      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                          )       DIVISION ONE
                     Appellant,           )
                                          )       No. 76298-2-1
              V.                          )
                                          )      PUBLISHED OPINION
JOSHUA JOSEPH SOLOMON,                    )
                                          )
                     Respondent.          )
                                          )      FILED: 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      CO   0)g.
                                                                             CO   3:
                                                                                   3•

interested in a casual sexual encounter. Joshua Solomon responded to the
                                                                            —c cs
                                                                                -n _
advertisement. Thereafter, the police officer assumed the guise of a fictionaW-
                                                                           MID
                                                                                l'orn
                                                                                Cl)rtl
                                                                                      o
year-old girl and sent Solomon nearly 100 messages laden with graphic,          -*-r-
                                                                           Y? G2cal
sexualized language and innuendo and persistently solicited him to engage in.a
                                                                                    Y.*



sexual encounter with the fictional minor, notwithstanding that he had rejected

her solicitations seven times over the course of four days.
No. 76298-2-1/2


        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.

                                                 I

        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) 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."



         1 In order to publish or respond to such an advertisement, the website's terms and
conditions required that a participating individual acknowledge that they are eighteen years of age
or older.
         2 We reference the parties' electronic communications using the original punctuation,
syntax, and spelling.


                                                2
No. 76298-2-1/3


        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."



          3 In the supplemental narrative to her incident report, Detective Luvera indicated that
"[t]tle photos I used were known people to law enforcement and had agreed to allow us to use
their photos for this investigation and signed a release agreement."


                                               - 3-
No. 76298-2-1/4


       Detective Luvera nevertheless persisted, replying, "yeah, I bet u a bj that u

would jack off after seeing me in a my bra and thong       lol 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 ern?"

       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


       4   Facebook is an online social media platform.


                                              -4-
No. 76298-2-1/5


message, "I have more....like 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? lot I go

crazy over strawberry wine coolers...lol." She also demanded that Solomon pay

her in exchange for a nude photograph or in anticipation of their planned sexual

encounter—"Money....1 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




               roughly 200 messages exchanged between Solomon and Detective Luvera,
        5 Of the
Detective Luvera sent nearly 60 percent.


                                           5
No. 76298-2-1/6


       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.

                                               II

                                               A

       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).




      6   Earlier that day, Solomon had messaged Detective Luvera, "I hae 60 in my pocket."


                                             -6 -
No. 76298-2-1/7


                                        1

      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



                                         7
No. 76298-2-1/8


"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.1 Bopart, 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; IState v. 1Shannon, 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


                                           8
No. 76298-2-1/9


      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.

                                         2

       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 court therein was thus never

presented with the opportunity to rule on the due process issue.

       Under these circumstances, the Supreme Court analyzed the uncontested

evidence adduced at trial and the uncontested findings of fact entered by the

court at sentencing. Using those facts as its record, the Supreme Court

determined that law enforcement had therein engaged in unseemly manipulation

and prosecution of a recovering drug and alcohol user, concluding that "there is

no question that this conduct, as a matter of law, was so outrageous as to have

violated due process principles." Lively, 130 Wn.2d at 22-27.




                                         9
No. 76298-2-1/10


      Thus, although the record in Lively did not include a trial court

determination of whether the State engaged in outrageous misconduct, the

undisputed evidence of misconduct of record therein allowed the Lively court to

resolve the due process issue without the necessity of setting forth the applicable

appellate standard of review.



       Nearly nine months later, our Supreme Court revisited the topic of

outrageous governmental misconduct in State v. Valentine, 132 Wn.2d 1, 935

P.2d 1294(1997). Although, as in Lively, the issue was "not raised at the trial

court or at the Court of Appeals," Valentine, 132 Wn.2d at 22, the court

nevertheless provided guidance regarding the appellate deference owed to a trial

court in the context of an outrageous governmental misconduct claim.

       As in Lively, the court in Valentine addressed the question of whether

criminal charges against a defendant should be dismissed because the State's

conduct had been "so outrageous as to be violative of his right to due process as

guaranteed by the Fifth and Fourteenth Amendments to the United States

Constitution." 132 Wn.2d at 22.

       However, the Valentine court indicated that the record therein was "not at

all like that which was confronted in Lively." 132 Wn.2d at 23. This was so, the

court observed,"because the record we have been furnished does not permit us

to reach a determination that the police acted in such an outrageous manner that

due process considerations dictate dismissal of the charge against Valentine."

Valentine, 132 Wn.2d at 23. Specifically, unlike the situation in Lively, wherein



                                       - 10-
No. 76298-2-1/1 1


undisputed evidence and findings could be relied upon by the court, the evidence

regarding whether a State actor had, in actuality, engaged in the outrageous

misconduct alleged by Valentine was contested by both parties. Valentine, 132

Wn.2d at 23.

       Under these circumstances, our Supreme Court declined to resolve the

factual disputes.

       Those facts, however, are not to be resolved at the appellate court,
       nor should we view them in the light most favorable to the
       defendant. Resolution of factual disputes is a task for the trier of
       fact, not this court. LIR; v. Becton-Dickinson, 105 Wn.2d 653, 657,
       717 P.2d 1371 (1986).
               Unfortunately, the trial court was not asked to make findings
       of fact on this issue.

Valentine, 132 Wn.2d at 23-24.

       The court concluded, notwithstanding its misgivings about the veracity of

the law enforcement officers' trial testimony, that

       in the absence of findings of fact or undisputed facts showing
       outrageous conduct by the Spokane police officers, we cannot say
       that their conduct was violative of due process. Consequently, we
       are unwilling to direct dismissal.

Valentine, 132 Wn.2d at 24.

       The Valentine court thus emphasized that an appellate court should

neither weigh the underlying facts nor resolve factual disputes prior to

determining an outrageous governmental misconduct claim. Rather, the court

instructed that such tasks are properly reserved to the trial court. Valentine, 132

Wn.2d at 23-24 (citing Li!lig, 105 Wn.2d at 657).
No. 76298-2-1/12




       A decade later, for the first time, a claim of outrageous governmental

misconduct was presented to the Supreme Court in a case in which a full trial

court record was extant. In State v. Athan, law enforcement officers, "posing as

a fictitious law firm, induced Athan to mail a letter to the firm." 160 Wn.2d 354,

362, 158 P.3d 27(2007). They did so in order to obtain a sample of his DNA.

Athan moved to dismiss the charges against him pursuant to both CrR 8.3(b) and

a claim of violation of his due process right to fundamental fairness. Athan, 160

Wn.2d at 364. The trial court therein had

       denied Athan's motion to dismiss because, after looking at a totality
       of the circumstances, it found the police were acting to protect the
       public by solving the crime, the illegal activity engaged in was only
       a misdemeanor, and the police conduct was not repugnant to a
       sense of justice.

Athan, 160 Wn.2d at 376.

       On direct Supreme Court review, Athan asserted that the trial court erred

because the charges against him "should be dismissed under CrR 8.3(b) and the

due process clauses of the state and federal constitutions." Athan, 160 Wn.2d at

376.

       Significantly, in setting forth the standard of review, our Supreme Court

announced that it would review the trial court's denial of Athan's motion to

dismiss "under an abuse of discretion standard." Athan, 160 Wn.2d at 375.

"Abuse of discretion," the court stated, "requires the trial court's decision to be

manifestly unreasonable or based on untenable grounds or untenable reasons."




                                        - 12-
No. 76298-2-1/13


Athan, 160 Wn.2d at 375-76 (citing State v. Michielli, 132 Wn.2d 229, 240, 937

P.2d 587 (1997)).7

       In reviewing the trial court's determination for abuse of discretion, the

court concluded that

       [t]he claimed misconduct in this case does not involve actions
       similar to those cases which found misconduct warranting
       dismissal. The police did not induce Athan to commit any crime
       here nor did they attempt to gain any confidential information from
       the ruse. The conduct here is not so outrageous as to offend a
       sense of justice or require dismissal of this case.

Athan, 160 Wn.2d at 378.

                                                 D

        As indicated, the motion to dismiss in Athan was brought on two bases:

governmental misconduct pursuant to CrR 8.3(b) and outrageous governmental

misconduct.

        On appeal, our Supreme Court utilized the same standard of review in

reviewing each claim. The claims were separate because they address different

concerns.

        CrR 8.3(b) reads:

        The court, in the furtherance of justice, after notice and hearing,
        may dismiss any criminal prosecution due to arbitrary action or
        governmental misconduct when there has been prejudice to the
        rights of the accused which materially affect the accused's right to a
        fair trial.



        7 In concurring, Justice Alexander also granted deference to the trial court.
        Reasonable minds may differ regarding the trial court's and the majority's
        conclusion that the ruse employed here was not repugnant to a "sense of
        justice." Majority at 378. However, in my view, the extraordinary remedy of
        dismissal is not called for in this case because the trial court's reasoning for
        denying the motion was not manifestly unreasonable or untenable.
Athan, 160 Wn.2d at 390-91 (Alexander, C.J., concurring).


                                               -13-
No. 76298-2-1/14


(Emphasis added.) Therefore, by its plain terms, CrR 8.3(b) applies only to a

claim that the right to a fair trial was compromised. The Athan court recognized

this. 160 Wn.2d at 375 (quoting CrR 8.3(b)).

       The outrageous governmental misconduct claim was targeted at a

different claimed evil, a deprivation of fundamental fairness. Nevertheless, the

Athan court utilized the same standard of review—abuse of discretion—when

analyzing the claim. 160 Wn.2d at 375.

       The court's analysis makes sense. As a fundamental matter, a

governmental misconduct claim pursuant to CrR 8.3(b) is predicated on a

violation of the right to a fair trial, a right guaranteed by the Fourteenth

Amendment's due process clause. State v. Davenport, 100 Wn.2d 757, 762,675

P.2d 1213(1984)(citing Smith v. Phillips, 455 U.S. 209, 220-21, 102 S. Ct. 940,

71 L. Ed. 2d. 78 (1982)). Relatedly, an outrageous governmental misconduct

claim is predicated on a violation of the right to fundamental fairness, also a right

guaranteed by the Fourteenth Amendment's due process clause. Lively, 130

Wn.2d at 19 (citing Russell, 411 U.S. at 432).

       Consequently, by providing a mechanism for relief when the State violates

a defendant's due process right to a fair trial, CrR 8.3(b) provided the Athan court

with an analytical framework for determining whether the State's conduct

constitutes a violation of a related due process right—specifically, the right to

fundamental fairness. Given that, it was sensible for the Athan court to utilize the

same abuse of discretion standard of review that it routinely applied in reviewing

trial court CrR 8.3(b) rulings.



                                         - 14 -
No. 76298-2-1/15


       Here, Solomon moved to dismiss the charges against him on the basis

that the State had engaged in outrageous misconduct in violation of his due

process right to fundamental fairness. The trial court dismissed the charges

against him on that basis. During the proceeding, neither Solomon nor the trial

court relied on CrR 8.3(b).

      The State contends that we cannot utilize an abuse of discretion standard

in reviewing the trial court's order because Solomon did not move to dismiss the

charges against him pursuant to CrR 8.3(b). We disagree. It is plain that Athan

compels the use of that very standard.

                                         111

      The State assigns error to the trial court's ruling that the State engaged in

outrageous misconduct in violation of Solomon's right to due process.

      The Fourteenth Amendment 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." Lively, 130 Wn.2d at 19

(quoting Russell, 411 U.S. at 431-32). This State conduct "must be so shocking

that it violates fundamental fairness." Lively, 130 Wn.2d at 19-20 (citing Myers,

102 Wn.2d at 551; Smith, 93 Wn.2d at 351); accord Russell, 411 U.S. at 431-32.

       A trial court "must examine the totality of the circumstances to determine

when the conduct becomes so outrageous that a reversal of a conviction is

required." Athan, 160 Wn.2d at 377. In consideration of the totality, a trial court

does not consider each aspect of the State's conduct in isolation. Indeed, "[t]he

totality-of-the-circumstances test 'precludes this sort of divide-and-conquer



                                       -15-
No. 76298-2-1/16


analysis." District of Columbia v. Wesbv,       U.S.     , 138 S. Ct. 577, 588, 199

L. Ed. 2d 453(2018)(quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S.

Ct. 744, 151 L. Ed. 2d 740(2002)).

       We review a trial court's order on a motion to dismiss on the basis of

outrageous governmental misconduct "under an abuse of discretion standard."

Athan, 160 Wn.2d at 375. "Abuse of discretion requires the trial court's decision

to be manifestly unreasonable or based on untenable grounds or untenable

reasons." Athan, 160 Wn.2d at 375-76 (citing Michielli, 132 Wn.2d at 240). A

trial court abuses its discretion when its decision adopts a view that no

reasonable person would take. State v. Sisouvanh, 175 Wn.2d 607, 623, 290

P.3d 942(2012).

       Here, the trial court entered several findings of fact regarding the

outrageousness of Detective Luvera's conduct. The trial court first found that law

enforcement had instigated the criminal activity at issue. At the hearing, the trial

court found:

               There is no question how this came to be, that the first thing
       that happened was, in order to respond to something, there has to
       be something to respond to.
               Detective Luvera -- and let me say this about Detective
       Theresa Luvera. I've known Detective Luvera for years and she's
       been the lead detective on a number of the largest cases we've had
       here in Skagit County. Detective Luvera is an extremely capable
       and competent and confident detective. But I think she went over
       the top on this one.
               Anyway, she instigated the thing, got it started, got the ball
       rolling by placing an ad on Craigslist.
               And I understand on Craigslist you can buy furniture,
       automobiles, musical instruments, and partners if you hit the right
       keystroke. So an ad was placed on the Craigslist -- what was that
       called again, Mr. Freeman?
               MR. FREEMAN: Casual encounters.


                                       -16-
No. 76298-2-1/17


               THE COURT: -- casual encounters part of it for people to
       hook up or connect with each other. And it was on the casual
       encounters, over 18.
               And I'm assuming Craigslist I don't know about how they
       exactly run their business, but I'm assuming that they don't have a
       website in there that would allow a person to look for minors. So
       I'm assuming Craigslist standards would say you've got to be over
       18 to get into this deal.
               So Craigslist has a website known as casual encounters,
       you've got to be over 18 to solicit on that, and you need to be over
       18 to respond on that, I'm assuming, under Craigslist standards.
               So Mr. Solomon, on September 12th at 2:40, he responds
       and says,"only interested in woman." He's obviously referring to
       the Craigslist post by the detective. Nothing happens.
               About four hours later, three and a half hours later, at 6:16,
       Mr. Solomon replies, "must be I won't bug you anymore."
               At that point in time, I guess the detective has a prong in the
       road. One is, okay, I can spend my time looking for someone who
       really took the hook and ran with it and spend my time going after
       those people and cut — and cut this one right here because this
       individual, whoever this Mr. Solomon is, decided he doesn't want to
       bug me anymore, and end it. Or the detective can take the other
       prong, which is, well, you know, I've got nothing else to do, maybe I
       can set the hook on this Mr. Solomon and we'll see if we can reel
       him in a little bit. So that's what prong Detective Luvera takes.
               So the next morning at September 16, Tuesday morning at
       10:00 a.m., Detective Luvera instigates the first contact. And I think
       that's important as to who instigated this and got the ball rolling.

       The trial court found that law enforcement had instigated the criminal

activity herein by publishing the "casual encounters" advertisement on Craigslist

and by initially messaging Solomon even though he had indicated that he would

not again contact the individual who had posted the advertisement.

       The trial court next found that law enforcement had engaged in persistent

solicitation that overcame Solomon's reluctance to commit the underlying

criminal conduct. Specifically, the trial court found:

      [T]he next morning at September 16, Tuesday morning at 10:00
      a.m., Detective Luvera instigates the first contact. .. .



                                        - 17 -
No. 76298-2-1/18


                She says "LOL" LOL is laugh out loud -- "your not bugging
      me. I was camping and have no cell service. I'm not against guys
      and sex, done it a few times.. . I'm just really liking sex with girls
      right now. What you thinking?" And Mr. Solomon responds.
                They get through the three -- eight or ten initial back and
      forths over what's your name and that kind of thing. And by about
      half an hour later or so, Mr. Solomon says,"wow," when it's
      disclosed that she's 15.
                Actually, Detective disclosed that, "I'm almost 15 but waaay
      advanced, I'm taking college courses because high school was so
      stupid... I'm totally descreet .. . like my dads friends... r u up for
      me... cum on, Josh."
                So Josh then replies, "wow, 15," probably "not the best idea
      sorry I'm not willing to get in trouble . . . maybe hit me up in 3 years
      if your still around girl," period.
                Now, once again, Detective's got two forks in the road.
      One is, okay, this guy twice now has told me he's not -- he's
      refused to take the bait because I'm 15, end this operation right
      now, spend my time going after somebody who's going to actually
      be impressed by the fact that I'm a minor.
                Or the other prong in the road, can I -- should I continue to
      let the line out a little bit and see if I can hook this guy in a little
      deeper. Detective takes that prong again.
                The next comment is from Mr. Solomon. "Wow 15,"
      probably "not the best idea sorry I'm not willing to get in trouble. . .
      maybe hit me up in 3 years if your still around girl. Your dad's
      friends got balls."
                Another fork in the road. Detective chooses the one to see if
      she can let the line out a little more, and Mr. Solomon, stupid
      enough at the time to keep taking the line. And they go through this
      little drill for a while.
                Mr. Solomon again says,"As tempting as it is I'm gonna
      have to say ... something doesn't add up... you... really don't
      want to get a rape charge that would be no good for me." The
      detective keeps going and they chat.
                1:00 in the afternoon, they're back again. Mr. Solomon says,
      "I take everything back." I'm "not interested at all this is a setup by
      the cops .. . good luck to you."
                Mr. Solomon, 2:18, says,"prove it. .. girl what school did
      you go to where is your cell number." And then they start talking
      about some Facebook exchanges and -- in an attempt by Mr.
      Solomon -- it's pretty obvious from the textual content that he's
      looking for some proof about age wanting a Facebook site or
      something, pictures, a name, a school, et cetera. So this goes on
      all afternoon back and forth.



                                       - 18-
No. 76298-2-1/19


              Then on Wednesday, the next day, September 17, 9:46 in
      the morning, the detective instigates it again. First text sent,"Hey
      whazzzzzzzz up hottie? Lol I'm bored," and they discuss again,
      keep talking. The detective then -- and on it goes.
              So as you say, Mr. Freeman, about seven times there was
      an innuendo or an indication by Mr. Solomon that he wanted out
      and would end it, and all seven times, those forks in the road, the
      detective chose to take the one letting the line out to see if she
      could keep reeling him in. And as you said, about 60 percent or so,
      three in five of the texts were instigated by the detective.
              So I think that fits the bill for whether the defendant's
      reluctance to commit the crime was overcome by persistent
      solicitation. It was persistent. You can't read this and not say it
      wasn't -- if Detective Luvera is one thing, she is persistent in
      everything she does.

      The trial court thus found that Solomon's reluctance to commit the crime

was manifested by his repeated—seven times—attempts to discontinue the

conversation. The trial court further found that the State had engaged in

persistent solicitation of Solomon, given that the detective continued to solicit him

each of the seven times that he sought to withdraw and, in addition, sent the

majority of the over 200 messages exchanged between the two parties.

       The trial court also found that the State had controlled the criminal

conduct.

      The government controlled this. They started it, they initiated it.
      The first three days -- on Thursday, the next day, the third day in
      the situation, 8:46 in the morning, first text, Detective, "Hey, sorry
      babe, I just got home. My dad showed up... and made me go to
      his house... I will friend you right now. Do u hate me?" And they
      talk again.

       The trial court thus found that Detective Luvera controlled the criminal

conduct both by initiating the interaction between her and Solomon and by

stringing him along over the course of the four days of exchanges.




                                       - 19-
No. 76298-2-1/20


        The trial court next found that the conduct by law enforcement was

repugnant to a sense of justice.

        I can't believe the detective would want to go to trial on this and
        subject this language to citizens.
                I'm just going to give you a little tidbit. At 3:17 on
        Wednesday, September 17th, the detective says,"OMG U R so
        fing hung baby!!! VVTF ... I'm so amped up after seeing this. I
        have wait for my sister to leave and I am gonna video tape me
        finger banging me to ur plc! Can't u cum and see me now!!!"
                Yeah, that's repugnant. I don't care how you cut that pie.
        You can be a seasoned old sailor or whatever, but that is
        repugnant. That's a detective letting line out very fast on a free
        spool trying to get Mr. Solomon back in the game. And there is no
        other way to -- there is no other way to describe it. It's outrageous.
        That is repugnant. It's egregious.
                I'm not saying that the facts in this case are as egregious as
        Lively where they go and solicit a lady who's tried to commit suicide
        in the AA meeting, but the facts in this are egregious enough to
        meet the standards in Lively.

               And we'll see -- I hope this goes to the Court of Appeals
        because, as I said, we have an impasse. It's three prosecutors
        versus three judges, three judges who have all looked at this.
        Interesting to see what the Court of Appeals thinks, or the Supreme
        Court, as to whether or not this is.[8]
                Because I think we really do -- I'm not the genius on this. My
        word shouldn't be the final say. I think we do need -- because it's
        been a long time since Lively. This is -- this happens all the time.
        The sex trade on the internet is a horrendous problem. The
        detectives and law enforcement have to do something to do that,
        they need to do stings, but we need to have a line about how far is
        too far, and I think this is a good one to do that on.
               So more power to appellate courts and the Court of Appeals
        on this, and they can take a look at it.




         8 At an earlier hearing, the trial judge had urged the deputy prosecutor to run the case by
other prosecutors. The judge mentioned that he would be doing the same with his judicial
colleagues, each of whom were former prosecutors. The trial judge was a judge with 30 years of
judicial experience who had previously served as the elected county prosecutor.



                                               - 20 -
No. 76298-2-1/21


               But to this judge's way of thinking, who is -- who did spend
        five years in the service, three of them overseas and have seen a
        few monkeys and footballs, I find it outrageous and over-the-top.[9]

In this way, the court determined that the detective's use of graphic and highly

sexualized language amounted to a manipulation of Solomon that was repugnant

to a sense of justice.

        Ultimately, the trial court concluded that, considering the totality of the

circumstances, law enforcement engaged in outrageous conduct that deprived

Solomon of the right to due process. The trial court then dismissed the charges.

        In ruling to dismiss the charges, the trial court did not adopt a view that no

reasonable judge would take. Given the court's finding that law enforcement had

initiated and controlled the criminal activity, persistently solicited Solomon to

commit the crimes so initiated, and acted in a manner (through the use of

language and otherwise) repugnant to the trial judge's view of the community's

sense of justice, the trial court's determination was tenable.

        Accordingly, the trial court did not abuse its discretion by ordering that the

charges against Solomon be dismissed. 10 There was no error.


         9 Under the circumstances, the trial court did not feel that it needed to reach a
determination on a more likely than not basis as to whether law enforcement engaged in conduct
that itself constituted criminal activity:
         [W]hether the government conduct amounted to criminal activity or conduct.
          There was a request I saw in there for a wine cooler or something and she was
          15 and they did talk money. Whether or not that rises to solicitation for criminal
          activity by the State, I don't know. That's subject to debate. But it certainly could
          be — it certainly could be.
          The trial court also found that it was "probably a push" as to u[w]hether the police
motive was to prevent a crime or protect the public."
          10 The State's argument on appeal is predominantly one directed at Solomon's conduct.
This misses the target. Unlike "the subjective approach of entrapment," where "the focal issue is
the predisposition of the defendant to commit the offense," an outrageous governmental
misconduct inquiry focuses "on the State's behavior." Lively, 130 Wn.2d at 19, 22 (citing United
States v. Luttrell, 889 F.2d 806, 811 (9th Cir. 1989)). While a defendant's actions are relevant to



                                              - 21 -
No. 76298-2-1/22


        Affirmed.




We concur:



              I




whether the State engaged in outrageous misconduct, it is the actions of state agents that is the
focal point.


                                              - 22 -
