State v. Arbogast

• Decision Date: 24 December 2020
• Docket Number: No. 36250-7-III,36250-7-III
• Citation: 478 P.3d 115,15 Wash.App.2d 851
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Douglas Virgil ARBOGAST, Appellant.

15 Wash.App.2d 851
478 P.3d 115

STATE of Washington, Respondent,
v.
Douglas Virgil ARBOGAST, Appellant.

No. 36250-7-III

Court of Appeals of Washington, Division 3.

FILED DECEMBER 24, 2020

OPINION PUBLISHED IN PART

Siddoway, J.

15 Wash.App.2d 854

¶ 1 Douglas Arbogast was convicted of attempted child rape after responding to an ad placed by a Washington State Patrol (WSP) task force sting operation. The State persuaded the trial court that Mr. Arbogast was not entitled to an entrapment instruction unless he presented evidence sufficient to permit a reasonable juror to find entrapment by a preponderance of the evidence, citing State v. Trujillo , 75 Wash. App. 913, 917, 883 P.2d 329 (1994). It persuaded the court that Mr. Arbogast should not be allowed to present evidence of his law-abiding past or argue his lack of criminal predisposition unless he presented evidence sufficient to prove by a preponderance of the evidence that WSP officers used more than a "normal amount of persuasion" in their communications with him.

¶ 2 The procedure prevented Mr. Arbogast from presenting evidence and obtaining an entrapment instruction to which he was entitled. In the published portion of this decision, we reject Trujillo ’s standard, hold that Mr. Arbogast was wrongly prevented from presenting "lack of predisposition" evidence, reaffirm that a trial court's decision whether to instruct on entrapment cannot be based solely on law enforcement's conduct to the exclusion of the defendant's lack of predisposition, and reverse and remand for a new trial.

¶ 3 In the unpublished portion of this decision, we reject Mr. Arbogast's contention that all or some of the charges against him should be dismissed for outrageous government conduct or proof of entrapment as a matter of law. Addressing his pro se statement of additional grounds, we reject a claim of insufficient evidence and address instructional and discovery issues likely to arise in a retrial.

15 Wash.App.2d 855

FACTS AND PROCEDURAL BACKGROUND

¶ 4 In July 2017, members of the Washington State Patrol Missing and Exploited Children Task Force undertook a "Net Nanny" sting operation in the Tri-Cities by placing ads in the now-defunct "Casual Encounters" section of Craigslist.¹ A member of the task force would later describe the Casual Encounters section as "designed for no-strings-attached sex." Report of Proceedings (RP)²

478 P.3d 119

at 881-82. "Quite a few" different ads were placed by the WSP during the Tri-Cities sting operation, including ads from fictional children (female and male) who were themselves looking for sex. RP at 976.

¶ 5 The ad involved in this case was placed by an adult, however: a fictional mother. The ad was reached if a Casual Encounters user clicked a "w4m" (woman for men) hyperlink. It read:

Mommy loves to watch family fun time. Looking for that special someone to play with. 100%. I know this is a long shot but I have been looking for this for a long item [sic] and haven't had any luck looking for something real and taboo. If this is still up then I am still looking. send me your name and your favorite color so I know you are not a bot. i like to watch ddlg daddy/dau, mommy/dau, mommy/son.

Ex. 1.

¶ 6 Sergeant Carlos Rodriguez, who planned the logistics for the Tri-Cities sting and wrote the "mommy" ad, acknowledged at the trial below that the ad was cryptic and might not be recognized as advertising sex with children, explaining

15 Wash.App.2d 856

that a more overt advertisement would be removed immediately by Craigslist. He testified that terms in the ad (taboo, ddlg, daddy/dau, mommy/dau, mommy/son) had connotations for child predators whose meaning he learned through his training for and experience in sting operations. He agreed that the task force received responses to the "mommy" ad from people who were not looking to have sex with children.

¶ 7 Then-70-year-old Douglas Arbogast e-mailed a response to the ad with his name and favorite colors, "Doug and black&white" at 1:56 p.m. on July 5. Ex. 2. He would later testify that after discovering the Casual Encounters section of Craigslist a couple of years earlier, he had responded to a half dozen "woman for man" ads because sex had become painful for his wife of 48 years after her hysterectomy. Responding to such ads paid off once, a couple of months earlier, when he responded to a woman who said she wanted to "meet a man and become his whore for the night." RP at 1356. He met the 50-year-old woman at a local motel for sex.

¶ 8 On receipt of Mr. Arbogast's response to "mommy's" ad by the task force, it was passed on to WSP Detective John Garden, who undertook the sham communication that followed. Mr. Arbogast was pleased when, in the late afternoon, he saw a reply he had received some time earlier to the "mommy" ad:

hi doug [smiley face emoji] I am brandi ... are u a black and white kind of guy? 4:14 PM

Ex. 2. He responded at 5:27 p.m.:

Yes I am. If guessed photography that is why ... I do B&W Picts So I up for anything if you are 5:27 PM

Id. Brandi quickly replied:

Let's talk and see if you are interested in my situation. would u mind texting me your name DOUG to 5096202098 so I know its u .... i really would rather text than email. 5:29 PM

15 Wash.App.2d 857

Id. (Misspellings, punctuation, and capitalization here and in communications hereafter are original.)

¶ 9 Mr. Arbogast responded:

Ok, give me a few to get back at you in text mode. 5:49 PM

Id. Mr. Arbogast exchanged his iPad for his phone and at 5:54 p.m. began communicating with Brandi by text:

478 P.3d 120

15 Wash.App.2d 858

5:54:03 PM	...	...	Incoming	Hi. I'm Doug. What's happening?
6:00:46 PM	...	...	Outgoing	thank u so much better to text
6:01:18 PM	...	...	Outgoing	did you read my last email. i dont want to waste our time if this isnt for you. i really wnt to find the match
6:07:02 PM	...	...	Incoming	This really is me. I do B&W Picts if this helps
6:08:22 PM	...	...	Outgoing	ok are you good with my kids ages?
6:09:01 PM	...	...	Incoming	What are the ages
6:11:09 PM	...	...	Outgoing	thats why i asked if you read the last email i sent.... its in the email. boy is 13 and my precious baby girl is 11
6:12:58 PM	...	...	Incoming	OK sorry I missed it. All the replies on top of each other
6:15:03 PM	...	...	Outgoing	i get it...that is why I hate the emails i like texting for that reason
6:17:08 PM	...	...	Incoming	I agree. So tell me more about yourself
6:33:02 PM	...	...	Outgoing	i was rasied very close to my father. he started sleeping with me when i was young ...at first i was scared but really enjoyued it. he was so gentle and loving. my mom knew so it made our home open. i miss those days. i want my kids to expereince the same closeness plus they need a techer to help them with sex when they get older
6:33:59 PM	...	...	Outgoing	i have to be honest. i lost my attraction to men a while back. I cant get enough of young boys about my sons age./ their innosense is amazingly a turn on for me
6:46:54 PM	...	...	Incoming	Ok Brandi, I am probably a we bit older and know a few things. I can be easy and exploring into everything you might desire. So if you want to try someone older, game on. I d have most of my hair.
6:57:37 PM	...	...	Incoming	So what would you like me to do to help?
7:02:57 PM	...	...	Outgoing	we had a very good man in my kids life for a year or so but lost him to a move becasue of military. i am looking to fill his role in my kids lives. he was bi and very gentle witht hem. taught them oral and orther skills. its so hard to find the right guy. i have to be so careful and so do you. i am not interested in men especailly older. sorry my secrete is i am into boys my sons age ... i love their innocense. can you be the daddy my two kids need??

15 Wash.App.2d 859

Ex. 3 (formatting modified).

¶ 10 At some point before Mr. Arbogast next texted "Brandi," he evidently found the e-mail she sent him at 5:54 p.m. Her e-mail had said:

I need you to be honest about what you want, that is best and makes sure we all get what we want. My girl is 11 and my boy is 13. She is not totally active, but still likes to play and is very ready and mature. My son is 13 and very active. I'm single and looking for some one who is open and free to new ideas. If this fits you then lets talk and if it works out we can meet up and have some fun.

Ex. 2.

¶ 11 Twelve minutes after Brandi's "can you be the daddy my two kids need??" text, Mr. Arbogast texted, "Well sorry to hear that. I just read that missed mail. Never have done that. I just wanted to be with mom. Don't know if I could help do kids. It's really up to you." Id. Brandi responded, "thanks for not wasting our time. I am not looking for me. I am looking for someone to

478 P.3d 121

be with my kids. Good luck with

15 Wash.App.2d 860

what it is you seek." Id. Mr. Arbogast replied, "I can be good with them. Just never thought about it that way." Id.

¶ 12 For the next hour and 40 minutes, the two texted in more detail about what Brandi wanted for her children, and whether Mr. Arbogast was willing to provide it. They exchanged photographs. This was Brandi's:

Ex. 5 (cropped and converted from color to greyscale).

¶ 13 At trial, the State pointed out that in the course of the texts, Brandi suggested that her children could engage Mr. Abrogast with kissing, touching, oral, and nonanal penetration (as long as it was not painful) and that Mr. Arbogast did not rule out any of the suggested conduct. Mr. Arbogast pointed out that he repeatedly said that he had not previously engaged in the conduct Brandi was suggesting.³ The State pointed to several times when Brandi told Mr. Arbogast that she would not be involved—this was for

15 Wash.App.2d 861

her children. Mr. Arbogast claimed that he still believed that sex with Brandi was a possibility, pointing to the picture she sent, in which she appeared to him to be wearing a "teddy" (a type of lingerie) or bra; her response, after he offered her "TLC," that "i could get invloved with you and jake after a few good sessions of you two"; her enigmatic message, "change my mind about us...