       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                                                            c:3
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                                                                                       -43
                                         )        No. 76457-8-1                           n
                     Appellant,                                                              •"+"1
                                         )                                                 •-n       •
                                         )        DIVISION ONE
              V.                         )                                                  cJ)rl1C
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                                         )
KEVIN DALE BEST,                         )        UNPUBLISHED OPINION                          c:3
                                                                                             c)
                                         )                                            cO
                     Respondent.         )        FILED: April 23, 2018
                                         )
       BECKER, J. — Undercover police agents posted a personal advertisement

implicitly offering illegal sexual contact with three children. The defendant

responded to the advertisement and communicated his intent to accept the offer.

The defendant then showed up at the address given and was arrested. Charged

with three counts of attempted rape and molestation, the defendant successfully

moved for dismissal under State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48

(1986). The basis for the dismissal was that the State had not presented

evidence of a substantial step. Because a jury could find that the defendant's

conduct went beyond mere preparation to show a clear design to commit the

criminal acts, we reverse and remand for trial.

       Respondent Kevin Best came to the attention of law enforcement officers

in December 2015 when he responded to an ad they had posted on an online
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platform for classified advertising. The ad, posted by an individual named

"Kristi," sought a "daddy to take care of her girls." Kristi was in reality a police

officer working in a sting operation. She posed as the mother of two girls, ages

11 and 8, and a son age 13. Best and Kristi exchanged sexually explicit e-mails,

text messages and phone calls over a period of two months. Best repeatedly

expressed a desire to have sexual contact with each of Kristi's children. He

described the anticipated sexual activity in graphic detail. He also described

having sexual relations with his own two daughters. In a phone conversation

with an agent who was pretending to be "Lisa," Kristi's 11-year-old daughter,

Best talked about having sexual intercourse with her and said, "Don't worry, I'll

show some attention to your younger sister too." After this conversation, Best

sent Kristi a video of himself masturbating and ejaculating.

       Kristi and Best discussed ground rules for sexual activity involving the

children: Best wanted no "aggression" to be used with his daughters, and Kristi

said her rules were "no pain, no anal, condoms." They eventually arranged that

Best, without his daughters, would come to Kristi's home in Everett on February

20, 2016, a Saturday. The plan was that he would spend the weekend. Best

asked if Kristi allowed her girls to have drinks for play nights. Kristi responded

no, but she said gifts would help to "soften them up." Best talked about taking

the children shopping when he came over.

       On the arranged date, Best drove to Kristi's home with his dog. On the

way, at Kristi's request, he stopped to buy an iced coffee for Kristi and three

chocolate milks for the children. When he was almost there, he messaged Kristi
No. 76457-8-1/3


to ask if Lisa would meet him at the door. Kristi responded that Lisa was

sleeping, and she suggested that Best could wake her up and then "you guys

can get it together if that works." Best replied, "Cool."

       Best was arrested when he arrived. The State charged him with

attempted first degree rape of the older sister, attempted first degree child

molestation of the younger sister, and attempted second degree rape of the boy.

       Best moved to dismiss under Knapstad. The trial court granted the motion

and dismissed the charges without prejudice. The State appeals.

       An order dismissing charges on a Knapstad motion is reviewed de novo.

State v. Conte, 159 Wn.2d 797, 803, 154 P.3d 194, cert. denied, 552 U.S. 992

(2007).

       Under Knapstad, a trial court has inherent authority to dismiss a charge

when the undisputed facts are insufficient to support a verdict of guilt. Knapstad,

107 Wn.2d at 353. The threshold showing required to survive a Knapstad motion

to dismiss is lower than that required for a conviction. State v. Montano, 169

Wn.2d 872, 879, 239 P.3d 360(2010). When considering a Knapstad motion,

the court must determine "whether the facts which the State relies upon, as a

matter of law, establish a prima facie case of guilt." Knapstad, 107 Wn.2d at

356-57. If so, denial of the motion to dismiss is mandatory. Knapstad, 107

Wn.2d at 356. "When evaluating a Knapstad challenge to the sufficiency of the

evidence, the trial court considers the evidence and reasonable inferences

therefrom in the light most favorable to the State." State v. Graham, 182 Wn.

App. 180, 183, 327 P.3d 717(2014).


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No. 76457-8-1/4


       Best was charged with attempt crimes. "A person is guilty of an attempt to

commit a crime if, with intent to commit a specific crime, he or she does any act

which is a substantial step toward the commission of that crime."

RCW 9A.28.020(1). A substantial step "need not be an overt act, as long as it is

behavior strongly corroborative of the actor's criminal purpose." State v. Harris,

121 Wn.2d 317, 321, 849 P.2d 1216 (1993). The conduct must go beyond mere

preparation. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). "The

question of what constitutes a 'substantial step' under the particular facts of the

case is clearly for the trier of fact." State v. Workman, 90 Wn.2d 443, 449, 584

P.2d 382(1978). "When preparation ends and an attempt begins, we have held,

always depends on the facts of the particular case." Workman, 90 Wn.2d at 449-

50. "Any slight act done in furtherance of a crime constitutes an attempt if it

clearly shows the design of the individual to commit the crime." State v. Price,

103 Wn. App. 845, 852, 14 P.3d 841 (2000), review denied, 143 Wn.2d 1014

(2001).

       The trial court determined that the evidence sufficiently showed Best had

the intent to commit the specific crimes charged but was insufficient to show that

he took a substantial step:

      The court reviewed all of the proffered facts in a light most
      favorable to the state. The materials support the state's view that
      the defendant communicated in detailed and graphic ways a history
      of exploiting his own children and his intent to commit or facilitate
      various sexually exploitative crimes involving the children of the
      fictitious mother. Thus, the defendant's intent is not at issue in this
      Knapstad motion. The unanswered legal question is whether the
      defendant took a substantial step toward the commission of any of
      the charged crimes. I conclude that the defendant's act of driving
      to the fictitious mother's home and bringing beverages for each

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No. 76457-8-1/5


       member of the fictitious mother's family is insufficient as a matter of
       law to conclude that the defendant took a substantial step toward
       the commission of any of the charged crimes.

       Washington courts have affirmed convictions for attempted sex crimes

with children in several similar cases in which, because the arrest of the

defendant occurred as the result of an undercover sting operation, the defendant

did not come into physical proximity with an actual child. In each case, we

rejected the argument that the defendant had not taken a substantial step. In

each case, like here, the defendant arrived at a motel or other prearranged

meeting place after clearly expressing his desire to have sex with the child.

Townsend, 147 Wn.2d at 671; State v. Sivins, 138 Wn. App. 52, 56-58, 155 P.3d

982(2007); State v. Wilson, 158 Wn. App. 305, 308-11, 242 P.3d 19(2010).

       Here, the trial court characterized Townsend, Sivins, and Wilson as having

evidence that the defendant "was prepared and ready to engage in sexual

contact with a minor." The court found these cases distinguishable on the basis

that showing up at the designated address bringing coffee and chocolate milk

"does not clearly show the design of the defendant to commit the crimes with

which he is charged."

       Townsend, Sivins, and Wilson affirm convictions; they do not purport to

set forth a bright line for the specific facts necessary to show a substantial step

as opposed to mere preparation. Best contends something more is required than

merely coming to a prearranged meeting location. He cites no authority to

indicate that coming to a prearranged meeting location is insufficient as a matter

of law. To the contrary, this court has given the following as an example of


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No. 76457-8-1/6


conduct amounting to a substantial step toward statutory rape: "The actor might

lie in wait on the known route of a particular child after the actor has told another

that he wants to have sexual intercourse with that child." State v. Falco, 59 Wn.

App. 354, 359, 796 P.2d 796 (1990).

       Nor is it essential to prove overt sexual conduct in the child's presence. In

proving a charge of an attempt at committing a sex crime against a minor, "the

critical focus is on the defendant's criminal intent and not on the fact that no

minors were actually subjected to sexual exploitation or abuse." State v. Luther,

157 Wn.2d 63, 74, 134 P.3d 205, cert. denied, 549 U.S. 978 (2006). A

reasonable jury "may infer the elements of attempt even without evidence of

physical contact or an express statement of intent." State v. Leslie Wilson, 1 Wn.

App. 2d 73, 85, 404 P.3d 76 (2017).

       Best contends he never admitted, agreed, or even suggested that he

intended to engage in sexual conduct with the children at their first meeting. He

emphasizes a communication with Kristi in which he stated that he had "no

expectations" for the visit. But Kristi responded, "I do have some expectations or

I wouldn't be talking. .. to you," to which Best replied,"Haha I feel the same."

Considering the record as a whole in the light most favorable to the State, it is

reasonable to infer that Best included the "no expectations" statement to shield

himself from criminal liability if Kristi turned out to be a law enforcement agent.

Similarly, Best's assertion in an e-mail that "I never play when we meet for the

first time to be safe" does not have to be taken at face value.




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No. 76457-8-1/7


       Best suggests that his communications with Kristi were merely fantasy.

He sent a message to Kristi that "texting is all fantasy so we can say whatever

we want." One of his messages stated, "I like to say everything is a fantasy until

I know you're real." In an early message, he told her "until we trust each other for

now this is all fantasy and not real:-) what all are you into?" But Kristi responded,

"Well I'm not into fantasy," and Best replied, "Yeah me either." Best told Kristi on

several occasions that he suspected a sting operation. It is reasonable to infer

that Best's references to fantasy were self-serving and disingenuous and that his

true intent was to have sexual contact with Kristi's children after using gifts to

"soften them up."

       Best cites State v. Grundy, 76 Wn. App. 335, 886 P.2d 208 (1994). In

Grundy, an undercover officer posing as a drug runner approached the

defendant and asked him what he wanted. Grundy, 76 Wn. App. at 336. The

defendant was arrested when he expressed a desire to buy cocaine. Grundy, 76

Wn. App. at 336. He was convicted of attempted possession of cocaine.

Grundy, 76 Wn. App. at 336. This court reversed, finding insufficient evidence of

a substantial step. Grundy, 76 Wn. App. at 338. "The parties were still in the

negotiation stage." Grundy, 76 Wn. App. at 338. Best contends he and Kristi

similarly were only at "the negotiation stage" about whether the sexual conduct

would occur. Grundy is not analogous. Best spent weeks getting to know Kristi.

Once he decided to trust that she genuinely shared his desire for sex with

children, he joined her in planning a family style weekend during which she would

allow him to exploit her children.


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No. 76457-8-1/8


       The sexually explicit e-mails, text messages, and telephone calls

presented by the State make out a prima facie case that Best specifically

intended to have sexual intercourse with the older daughter, to molest the

younger daughter, and to cause the 13-year-old son to have sex with "everyone."

When all inferences are taken in favor of the State, there is evidence of more

than mere preparation. Best's arrival on Kristi's doorstep, exactly at the time and

place the two of them had agreed on, is evidence clearly showing his design to

carry out their plan for a weekend involving sexual contact with the three

children.

       The trial court erred by granting the Knapstad motion. The order of

dismissal is reversed, the charges are to be reinstated, and the case is

remanded for further proceedings.




WE CONCUR:



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