Bill Wheeler Jr. had asked Snohomish County Superior Court Judge Janice Ellis to dismiss a felony charge accusing him of sexual exploitation of a minor while the teen worked at a Grab-N-Go stand in Everett.
Wheeler knew the girl was 16 when he hired her and had helped her with emancipation paperwork, according to court papers.
Still, prosecutors have presented no photos, videos or other direct proof of the girl engaged in sexually explicit conduct, such as flashing her private parts, and if that happened on the job, it wasn't at Wheeler's direction, Seattle defense attorney John Henry Browne said.
"We have a lot of suppositions and a lot of inferences but not a lot of evidence," Browne told the judge.
It's true there are no videos or photos taken from the stand that document the misconduct, but there are other ways to build the case, deputy prosecutor Jarett Goodkin argued.
Detectives allegedly witnessed the girl exposing her breasts to customers, and they documented the conduct on police video. The investigation also turned up evidence that the stand's surveillance video may have been deliberately destroyed and that Wheeler spoke with others and sent text messages about watching the girl and others flashing customers, Goodkin said.
Wheeler also had an application on his cellphone that allowed him to view video from surveillance cameras at his stands.
To convict Wheeler as charged, prosecutors will need to prove he "aided, invited, employed, authorized and caused" the teen to engage in sexually explicit conduct, knowing that her behavior would be part of a live show or would be photographed.
Looking at the available evidence, it is clear that Wheeler authorized hiring the girl while knowing she was a minor, Ellis said. Further, sexually explicit conduct by baristas was "common, perhaps pervasive" at his stands, and the girl's training came from a woman who'd been in trouble for exposing herself to customers, the judge said.
She also pointed to witness transcripts that contain allegations of Wheeler admitting he'd watched the girl engaging in improper contact with customers.
Everett police arrested the girl and several other baristas in February 2013 for alleged lewd conduct and violations of the city's adult cabaret laws. Police said they began investigating two of Wheeler's stands, one on Broadway and one on SE Everett Mall Way, after receiving complaints.
The girl told detectives that Wheeler didn't pay the baristas an hourly wage, but instead allowed them to keep any tips they made, so long as they made at least $70 for the stand during their weekend shifts and $220 on weekday shifts.
The teen said "she learned from other baristas that the only way to make enough money during their shifts was to perform 'shows' for customers," flashing breasts and genitals, prosecutors said in court papers.
In court papers, Browne noted that the girl, who turns 18 next month, had told Wheeler's attorneys that she knew "sex sells," and it is common knowledge that customers go to businesses like Grab-N-Go to look at girls wearing little clothing.
She told the attorney that when she took the job at Wheeler's espresso stand she intended to earn as much money as possible through sexually charged behavior.
"She made the decision to flash her breasts — there is no evidence such conduct was initiated by Bill Wheeler," Browne wrote. "Bikini stands are legal. They are set up to ogle girls — and she's right, everybody knows it."
Browne told the judge he expects to file multiple motions questioning the admissibility of evidence prosecutors hope to present to jurors at his client's trial, which is scheduled for March.
Everett police have for years been wrestling with the Wheeler family and their risque espresso business. In 2009, when the stands were owned by Wheeler's father, five baristas were arrested for prostitution. The raid made national headlines but the elder Wheeler was never prosecuted in connection with the prostitution sting. He went missing a year later, after failing to return from a business trip in Las Vegas. His disappearance remains unexplained.
Scott North: 425-339-3431, firstname.lastname@example.org
Correction, Feb. 14, 2014: Police surveillance video exists that allegedly documents the 16-year-old girl flashing customers at the Everett espresso stand. An earlier version of the story contained inaccurate information about whether the video exists.
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