State v. Arbogast

• Decision Date: 31 March 2022
• Docket Number: 99452-8
• Citation: 506 P.3d 1238
• Parties: STATE of Washington, Petitioner, v. Douglas Virgil ARBOGAST, Respondent.
• Court: Washington Supreme Court

506 P.3d 1238

STATE of Washington, Petitioner,

v.Douglas Virgil ARBOGAST, Respondent.

No. 99452-8

Supreme Court of Washington.

Argued: September 21, 2021

Filed: March 31, 2022

Andrew Kelvin Miller, Terry Jay Bloor, Benton County Prosecutors Office, 7122 W. Okanogan Pl. Bldg. A, Kennewick, WA, 99336-2359, for Petitioner.

Lenell Rae Nussbaum, Law Office of Lenell Nussbaum, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Respondent.

Amy Irene Muth, Law Office of Amy Muth, PLLC, 1000 Second Avenue, Suite 3140, Seattle, WA, 98104, Thomas E. Weaver Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA, 98337-0221, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

MADSEN, J.

¶ 1 Douglas Virgil Arbogast was charged with two counts of attempted child rape as a result of a Washington State Patrol sting operation. Police officers posted an advertisement online and posed as a mother seeking a person to teach her two children about sex. Arbogast answered the ad, exchanged messages with undercover officers, and was later arrested. At trial, Arbogast sought to present the affirmative defense of entrapment and his lack of criminal convictions as evidence that he was not predisposed to commit the charged crimes of attempted child rape. The trial court declined to allow evidence of his lack of criminal record or instruct the jury on entrapment. Arbogast was convicted. A divided panel of the Court of Appeals reversed and remanded the case for a new trial.

¶ 2 Entrapment is ultimately an issue for the fact finder. We recognize, however, that cases discussing the defense have used various terms to describe the burden of production defendants must meet to justify an instruction. We granted review to, among other things, resolve this confusion.

¶ 3 We hold that to obtain an entrapment instruction, defendants must make a prima facie showing that (1) the crime originated in the mind of the police or an informant and (2) the defendant is induced to commit a crime that he or she was not predisposed to commit. RCW 9A.16.070(1). The measure of a prima facie showing is whether the evidence offered, considered in a light most favorable to the defendant, is sufficient to permit a reasonable juror to find entrapment by a preponderance of the evidence. Here, Arbogast offered sufficient evidence to justify an instruction. Whether he can establish the defense is ultimately a decision for the jury. We affirm the Court of Appeals.

BACKGROUND

¶ 4 Arbogast testified that his wife of 48 years underwent surgery, after which sex became painful. Consequently, Arbogast began looking online for casual sexual encounters with other women. He responded to numerous personal ads, eventually leading to no-strings-attached sex.

¶ 5 Shortly after a successful casual encounter, Arbogast responded to an online ad¹ posted by "Brandi," an undercover Washington State Patrol officer. 7 Tr. of Verbatim Report of Proceedings (VRP) (June 15, 2018) at 1359-61. After initial introductions were made, Brandi e-mailed Arbogast that she was "single and looking for some one that is open and free to new ideas." Ex. 2 (e-mail at 5:54 PM). Arbogast then asked Brandi specifically to tell him about herself. She explained that she started sleeping with her father when she was young, and that she wanted her "kids to experience the same closeness" and needed "a techer [sic] to help them with sex when they get older." Ex. 3, at 2 (text at 6:33:02 PM). Brandi clarified that she had "lost [her] attraction to men" and was instead interested in "young boys about [her] sons [sic] age." Id . (text at 6:33:59 PM). Arbogast responded that he was "probably a we [sic] bit older and ... can be easy and exploring into everything you might desire. So if you want to try someone older, game on." Id . (text at 6:46:54 PM). Brandi also stated that her family already had experience with a sexual teacher who moved away due to military commitments.

¶ 6 At this point in the conversation, Arbogast texted that he reread Brandi's first e-mails and told her that he had not had sex with children and was interested in her. E.g. , id . at 3 (texts at 7:15:42 PM, 7:19:25 PM) ("just wanted to be with mom," "[d]on't known if [he] could help do kids," and "never thought about that way"). Brandi replied that she was not looking for a partner for herself, but for her children. After texting that he had not tried young kids, Arbogast said had looked at young girls and would "like to try a young lady once." Id . at 4 (text at 7:29:22 PM). Arbogast then texted that he did not think he could devote the time "necessary for this training" for the children and asked to meet with Brandi publicly for coffee to discuss it further. Id . (texts at 7:41:27 PM, 7:49:06 PM). Brandi reaffirmed that she was not looking for a partner herself and that she homeschooled the children, allowing her to keep their "secrets." Id. at 5 (texts at 7:56:35 PM, 7:57:06 PM). Arbogast texted back: "And my secret as well if chosen." Id. (text at 7:58:14 PM).

¶ 7 Brandi and Arbogast then exchanged photos. Arbogast texted that he wanted to give Brandi "TLC [(tender loving care)]." Id . at 5 (texts at 8:16:57 PM, 8:20:02 PM). Brandi answered that she "could get inv[ol]ved with [Arbogast] and [J]ake [(her son)] after a few good sessions of you two but [was] not into it" and asked Arbogast to "change [her] mind about us hooking up?" Id. (texts at 8:21:35 PM, 8:22:26 PM). In response, Arbogast stated, "OK you mean I need to groom the boy alone? What about your princess[?]" and "Never have done kids before." Id. at 6 (texts at 8:23:47 PM, 8:24:12 PM). After exchanging another series of texts discussing how frequently Arbogast would meet with the children, he texted "we should meet and try it out." Id. (text at 8:31:00 PM). Brandi outlined the rules, saying there could be no pain, no anal penetration, condoms were required, he would stop when asked, and he could not get the daughter pregnant. The rules also required Arbogast to come to her home and when he arrived "we all get naked." Id. (text at 8:36:34 PM). Arbogast agreed, stating that he was sterile and looking for oral and regular sex. Minutes later, Arbogast repeated that he was interested in Brandi romantically, but she clarified that she would not be involved.

¶ 8 Brandi texted that they should meet soon so that she would be "less cautious its [sic] not a set up," and she suggested that Arbogast come over to her apartment that night. Id. at 8 (texts at 9:00:05 PM, 9:06:18 PM). Brandi instructed Arbogast to bring condoms and lubricant, and said that she had to prepare the children. Arbogast again responded that he "[had] not done this before" but "[c]ould do almost anything without penetration." Id. at 9 (text at 9:19:42 PM). When Brandi asked if Arbogast wanted the daughter or son or both, he responded he wanted the daughter dressed in "[j]ust under things" and would perform and receive oral sex. Id. at 9-10 (texts at 9:21:40 PM, 9:22:34 PM, 9:25:17 PM, 9:26:18 PM, 9:27:15 PM, 9:28:14 PM).

¶ 9 On arriving at the apartment, Arbogast was arrested. He did not have condoms or lubricant; he agreed to speak with the detectives, allowing them to search his phone and car. Arbogast was interrogated at the apartment site and took a polygraph examination. The polygraph indicated that Arbogast showed no deception when he answered he had no previous sexual contact with anyone under the age of 16. Arbogast's phone showed no evidence of child pornography or that he sought sex with children in the past.

¶ 10 Arbogast was charged with two counts of attempted child rape in the first and second degree. In pretrial motions, Arbogast sought to admit the results of his polygraph on the question of whether he had ever tried to engage in sexual contact with children and to call the officer who administered the test as an expert witness, as relevant to entrapment. Alternatively, Arbogast argued the polygraph should be admitted to determine only whether an entrapment instruction was allowed. The motions were denied because the State was unwilling to stipulate to the admissibility of the polygraph. Arbogast also sought a jury instruction on entrapment. The court reserved that motion for resolution at trial.

¶ 11 In its own pretrial motions, the State sought to prohibit any mention of Arbogast's lack of criminal history. The court agreed, finding it was premature until Arbogast presented evidence of government inducement or luring, another requirement of entrapment.

¶ 12 At trial, Arbogast testified that he never intended to have sex with children. Arbogast responded to the online ad because he wanted a casual sexual encounter with an adult woman. Arbogast had previously met with a woman before in response to such an ad. Despite Brandi's put-offs, Arbogast testified that he thought he could persuade Brandi and so continued to play along, indicating interest in the children only to get on the mother's good side. Despite acknowledging the conversation with Brandi concerned sex with her children, Arbogast maintained that he did not intend to act on his statements. A police officer who had spoken to Arbogast after his arrest testified that Arbogast said he intended "be with the children," 8 VRP (June 18, 2018) at 1446, but admitted on cross-examination that it was unclear whether Arbogast meant to have sex with the children or just be present with them.

¶ 13 At the conclusion of its case, the State argued an entrapment instruction was not justified because Arbogast failed to show government inducement and a lack of predisposition by a preponderance of the evidence. The court agreed, concluding that there was some evidence to support luring but no more than normal. The court therefore denied the entrapment instruction and precluded evidence showing the absence of a criminal record to show lack of predisposition.

¶ 14 A jury convicted Arbogast of both counts of attempted child rape. He received a standard...