defendant takes a substantial step toward enticement
when the defendant arranges to meet the minor at a particular time and place and
travels to the designated meeting place with evident sexual interest. See United
States v. Myers, 575 F.3d 801, 809 (8th Cir. 2009) (holding that traveling two hours
to meet a minor while she was home alone and bringing two boxes of condoms
constituted a substantial step); United States v. Patten, 397 F.3d 1100, 1104 (8th Cir.
2005) (holding that driving to an arranged meeting place constituted a substantial
step in the context of 18 U.S.C. § 2422(b)). Here, Harcrow arranged a meeting place
with “Connor” and purchased personal lubricant just a few minutes before the
arranged meeting time. This constituted a substantial step towards committing the
offense.
Harcrow cannot meet his burden to show that no reasonable jury could have
found him guilty beyond a reasonable doubt.
B. Entrapment
We next consider Harcrow’s argument that he was entrapped as a matter of
law. However, the government argues that he waived this argument below. Waiver
excludes appellate review, and “[t]o show a waiver, the government must point to
action by the defendant or defense counsel that establishes an intentional
relinquishment or abandonment of the right.” United States v. Chavarria-Ortiz, 828
F.3d 668, 671 (8th Cir. 2016). Below, Harcrow’s attorney expressly waived
entrapment as a matter of law, stating: “I am not arguing entrapment as a matter of

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law. It does not rise to that level to me . . . . [E]ntrapment as a matter of law is not
presented.” R. Doc. 61, at 127. Harcrow’s attorney stated further that “there’s text
messages that go both ways,” so “it’s not absolutely clear either way.” Id. at 143.
Thus, Harcrow expressly relinquished his claim as to entrapment as a matter of law.2
C. Variance from the Indictment
Harcrow next argues that a variance of the proof at trial from the allegations
of the indictment unfairly prejudiced his defense. Specifically, he contends that the
indictment listed the fictitious victim as “J.D.,” but the evidence at trial showed that
the fictitious victim was “Connor.” Harcrow did not make this argument below, so
we review for plain error. To show plain error, Harcrow has the burden to prove “(1)
[an] error, (2) that is plain, and (3) that affects substantial rights” and that “(4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S.
461, 467 (1997)).
“A variance arises when the evidence presented proves facts that are
‘materially different’ from those [alleged] in the indictment.” United States v.
Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir. 2007) (alteration in original) (quoting
United States v. Harris, 344 F.3d 803, 805 (8th Cir. 2003)). “[A] variance is subject
to the harmless error rule.” United States v. Stuckey, 220 F.3d 976, 981 (8th Cir.
2 Harcrow argues that we should hear his argument on appeal despite his
waiver due to his claims below of ineffective assistance of counsel. Harcrow
acknowledges that this court does not usually entertain claims of ineffective
assistance of counsel on direct appeal, so one was not raised. See United States v.
Pherigo, 327 F.3d 690, 696 (8th Cir. 2003). Even if Harcrow did not waive his claim,
it would fail under a plain error review. United States v. Pirani, 406 F.3d 543, 549
(8th Cir. 2005) (en banc). He cannot show that he was induced to commit the crime
by the government or that he was not predisposed to entice “Connor.” See United
States v. Tobar, 985 F.3d 591, 592 (8th Cir. 2021). Harcrow placed the initial ad
seeking young boys interested in spanking in an area of Craigslist often reserved for
anonymous sexual contact and initiated many of the conversations related to sex
knowing “Connor” was under the age of consent.

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2000). “With regards to a variance, the charging document does not change, only the
evidence against which the defendant expected to defend varies, thus the court
reviews the variance to determine if defendant’s right to notice has been prejudiced,
and absent such prejudice, the variance is harmless error.” Whirlwind Soldier, 499
F.3d at 870 (cleaned up). “The primary consideration . . . is whether the indictment
fully and fairly apprised the defendant of the charges he . . . must meet at trial.”
United States v. Novak, 217 F.3d 566, 574 (8th Cir. 2000) (quoting United States v.
Begnaud, 783 F.2d 144, 148 (8th Cir. 1986)).
The indictment charged that between June 5 and June 27, 2017, Harcrow “did
knowingly attempt to persuade, induce, entice and coerce” a minor identified as
“J.D.” R. Doc. 1. Although “J.D.” was used in the indictment consistent with the
convention of “John Doe,” Harcrow knew before trial that the purported minor,
“Connor,” was fictitious. The shift from the anonymous J.D. to the fictitious
“Connor” did not create a material difference that effected a prejudicial variance
affecting his ability to defend against the charge. The indictment specified both the
timeframe of Harcrow’s communications and described the offense under Ark. Code
Ann. § 5-14-127. At trial, the evidence demonstrated that Harcrow had indeed
communicated with a fictitious minor during the stated period attempting to
persuade, induce, entice, or coerce the fictitious minor. The indictment adequately
informed him that he was charged with attempting to persuade, induce, entice, or
coerce a fictitious minor to engage in unlawful sexual activity in violation of both
Ark. Code Ann. § 5-14-127 and 18 U.S.C. § 2422(b). Under plain error review,
Harcrow cannot show an error in the first instance, let alone one that is both plain
and affects his substantial rights.
D. Right to a Fair Trial
Lastly, Harcrow alleges that the government misstated Arkansas law and
made improper inflammatory remarks during closing arguments, violating his right
to a fair trial. In neither instance did Harcrow object, thus our review is under plain
error. See Pirani, 406 F.3d at 549.

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“Prosecutorial misconduct can result in the reversal of a conviction if (1) the
prosecutor’s conduct or remarks were improper, and (2) the conduct or remarks
prejudicially affected the defendant’s substantial rights by depriving the defendant
of a fair trial.” United States v. Davis, 534 F.3d 903, 914 (8th Cir. 2008). The
following factors are considered to determine if the defendant was deprived of a fair
trial: “(1) the cumulative effect of the misconduct; (2) the strength of the properly
admitted evidence of the defendant’s guilt; and (3) the curative actions, if any, taken
by the district court.” United States v. Eagle, 515 F.3d 794, 804–05 (8th Cir. 2008).
A prosecutor’s closing argument must be limited “to the evidence and the reasonable
inferences that may be drawn from it.” Id. at 805. “[A]ppeals to the passion,
prejudice, or sympathy of jurors during closing argument” can be grounds for
reversal, but prosecutors “may use ‘colorful pejoratives’ and argue a personal
interpretation of the evidence.” Id. (quoting United States v. White, 241 F.3d 1015,
1023 (8th Cir. 2001)).
Harcrow states that the government called him a “predator” during closing
arguments and characterized Harcrow’s claims that he was just going to talk to
“Connor” at the meetup as “preposterous.” R. Doc. 61, at 172, 187. Harcrow further
contends that during the trial and at closing argument, the government misstated the
law as to whether spanking constituted sexual contact under Arkansas law. We
conclude that no misconduct occurred.
At trial, during cross-examination, Meli testified that if spanking occurs for
sexual gratification, it would constitute sexual conduct under Arkansas law. At
closing, the government stated that “[t]he spanking is sexual contact.” Id. at 188.
Harcrow argues that spanking is not per se sexual contact under Arkansas law. He
alleges that “sexual contact” under Arkansas law requires touching the “sex organs,
buttocks, or anus of a person or the breast of a female,” but spanking could be done
on other parts of the body. Ark. Code Ann. § 5-14-101(12).
The government’s statements during closing arguments were directly related
to the evidence and the reasonable inferences drawn from it. During trial and closing

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arguments, defense counsel offered innocent explanations for Harcrow’s
communications with “Connor.” In rebuttal, the government countered that Harcrow
was “not just being a mentor” but was instead a “predator.” R. Doc. 61, at 172. This
was a reasonable inference drawn from the evidence and directly related to
Harcrow’s offered explanations for his behavior. See United States v. Bentley, 561
F.3d 803, 811 (8th Cir. 2009) (finding no plain error when prosecutor used the term
“sexual predator” as a descriptive phrase that furthered the prosecutor’s theory of
the case). The word “preposterous” would also constitute a “colorful pejorative” in
response to Harcrow’s argument in closing that Harcrow’s planned meetup with
“Connor” was a “let’s just talk and see what happens” kind of meeting. R. Doc. 61,
at 182. It is also a reasonable inference that the spanking described by Harcrow in
his messages with “Connor” specifically described spanking “Connor’s” buttocks
with his hand for sexual gratification. Given these facts, there is no plain error here.
III. Conclusion
For the foregoing reasons, we affirm Harcrow’s conviction and sentence.
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