FAIRBURY - After the case teetered on the edge of being tossed out entirely, it will instead advance to the next stage of the proceedings: the case of Donald Boomgaarn Jr., the Fairbury man who was arrested with help from an outside entity in October for knowingly attempting to engage in sexual acts with a minor, will advance to District Court next month. 

Concluding Boomgaarn’s preliminary hearing at the Jefferson County Courthouse last Monday, presiding judge Linda Bauer said that she was not ready to issue a ruling on the case at the time. The case was placed "under advisement," enabling the judge to review the facts of this case and draw references and conclusions from similar court proceedings. At the hearing, Bauer indicated that based on her findings, when a ruling was reached at the county level the case could be shifted over to district court, or it could be dismissed entirely.  

Ultimately, the judge settled on the former of those two outcomes, and it took only a couple of extra days to reach that decision. Boomgaarn was initially arrested by Jefferson County police in Fairbury’s City Park on October 16 after the 25-year-old Fairbury native was “stung” by an outside group called Predator Poachers Southeast Texas, a Houston-based group that works to expose adults attempting to engage in inappropriate acts with children. He has been charged with Attempted Child Enticement with an Electronic Communication Device, a Class 2 Felony. 

But what's the key word in that charge - enticement, or attempt? Is the solicitation itself – in other words, merely engaging with the purported minor with illicit intent – the crime? Or is the end goal of the solicitation – in other words, the desire to and effort to at some point engage in illicit acts with the minor – the crime? That was the core question that Bauer considered when taking this case into further consideration.

In this case, Boomgaarn had been communicating through the social media network Discord with someone he believed to be a 15-year-old girl named Lily. Lily was, in actuality, someone from Predator Poachers, who ultimately arranged a meetup with Boomgaarn in the City Park before alerting the police.

And the fact that it was someone from Predator Poachers on the other end of the line actually makes a key difference in this case: since the person Boomgaarn was contacting was neither an actual minor nor a "peace officer," Boomgaarn cannot be guilty of the "principal crime of Enticement," Bauer wrote in her ruling. That sticking point was something that threatened to cut down the proceedings in county court, and potentially get the charges dismissed entirely. 

So if there was no legal enticement by the accused, is there enough evidence to believe that Boomgaarn attempted to entice or solicit a minor? Following a review of related case history, Bauer wrote in her ruling that previous cases that consider attempt factor in elements such as the "disposition of the actor" and "the defendant's criminal intent." She cited State vs. Roman-Brito, a 2021-22 sexual assault case that found the accused guilty of attempting to commit sexual assault, even though there was never ultimately any sexual contact. In other words, while the ultimate crime was never executed, it was indeed attempted - and that's a crime in and of itself. 

There are clear parallels between that precedent and this particular case. And in her review, Judge Bauer concluded that Boomgaarn "did intend to entice a child less than 16 years of age and could have accomplished that if the attendant circumstances were as he believed them to be." In other words, even though he never actually met up with a minor and there was never, in reality, an actual minor involved, the intent and attempt to meet up was there - enough evidence for the case to proceed.

And so, instead of having his case dismissed, Boomgaarn will see it advanced on to district court, with an initial arraignment set for January 2.

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The following is a complete reprint of Judge Bauer's ruling, which was released on December 4. Original syntax has been preserved; only typographical/copy errors have been amended. 

 

THIS MATTER comes before the Court on 12/04/2024. Now on this 4th day of December 2024, this matter comes on for further consideration of the preliminary hearing held on December 2, 2024.

The Court received evidence and testimony regarding the somewhat unusual facts of this case and took the matter under advisement to research an issue of law. The Defendant is charged with Attempted Child Enticement with Electronic Communication Device pursuant to Neb. Rev. Stat. Sec. 28-320.02(1) and Sec. 28-201(1). Counsel for both the State and Defendant agree that under the facts of this case, Defendant could not be guilty of the principal crime of Enticement.

In this case, the Defendant interacted with neither a child younger than 16 years nor a peace officer who was believed by Defendant to be a child under the age of 16. Defendant was communicating with a civilian with a group called "Predator Poachers", who pretended to be a 15 year old girl and made arrangements to meet with the Defendant in the Fairbury City Park, where he was confronted by the "Poachers" and law enforcement was called to arrest Defendant.

The issue before the Court is whether, under that fact situation, there is probable cause to believe the Defendant attempted the crime of Enticement. Following a review of the case law, the Court finds that in enacting attempt liability, our State's legislature was primarily concerned with the dangerous disposition of the actor. Following that line of reasoning, attempt conduct must be corroborative of the defendant's criminal intent. The Court found State v. Roman-Brito, 2022 Neb. App. LEXIS 191 instructive.

Based on the limited evidence presented at the preliminary hearing, the Court finds that the Defendant did intend to entice a child less than 16 years of age and could have accomplished that if the attendant circumstances were as he believed them to be. THEREFORE, the Court finds there is probable cause to believe the felony charged was committed and that the Defendant committed that offense. The Court binds the case over to the District Court and the Defendant is ordered to appear in that Court for arraignment and further proceedings as scheduled herein.