Appellate judges ordered a new trial today for Spokane man convicted in 2009 of being a sexually violent predator because the note he wrote, detailing his desire to rape, kidnap and dismember a woman, was never communicated to anyone and thus did not meet the required legal definition of a threat.
As part of the elements to qualify him as a sexually violent predator, the state must show that convicted rapist Shawn D. Botner committed an “overt act” toward committing another sex crime. Because of the decision Tuesday, Botner is expected to face another trial to determine whether he will remain in state custody indefinitely.
“He asked, ‘Why wasn’t the case dismissed,’” said his attorney, Tim Trageser, who spoke with Botner Tuesday. “That’s’ a good question. Why are they not releasing him? That bothers me.”
Assistant Attorney General Malcolm Ross said state prosecutors will soon decide whether to appeal the decision to the Washington Supreme Court or prepare for a new trial.
“We also need to look … to see if we have a recent over act” while in custody in the Special Commitment Center in McNeil Island. “There are a few things we have to look at before we decide how to proceed.”
Botner was convicted in 1988 of fondling a family member. In 1991, he was convicted of unlawful imprisonment after he followed a woman into a restroom at Riverfront Park and attacked her for several minutes before fleeing.
In February 1992, Botner followed a young woman into the restroom at Spokane Community College Adult Learning Center and choked her to unconsciousness with a phone cord.
Then in July 2006, a Gonzaga University security guard found a duffel bag, which Botner acknowledged was his, with a note detailing how he wanted to go to an adult book store dressed as a woman, abduct the female clerk, rape and dismember her.
Botner said he simply was writing out his fantasies. But three weeks later, he was stopped by Spokane Police riding a bicycle wearing no shirt and a women’s bra and he was armed with a hammer. He also had a bag that contained rope, a French maid outfit and a blond wig.
Unsolicited, he told the officers: “You’d be surprised what could be traced back to you by forensic evidence.”
Trageser said he doesn’t understand why state prosecutors never tried to connect the note to the incident on the bicycle, which occurred only about three blocks from an adult book store.
“They never argued in Botner’s case that riding around that night was the overt act,” Trageser said. “It never occurred to them that what he was doing was maybe consistent with what was in the note … which blew my mind.”
During the trial, Botner told the jury that it was “50-50” that he would commit a new sex crime. However, Division III Court of Appeals Judge Laurel Siddoway, writing for the majority, wrote that the note was not enough to show he committed an “overt” act.
“Mr. Botner did not express an intention to anyone. We do not suggest that his characterization of his handwritten entry as merely therapeutic must be accepted at face value,” Siddoway wrote. “ We recognize only that there was no evidence that his fantasy or plan – whatever it was – was ever intentionally communicated to anyone. We therefore reverse, but because the evidence was sufficient to establish an act, we remand for a new trial.”