A Clark County judge has dismissed sexual misconduct charges against a privately paid Skyview High School band assistant.
Clark County Superior Court Judge Roger Bennett ruled that Adrian Kelley, 23, of Vancouver had no professional authority over two alleged victims.
Kelley was working with the high school band program during 2009 and 2010 and allegedly engaging in sexual activity with the two girls.
A spokeswoman for Vancouver Public Schools said Kelley is no longer a band assistant at Skyview.
Kelley was charged with nine counts of first-degree sexual misconduct with a minor under Washington’s abuse of trust statute, which applies to adults working with students.
Washington’s age of consent is 16; the alleged victims were 16.
Bennett was asked by the defense to consider two issues: the fact that Kelley wasn’t technically a school employee and also that he didn’t supervise either of the students.
Kelley, a 2005 Skyview graduate, began working with the band program in 2009, and earned $1,125 a month from the band’s booster club.
Defense attorney Steven Thayer said in court papers that one of the students played a percussion instrument in an ensemble separate from the marching band that Kelley worked with.
The two met at a dance team competition and she later invited him to be friends on Facebook. Their relationship progressed from there and they started a physical relationship in February and March 2010, according to court documents.
“The defendant did not have interaction with (the girl) at all as an instructor, and as a result, no supervisory relationship between (her) and the defendant existed,” Thayer wrote in his motion for dismissal.
At a Friday afternoon hearing, the judge asked if there was any evidence that Kelley promised her favors.
Deputy Prosecutor Dustin Richardson said Kelley gave her a ride home once from a Saturday practice. To that, Bennett pointed out that none of the other students requested rides home.
“Giving a student a ride once does not meet the evidence standard” for abusing power, the judge said.
The other alleged victim wasn’t in the band, but told investigators she has friends in the band and hangs out with band students and instructors on a regular basis.
She also met Kelley on Facebook in winter 2009 and developed a sexual relationship with him from there, according to court documents.
Richardson had argued that by applying the law with common sense, Kelley could be considered a school employee, regardless of from whom he received his paychecks.
He said that Kelley’s involvement in the band program could be considered a position of power.
“There is little, if any, question that a parent dropping his or her child off to band would believe that all instructors of his or her child are employees of the school district,” Richardson wrote in response to Thayer’s motion for dismissal.
The judge didn’t agree, siding with Thayer’s legal argument. Bennett said at Friday’s hearing that the law doesn’t clearly define what constitutes an employee and that Kelley shouldn’t be held responsible for an act that isn’t clearly unlawful.
As for the “abuse of trust” part of the statute, Bennett said: “The Legislature says you have to abuse the position.”
Regarding the employment issue, the judge said: “Because it’s an arguable case that’s not clear, I’m granting the motion” to dismiss.
On Tuesday, Thayer said his client, who has been under house arrest since his October arrest, plans to move to Texas to be with his fiancée.
“The accusations in this case came close to destroying his life,” Thayer said. “With the dismissal, he’s been vindicated.”
Laura McVicker: 360-735-4516 or firstname.lastname@example.org.