Mobley v. State, 49A02–1405–CR–343.
| Decision Date | 30 March 2015 |
| Docket Number | No. 49A02–1405–CR–343.,49A02–1405–CR–343. |
| Citation | 27 N.E.3d 1191 |
| Parties | Paul D. MOBLEY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Robert D. King, Jr., David R. Thompson, The Law Office of Robert D. King, Jr., P.C., Indianapolis, IN, for, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Larry D. Allen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
, Chief Judge.
[1] Paul D. Mobley appeals his conviction for Class A misdemeanor patronizing a prostitute. Mobley argues that the evidence is insufficient to sustain his conviction or, in the alternative, that the State failed to rebut his defense of entrapment. We find that the evidence is sufficient to prove that Mobley knowingly agreed to pay an undercover detective $20 to perform fellatio on him. We also conclude that according to the Indiana Supreme Court's recent decision in Griesemer v. State, 26 N.E.3d 606 (Ind.2015)
, because a reasonable trier of fact could have found the State proved, beyond a reasonable doubt, that the police did not induce Mobley, his entrapment defense fails. We therefore affirm his conviction for Class A misdemeanor patronizing a prostitute.
[2] On March 6, 2012, Indianapolis Metropolitan Police Department Detective Tabatha McLemore was posing as a prostitute on East Washington Street in Indianapolis. Tr. p. 7–8. Detective McLemore performs approximately 100 undercover investigations a year where she poses as a prostitute. Id. at 6. Around noon, Mobley drove slowly past Detective McLemore, staring at her “the whole time.” Id. at 9. Mobley then stopped his car in the middle of the next street near Detective McLemore. Id. Detective McLemore walked up to Mobley and asked, “What's up?” State's Ex. 1 (audio recording); Tr. p. 15. In response, Mobley asked Detective McLemore, “How much?” State's Ex. 1; Tr. p. 11, 15. Detective McLemore told Mobley it would be “twenty for some head.” State's Ex. 1; Tr. p. 11. Mobley “shook his head ‘yes' ” and then “did a head nod” to the right to indicate that Detective McLemore should get into his passenger seat. Id. at 11, 15, 24–25. Detective McLemore told Mobley to pick her up in the nearby alley off East Washington Street so that the police would not see them. State's Ex. 1; Tr. p. 11.
[3] IMPD Detective Stephen Buchanan was stationed nearby in an unmarked police car with police lights in the un-tinted windshield. He was wearing a protective vest with the word “police” in large block letters on the front. When Detective Buchanan received a signal that Detective McLemore had been propositioned, he “immediately drove ... toward[ ] Oakland Street” and saw Mobley driving toward him. Tr. p. 38–39. Detective Buchanan and Mobley “looked right at each other.” Id. at 39. Mobley then turned toward Detective McLemore and said “never mind,” to which Detective McLemore replied, “too late.” State's Ex. 1; Tr. p. 11–12, 15–16, 39. Mobley was arrested and charged with Class A misdemeanor patronizing a prostitute. After his arrest, Mobley told Detective McLemore that he had a “moment of weakness.” Id. at 16, 40–41.
[4] After a bench trial, Mobley was convicted of Class A misdemeanor patronizing a prostitute. He was sentenced to 365 days in the Indiana Department of Correction with credit for four days served and 361 days suspended. See Appellant's App. p. 43 (Abstract of Judgment).
[5] Mobley now appeals.
[6] Mobley makes two arguments on appeal. First, he argues that the evidence is insufficient to sustain his conviction. In the alternative, he argues that the State failed to rebut his defense of entrapment.
[7] Mobley first challenges the sufficiency of the evidence to support his conviction. When reviewing a challenge to the sufficiency of the evidence, we neither reweigh evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007)
. Rather, we consider only the evidence and reasonable inferences most favorable to the trial court's ruling and will affirm the conviction unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. It is not necessary for the evidence to overcome every reasonable hypothesis of innocence. Id. The evidence will be deemed sufficient if an inference may reasonably be drawn from it to support the conviction. Id.
[8] When Mobley committed the offense, Indiana Code section 35–45–4–3
provided, in relevant part, that 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, sexual intercourse or deviate sexual conduct with the person or with any other person....” Ind.Code Ann. § 35–45–4–3(1) (West 2012). The charging information alleges that Mobley knowingly offered or agreed to pay “United States currency” to Detective McLemore on the understanding that she would engage in deviate sexual conduct—specifically, fellatio—with him. Appellant's App. 18 (capitalization omitted).
[9] Mobley first argues that the evidence is insufficient to prove that he knowingly agreed to pay “twenty for some head.” He concedes that there is evidence in the record that he nodded his head; however, he claims that “an ambiguous nod of the head cannot constitute proof beyond a reasonable doubt that [he] made an agreement.” Appellant's Br. p. 9.
[10] Here, Detective McLemore did not describe Mobley's head nod as ambiguous or equivocal. Cf. Lukas v. State, 165 Ind.App. 50, 330 N.E.2d 767, 770 (1975)
(). Rather, Detective McLemore testified that Mobley nodded his head “yes” when she said it would be “twenty for some head.” Tr. p. 11. When defense counsel pressed Detective McLemore about whether Mobley really meant “yes” by his head nod, the following colloquy occurred:
Id. at 24. Moreover, when Mobley later saw the other detective approach in his car, Mobley turned toward Detective McLemore and said “never mind,” which suggests that Mobley indeed made an agreement with Detective McLemore but then changed his mind. Mobley's argument that his head nod “yes” was not an agreement is merely an invitation for us to reweigh the evidence, which we will not do. See Tr. p. 44–46 (). The evidence is sufficient to prove that Mobley knowingly made an agreement.1
[11] Mobley next argues that the evidence is insufficient to prove that he agreed to pay “United States currency,” as the charging information alleges. Appellant's Br. p. 12. The record shows that Mobley drove slowly past Detective McLemore, staring at her “the whole time.” Mobley then stopped his car in the middle of the street near Detective McLemore. Detective McLemore walked up to Mobley and asked, “What's up?” In response, Mobley asked Detective McLemore, “How much?” Detective McLemore told Mobley it would be “twenty for some head.” Mobley makes much of the fact that Detective McLemore did not say “dollars” or “bucks” after twenty, as happened in other prostitution-sting cases. Mobley speculates that “ ‘twenty’ can mean many things.” Id. at 13. However, given the circumstances of this case, it was reasonable for the trier of fact to infer that “twenty” here meant twenty dollars. Any other interpretation is a request to reweigh the evidence. See Tr. p. 44 (). The evidence is sufficient to prove that Mobley agreed to pay United States currency.
[12] Finally, Mobley argues that the evidence is insufficient to prove that he understood that Detective McLemore would engage in fellatio with him. Detective McLemore told Mobley that it would be “twenty for some head,” to which Mobley nodded his head yes and then nodded his head a second time to indicate that Detective McLemore should get into his car. Detective McLemore testified at trial that “head” is street terminology for fellatio. Tr. p. 17. Furthermore, Detective McLemore testified that since she had been working vice for the past five and one-half years, she had never used the term fellatio when working undercover as a prostitute. Id. at 29. She explained that she uses the term “head” because it is the term that solicitors use. Id. at 31. Detective McLemore said in all her years in vice, she had never seen anyone mistake the word “head” for a different meaning. Id. In fact, Mobley did not ask for clarification of what she meant by “head.” Id. at 32. Given the circumstances of this case, it was reasonable for the trier of fact to infer that Mobley understood that “head” meant fellatio. Any other interpretation is a request to reweigh the evidence. See Tr. p. 44–45 (). The evidence is sufficient to prove that Mobley understood that Detective McLemore would engage in fellatio with him.
[13] In the alternative, Mobley argues that the State failed to rebut his defense of entrapment. The Indiana Supreme Court recently addressed the defense of entrapment in Griesemer. We review a claim of entrapment using the same standard that applies to other challenges to the sufficiency of evidence. Griesemer, 26 N.E.3d at 608–09
.
[14] As our Supreme Court explained in Griesemer:
The government may use undercover agents to enforce the law. Indeed, undercover agents...
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