A Nevada man sentenced by a Mohave County court to 31 years in prison for several dangerous crimes against children will see 15 years of that time dropped off if a decision by the Arizona Court of Appeals holds up.
Kevin Harry Moninger was convicted of three counts of luring a minor for sexual exploitation and one count of attempted sexual conduct with a minor stemming from a 2018 law enforcement operation targeting child predators. He is currently serving back-to-back prison terms of 7 years, 7.5 years, 7.5 years, and 9 years.
Moninger, now 65, appealed the luring convictions, arguing his conduct at most involved one continuous act of luring in which he solicited sexual intercourse with a minor, not three separate acts. And on Tuesday, the court of appeals ruled Moninger was right.
“Because we conclude the term ‘solicit’ in luring a minor under A.R.S. § 13-3554(A) refers to a course of conduct that may include a series of statements, we hold that the trial evidence established only one violation of the statute, not three. Therefore, we vacate two of Moninger’s luring convictions and remand for resentencing,” the opinion states.
Moninger will not be resentenced for at least 30 days as the Arizona Attorney General’s Office has the option of petitioning the Arizona Supreme Court for review of the appellate decision.
Court records show Moninger placed an online ad in 2018 seeking sexual encounters with women and users of the website are required to affirm they are adults. However, a detective with the Mohave County Sheriff’s Office responded to Moninger’s ad on Sept. 30, 2018, posing as Sabrina, a 13-year-old girl from Kingman.
Over the next five days, Moninger and “Sabrina” exchanged more than 1,300 text messages. Moninger eventually suggested the two meet in person with the possibly of having sex and he was arrested in Kingman at the place he expected to meet the girl. He was reportedly found with clothing for the girl and a Viagra pill.
At trial, the prosecutor alleged Moninger solicited Sabrina for sexual intercourse on three consecutive days. Moninger argued entrapment, testifying he believed Sabrina was an adult who was simply role-playing as a minor. The jury did not buy into that defense and Moninger was ordered to serve a total of 22 years for the luring convictions followed by 9 years on the attempted sexual conduct charge.
The problem, according to the June 8 appellate opinion, is that the statute Moninger was charged with does not define the word solicit. And after analyzing the statute’s text and the intent of the Arizona Legislature, the court of appeals ruled Moninger’s ongoing conversation with Sabrina constituted one, not three, acts of luring.
That resulted in Double Jeopardy for Moninger on the second and third luring convictions because the evidence used to prosecute those counts was the same conduct which supported the luring conviction for count one, the opinion states.
The court of appeals also agreed with Moninger’s argument that the Mohave County trial judge misconstrued Arizona’s sentencing guidelines by ruling the luring convictions were prison mandatory and not probation eligible. If the appellate ruling holds, then the trial judge has discretion to consider Moninger for probation remaining luring charge.
Nothing in Tuesday’s ruling changes Moninger’s nine year sentence for attempted sexual conduct.