Griesemer v. State
| Citation | 10 N.E.3d 1015 |
| Decision Date | 23 May 2014 |
| Docket Number | No. 49A04–1308–CR–382.,49A04–1308–CR–382. |
| Parties | Kenneth GRIESEMER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Daniel L. Moore, Moore & Associates, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Kenneth Griesemer appeals his conviction of Class A misdemeanor patronizing a prostitute.1 He argues he was entrapped. We reverse. 2
On August 15, 2012, Indianapolis Metropolitan Police Department Detective Tabatha McLemore was posing as a prostitute on East Washington Street in Indianapolis. Around 2:30 p.m., Griesemer drove past her and stared at her as he passed. A few minutes later, Griesemer drove northbound toward Washington Street on Ewing Street. As he approached the corner of Ewing and Washington Streets, he asked Detective McLemore, through his open car window, if she needed a ride. She declined the ride, saying she was trying to make money. Griesmer nodded his head toward his passenger seat, which she understood to be an invitation to enter the car. She asked how much money he had, and he said twenty dollars. She told him she could perform fellatio for twenty dollars.He nodded his head “yes,” and then he nodded toward the passenger seat to indicate she should get in the car. She asked him to pick her up “down the street.” 3 ( Tr. at 8.) Griesemer nodded in agreement, then turned right onto Washington Street, drove down the street, and pulled into the parking lot that he had used to circle back to Washington Street the first time. In that parking lot, uniformed officers in a marked police car stopped Griesemer and placed him under arrest.
The State charged Griesemer with one count of Class A misdemeanor patronizing a prostitute. Following a bench trial, the court entered a conviction thereof and imposed a 180–day sentence with 176 days suspended.
A person commits Class A misdemeanor patronizing a prostitute if that person “knowingly or intentionally pays, or offers or agrees to pay money or other property to another person ... on the understanding that the other person will engage in ... deviate sexual conduct with the person....” Ind.Code § 35–45–4–3. Deviate sexual conduct includes acts involving “a sex organ of one person and the mouth or anus of another person.” Ind.Code § 35–41–1–9. Griesemer acknowledges that agreeing to have Detective McLemore perform fellatio in exchange for twenty dollars would constitute patronizing a prostitute. He argues, however, that the State did not disprove his defense of entrapment.
Entrapment is a one of a handful of defenses that can eliminate a defendant's culpability for acts committed. See Ind.Code ch. 35–41–3 (“Defenses Relating to Culpability”). “Entrapment exists where an otherwise law-abiding citizen is induced through police involvement to commit the charged crime.” Lahr v. State, 640 N.E.2d 756, 760 (Ind.Ct.App.1994), trans. denied. Our legislature provided the following definition for entrapment:
(a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.
If a defendant asserts the defense of entrapment and establishes police inducement, then the burden of proof shifts to the State. Dockery v. State, 644 N.E.2d 573, 577 (Ind.1994). The State must either disprove police inducement by demonstrating beyond a reasonable doubt that “the defendant's prohibited conduct was not the product of the police efforts,” McGowan v. State, 674 N.E.2d 174, 175 (Ind.1996), reh'g denied, or establish the defendant's predisposition to commit the crime. Dockery, 644 N.E.2d at 577. If the State does not meet its burden of proof, then entrapment has been established as a matter of law. Id.
“We review a claim of entrapment using the same standard that applies to other challenges to the sufficiency of evidence.” Id. at 578. We consider only the evidence supporting the verdict and draw all reasonable inferences therefrom. Id. We neither reweigh the evidence nor judge witness credibility. Id. If the record contains substantial evidence of probative value that would have permitted a reasonable trier of fact to infer guilt beyond a reasonable doubt, then we will uphold a conviction. Id.
Griesemer asserts the police induced his behavior. After Griesemer offered Detective McLemore a ride, she was the first to mention money, the first to mention performance of a sexual act, and the first to mention trading a sexual act for money. Under nearly identical facts, we held a defendant had “clearly established police inducement.” Ferge v. State, 764 N.E.2d 268, 271 (Ind.Ct.App.2002) ().
Accordingly, the burden shifted to the State to either disprove inducement or demonstrate Griesemer was predisposed to commit the crime. See McGowan, 674 N.E.2d at 175 (). The State argues it “merely afforded the defendant the opportunity to commit this crime.” (Oral Argument Video at 17:19–17:22; see also Appellee's Br. at 7.) In support thereof, the State notes the second part of the statute defining entrapment states: “(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.” Ind.Code § 35–41–3–9.
However, as our Indiana Supreme Court explained:
Part (b) of the statute is explanatory of the level of police activity that would be necessary to support the entrapment defense but this section does not negate the requirement of the necessary predisposition on the part of the accused. We have consistently held that if the accused had the predisposition to commit the crime and the police merely afforded him an opportunity to do so, then the defense of entrapment is not available.
Baird v. State, 446 N.E.2d 342, 344 (Ind.1983) (emphasis in original) ( conviction based on entrapment where State sent minor to purchase alcohol and “presented absolutely no evidence of defendant's predisposition to commit the crime”). Thus, if the police merely afforded a citizen an opportunity to commit a crime, then the State may not have induced that citizen's criminal behavior, see, e.g., Shelton v. State, 679 N.E.2d 499, 502 (Ind.Ct.App.1997) (), but it does not relieve the State of its obligation to demonstrate a defendant's predisposition.
The State attempts to analogize the facts in this case to the facts in Shelton. There, police officers placed a remote-control deer decoy in a field where it would be visible to persons driving past. Then, when Denver and Kenneth Shelton drove down the road, the officers used the remote control to move the deer's head. The Shelton brothers stopped their vehicle on the road, pointed a shotgun out the window, and fired two shots at the deer decoy. For that act, the State charged them with Class C misdemeanor road hunting. We held the placement of the deer decoy in the field was not sufficient to demonstrate inducement that would entitle the Sheltons to a jury instruction on entrapment, because the police had merely provided an opportunity for the Sheltons to shoot at a deer. Id. at 502.
We cannot, however, hold that the facts herein are analogous to those in Shelton. Detective McLemore was not merely standing on the side of the road dressed like a prostitute. She was the first to mention money, a sex act, and the possibility of exchanging the two. For Shelton to be analogous, the deer decoy would have needed a sign or recording announcing to passers-by that they were welcome to shoot at the deer for twenty dollars. As the deer decoy contained no such explicit invitation to commit criminal behavior, we decline the State's invitation to follow Shelton. Detective McLemore's question and statements were sufficient to induce Griesemer to commit patronizing a prostitute. See Ferge, 764 N.E.2d at 271 (); cf. Espinoza v. State, 859 N.E.2d 375, 385–86 (Ind.Ct.App.2006) ().
Therefore, to rebut Griesemer's entrapment defense, the State needed to prove Griesemer was predisposed to commit patronizing a prostitute. See Price v. State, 397 N.E.2d 1043, 1046 (Ind.Ct.App.1979) (). “Whether a defendant was predisposed to commit the crime charged is a question for the trier of fact,” and the State must prove that predisposition beyond a reasonable doubt using “evidence subject to the normal rules of admissibility.” Dockery, 644 N.E.2d at 577. Several factors may be relevant to determining whether a defendant was predisposed to commit a crime:
(1) the character or reputation of the defendant; (2) whether the suggestion of criminal activity was originally made by the...
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