Washington S. Ct. Reverses Attempted Child Rape Conviction, Remands for Retrial with Entrapment Instruction

The Thursday opinion is in State v. ArbogastJustice Barbara Madsen wrote the following:

Arbogast testified to the fact that his wife, of 48 years, had surgery after which sex became difficult. Arbogast started looking for other women online to have casual sexual encounters. He replied to many personal ads and eventually found no strings attached sex.

Arbogast replied to an online advertisement posted by Brandi, an undercover Washington State Patrol officer. {The advertisement stated that:

Mommy likes to watch—young family fun—420 friendly—w4m (Rich$land) Mommy luvs to watch family fun time. You are looking for someone special to have fun with. This is 100% true. I am sure it’s a distant dream, but this has been my long-term goal. [sic]But I’ve had no luck. I am looking for something authentic and taboo. This is still possible if you are interested. To prove that you aren’t a bot, send me your name along with your favourite color. I like to watch ddlg daddy/dau, mommy/dau mommy/son.

The abbreviation “w4m” means woman for man, “420 friendly” relates to cannabis, and “ddlg” is the abbreviation for daddy, daughter, little girl.}

Brandi wrote Arbogast to say that after initial introductions, she was now “single” and is seeking a partner who is free of restrictions and open to new ideas. Arbogast asked Brandi to share some details about her. Brandi explained to Arbogast that her dad was the one who first slept with her when she was a child. She also said that her children should have that same intimacy and she needed ‘a techer. [sic]”To help them have sex as they age.” Brandi explained that she “lost” her sex. [her]Attraction to Men” but was more interested in “young guys about”. [her] sons [sic] age.” Arbogast replied that he was “probably an we”. [sic] bit older and … can be easy and exploring into everything you might desire. You can try an older person if that is what you desire. Brandi stated, in addition to her experience with the sexual teacher she had previously met who was removed due to military obligations.

Arbogast then texted Brandi to say that he’d reread Brandi’s first email and that he wasn’t interested in having sex.

E.g., Id. at 3 (texts: 7:15.42 PM and 7:19.25 AM) (“Just wanted to spend time with my mom”,[d]It’s not known, however. [he]can help to do children,” she said. Brandi responded that Brandi wasn’t looking for a partner but her children. Arbogast texted to say he has not had any experience with young children. Brandi replied she would like to “try a young woman once” Italics. at 4 (text at 7:29:22 PM). Arbogast texted back that he didn’t think he had the time to devote to the training of the children. He asked Brandi to have coffee with him to continue discussing the matter. Italics. Texts available at 7:41.27 PM and 7:49.06 PM Brandi stated that she is not seeking a partner, and she said she homeschooled them. This allowed her to “keep their secrets.” Id.Texts: at 5, 7:56.35 PM and 7:57.06 AM Arbogast responded by texting back “And my secrets as well, if selected.” Italics. (text at 7:58:14 PM).

Brandi and Arbogast exchanged photographs. Arbogast then texted Brandi to say that he was going to show Brandi “TLC.” [(tender loving care)].” Italics. at 5, (texts 8:16.57 PM and 8:20.02 AM). Brandi replied that she could get involved[ol]Ved with [Arbogast]And [J]Ake [(her son)]After a couple of good sessions, you both but [was]Arbogast was “not into it” when he asked Arbogast to change [her]Think about how we hook up? Italics. Texts available at 8:21.35 PM and 8:22.26 PM Arbogast responded, “OK, do you mean I must groom the boy all by myself?” How about your princess[?]”” and “Never had kids before.” Italics. at 6. (texts at 8.23.47 PM, 8.24.12 PM). The two of them exchanged another set of texts, discussing the frequency Arbogast would see children. He then texted: “We should meet and test it out.” Italics. (text at 8:31:00 PM). Brandi explained the rules and said that there would be no pain or anal penetration. Condoms would also not be required. He wouldn’t stop if asked. The daughter could not become pregnant. Arbogast was required to go to Brandi’s house and “all get naked” when he got there. Italics. (text at 8:36:34 PM). Arbogast confirmed his agreement, saying that he was sterile. He also stated that he wanted regular oral and sexual sex. Arbogast reiterated his interest in Brandi romance a few minutes later. However, Brandi stated clearly that she was not interested.

Brandi said that they must meet up soon to be less cautious. [sic]”Not a setup,” she said, and Arbogast suggested Arbogast go over to her place that night. Italics. 8. (texts at 9:05:05 PM and 9:06:18 AM). Brandi told Arbogast that he should bring condoms as well as lubricant. She also said she needed to prepare the children. Arbogast replied that he had “…”[had]This is the first time I’ve done it, but this one was a success.[c]You could do nearly anything with no penetration. Italics. at 9 (text at 9:19:42 PM). Brandi asked Arbogast if he would prefer the child or the son. He replied “The daughter in the dress that I want”[j]Wet Under Things” would be able to perform oral sex and will receive it. Italics. Texts available at 9-10: (texts at 9/21:40 PM and 9:22:34PM, 9/25:17 PM and 9:26:18PM, 9/25:17 PM, 9,25:17 PM, 9.25:17 PM, 9.26:18 PM. 9:27:15 PM. 9:28:14 AM.

Arbogast was detained upon his arrival at the apartment. He didn’t have any condoms or other lubricant. However, Arbogast agreed to speak to detectives. They were able to check his cell phone and vehicle. Arbogast underwent a polygraph exam and was then interrogated on the premises. Arbogast did not deceive when he said that he had never been in sexual contact before with anyone younger than 16. Arbogast didn’t show any evidence that Arbogast had ever engaged in child pornography, or even attempted to have sex with children.

Arbogast was convicted of two counts each of attempted child rape, in the first and second degrees. Arbogast asked to admit his polygraph results regarding the question whether he ever attempted sexual contact. Arbogast also argued that the polygraph should not be admitted in order to decide if an instruction for entrapment was permitted. Because the State refused to agree to the admission of the polygraph, the motions were rejected. Arbogast sought also a jury instruction about entrapment. That motion was not allowed to be resolved at trial by the court.

The State tried to block any reference of Arbogast’s criminal record in its pretrial motions. It was agreed by the court, but it was too soon until Arbogast provided evidence of government induction or luring. This is another requirement for entrapment.

Arbogast stated that he didn’t intend to have sex as a child at trial. Arbogast answered the online ad as he desired a casual sexual encounter. Arbogast has met with women before to respond to an online ad. Brandi did not like Arbogast’s remark and he testified that he believed he was able to persuade Brandi. Arbogast continued to play with Brandi, showing interest in her children to gain the mother’s favor. Arbogast claimed that although he acknowledged Brandi’s conversation about having sex with her kids, he had not intended to act upon his statements. A cop who spoke to Arbogast shortly after Arbogast’s arrest said that Arbogast intended to “be with children.” However, he admitted that it wasn’t clear if he meant to have sex or be present with children.

After the State had concluded its case, it argued that the entrapment instruction wasn’t justified as Arbogast didn’t show evidence of government inducement nor a lack or predisposition. Court agreed and concluded that some evidence was available to support the luring of Arbogast, but not enough to make it more convincing than is normal. Accordingly, the court denied the instruction for entrapment and prohibited evidence proving the absence of any criminal record.

A jury convicted Arbogast on both counts of attempted kid rape. For the charges Arbogast faced, he was given a sentence in standard range of 90 months and 76.5 years respectively.

Washington Supreme Court’s majority applied Washington’s entrapment statute. It provides:

It is an offense to be a defendant in any criminal prosecution. [that defendants must prove by a preponderance of the evidence] that:

(a) Criminal design was created in law enforcement officers’ heads, or anyone acting under their supervision.

(b) An actor was manipulated or lured to commit a crime he had never intended to do.

(2) It is impossible to prove entrapment by showing that the law enforcement officers only gave an actor an opportunity for a crime.

A majority agreed with the conclusion that sufficient evidence had been presented to show that entrapment was occurring. The jury would have needed instructions on how to review the defense and make a decision about whether or not the elements are present.

Persuasion evidence can be made using threats of coercion or harassment, fraud, threats, harassment and promises of reward. It may also include pleas that are based upon need, sympathy, friendship, and persuasion. The inquiry into induction asks if police did more than simply provide a defendant the chance to commit the crime.

The trial court found Brandi’s claim that Arbogast could be involved after sessions with her child was evidence of deceitful luring. The court found that police used a normal amount of persuasion. This is up to the jury. United States v. Poehlman (9th Cir. This is an identical case of a “sexual mentor”, which was decided by the Ninth Circuit. In order to find a companion, the defendant went online and joined discussion forums. A woman posing herself as a mother, an undercover officer posted an ad asking for a companion to match her family’s needs. The defendant replied. It was suggested by the mother that defendant have a meaningful relationship with her children. After sharing her personal sexual education experiences with a teacher, she tried to get the same for her children. The Ninth Circuit ruled that the defendant had been induced to have sex with a minor. It noted that the father was interested at first in a relationship, and that the mother explained that her continuing interest was dependent on sex.

PoehlmanRecognized that parental consent does not provide a defense against rape but can have an impact on “self-struggle” [to]”Resist ordinary temptations.” Consent, characterizing the activity as a part of parents’ responsibility to their children, and selecting a sexual teacher as an expression of confidence can allay a defendant’s fears that an act is harmful, distasteful, or inappropriate….

Also available in PoehlmanArbogast was not the one who suggested that Brandi be a mentor for children. Brandi shared her sexual history in their first exchange of messages. She explained that her father was the one who started her sexual relationships when she was young. Her mother also understood these sexual relations. Brandi desired the same closeness for her children and so she sought out another teacher. Discussing her past experience and offering that another man had already served as a teacher, Brandi arguably validated what she was offering to Arbogast—a taboo and illegal sexual relationship. Brandi explained to Arbogast that she was looking for someone who could understand her sexual needs, regardless of how society views them. This helped dispel any fears Arbogast might have that such activities were inappropriate.

Additionally, you can also like the defendant PoehlmanArbogast kept repeating that he was seeking an adult relationship. Brandi began their conversation by telling Arbogast she was single, and that she is open to exploring new ideas. Arbogast asked Brandi about her life. Arbogast denied ever having sex as a child and said that he would never do it again. It was just my desire to be with Mom. “I don’t know how I can help with kids.” Brandi requested to have a public meeting to talk about sexual training. He stated that he was unable to devote sufficient time. Arbogast stated to Brandi that he would give his “TLC” in the text message exchanges. Brandi reiterated her insistence that she is not interested to have a sexual relationship, but raised the possibility of Brandi “could getting involved” with him. [Arbogast]And [J]Ake [(her son)]After a few great sessions, you both will be happy.” It was again similar. PoehlmanBrandi made it a condition that she had sex only with her children in order to pursue her relationship with Arbogast. Arbogast claims that he had this conversation with Brandi as “BS-ing” and then “going along with the flow” to finally have sex.

Inducement does not simply refer to the government presenting an opportunity for a criminal act. You must have the opportunity to do something, plus some other pressure on you. Even subtle government pressure can be used to induce, but it is possible. This is what we mean by Poehlman, a jury could conclude that the police induced Arbogast to commit the charged crime….

In this case, police carried out the online sting operation and provided evidence that satisfied the requirements of the entrapment defense. Arbogast provided evidence that Brandi incited him to commit the crime, which satisfied the lure element of defense. This evidence meets the requirements for obtaining an instruction on entrapment.

Justice Mary Yu and Chief Justice Steven Gonzalez voted against:

It is clear that the evidence only shows “a normal level of persuasion” and “sufficient evidence to support this conclusion.”[t]A mere decoy, or an informer used to provide an individual the opportunity to commit crime “doesn’t in itself amount to entrapment.” …

Arbogast claims he was incinduced to rape two children by Brandi, the fictional mother of the children. Brandi allegedly made Arbogast a condition for her sexual relationship on the basis of Arbogast sexual assaulting her children. He did not provide any proof to back this assertion. Brandi quickly responded when Arbogast sent Brandi a text saying “I just wanted mom to be with me,” to the contrary.[T]Thank you so much for your patience. You are not the one I’m looking for. I’m looking for someone who will be there with my children. [G]Good luck and all the best with whatever you are pursuing. Brandi was not willing to have sex only with Arbogast if she had been sexually assaulted by her children.

Brandi was able to continue texting Arbogast, explaining that he hadn’t tried “young children” before but that he would “try them again.”[w]I would like to meet a young woman once in a while. Arbogast was able to assault the children sexually after further discussions. Brandi raised the possibility again of an adult relationship. [TLC]?” Brandi only suggested that she could get involved at this stage. [Arbogast] [J]Ake [(her 13-year-old son)]She said that after “a few good sessions” she would like to “take away.” [the] kids[‘]exper[ie]nce.”

Brandi tried to persuade Arbogast with a reasonable degree of persuasiveness by suggesting that she may eventually be involved with Arbogast. However, Brandi refused to offer her a relationship with Arbogast unless Arbogast sex assaulted her children first. Brandi, however, made it clear to Arbogast that any sexual relationship with her family would include at least one her child. Arbogast was able to see that the boy would need to be groomed by Brandi, so he asked Brandi “What about your princess?” Brandi is Brandi’s eleven-year-old girl. Brandi assured Arbogast, “Your daughter is very curious and in the prime time for learning.”

Brandi and Arbogast talked about the rules that Arbogast would have to follow in regards to the sexual assault of children. Arbogast agreed, and Brandi then sent Arbogast an image of her fictional family. Brandi reiterated her belief that Arbogast would be a good choice if she wanted an older man.[I]must be made crystal clear [I] am not involved … [I]Don’t[‘]We don’t want to make you disappointed, and we especially won’t[‘]I don’t want my children to leave.[i]nted.” Arbogast agreed.

The jury is not required to make credibility decisions based upon conflicting evidence in this case. Brandi did not condition Arbogast on her sexual relationship. Brandi never gave any guarantee that Arbogast would get involved with her, even though he had agreed to sexually assault the children. Brandi was most likely not willing to say no when Arbogast repeatedly suggested a future relationship. However, this isn’t proof of induction. Rather, the police used permissible deception and artifice to present Arbogast with an opportunity to commit the crime of attempted child rape, which he took….

This is not a typical case Poehlman. Brandi only mentioned once she was referred to as having had a relationship with a mentor sexually. She did not give any incentive.[s]Or “important symbol”[s]Arbogast expressed her acceptance and friendship. Brandi and Arbogast also exchanged text messages for “less than five minutes,” which is a marked contrast to their lengthy, intimate exchange of months. Poehlman. Arbogast might have, like Poehlman sought an adult relationship undercover officer. But unlike that officer in Poehlman, Brandi did not “encourage[ ]Arbogast’s fantasies regarding this adult relationship. Arbogast was not subject to the same “aggressive intervention”, as Poehlman.

Arbogast accepted the offer by the police to take part in the crime. This is not inducement….