by Matt Clarke

The Supreme Court of Washington held that a trial court erred when it refused to permit an attempted child rape defendant to introduce evidence of his lack of a criminal history to support his claim of lack of propensity to commit the crime and denied his requested jury instruction on entrapment. The charges resulted from an online sting operation conducted by the police.

Douglas Virgil Arbogast used online personal ads to seek casual sexual encounters with women after surgery rendered sex painful for his wife of 45 years. He noticed an ad posted by “Brandi,” stating that she was a woman looking for a man and was a young mother who “likes to watch — young family fun.” It also indicated she liked to watch combinations of “daddy” and daughter as well as “mommy” and daughter or son. Brandi was actually an undercover Washington State Patrol officer.

Multiple emails and text conversations ensued in which Arbogast repeatedly expresses interest in hooking up with Brandi and informs her he’s never been with children, but she persistently insists on him engaging in sexual activity with her two children, not her. Arbogast introduced himself, and Brandi replied that she was “single and looking for someone that is open and free to new ideas.” Arbogast requested more details, and Brandi replied that she had sex with her father when she was young, wanted her “kids to experience the same closeness,” and was seeking a sexual mentor for them. She said she had “lost her attraction to men” but was attracted to young boys. Arbogast replied that he was a bit older than that, but if she wanted to try someone older, “game on.”

Brandi replied that her family already had experience with a sexual teacher who was in the military but had been transferred. At this point, Arbogast texted Brandi that he had reread her previous emails and told her that he had not had sex with children and was interested in her. She replied that she was not looking for a sexual partner for herself but for her children. He wrote that he had not tried young kids but had looked at young girls and would “like to try a young lady once.” However, “he did not think he could devote the time ‘necessary for this training.’”

They exchanged photos and Arbogast texted that he wanted to give Brandi “TLC [tender loving care].” Brandi answered that she could get involved with him and her son “after a few good session[s] of you two but [was] not into it” and asked Arbogast to “change [her] mind about us hooking up.”

“Arbogast stated, ‘Okay you mean I need to groom the boy alone? What about your princess[?]” and “Never done kids before.” After additional texts about the frequency of the encounters, Arbogast texted, “we should meet and try this out.” Brandi replied by laying out ground rules requiring condoms, no pain, no anal penetration, and stopping when asked. Arbogast replied that he was sterile and looking for oral and vaginal sex and was interested in Brandi. She clarified that she would not be involved.

Brandi invited Arbogast to her apartment that night and instructed him to bring condoms and lubricant. She asked if he wanted the son or daughter, and he replied that he wanted the daughter dressed in, “[j]ust under things.”

Arbogast was arrested when he arrived at the apartment. He did not have condoms or lubricant with him. Police found no evidence of child pornography on his phone. He submitted to a polygraph test, which showed no deception when he said he had never engaged in sexual contact with anyone younger than 16. He was charged with two counts of attempted child rape.

The trial court denied Arbogast’s pretrial motion to have the results of his police polygraph admitted indicating he had no previous sexual contact with children. The prosecutor’s pretrial motion to prohibit any mention of Arbogast’s lack of criminal history was granted after the court ruled it was premature to allow such evidence before there was proof of inducement.

At trial, Arbogast testified that he never intended to have sex with any children but responded to the ad because he wanted to have sex with an adult woman, explaining that he did not intend to act on his statements of interest in having sex with the children but rather hoped to persuade Brandi into having sex with him once he met her in person. He sought a jury instruction on entrapment. The court denied the instruction, agreeing with the prosecution that Arbogast had failed to show government inducement and a lack of predisposition by a preponderance of the evidence. Arbogast was convicted on two counts of attempted child rape and given concurrent sentences of 90 and 76.5 months. He appealed.

Rejecting State v. Trujillo, 883 P.2d 329 (Wash. 1994) (requiring a standard of proof beyond merely the production of “some evidence” for an entrapment instruction), the Court of Appeals reversed the conviction. It held that Arbogast’s lack of criminal history was admissible under ER 404, and he had presented sufficient evidence of inducement to warrant an entrapment jury instruction. The State successfully petitioned for discretionary review.

The Washington Supreme Court noted that, unlike other states and federal law — which require the prosecution to disprove entrapment beyond a reasonable doubt — Washington law requires the defendant to prove entrapment by a preponderance of the evidence, i.e., defendant must prove that he was improperly induced by the Government to commit a crime he would not otherwise have perpetrated. State v. Lively, 921 P.2d 1035 (Wash. 1996). The Court explained that the rationale for this rule is that defendants are required to prove affirmative defenses, and since entrapment is an affirmative defense, there’s no reason to treat it differently than other affirmative defenses. Id.

The Court stated that the burden of proof actually entails “two related but distinct concepts: the burden of production and the burden of persuasion.” See Fed. Signal Corp. v. Safety Factors, Inc., 886 P.2d 172 (Wash. 1994). The burden of production, which is decided by the court, is that minimum standard of evidence necessary to present the defense to the jury. Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199 (1982). On the other hand, the burden of persuasion is the degree of certainty required to decide the issue, and it is the jury’s duty to decide whether the burden is satisfied. In re Det. of Skinner, 94 P.3d 981 (Wash. 2004); Renz v. Spokane Eye Clinic, 60 P.3d 106 (Wash. 2002). The Court summed up the burden of proof as follows: “the burden of production requires defendants to present some evidence on the elements of the defense and the burden of persuasion requires defendants to affirmatively establish those elements based on the facts presented.” See State v. Bishop, 580 P.2d 259 (Wash. 1978).

Lively resolved the burden of persuasion for entrapment, but it did not address the burden of production, the Court observed and acknowledged that the case law governing the burden of production for obtaining a jury instruction with respect to affirmative defenses is ambiguous because various cases have used different terms in articulating the burden of production. Consequently, the Court took the opportunity to “reaffirm that the burden remains ‘some evidence’ to support the required elements” of the affirmative offense, meaning: “regardless of the terms used, the quantum of proof justifying an instruction on a party’s theory of the case is some evidence supporting the proposition.” See State v. O’Connell, 523 P.2d 872 (Wash. 1974).

Turning to the present case, the Court agreed with the Court of Appeals in rejecting Trujillo because it announced an improper heightened burden of production. Because of the confusion this issue has caused among the courts, the Court instructed: “courts must take care to differentiate between the burden of production and the burden of persuasion. Whether the evidence is credible and whether it amounts to proof by a preponderance lies with the jury. The court’s role in deciding whether to allow an entrapment defense is more limited — it is not the trial court’s job to weigh the evidence.”

To be entitled to an entrapment jury instruction, the defendant must present evidence of inducement and predisposition. State v. Smith, 677 P.2d 100 (Wash. 1984). The Court stated that inducement “asks whether police went beyond simply providing a defendant with the opportunity to commit the offense.” RCW 9A.16.070; State v. Youde, 301 P.3d 479 (Wash. 2013). Inducement involves providing the opportunity “plus” something more, such as excessive pressure or even subtle pressure that’s skillfully applied. United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000). Predisposition examines the intent of the defendant and whether the fact finder could reasonably conclude, based on the evidence, that the defendant was not predisposed to commit the crime until the Government planted the idea in his head. State v. Enriquez, 725 P.2d 1384 (Wash. 1986). Evidence of the defendant’s character and criminal history are relevant to this inquiry. United States v. McLaurin, 764 F.3d 372 (4th Cir. 2014).

The Court noted similarities with Poehlman, another “sexual mentor” case involving an undercover police officer posing as a mother posting an ad. The Poehlman Court found that the defendant, who wanted a sexual relationship with the mother, was induced by the mother to have sex with the children. The Poehlman Court noted that parental permission could affect “the self-struggle to resist temptations.” Both in Poehlman and the instant case, the undercover mother first raised the idea of the defendant becoming a sexual mentor to children and persistently used persuasive arguments to achieve the desired result. Both Poehlman and Arbogast repeatedly stated that they were looking for a sexual relationship with an adult woman. Both undercover mothers used the prospect of having sex with them as an inducement to have sex with their children. The Court concluded that Arbogast provided “some evidence” that Brandi induced him to commit a crime that he was not predisposed to commit. Thus, the evidence satisfies the standard of proof necessary for an entrapment jury instruction, the Court held.

In addition, the Court held that evidence of Arbogast’s lack of prior criminal history should have been admitted as evidence pursuant to ER 404(a)(l). This is because “predisposition is an inquiry into the intention of the defendant,” State v. Swain, 520 P.2d 950 (Wash. 1974), and criminal history is probative of intent. The errors were not harmless because a reasonable juror could have concluded that Arbogast was entrapped, the Court held.

Accordingly, the Court affirmed the Court of Appeals’ decision. See: State v. Arbogast, 506 P.3d 1238 (Wash 2022).

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