The Inter-Mountain photo by Taylor McKinnie Probable cause was found Monday in the case of Derek Arbogast allegedly shooting his brother five times.

ELKINS – Probable cause has been found in the case of a Montrose man accused of shooting his brother five times, after his brother testified in Randolph County Magistrate Court Monday.

Derek Justin Arbogast, 36, is charged with one count of first-degree attempted murder, a felony. He is currently being held at the Tygart Valley Regional Jail on a $150,000 cash-only bond, issued by Magistrate Michael Dyer.

Probable cause was found against Derek Arbogast during a preliminary hearing Monday morning, moving the case forward to be considered by a Randolph County grand jury. Derek Arbogast allegedly shot his brother, Brett Lee Arbogast, multiple times with a .22 caliber revolver during a scuffle at a Montrose residence, police said.

At the hearing’s start, Derek Arbogast’s attorney, James Hawkins Jr., asked Magistrate Tracy Harper to modify Arbogast’s bond from cash-only to property/surety or 10% to the court. Hawkins argued that cash-only was “excessive” and infringed on Derek Arbogast’s Constitutional rights.

Assistant Randolph County Prosecutor Leckta Poling argued against the bond modification request, stating that Derek Arbogast was a threat to the alleged victim and to the community. Harper denied the bond modification request after finding probable cause in the case.

Poling called the alleged victim, Brett Arbogast, to testify. Brett Arbogast appeared in court with a cast on his right hand and several marks on his head.

In his testimony, Brett Arbogast said, on the night of Feb. 12, he had just returned to the Montrose residence he shared with Derek Arbogast, their sister, his girlfriend, and Larry Brian Talkington, when the incident occurred. Brett Arbogast said he had not had any disagreements with his brother that day, but after he handed his brother a bag of items, his brother “gave him a stare.”

Brett Arbogast said he then asked Derek Arbogast, “What?” to which Derek Arbogast allegedly responded, “You know what,” then pulled a revolver out of his pocket and shooting Brett Arbogast “right between the eyes.”

Brett Arbogast then told the court that the second shot hit him in the head above his left ear, and that both of those shots were at point blank range and only a few seconds apart.

Brett Arbogast said a struggle ensued between him and his brother. As Brett Arbogast was trying to get the gun away from Derek Arbogast, he was shot again, this time in the right hand. Brett Arbogast then tried to leave the residence to receive medical attention; however, he said that is when Talkington grabbed him by the hoodie and tried to pull him back into the residence.

Talkington has been charged with one count of principle in second-degree attempted murder or accessory before the fact. He is currently being held at the Tygart Valley Regional Jail on a $150,000 cash-only bond, issued by Dyer.

Brett Arbogast testified that, after pulling out of Talkington’s grasp, he made it outside and fell down the steps. He said Derek Arbogast followed him out of the house and shot him two more times after he fell, once in the upper left arm and once in the back of the head. Brett Arbogast told the court he then ran away and had a cousin drive him to the hospital.

Poling then asked Brett Arbogast to describe his injuries for the court. He replied that his right hand, which is in a cast, has a “hole down through” and the bullet had not only broken his middle finger, but was still lodged in the bone itself. He informed the court that the bullets shot into his head were also still inside his body and would be removed in future surgeries. He also explained that the bullet shot into his arm did not go “all the way through.”

In cross-examination, Hawkins asked Brett Arbogast if his brother used drugs. He said Derek Arbogast regularly used methamphetamine.

Brett Arbogast said he had tried to get protective orders and mental hygiene put in place in the past for Derek Arbogast because his brother’s behavior was getting worse, but those requests were denied every time. He also said Derek Arbogast refused to see a doctor because he was “embarrassed.”

Brett Arbogast said that for several years his brother has adamantly believed that someone in the house was sexually assaulting him every night, and he had accused Brett Arbogast, as well as the other residents, of being his assailant. Brett Arbogast added that he knew the death of their father on Feb. 10 would greatly impact his brother.

Hawkins also asked Brett Arbogast if there had been any issues between him and Derek Arbogast regarding money, property, a woman or anything else, to which Brett Arbogast said no.

Brett Arbogast told the court that the revolver had belonged to their father and was usually kept in a gun cabinet, with the ammunition kept in their father’s now unoccupied bedroom. He said he did not know when Derek Arbogast came to be in possession of the gun.

“If it wasn’t for the Lord, I wouldn’t be sitting here right now,” Brett Arbogast said during the preliminary hearing Monday.

The court also heard testimony from Trooper H.J. Bonetti and Trooper Thomas J. Sclimenti with the West Virginia State Police.

Bonetti, the arresting officer in the case, told the court that, on the night of Feb. 12, the Randolph County Board of Emergency Management advised that the shooter was Derek Arbogast. While traveling to the residence in Montrose, Bonetti came across a male subject, later identified as Derek Arbogast, walking along the roadway. Upon seeing Bonetti, Derek Arbogast put his hands in the air and knelt to his knees.

Bonetti told the court that, before his arrest, Derek Arbogast allegedly stated that he “just wanted everything to be over with.” Bonetti then placed him under arrest and reportedly observed blood on his face and arms.

In his testimony, Sclimenti told the court that when he arrived at the spot where Derek Arbogast was being detained, Derek Arbogast stated the gun used in the shooting was in a nearby bush. 

Sclimenti said they were able to find the gun in the bush, but he noticed that the barrel and the cylinder were both missing from the gun. The West Virginia State Police Crime Scene Team later told Sclimenti that they located the cylinder lower in the bush. Sclimenti said he does not believe the barrel has been found yet.

In his closing argument, Hawkins stated that probable cause should not be found against Derek Arbogast as there was no evidence of pre-mediation, malice or intent to kill. Hawkins stated that there were no prior instances of dispute or issues between the two brothers, other than Derek Arbogast accusing Brett Arbogast and others of sexual assault.

In rebuttal, Poling argued that there was evidence of pre-mediation, malice and intent to kill as Derek Arbogast had taken the gun from the gun cabinet and loaded it. She also noted that Derek Arbogast had repeatedly shot Brett Arbogast, even after a scuffle.