State v. Pemberton
| Decision Date | 08 June 2020 |
| Docket Number | No. 81366-8-I,81366-8-I |
| Parties | STATE OF WASHINGTON, Respondent, v. STEVEN ALLEN PEMBERTON, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
CHUN, J. — The Washington State Patrol's Missing and Exploited Children Task Force (MECTF) posted an advertisement on the "Casual Encounters" section of Craigslist. Steven Pemberton responded. An MECTF officer replied, pretending to be a 13-year-old girl. Pemberton set up a time and place to meet, at which officers arrested him. A jury convicted him of attempted rape of a child in the second degree, attempted commercial sexual abuse of a minor, communication with a minor for immoral purposes, and possession of a controlled substance. Pemberton raises several issues on appeal and through a statement of additional grounds (SAG) and Personal Restraint Petition (PRP). We affirm Pemberton's convictions and remand for the trial court to strike two community custody conditions and to correct two scrivener's errors.
MECTF commenced a "Net Nanny" sting operation in Kitsap County. In such an operation, MECTF works undercover using different personas, such as a 13-year-old runaway girl or boy, to go on social media sites and "contact people who are interested in having sex with kids." For the operation in Kitsap County, MECTF used the "Casual Encounters" section of Craigslist to post an ad. The Craigslist site conveyed that, to use this section, one must be 18 or older. MECTF titled the ad "crazy and young. looking to explore." The ad also provided, that the person was looking for a guy "that can teach [her] what its like to be an adult."
Pemberton responded to the ad through email, expressing interest and sending two photos of his penis. The person wrote back, saying, among other things, "Im 13, but I know what to do." The person also purported to attach a photo of herself and a friend, which was actually a photo of two law enforcement officers who looked young. After exchanging emails, the two began texting. The person who posted the ad identified themselves as "Brandi." Brandi, however, was actually a Kitsap County Sheriff's detective. Brandi asked Pemberton, "you down with me being 13[?]" Pemberton did not respond to the question.
Brandi and Pemberton texted over a two-day period. Brandi said that she was "looking for a daddy who [she] can have some fun with and get [her] some roses," and clarified that "roses" meant money. Brandi texted that she thought Pemberton "wanted some fun" with her, to which he responded that they "would have to discuss that in person." Later, when Brandi texted after her phone had died, she told Pemberton "maybe I can suck you for a phone charger" and that she "could do more to [him]" if he wanted. Pemberton again said that they wouldhave to "talk in person" because he was "not even trying to catch some criminal charges."
In later texts, Pemberton said that he was "the one that has everything you want." Brandi responded, "have a big dick that what i want." When Brandi asked Pemberton if she had scared him off, he replied, "You haven't scared me one bit your not big enough to scare me."
The two planned to meet up the next day. On that day, Brandi said that she thought she, her friend "Anna," and Pemberton "were gonna do some condom testing." Brandi also asked for $40 to get more minutes for her phone. Brandi told Pemberton to come to her friend Anna's home because the latter's mother was out of town. Pemberton asked Brandi if she drank alcohol or did drugs for fun. Brandi said she was curious about "meth" because a friend told her "sex on meth was amazing." Pemberton responded, "That is a very true statement." The two eventually agreed to meet at a Starbucks.
The police located Pemberton near the Starbucks where he was to meet Brandi. They pulled Pemberton over in his truck and arrested him. The police then searched Pemberton's truck and collected his cellphone and "a little orange straw" that contained methamphetamine.
The State charged Pemberton with attempted rape of a child in the second degree, attempted commercial sexual abuse of a minor, communication with a minor for immoral purposes, and possession of a controlled substance.
A jury convicted Pemberton as charged. Pemberton appeals.
Pemberton argues that the State presented insufficient evidence for count 2, attempted commercial sex abuse of a minor, because the evidence did not show that he offered to exchange anything of value for sex. We disagree. When a defendant challenges the sufficiency of the evidence on appeal, "we draw all inferences in favor of the State and interpret them most strongly against the defendant." State v. Garbaccio, 151 Wn. App. 716, 742, 214 P.3d 168 (2009). "Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime proved beyond a reasonable doubt." Garbaccio, 151 Wn. App. at 742.
To prove attempt under RCW 9A.28.020(1), the State must prove the defendant "with intent to commit a specific crime, . . . d[id] any act which is a substantial step toward the commission of that crime." A substantial step is an action strongly corroborative of the defendant's criminal purpose. State v. Johnson, 173 Wn.2d 895, 899, 270 P.3d 591 (2012). Additionally, a person commits the crime of commercial sexual abuse of a minor if "[they] provide[] or agree[] to provide anything of value to a minor or a third person pursuant to an understanding that in return therefore such minor will engage in sexual conduct with [them]." RCW 9.68A.100(1)(b).
Pemberton asserts the State failed to provide sufficient evidence because "[he] never agreed to provide anything of value in exchange for sex." But theState needed to prove only that Pemberton, with the requisite intent, took a substantial step toward agreeing to provide anything of value to a minor in exchange for sexual conduct. RCW 9A.28.020(1); 9.68A.100. Brandi brought up the exchange of sex for money when she messaged, "im looking for a daddy who I can have some fun with and get me some roses." After Brandi clarified that "roses" meant "money," Pemberton said that they "would have to discuss that in person." A few texts later, Brandi told Pemberton "maybe I can suck you for a phone charger." Pemberton replied, "Oh really now," and then again said that they would "talk in person" because he was "not even trying to catch some criminal charges." Finally, Brandi and Pemberton discussed him giving her money for more minutes on her phone:
Viewing the evidence in the light most favorable to the State, Pemberton knew that Brandi sought various things of value-money, a phone charger, $40 for phone minutes-in exchange for sexual conduct. Though Pemberton did not explicitly agree to such an arrangement, he did not refuse to provide these things in exchange for sexual relations. Instead, Pemberton told them they would need to speak in person so that he would not "catch some criminal charges." Furthermore, Pemberton seemingly acknowledged the money-for-sex arrangement when he texted, "What's a few bucks" and "So you get money and Anna doesn't." Drawing all reasonable inferences in favor of the State, a rational trier of fact could conclude that through these text messages, Pemberton took a substantial step toward agreeing to provide something of value in exchange for sexual conduct beyond a reasonable doubt.
Pemberton also argues that the fact that he did not have any money or a phone card on his person when he was arrested shows that he did not commit the crime. But Pemberton made this argument to the jury, and they rejected it. We defer to the trier of fact on the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). We determine sufficient evidence supported Pemberton's conviction for attempted commercial sex abuse of a minor.
Pemberton claims that we should reverse his conviction for attempted commercial sex abuse of a minor because the use of outdated charging language failed to apprise him of the essential elements of the crime. The State contends that we should uphold the conviction because the unartful charging language did not prejudice Pemberton. We agree with the State.
The language charging attempted commercial sex abuse of a minor in Pemberton's amended information provides that he took a substantial step to pay, or agree to pay, a "fee" in exchange for sexual conduct with a minor. But earlier in 2017, the legislature had revised RCW 9.68A.100, regarding commercial sex abuse of a minor.1 LAWS OF 2017, ch. 231. While the statute had required before that the defendant had paid or agreed to pay a fee, the legislature amended the statute to require that the defended provided or agreed to provide "anything of value." LAWS OF 2017, ch. 231, § 3. The legislature made this change to account for the "practical reality" of the crime, "which often involve an exchange of drugs or gifts for the...
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