Reports that Benjamin Stribling tried to lure a thirteen year old over the Internet by claiming to be a sexology student are shocking enough.
But they become even more disturbing when coupled with the previous offenses of this registered sex offender -- at least three previous examples over the past decade.
More on his past crimes and details about the latest accusation below.
The first local reference we found to Stribling turned up in a Colorado Springs Gazette article published in 2005. It was prompted by his arrest on suspicion of trying to blackmail a woman into sex by threatening to put explicit pics of her online.
An early Stribling mug shot.
Colorado Springs police said Stribling had been in contact with the woman for several months via Yahoo instant messaging, and over time got her to divulge some confidential information -- specifically her birth date, ZIP code and user name. He then hacked into her e-mail account and found sexually oriented photos of her -- at which point he told her he'd post them online if she refused to have sex with him.
Instead, she wisely went to the authorities.
Upon busting Stribling, cops found other problematic information on his phone -- what's described as dozens of phone numbers connecting to Colorado Springs girls under age eighteen, including the digits of one sixteen year old whose claims against Stribling were already part of an investigation by the Internet Crimes Against Children unit.
Oh yeah: The Gazette also noted that Stribling had been convicted two years earlier, in 2003, of sexual assault. He'd received a sentence of 24 months probation and 120 days in a work-release program, but hadn't been listed as a sex offender because the crime was deemed a misdemeanor.
Cut to the 2008 page of the Internet Crimes Against Children Task Force website. In May of that year, the listing reveals that Stribling -- by then, he was registered -- was busted in a joint investigation with authorities in Washington state. There, a task force had obtained a warrant against him for sexual exploitation of a minor, attempted possession of child pornography and communication with a minor for immoral purposes.
Another Stribling booking photo.
Stribling appealed the guilty finding in this case, but a court upheld his conviction; we've included the 2011 judgment against him below. Now, however, he's got more legal troubles.
On June 29, according to the Arapahoe County Sheriff's Office, a parent contacted deputies regarding concern about her thirteen-year-old daughter and a man who was attempting "to establish a sexual relationship with her" on Facebook. So the office's Internet Crimes Against Children investigators set up a sting operation, with one of them posing as a young teen in communication with Stribling. Before long, she agreed to an August 2 meeting in Centennial -- a rendezvous point at which he had allegedly said he'd pick up the girl and then take her to a different location for sex.
But instead of coitus, he got fitted with a set of handcuffs, not to mention an arrest on suspicion of Internet child luring and a parole violation.
By the way, 7News reports that Stribling's strategy this time around was to pose as a sexology student who needed to have sex with virgins to further his research.
If he's also interested in studying jail, he's in luck, since a $50,000 has been placed on him.
Look below to see a larger version of Stribling's latest mug shot, followed by the aforementioned 2011 document.
Continue for the judgment in Benjamin Stribling's appeal of a previous sex crime conviction. Here's the decision regarding Benjamin Stribling's appeal in Washington state, as shared on Findlaw.com.
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STATE of Washington, Respondent, v. Benjamin Clinton STRIBLING, Appellant.
-- November 09, 2011
Peter B. Tiller, The Tiller Law Firm, Centralia, WA, for Appellant.Jason Howard Laurine, Cowltiz County Prosecutor's Attorney Off., Kelso, WA, for Respondent.
PART PUBLISHED OPINION
¶ 1 Benjamin Clinton Stribling appeals his numerous sex offense convictions involving a minor. In the published part of this opinion, we consider Stribling's argument that insufficient evidence supports his sexual exploitation of a minor conviction (count I). We also address Stribling's arguments about the felony classification listed on his judgment and sentence for his attempted possession of depictions of a minor engaged-in-sexually-explicit-conduct conviction (count II). We agree with Stribling that insufficient evidence supports his conviction on count I and that his judgment and sentence incorrectly lists the felony classification on his count II conviction. We reverse and vacate his conviction for sexual exploitation of a minor, and we remand for resentencing.1
¶ 2 On July 6, 2009, the State charged Stribling in an amended information with one count of sexual exploitation of a minor (count I), one count of attempted possession of depictions of a minor engaged in sexually explicit conduct (count II), and seven counts of felony communication with a minor for immoral purposes (counts III through IX). In the amended information, all of the felony communication with a minor for immoral purposes counts (counts III through IX) contained two separate "on or about" dates for when the alleged criminal acts took place. Counts III, VIII, and IX's two "on or about" dates matched, but the two separately included dates in counts IV through VII did not match.2
¶ 3 The primary evidence that the State relied on for its allegations was a series of e-mails that Stribling exchanged with K.C., the underage victim. The State specified the exact e-mail evidence that it would rely on to prove Stribling's guilt for each charged offense in a document titled "Evidence Pertaining to Amended Charges" ("evidentiary memo").3 For counts IV through VII, the date of the emails that the State relied on matched the first "on or about" date in the charging information. For count VIII, the State indicated that it would rely on a March 11, 2008 e-mail, even though both dates in the amended charging information alleged that the criminal act occurred "on or about March 16, 2008." CP (Dec. 18, 2009) at 4.
¶ 4 Stribling waived his right to a jury trial, and a bench trial began on July 27. In the e-mails that the State presented, Stribling asked K.C. multiple times to send him nude photographs of her. K.C. agreed to send Stribling some pictures, but she repeatedly refused to take or send any nude photographs. On July 30, the trial court found Stribling guilty on counts I through VIII and entered a not guilty verdict on one of the felony communication with a minor for immoral purposes charges (count IX).
¶ 5 In September, the State noticed the non-matching dates in counts IV through VII of the amended information, and the discrepancy between the dates in count VIII of the amended information and the e-mail date referenced in the evidentiary memo. The State requested the trial court to (1) ignore the inaccuracies as proofreading mistakes or (2) conform the amended information to "the proof, which was the first date in every count." 5 Verbatim Report of Proceedings (VRP) at 7. In October, before sentencing, the trial court ruled that the amended information was facially valid and that Stribling failed to show that the inaccuracies prejudiced him.
¶ 6 At sentencing, the trial court found that Stribling's convictions for sexual exploitation of a minor (count I) and attempted possession of depictions of a minor engaged in sexually explicit conduct (count II), constituted the same criminal conduct. Stribling's judgment and sentence listed his count II conviction as a class B felony. Stribling appeals challenging each of his convictions on various grounds.
I. Sufficiency of Evidence
¶ 7 First, we must determine whether the State presented sufficient evidence to sustain Stribling's conviction for sexual exploitation of a minor (count I). We review a claim of insufficient evidence for " 'whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.' " State v. Drum, 168 Wash.2d 23, 34-35, 225 P.3d 237 (2010) (quoting State v. Wentz, 149 Wash.2d 342, 347, 68 P.3d 282 (2003)). An appellant challenging the sufficiency of evidence "necessarily admits the truth of the State's evidence and all reasonable inferences that can be drawn from [that evidence]." Drum, 168 Wash.2d at 35, 225 P.3d 237. Circumstantial and direct evidence are equally reliable in determining sufficiency of the evidence. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).
¶ 8 A person is guilty of sexually exploiting a minor if the person "[a]ids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance." RCW 9.68A.040(1)(b). Stribling argues that this statute requires something more than asking a minor to send a nude photograph. The State counters that asking a minor to send a nude photograph falls squarely under the statute's plain language of "invit[ing]" a minor to engage in sexually explicit conduct. Br. of Resp't at 15; RCW 9.68A.040(1)(b). We are constrained to agree with Stribling's argument, we reverse and vacate his conviction for sexual exploitation of a minor (count I), and we remand for resentencing.
¶ 9 The question in this case is a matter of first impression: Did the legislature intend to criminalize an invitation to a minor to take and send nude photographs, even if the minor does not agree to take or send nude photographs and no pictures are actually taken? Our basic duty in interpreting any statute is to ascertain and carry out the legislature's intent. State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003). The starting point is the statute's plain language and ordinary meaning. J.P., 149 Wash.2d at 450, 69 P.3d 318. When the plain language is unambiguous, the legislative intent is apparent, and we will not employ principles of construction to construe the statute otherwise. J.P., 149 Wash.2d at 450, 69 P.3d 318. We may discern a statute's plain meaning " 'from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.' " J.P., 149 Wash.2d at 450, 69 P.3d 318 (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 11, 43 P.3d 4 (2002)). When the statute is ambiguous, though, we may determine the legislature's intent by applying recognized principles of statutory construction. J.P., 149 Wash.2d at 450, 69 P.3d 318. In construing a statute, we avoid a reading that produces absurd results. J.P., 149 Wash.2d at 450, 69 P.3d 318.
¶ 10 Our Supreme Court has already held that RCW 9.68A.040(1)(b) is not facially ambiguous4 State v. Chester, 133 Wash.2d 15, 21, 940 P.2d 1374 (1997). "The statute sets out the elements of the offense, making it a crime to (1) aid, invite, employ, authorize or cause a minor to (2) engage in sexually explicit conduct (3) knowing that the conduct will be photographed." Chester, 133 Wash.2d at 22, 940 P.2d 1374. But as Chester acknowledged, the statute does not define the words "aids, invites, employs, authorizes or causes." Chester, 133 Wash.2d at 22, 940 P.2d 1374; see RCW 9.68A.040.
¶ 11 In Chester, the defendant placed a hidden camera beneath a bed to film his stepdaughter dressing after she took a shower. Chester, 133 Wash.2d at 17-18, 940 P.2d 1374. The issue was whether the statute prohibited a person from filming a nude child, without the child's knowledge, and where the exhibition of nudity is accomplished without the defendant's direct involvement. Chester, 133 Wash.2d at 21, 940 P.2d 1374. To answer this question, the Chester court considered how the facts of the case applied to the words "aids, invites, employs, authorizes or causes." Chester, 133 Wash.2d at 22, 940 P.2d 1374.
¶ 12 The Chester court used the words' ordinary meanings, finding that "aid" "means to support, assist, help or strengthen"; "invite" "means to offer an incentive or inducement or to request the participation or presence of a person"; "employ" "means to engage in one's service or to hire or use"; "authorize" "means to empower or to give a right or authority to act"; and "cause" "means to be the cause of, to bring about, to induce or to compel." Chester, 133 Wash.2d at 22, 940 P.2d 1374. The court noted, "Each of these words is an active verb. Each requires some affirmative act of assistance, interaction, influence or communication on the part of a defendant which initiates and results in a child's display of sexually explicit conduct." Chester, 133 Wash.2d at 22, 940 P.2d 1374 (emphasis added).
¶ 13 Based on the ordinary meanings of these words, the Chester court held that the statute did not criminalize the photographing of a child "where there is no influence by the defendant which results in the child's sexually explicit conduct." Chester, 133 Wash.2d at 23, 940 P.2d 1374. The court held,
Although [Chester] intended to observe [his stepdaughter], he did not communicate with her in any way and he did not assist her in any way. There is no evidence in the record that the Defendant aided (supported or helped), invited (requested or induced), employed (hired or used), authorized (empowered or gave a right) or caused (brought about, induced or compelled) his stepdaughter to engage in sexually explicit conduct.
Chester, 133 Wash.2d at 22-23, 940 P.2d 1374.
¶ 14 Even though the Chester court did not address the specific issue before us now, we are constrained by our Supreme Court's conclusion that the statute "requires some affirmative act ․ on the part of a defendant which initiates and results in a child's display of sexually explicit conduct." Chester, 133 Wash.2d at 22, 940 P.2d 1374 (emphasis added). Indeed, this interpretation is consistent with, and gives meaning to, the statute's third element: that the person has "know[ledge]" that sexually explicit conduct "will be photographed or part of a live performance." RCW 9.68A.040(1)(b) (emphasis added).
¶ 15 RCW 9A.08.010(1)(b) states:
A person knows or acts knowingly or with knowledge when:
(i) he or she is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(ii) he or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense.
The knowledge element in the statute at issue would thus require (1) actual awareness that sexually explicit conduct "will be photographed or part of a live performance" or (2) information that would lead a reasonable person in the defendant's situation to believe that sexually explicit conduct "will be photographed or part of a live performance." RCW 9.68A.040(1)(b); RCW 9A.08.010.
¶ 16 Here, the pivotal question is what meaning the legislature intended in the language "will be photographed or part of a live performance." RCW 9.68A.040(1)(b). We first note that the legislature used "will be" instead of "could be." This choice is instructive because "will be" conveys inevitability, whereas "could be" connotes conditionality. That the legislature used "will be" indicates that it intended to punish those who, through some affirmative act, induced a minor to engage in sexually explicit conduct that is then actually photographed or part of a live performance.
¶ 17 Similarly, the statutory definitions of "photograph" and "live performance" also indicate that the legislature intended to punish those who cause the actual creation of photographs or live performances of minors. Former RCW 9.68A.011 (2002). "Photograph" is defined as "to make a print, negative, slide, digital image, motion picture, or videotape ․ anything tangible or intangible produced by photographing." Former RCW 9.68A.011(1). "Live performance" is defined as "any play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, with or without consideration." Former RCW 9.68A.011(5). These definitions contemplate that a photograph will be taken or that a live act actually occurs. This language is not indefinite; a "photograph" is defined as "to make" something tangible or intangible and "live performance" is defined as something "performed or presented." RCW 9.68A.011(1), (5). Read with these definitions, we are convinced that the legislature intended RCW 9.68A.040(1)(b) to require an actual photograph to be taken or an actual live performance to occur. If the legislature had intended otherwise, it would have said so.
¶ 18 Applying our interpretation of the statute to the facts before us, we hold that the State presented insufficient evidence to convict Stribling of sexual exploitation of a minor under RCW 9.68A.040(1)(b). Stribling asked K.C. for nude photos, but K.C. specifically and steadfastly refused to send him any.5 At no point did K.C. agree to take or send nude photographs. The State relied on evidence that Stribling invited K.C. to take nude photographs, which is not a crime under RCW 9.68A.040(1)(b).
¶ 19 Based on this evidence, and our understanding of the statute, there is insufficient evidence to support a finding that Stribling knew that K.C. would engage in sexually explicit conduct that "will be photographed or part of a live performance." RCW 9.68A.040(1)(b). K.C.'s refusals to take or send nude photographs indicate quite the opposite, namely, that K.C. would not engage in sexually explicit conduct that would be photographed. We reverse and vacate Stribling's conviction for sexual exploitation of a minor (count I), and we remand for resentencing.
II. Judgment and Sentence Error
¶ 20 The next issue is whether Stribling's judgment and sentence incorrectly reflects his conviction for attempted possession of depictions of a minor engaged in sexually explicit conduct (count II) as a class B felony. Stribling argues that the State proved only that he was guilty of second degree attempted possession of depictions of a minor engaged in sexually explicit conduct, which would be a gross misdemeanor. RCW 9.68A.070; RCW 9A.28.020. The State concedes the issue but argues that Stribling suffered no prejudice because the trial court found that his conviction for count II was the same criminal conduct as his conviction for count I, sexual exploitation of a minor, and thus, did not include it in his offender score. The State asks us to remand for correction of his judgment and sentence only. Stribling's specific argument, and the State's concession, is misplaced because his relies on the wrong version of the applicable criminal statute. But, we agree with Stribling that the class B felony classification for count II on his judgment and sentence is erroneous.
¶ 21 Stribling's arguments on appeal cite to the current version of RCW 9.68A.070, which delineates two degrees for possession of depictions of a minor engaged in sexually explicit conduct. But the legislature did not establish two separate degrees for this offense until June 2010, two years after Stribling's date of crime. Laws of 2010, ch. 227, § 6. Under former RCW 9.68A.070 (2006) all convictions for possessing depictions of a minor engaged in sexually explicit conduct were class B felonies. And because the trial court convicted Stribling of attempting to commit this crime, the offense in Stribling's instance is actually a class C felony. RCW 9A.28.020(3)(c). Because our reversal of count I requires resentencing, on remand we also direct the trial court to resentence on count II as a class C felony, which in this case has a presumptive sentence of 60 months.6
¶ 22 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
III. Amended Information Inaccuracy
¶ 23 The last issue is whether the trial court properly excused the State's inconsistencies in the amended information on counts III through VIII. "Charging documents which are not challenged until after the verdict will be more liberally construed in favor of validity than those challenged before or during trial." State v. Kjorsvik, 117 Wash.2d 93, 102, 812 P.2d 86 (1991). Our Supreme Court has adopted the following federal standard of liberal construction in favor of the validity of a charging document when a defendant first challenges its sufficiency after verdict or on appeal: "(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?" Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86.
¶ 24 The first prong of this test looks only to the face of the charging document. Kjorsvik, 117 Wash.2d at 106, 812 P.2d 86. The State concedes that it mistakenly designated in the information the date on which it relied to prove that Stribling had committed felony communication with a minor. The first question, then, is whether the information here was facially erroneous for failing to identify the correct dates on which the State ultimately showed that Stribling unlawfully communicated with a minor. Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86.
¶ 25 "All essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him." Kjorsvik, 117 Wash.2d at 97, 812 P.2d 86. RCW 10.37.050(5) requires that a charging document set forth sufficient facts to demonstrate that the statute of limitations has not expired. Unless time is an essential element, the State need not plead anything more specific. See State v. Carver, 37 Wash.App. 122, 126, 678 P.2d 842, review denied, 101 Wash.2d 1019, 1984 WL 287537 (1984).
¶ 26 The State charged Stribling under RCW 9.68A.090(2), which requires that a communication occurred, not that it occurred at a specific time or place. Consequently, time is not an essential element, and the State need not plead anything more specific than a date demonstrating that the crime occurred before the statute of limitations expired. See RCW 10.37.050(5).
¶ 27 Here, for count IV, the State's amended information alleged that either "on or about March 4, 2008" or "on or about March 8, 2008," Stribling committed the crime of feloniously communicating with a minor for an immoral purpose via e-mail. CP (Dec. 18, 2009) at 2. The State and trial court relied on an e-mail dated March 4, 2008, to convict him on count IV. Similar inconsistencies with regard to the dates of alleged improper communications occurred in the amended information for the other communication with a minor for immoral purposes counts.
¶ 28 The trial court found that, despite some date inconsistencies, the amended information was facially valid. We agree; time is not an essential element of the crimes at issue here and the dates fall within the "on or about" language as charged. See, e.g., State v. Gassman, 160 Wash.App. 600, 616, 248 P.3d 155 (" 'Where the [information] alleges that an offense allegedly occurred "on or about" a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date.' ") (quoting State v. Bergin, 214 Conn. 657, 574 A.2d 164, 173 (1990)), review denied, 172 Wash.2d 1002, 257 P.3d 666 (2011).
¶ 29 The trial court also found that Stribling received sufficient notice of the charges and that he did not suffer any prejudice. Again, we agree. The State's evidentiary memos specified the precise evidence that the State relied on to prove each charged offense. And, the trial court's ultimate written findings and conclusions indicate a reliance on the evidence outlined in the State's evidentiary memo. We discern no error.
¶ 30 We affirm the trial court's rulings related to the inconsistencies in the amended charging information. We reverse and vacate Stribling's conviction for sexual exploitation of a minor (count I). Finally, we remand for resentencing in accordance with our analysis in this opinion.
¶ 31 I concur with the majority in every respect but one: I respectfully dissent from the majority's conclusion that insufficient evidence supports Stribling's conviction for sexual exploitation of a minor (count I). I would affirm this conviction.
¶ 32 As the majority points out, our Supreme Court has found that the relevant subsection of the sexual exploitation of a minor statute, RCW 9.68A.040(1)(b), is not facially ambiguous. State v. Chester, 133 Wash.2d 15, 21, 940 P.2d 1374 (1997). "The statute sets out the elements of the offense, making it a crime to (1) aid, invite, employ, authorize or cause a minor to (2) engage in sexually explicit conduct (3) knowing that the conduct will be photographed." Chester, 133 Wash.2d at 22, 940 P.2d 1374. Here, the State presented evidence that Stribling invited a minor to take nude photographs of herself and to send them to him for the purpose of his sexual stimulation. See former RCW 9.68A.011(3)(e) (2002) ("Sexually explicit conduct" includes "[e]xhibition of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer."). Stribling's conduct clearly falls within the ambit of the statute.7
¶ 33 But the majority finds the proof lacking in two regards. First, the majority concludes that Stribling did not commit sexual exploitation of a minor because the minor refused to accept his invitation. The majority bases its conclusion on Chester's interpretation of the statute's "aids, invites, employs, authorizes or causes" element: "Each of these words is an active verb. Each requires some affirmative act of assistance, interaction, influence or communication on the part of a defendant which initiates and results in a child's display of sexually explicit conduct." Majority at 6 (quoting Chester, 133 Wash.2d at 22, 940 P.2d 1374 (emphasis added)).
¶ 34 The issue in Chester was whether the defendant's interactions with the minor victim fulfilled the "aids, invites, employs, authorizes or causes" element of RCW 9.68A.040(1)(b). See 133 Wash.2d at 22-23, 940 P.2d 1374. There, the defendant secretly filmed the minor victim while she was unclothed. Chester, 133 Wash.2d at 17, 940 P.2d 1374. There is no indication that the State attempted to prove that the defendant in that case aided, invited, employed, or authorized the victim to do anything. Although the Chester court discussed all five action verbs in the statute, it appears that the discussion of any verb other than "cause" was dicta. See, e.g., Chester, 133 Wash.2d at 21, 940 P.2d 1374 ("The question before us is whether the statute prohibits a person from filming a nude child, without the child's knowledge and where the exhibition of nudity is accomplished without the involvement of the defendant.") Because a "cause" is not such without a "result," it was entirely logical for the Supreme Court to require a result in those circumstances.
¶ 35 But by requiring a "result" in a case, like this one, that turns on whether a defendant invited the minor to engage in sexually explicit conduct, the majority has, in effect, added an element to RCW 9.68A.040(1)(b). A defendant's invitation is no longer enough under the statute; the minor must accept the invitation. This is inconsistent with Chester's definition of "invite" ("to request the participation or presence of a person"), which rightly focuses on the defendant's actions and not on the victim's response. 133 Wash.2d at 22, 940 P.2d 1374 (quoting Webster's Third New Int'l Dictionary 1190 (1986)). Because Chester's "result" language is dicta in the context of a defendant's invitation, and because Stribling's repeated invitations to the victim to take nude photographs of herself clearly fit the Webster's definition of "invite" that our Supreme Court approved in Chester, I would hold that the State's evidence was sufficient to convict Stribling under RCW 9.68A.040(1)(b).
¶ 36 I also disagree with the majority's second rationale, which concludes that the State cannot prove the element of "knowing that such conduct will be photographed" until the conduct is actually photographed. RCW 9.68A.040(1)(b). The majority correctly points out that "will be" has a different meaning than "could be." Majority at 8. But I cannot agree with the majority's conclusion that "will be" means "has been." Here, Stribling specifically invited the victim to create the photographs. Thus, he knew that if the victim accepted his invitation, she would create the photographs. This satisfies RCW 9.68A.040(1)(b)'s knowledge element. By construing the knowledge element to require the minor to accept the invitation, the majority writes "invite" out of the statute.
¶ 37 The jury accepted the State's proof that Stribling invited the victim to take nude photographs of herself. He is guilty under the plain language of the statute.
I concur: VAN DEREN, J.
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