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State v. Davison

Supreme Court of North Dakota

July 31, 2017

State of North Dakota, Plaintiff and Appellee
v.
Nicholas John Davison, Defendant and Appellant

         Appeals from the District Court of Cass County, East Central Judicial District, the Honorable Susan Lynne Bailey, Judge.

          Leah J. Viste, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

          Charles J. Sheeley, Fargo, ND, for defendants and appellants.

          Kapsner, Justice.

         [¶ 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.

         I

         [¶ 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.

         In each 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 ...


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