United States v. Lasley

79 F.4th 979

UNITED STATES of America, Plaintiff-Appellee, v. Darren Wade LASLEY, Defendant-Appellant.

No. 22-1248

United States Court of Appeals, Eighth Circuit

Submitted: November 17, 2022

Filed: August 23, 2023

Appeal from United States District Court for the Western District of Missouri - Jefferson City

Bernard S. Brody, Atlanta, GA, argued, for defendant-appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Teresa A. Moore, U.S. Atty., on the brief), for plaintiff-appellee.

Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.

COLLOTON, Circuit Judge.

Darren Lasley was convicted by a jury of enticing a minor to engage in sexual activity. See 18 U.S.C. § 2422(b). The charge arose from Lasley's response to an online advertisement and his dialogue with an undercover detective who posed as a fourteen-year-old girl. At trial, the district court¹ declined Lasley's request to instruct the jury on the affirmative defense of entrapment, and Lasley appeals that decision. We conclude that the evidence was insufficient to warrant the requested instruction, and therefore affirm the judgment.

I.

The investigation began when Andrew Evans, a detective in the Boone County Sheriff's Office, posted an advertisement in the "Casual Encounters" section on the website Craigslist. Evans testified that the Casual Encounters section was primarily used for people to arrange sexual encounters.

Craigslist required users to click a link to confirm that they were at least eighteen years old before they posted an advertisement with Casual Encounters. Despite this purported age verification, Evans testified that "Craigslist Casual Encounters was notorious for online sexual predators . . . using [it] to try to talk to minors and other children and commit crimes."

Detective Evans posted the advertisement on June 14, 2017, and entitled it "Home alone and bored - w4m [women for men]." The advertisement read, "Heyy guys out of school for the summer and soooo bored :( just lookiing for some cool boys to chat with . . . HMU [hit me up] if your not crazy lol [laugh out loud]."²

A number of users responded to the advertisement. Craigslist removed the post after twenty-four hours in response to reports from users that the person who posted the advertisement was a minor.

At 10:03 a.m. on June 14, Lasley responded to the advertisement. He asked Abigail if she was in college. She informed him that she was "getting ready to start high school finally :)." Lasley asked Abigail her age; Abigail responded that she was fourteen years old. Throughout the discussions, Detective Evans acted as "Abigail," and we will refer to "Abigail" as the party making the communications.

After stating that she was fourteen years old, Abigail told Lasley "if thats 2 young for u thats ok I understand." Lasley responded, "I didn't necessarily say that lol but what you put up your ad for then?" Abigail replied she had posted the advertisement because she had "always kinda been attracted to older guys," but did not "know any older guys besides my teachers."

After a few more messages in the same conversation, the two exchanged photographs. Evans sent Lasley a low-quality photograph of a Boone County Sheriff's Office employee who was twenty-four years old. Lasley replied "you look cute tho def don't look 14 lol." Abigail responded "yep 14 I am."

The two continued to exchange messages that day. Abigail told Lasley that she was "kind of a wild childlol" who "love[s] to have fun and some of my moms wine when she is not around lol." After about two hours of messaging, Lasley asked Abigail "[w]hat's typically moms work schedule when you can talk or whatever?" Abigail did not reply, and four hours later, Lasley messaged "[d]isappear on me?"

On June 15, Abigail replied to Lasley's message, and the two began communicating again. Lasley suggested that they "drink some of your moms wine and hang out." Abigail replied that her mom "was drinking it last nite dont know if any left or not."

Lasley asked Abigail "[w]hat you got in mind then?" Abigail responded she was "up for bout anything." Lasley said "I'm up for whatever myself just trying to feel you out what your up for." Abigail asked "how u plan on feeeling me out," and Lasley responded "[w]as that suppose to be like a sexual dirty comment?" Abigail said "maybe." Lasley told Abigail "[d]on't be shy now lol you can tell me whatever."

Abigail then asked Lasley if he had ever been with a younger girl, and Lasley told Abigail "most girls I've been with all younger but can't say 14 lol I think youngest is 19." After Abigail reaffirmed that she was fourteen years old, Lasley asked her whether she had ever been with an older man, and Abigail said "yes 1 time like have sex with right."

Lasley responded "[y]es have sex with, so your not a virgin :) how old was he then?" Abigail told Lasley that he was thirty-five years old and a family friend. Lasley told Abigail "you sound like could be a good time," and "I could show ya a few things." Abigail replied that Lasley would have to "promis to never, never tell," and Lasley responded "duh obviously wouldn't tell."

Abigail then asked Lasley "what stuff u wanna do," and Lasley replied "I mean just can kinda go with it, whatever your comfortable with I've pretty well done it all." Abigail said she was "cuious bout everything" but "cant get pregnant."

Lasley asked, "Curious about everything meaning your open to anything? But yes don't worry there no way I can do that either not gonna happen." Lasley then clarified "[y]our not gonna get pregnant is what I meant tho cant be having that." Lasley then asked again "when you want to hang out?," and Abigail did not reply immediately.

On Friday, June 16, Abigail messaged Lasley, "[h]ey u what's up," and Lasley replied "[n]ot much just got done mowing lol exciting you?" Abigail told Lasley she "[j]ust got outta shower." Lasley said "to bad couldn't have joined ya." Abigail told Lasley she and her mom were driving to Kansas City for the weekend, and Lasley told Abigail "don't let mom figure out that your talking to a 27 year old."

On June 18, Lasley messaged Abigail to ask how the weekend was, and Abigail replied on Monday, June 19. Lasley asked whether she had "anything going on today or this week?" Abigail said she was "hoping sumthing comes up." Lasley said that "doesn't really help me understand what your thinking or wanting."

Abigail responded "what do u want and maybe I want to try it." Lasley replied "your the one the posted the ad here so obviously you had something in mind when you out this out there but I'd say something along the lines of hanging out and showing you a good time." Abigail said "true I did post lol but was bored at the time an did not really know what i wanted to do . . . like playing cards and stuff lmao."

Lasley responded "your killing me yeah play cards like maybe strip poker." Abigail replied that she "better wear lots of clothes," and Lasley said "no you better not cheat and do that I was thinking just no clothes at all." Abigail asked "if dont wear any clothes than how do we win silly boy :) u mean u wanna see naked." Lasley said "you can wear bra and g string that's it lol and yes I think I would like to see that ;) would you not?" Abigail asked Lasley if she would buy him a thong since she did not own any, and Lasley said he would.

Lasley then told Abigail "this means we actually have to meet if I'm gonna get ya any or any of this stuff we talk about is ever gonna happen." Abigail told Lasley she was "pretty great at sneaking away" from her house. Lasley asked when Abigail's mom would be "gone next or when want to do this?"

Abigail asked "how far u wanna go?" Lasley replied "[w]hat you mean how far wanna go?" Abigail said "u just wanna come over and play strip poker . . . is that it??" Lasley responded "that'd be fine." Abigail replied that she had "girl stuff 2 worry bout." Lasley responded that "I was kinda joking about that part, we can do whatever tho just kinda go with it and whatever we're comfortable with."

Abigail said she did not "like surprises" and liked "looking foeard 2 stuf lol" but had to worry about her "period or getting pregnant." She then told Lasley "i get off my period like wed or thur." Lasley replied "[o]h my god lol maybe first time we just kinda chill then maybe mess around a lil don't have ti do a lot so tha way you feel more comfortable and if we hit it off a lil the can do other stuff eventually."

Abigail asked Lasley "whats ur definition of messing around a little," and Lasley answered "we can take it slow if you would like maybe just make out little feel on each other little bit maybe finger you if like or can wait on that." Abigail told Lasley she was "ok with making out and fingering so start with," and she would check her mother's work schedule and let Lasley know when she would be available.

At 9:44 a.m. on Tuesday, June 20, Lasley messaged Abigail. The two talked throughout the day. Abigail mused that she was fourteen years old now, and that she could move out of her mother's house at age seventeen. Lasley asked Abigail if she had checked her mother's work schedule. Abigail told Lasley she was "thinking Thursday" since her mother worked that day. Lasley replied "just let me know for sure or is that a for sure?" Abigail did not reply.

Lasley messaged Abigail again on Wednesday, June 21. Abigail told Lasley that "it looks next Wed am mom works Out of town." Lasley replied that he "may be out of town" that day, and asked "does tomorrow not work then?"

Later that day, Lasley asked Abigail "[w]hy don't you sneak out tonight since you said your good st that and let's hang out for a bit?" Abigail agreed, and she told Lasley she would let him know when she was ready to sneak out.

Abigail told Lasley she was "looking forward to finally meet u," and Lasley responded "[y]up me too. Question . . . have you ever given head to a guy?" Abigail said "1 time u want head," and Lasley responded ...