from the District Court of Cass County, East Central Judicial
District, the Honorable Susan Lynne Bailey, Judge.
J. Viste, Assistant State's Attorney, Fargo, ND, for
plaintiff and appellee.
Charles J. Sheeley, Fargo, ND, for defendants and appellants.
1] Nicholas Davison, James Heily, Jr., and Jesse Janke appeal
from criminal judgments, entered after bench trials on
stipulated facts, finding them guilty of patronizing a minor
for commercial sexual activity in violation of N.D.C.C.
§ 12.1-41-06(1)(a). We affirm the criminal judgments.
2] Nicholas Davison, James Heily, Jr., and Jesse Janke
("the Defendants") were each arrested as part of a
multi-agency sting operation targeted at apprehending
individuals paying, or attempting to pay, for sex with
minors. The sting operation posted advertisements on the
Internet, specifically in the "Casual Encounters"
section of a website called "Craigslist." The
content of the advertisements in these cases sought sexual
encounters, but did not claim to be posted by a minor.
However, during communications with each of the Defendants,
an undercover officer posing as a minor indicated to the
Defendants she was a minor. In each of the communications,
there were discussions of exchanging something of value for
sexual services. Each of the Defendants arrived at the sting
location set up at a hotel in Fargo, and each was arrested
and charged with patronizing a minor for commercial sexual
activity in violation of N.D.C.C. § 12.1-41-06(1)(a).
3] At a preliminary hearing in the Davison case, Davison
argued the patronizing a minor charge should be dismissed.
Davison asserted the language of the statute required an
actual minor to be involved, and because the sting operation
did not involve an actual minor, he could not be convicted of
the crime as a matter of law. The State argued whether the
sting operation had an actual minor present is irrelevant.
Davison argued there was no completed crime absent the
presence of a minor, and because the State did not charge an
attempt crime, the charge should be dismissed. The district
court found the State had established probable cause for the
charge of patronizing a minor for commercial sexual activity.
4] The Defendants each chose to waive their right to a jury
trial, and the district court held bench trials for each of
the Defendants during October, November, and December 2016.
The cases were tried on stipulated facts. The stipulated
facts in each case contained the following essential facts:
On [a specific date], Defendant exchanged emails and text
messages with a female who had posted on Craigslist. The
female represented herself as under age 18 in one of the
messages she sent to Defendant.
The person representing as an underage female was an
undercover officer. No one under the age of 18 was involved.
Defendant intended to engage in a sexual act with the female
knowing she was under the age of 18 and agreed to give the
female [something of value] in exchange for the sex act.
case, the stipulated facts indicated the Defendants had
agreed to exchange money, drugs, or something of value for a
sex act. The stipulated facts indicated the Defendants had
either arrived at the hotel or had appeared and knocked on
the hotel room door before being arrested. Each stipulation
of facts indicated: "Defendant and the female had