State v. Arbogast, No. 36250-7-III
| Court | Court of Appeals of Washington |
| Writing for the Court | Siddoway, J. |
| Citation | 478 P.3d 115,15 Wash.App.2d 851 |
| Parties | STATE of Washington, Respondent, v. Douglas Virgil ARBOGAST, Appellant. |
| Docket Number | No. 36250-7-III |
| Decision Date | 24 December 2020 |
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.
¶ 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¶ 3 In the unpublished portion of this decision, we reject Mr.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.
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
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
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
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:
| 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 |
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State v. Arbogast, 99452-8
...to be served concurrently. In a split opinion, Division Three of the Court of Appeals reversed. State v. Arbogast, 15 Wn.App. 2d 851, 854, 478 P.3d 115 (2020). The majority made three holdings relevant to the case before us: (1) it rejected State v. Trujillo, 75 Wn.App. 913, 883 P.2d 329 (1......
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State v. Arbogast, 99452-8
...two charges, to be served concurrently.¶ 15 In a split opinion, Division Three of the Court of Appeals reversed. State v. Arbogast , 15 Wash. App. 2d 851, 854, 478 P.3d 115 (2020). The majority made three holdings relevant to the case before us: (1) it rejected State v. Trujillo , 75 Wash. ......
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State v. Bertolacci, 53320-1-II
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State v. Pamon, 83468-1-I
...with a defense that denies criminal conduct, it does not conflict with a defense that denies criminal intent. 15 Wn.App. 2d 851, 870, 478 P.3d 115 (2020), review granted, 197 Wn.2d 1007, 484 P.3d 1262 (2021).[8] Finally, Pamon contends that the fact that the trial court found by a preponder......
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State v. Arbogast, 99452-8
...to be served concurrently. In a split opinion, Division Three of the Court of Appeals reversed. State v. Arbogast, 15 Wn.App. 2d 851, 854, 478 P.3d 115 (2020). The majority made three holdings relevant to the case before us: (1) it rejected State v. Trujillo, 75 Wn.App. 913, 883 P.2d 329 (1......
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State v. Arbogast, 99452-8
...two charges, to be served concurrently.¶ 15 In a split opinion, Division Three of the Court of Appeals reversed. State v. Arbogast , 15 Wash. App. 2d 851, 854, 478 P.3d 115 (2020). The majority made three holdings relevant to the case before us: (1) it rejected State v. Trujillo , 75 Wash. ......
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State v. Bertolacci, 53320-1-II
...the standard in Trujillo, concluding that there was no basis for that court to adopt a heightened standard. 15 Wn.App. 2d 851, 871, 478 P.3d 115 (2020), review granted, 197 Wn.2d 1007 (2021). Instead, the court applied the "substantial" or "some" evidence standard.[4] Id. at 873 ("[Defendan......
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State v. Pamon, 83468-1-I
...with a defense that denies criminal conduct, it does not conflict with a defense that denies criminal intent. 15 Wn.App. 2d 851, 870, 478 P.3d 115 (2020), review granted, 197 Wn.2d 1007, 484 P.3d 1262 (2021).[8] Finally, Pamon contends that the fact that the trial court found by a preponder......