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State v. Solomon

Court of Appeals of Washington, Division 1

May 29, 2018


          Dwyer, J.

         A trial court may dismiss the charges against a defendant when the State is found to have engaged in outrageous misconduct in violation of a defendant's due process right to fundamental fairness. We review such a determination by the trial court for abuse of discretion.

         In this matter, a law enforcement officer anonymously published an advertisement on an online classifieds platform reserved for those over the age of 18 and indicated that she was "a young female" seeking an individual interested in a casual sexual encounter. Joshua Solomon responded to the advertisement. Thereafter, the police officer assumed the guise of a fictional 14 year-old girl and sent Solomon nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited him to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the course of four days.

          The trial court herein found that, in the totality, the actions of the law enforcement officer constituted outrageous misconduct in violation of Solomon's right to due process and dismissed the charges against him.

         The trial court did not abuse its discretion by so ruling.

         Accordingly, we affirm.


         On September 10, 2014, Detective Theresa Luvera of the Skagit County Sheriffs Office anonymously published an advertisement on Craigslist, an online classifieds platform, in a section of the website in which individuals 18 years of age or older could solicit casual sexual encounters.[1] The detective's advertisement was part of an undercover law enforcement operation designed to locate and prosecute individuals desiring to engage in unlawful sexual conduct with minors.

         The detective's advertisement set forth that the individual seeking a casual sexual encounter was "a young female looking for sex with either a man or woman." It did not set forth the individual's name or age.

         On September 12, 29-year-old Solomon responded to the advertisement, inquiring whether the individual who posted the advertisement was "Only interested in woman."[2] Nearly four hours later, Solomon added, "Must be I won't bug anymore."

          Four days later, Detective Luvera replied to Solomon's message. She identified herself as Taylor. Under the guise of Taylor, Detective Luvera indicated that she was still interested in having a sexual encounter. Solomon responded and they began to exchange messages. They also exchanged photographs.[3]

         Forty-five minutes after Detective Luvera initially responded to Solomon's inquiry, she sent him a message discussing her age for the first time. She indicated that she was "almost 15 but waaay advanced." Her message also reiterated that, notwithstanding her young age, she remained very interested in having a sexual encounter with Solomon.

         In response, Solomon sent two messages, each of which expressly rejected Detective Luvera's proposition on the basis that she was a minor. The detective nonetheless replied, "Cum on daddy? Age is only a number." Solomon rejected her proposition for a third time.

         Over the next two hours, the detective continued sending him explicit messages expressing her eagerness to have a sexual encounter with him. In response, Solomon sent two messages in which he began to indicate a willingness to have intercourse with "Taylor, " asking for pictures of her naked or in her underwear. He then suddenly renewed his rejection, stating, "I take everything back not interested at all this is a setup by cops or a website good luck to you."

          Detective Luvera nevertheless persisted, replying, "yeah, I bet u a bj that u would jack off after seeing me in a my bra and ur too hot!" Solomon yet again declined her advances, messaging, "Hahahahahahahahahah what a set up."

         Despite Solomon's rejections, the detective continued communicating with him and encouraging him to have sex with her ("I'm very descrete Josh and my privacy means everything to me too., I just think u are hot and wouldn't mind fucking u, but if ur not into what I got, my loss.").

         In response to another of the detective's messages nearly 30 minutes later, Solomon requested proof that "Taylor" was not a police officer, including requesting that Taylor "friend" him on Facebook, [4] asking her what school she graduated from, and where her cell phone number was from. In response, Detective Luvera responded to his questions calling him "handsome" and "babe" and replying, "Do u quiz all ur dates before u fuck em?"

         The next day, September 17, Detective Luvera renewed the conversation and continued to proposition Solomon. In response to the detective's prompting, Solomon e-mailed the detective a photograph of his penis. Solomon then requested that "Taylor" call him on his cellular telephone. Detective Luvera agreed and they spoke over the telephone.

         On September 18, Detective Luvera sent messages to Solomon both via e-mail and via the messaging interface on Facebook. In her messages, she asked, "Can you cum see me later?" and sent Solomon a photograph with the message, "I have whatya see so far? Lol" and "hang on, I get ya a better one, just 4 u?"

         On September 19, Solomon renewed the conversation and he and Detective Luvera continued messaging one another until Solomon agreed to visit "Taylor" at her home later that night. Shortly thereafter, Detective Luvera messaged Solomon and asked him to purchase lingerie-"U gonna buy me something to sexy to wear at VS?"-and alcohol-"Gonna bring me a little something sweet to drink baby? Like a wine cooler than I can lick off u? lol I go crazy over strawberry wine" She also demanded that Solomon pay her in exchange for a nude photograph or in anticipation of their planned sexual encounter-"Money....I mean either U pay for the pics or U pay to fuck my sweet pussy.....I know u want both.").

         The messaging continued throughout the day with Detective Luvera sending Solomon sexually suggestive and explicit messages, including "Ur really r going to cum?, " "U can take all u want of me after I get a piece of ur ass lol, " "I'll meet u at the tennis crt bench with no panties on....wearing my tennis skirt, " "now I'm wet....Don't even think ur cumming over here and teasing me, " "U know how long it takes me to blow dry my hair? U can't cum in it either, " "I'll have enough of u to drink up anyway, " and "tellme baby what u want my mouth to do 2 u."[5]

          That evening, Solomon arrived in the neighborhood near the address that Detective Luvera had given him and was approached by law enforcement officers alerted to the detective's operation. Solomon was arrested shortly thereafter. In a search of his person and his pick-up truck, law enforcement officers uncovered a sealed condom wrapper, $60 in cash, [6] a store receipt from earlier that day itemizing the purchase of a sex toy and lingerie, and a plastic bag containing the purchases itemized in the receipt.

         Solomon was charged with one count of communication with a minor for immoral purposes, one count of commercial sex abuse of a minor, and one count of attempted rape of a child in the third degree.

         Before trial, Solomon moved to dismiss the charges against him, arguing that the State had engaged in outrageous governmental misconduct in violation of his due process right to fundamental fairness.

         The trial court granted Solomon's motion and ordered the charges against him dismissed.



         In evaluating a trial court's determination that the State engaged in outrageous misconduct in violation of a defendant's due process right to fundamental fairness, we initially turn to our Supreme Court's decision in State v. Lively. 130 Wn.2d 1, 921 P.2d 1035 (1996).


         In Lively, our Supreme Court recognized that the due process clause of the Fourteenth Amendment to the United States Constitution protects against conduct by state actors "'so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction."' 130 Wn.2d at 19 (quoting United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)); U.S. Const, amend XIV. Such conduct "must be so shocking that it violates fundamental fairness." Lively. 130 Wn.2d at 19-20 (citing State v. Myers. 102 Wn.2d 548, 551, 689 P.2d 38 (1984); State v. Smith. 93 Wn.2d 329, 351, 610 P.2d 869 (1980)); accord Russell, 411 U.S. at 432.

         Establishing the outrageousness of the State's misconduct, however,

requires more than a mere demonstration of flagrant police conduct. Myers. 102 Wn.2d at 551. Public policy allows for some deceitful conduct and violation of criminal laws by the police in order to detect and eliminate criminal activity. State v. Emerson. 10 Wn.App. 235, 242, 517 P.2d 245 (1973). Dismissal based on outrageous conduct is reserved for only the most egregious circumstances. "'It is not to be invoked each time the government acts deceptively[.]'" United States v. Sneed. 34 F.3d 1570, 1577 (10th Cir. 1994) (quoting United States v. Mosley. 965 F.2d 906, 910 (10th Cir. 1992)); see also State v. Pleasant. 38 Wn.App. 78, 83, 684 P.2d 761. review denied. 103 Wn.2d 1006 (1984).

Lively. 130 Wn.2d at 20.

         In evaluating whether a defendant's due process right to fundamental fairness was violated, our Supreme Court instructed that "[a] violation of due process must be determined as a matter of law and it is the trial court which makes the findings of fact related to that decision." Lively. 130 Wn.2d at 24. It "is ... not a question for the jury." Lively. 130 Wn.2d at 19 (citing United States v. Dudden. 65 F.3d 1461, 1466-67 (9th Cir. 1995), State v. Hohensee. 650 S.W.2d 268, 272 (Mo. App. 1982)).

         The Lively court instructed that a trial court, in considering a claim of outrageous governmental misconduct,

should evaluate the conduct based on the "totality of the circumstances." United States v. Tobias. 662 F.2d 381, 387 (1981), cert, denied. 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982); State v. Hohensee. 650 S.W.2d 268 (Mo. App. 1982). Each case must be resolved on its own unique set of facts and each component of the conduct must be submitted to scrutiny bearing in mind "proper law enforcement objectives-the prevention of crime and the apprehension of violators, rather than the encouragement of and participation in sheer lawlessness." People v. Isaacson. 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78, 83 (N.Y. 1978); [United States v.] Bogart. 783 F.2d [1428, ] 1438 [(9th Cir. 1986)]. The government conduct may be so extensive that even a predisposed defendant may not be prosecuted based on "the ground of deprivation of due process." Hohensee. 650 S.W.2d at 271 (quoting United States v. Bagnariol. 665 F.2d 877 (9th Cir. 1981)).

130 Wn.2d at 21-22.

         As part of the totality of the circumstances evaluation, the Lively court identified five factors to be considered by a trial court:

[W]hether the police conduct instigated a crime or merely infiltrated ongoing criminal activity, ([United States v.] Harris. 997 F.2d [812, ] 816 [(10th Cir. 1993)]); whether the defendant's reluctance to commit a crime was overcome by pleas of sympathy, promises of excessive profits, or persistent solicitation, (Isaacson, 378 N.E.2d at 83; [State v. ]Shannon. 892 S.W.2d [761, ]765 [(Mo. App. 1995)]); whether the government controls the criminal activity or simply allows for the criminal activity to occur (United States v. Corcione. 592 F.2d 111, 115 (2nd Cir.), cert, denied. 440 U.S. 975 and 440 U.S. 985 (1979)); whether the police motive was to prevent crime or protect the public (Isaacson. 378 N.E.2d at 83; Shannon. 892 S.W.2d at 765); and whether the government conduct itself amounted to criminal activity or conduct "repugnant to a sense of justice." Isaacson. 378 N.E.2d at 83; United States v. Jensen. 69 F.3d 906, 910-11 (8th Cir. 1995), cert, denied. 116 S.Ct. 1571 (1996).

130 Wn.2d at 22.

         Accordingly, in determining whether the State has engaged in outrageous misconduct, a trial court must consider whether the State's conduct was so shocking that it violated fundamental fairness-a totality of the circumstances inquiry that includes weighing the considerations outlined in Lively. 130 Wn.2d at 19, 21-22, 24.


         Notably, although the Lively court set forth the legal standard applicable to a trial court's determination of outrageous governmental misconduct, the court did not set forth the standard of review applicable to such a determination. This was so because Lively had "raised this issue for the first time in her appellate brief, " Lively. 130 Wn.2d at 18-19, and the trial ...

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