State v. Stott

542 P.3d 1018

STATE of Washington, Respondent/Cross Appellant,

v.Benjamin Adam STOTT, Appellant/Cross Respondent.

No. 57114-5-II

Court of Appeals of Washington, Division 2.

Filed December 19, 2023

Ordered Published Date February 13, 2024

Appeal from Pierce County Superior Court, Docket No: 18-1-03034-1, Honorable Jennifer Andrews, Judge.

Cassandra L. Stamm, The Law Offices of Cassandra Stamm PLLC, 1000 2nd Ave. Ste. 3140, Seattle, WA, 98104-1046, for Appellant/Cross-Respondent.

Pamela Beth Loginsky, Pierce County Prosecuting Attorneys Office, 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2171, Madeline Mary Hill, Attorney at Law, 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2163, for Respondent/Cross Appellant.

Cruser, A.C.J.

¶ 1 Benjamin Stott appeals his convictions of attempted second degree rape of a child, attempted commercial sexual abuse of a minor, and communication with a minor for immoral purposes. The convictions stem from Stott’s communications with an undercover Washington State Patrol (WSP) officer who was posing as a fictional 13-year-old girl ("Kaci") as part of an online sting operation which aimed to find and arrest adults interested in sex with children. Stott was arrested and charged upon leaving his home to meet up with "Kaci." Stott moved to dismiss the charges against him, claiming that he was denied due process as a result of outrageous government conduct stemming from the sting operation. The trial court, after applying the five factors outlined in State v. Lively, 130 Wash.2d 1, 19, 921 P.2d 1035 (1996), denied the motion. Stott was convicted following a jury trial and was sentenced to 75.25 months based on an offender score of zero.

¶2 Stott appeals the denial of his motion to dismiss. The State cross appeals Stott’s sentence, asserting that the trial court erred in concluding that Stott’s three convictions constituted the same criminal conduct. We affirm Stott’s conviction because the trial court did not abuse its discretion in denying his motion to dismiss. However, we remand for resentencing because Stott’s crimes do not constitute the same criminal conduct,.

FACTS

I. Underlying Incident

¶3 In July 2018, WSP conducted a "Net Nanny" operation, aiming to find and arrest adults interested in having sex with children. As part of the operation, WSP advertised on Doublelist, which is an online bulletin board.¹

¶4 A WSP sergeant posted an ad on Doublelist, posing as a fictitious 13-year-old girl named "Kaci." Clerk’s Papers (CP) at 435. The headline of the ad read " ‘Nice girl ready to play ;) (Puyallup),’ " and the body of the ad read, " ‘younger than u think. I’m here for the weekend HMU [(hit me up)] if you want to chat, open to everything and would like [someone] older to teach me new stuff.’ "² Id. at 463-64.

¶5 Benjamin Stott responded to "Kaci’s" ad on July 26, 2018, saying " ‘how young? I’m totally down to chat, or play, or anything in between - could even uber you to my place up in seattle tonight…;)’ " Id. at 464. "Kaci" replied saying, " ‘Im looking for a older guy to teach me cool stuff. I’ll be honest I’m 13 so if that’s to yung [sic] i understand. If not HMU and we can chat.’ " Id. Stott responded: " ‘I’m down to chat. Don’t worry too much - I’m 25 an dI’m sure I can teach you a thing or two. :) Got any kind of day or time in mind?’" Id. "Kaci" and Stott moved the conversation to text message, and proceeded to exchange over 900 text messages over the course of the following five days.

¶6 During the course of their exchange, "Kaci" reminded Stott of her age multiple times. Id. at 437 (" ‘im 13 not stupid’ "), 442 (" ‘im [f***ing] 13!’ "), 444 (" ‘im 13 years old in a house by myself. it can be scary for me’ "), 455 (" ‘im only 13 remember. i don’t have a bank accoutn’ "). Stott explicitly acknowledged "Kaci’s" age multiple times. Id. at 444 (" ‘You’re 13 and it’s going to be after lam. Chances are you won’t be able to keep your eyes open even though you want to!’ "), 445 (" ‘I’m not the cops … But you’re 13. You know how much trouble I can get in here, right?’ "). Stott also expressed suspicion that he was being set up. Id. at 445 (" ‘You have to understand, you’re saying you’re 13 and on the internet. How do I know this isn’t a set up?’ ").

¶7 Stott was the first to discuss sex after "Kaci" typed "‘can u come to puyallup and play? ;)’ " Id. at 435. Stott asked about "Kaci’s" experience, and "Kaci" replied that she had " ‘a little but not much.’ " Id. "Kaci" asked Stott " ‘what have u done?’ " Id. Stott answered, "‘All sorts of things. Vanilla sex, teaching anal, sometimes my play partners like ropes or impact, giving up control, public play. You name it and I might have tried it.’ " Id. Stott engaged in extensive conversation with "Kaci" around whether he would need to wear a condom, and potential payment. Id. at 436 (" ‘It’s far more fun without a condom, … You can definitely earn some favours. … I’d happily give you $20 each if both of you taste and one of you swallows my cum .. I’d offer $50 for anal.’ "). The two also went back and forth on meeting locations, with Stott eventually convincing "Kaci" to meet him in Seattle.

¶8 While Stott expressed some concern that he was being " ‘catfish[ed]’ " and that this was a setup, he did not try to end the communication. Id. at 439, (" ‘I’m not coming unless I know you and your friend are both real.’ "), 440 (" ‘You first, since you’re the catfish.’ "), 445 (" ‘How do I know this isn’t a set up?’ ’’). Both Stott and "Kaci" reinitiated the conversation after breaks in communication. Id. at 437 ("Kaci" messaged Stott on the morning of July 27, after the two signed off the night before), 438 ("Kaci" messaged " ‘ru flaking on me?’ " after not hearing from Stott for a few hours), 447 (Stott messaged " ‘Still there? If you’re worried about something in particular, want to call me in 10 minutes?’ "), 449 (Stott messaged " ‘Still there? I’m leaving in 5m.’ ").

¶9 Both Stott and "Kaci" were persistent in attempting to meet in person. On a few occasions, "Kaci" tried to persuade Stott by using pleas of sympathy. Id. at 446 (" ‘i don’t have any food in the house. … can u come here an bring me dinner?’ "), 450 (" ‘im scared so can u hurry?’"). "Kaci" also told Stott she would find someone else to meet. Id. at 438 (" ‘u better not let me down … im going to find someone else for us if u don’t answer’ "), 439 (" ‘ur being a dick … were going to find someone else’ "), 441 (" ‘ur lame’ "). Stott used very sexual language in exchanges with "Kaci." Id. at 442 (" ‘I would pin you down, choke you, spank you, [f**k] you raw and without lube, cum inside you repeatedly. … If you kick me in the balls I’m going to tie you up, hurt you, and pump so much cum into you you overflow’ "), 454 (" ‘Maybe I should uber you here. I need a cum receptacle for the night.’ ").

¶10 When Stott first responded to the ad, he offered to send an Uber to pick "Kaci" up and take her to his home in Seattle that night. He made this offer repeatedly throughout their exchange. Id. at 440 (Stott messaged " ‘I’ll pay for your uber to and from here’ " on July 28), 442 (the next day he made the same offer " ‘If you get an uber here I’ll cover the costs.’ "). On July 30, Stott drove from Seattle to Puyallup to meet up with "Kaci" who requested that they meet at the local 7-Eleven. When that attempt to meet in person failed, Stott again offered to send an Uber to pick "Kaci" up.³ Id. at 451 (" ‘I’m halfway back home. Uber from where you are to my place; I’ll pay for it and you can stay the night.’ "). Eventually, "Kaci" agreed and Stott did send an Uber to pick her up that night.

¶11 On July 31, "Kaci" told Stott that her friend ordered her an Uber to Seattle. Stott agreed to meet "Kaci" at a pizza parlor near his home. Officers arrested Stott "as he was observed leaving his home and walking in the direction of the pizza parlor." Id. at 711.

II. Procedural History

¶12 Stott was arrested and charged with attempted second degree rape of a child, attempted commercial sexual abuse of a minor, and communication with a minor for immoral purposes. Stott moved to dismiss the charges against him, arguing that he was denied due process as a result of outrageous government conduct. Stott contended that the government, motivated by an intent to prosecute rather than an intent to protect the public, instigated the crimes, used pleas of sympathy to convince Stott to engage, controlled all criminal activity, and acted in a way that was repugnant to a sense of justice. The State responded that the police actions were motivated by an intent to protect children, the conduct merely infiltrated ongoing criminal activity which the government did not control, and Stott was not truly reluctant to commit the crimes.

¶13 At the hearing, the trial court was presented with the facts outlined above. After hearing oral argument from the parties and considering the Lively⁴ factors, the court denied the motion to dismiss, reasoning that "dismissal for government misconduct is to only occur on the most egregious circumstances," and the behaviors of the State, "taken in their entirety, do not rise to that level." Verbatim Rep. of Proc. (VRP) (Apr. 28, 2022) at 10. In its written ruling, the trial court discussed the five Lively factors, finding that (1) WSP did not instigate the criminal activity; (2) "[a]ny reluctance by the defendant to commit a crime was not overcome by pleas of sympathy, promises of excessive profits, or persistent solicitation;" (3) Stott controlled the criminal activity; (4) the motive of the police was to protect the public; and (5) "the government’s conduct itself does not amount to criminal activity repugnant to a sense of justice." CP at 711-13.

III. Sentence & Offender Score

¶14 A jury found Stott guilty of attempted rape of a child in the second degree, attempted commercial sexual abuse of a minor, and communication with a minor for immoral purposes. At sentencing, Stott argued that his...