Judge
Ryan M. Harris authored this Opinion, in which Judge Gregory
K. Orme and Justice Diana Hagen [1] concurred.
HARRIS, Judge
¶1
The "13-year-old girl" Shane Craig Smith met on the
internet was, in reality, an undercover police detective.
After arranging to pick up the "girl" in person at
a convenience store, Smith was arrested and later charged
with various crimes, including attempted child kidnapping and
several attempted sex crimes. He eventually entered a
conditional guilty plea to some of
the charges, reserving his right to appeal two issues:
whether there was insufficient evidence to bind over the
attempt charges and whether the district court erred by
denying his motion to dismiss all the charges on the basis
that he had been entrapped. Smith now appeals, raising those
two issues. For the reasons discussed, we affirm his
convictions.
BACKGROUND[2]
¶2
One evening, a police detective (Detective) was conducting an
internet sting operation. He created an online persona on a
text-based internet application (the app) that he understood
had a reputation as a "hookup" site for individuals
seeking sexual companionship. Although the app required users
to be eighteen years of age or older, Detective had seen
several cases involving "real child victims" on the
app. In creating his online persona, Detective used a moniker
like "Fun Girl" or "Good Time," and
selected as his profile picture a stock photograph of an
unknown female; he selected that particular photo because it
appeared to be an "attractive" woman between the
ages of eighteen and twenty-five. Across the front of the
profile photo, Detective affixed the words "Wanting to
HU," a term he stated meant to "hook up."
Detective posted this profile, including the message
"Wanting to HU," in a chat room titled "Sexual
Confessions."
¶3
Detective's post received "hundreds" of
responses, and he engaged in chats with "more than half
of them." One of the app users who responded to
Detective's post was Smith, whose initial response was
"I'm down." Off and on over the next three
hours, Smith and Detective engaged in the following exchange,
which
we include here in its entirety, accompanied by some
explanatory footnotes:
Detective: How r u
Smith: Good you
Detective: Bored
Detective: U?
Smith: Looking for a HU that can keep up
Smith: Lol. But other than that bored as well
Smith: So are you still looking
Detective: What kind of keep up
Smith: As in can actually go for as long as I can
Smith: Or handle my dick. I'm bigger than most
Detective: How long do u go? And bigger than most huh
[smirking emoji]
Smith: I can cum and keep going and yeah
Smith: [photo 1 sent of an exposed penis]
Smith: [photo 2 sent of an exposed penis]
Smith: 9 inches
Smith: 2 wide
Smith: Thoughts?
Detective: Wow that is big
Smith: Any pic you want to send me?
Detective: I need a ride to Cali if u can hook me up
Smith: California?
Detective: Yeah
Smith: And how would you repay me?
Detective: What do u want?
Smith: Well send me some private photos so I can see what
I'm working with and I'll tell you
Detective: I ran away from home and want to make it to Cali
Detective: I can send u a pic if your still good
Smith: I'm still good
Smith: ?? So
Detective: I'm 13 if that makes but willing to help you
if you help me
Smith: Well prove it
Smith: You there
Detective: [photo sent of half a woman's
face][3]
Smith: Take one that is more skin hun
Smith: One that proves your willing to help me
;)
Smith: Hello?
Detective: Give me the $200 for food and cash so I can pay
someone for a ride and I'll do whatever u want
Smith: Send me a picture and once your down first
Smith: Like I could give you a ride
Smith: Prove*
Detective: Look I could really use the cash right now
Smith: And I could really use proof you're serious
Detective: K thanks
Smith: Too many scams sorry but without proof nothing
Detective: I'm just on the streets trying to get gone
from here
Smith: Like I said I could give you a ride
Detective: So do I need to give bjs[4] all the way there? Or r we
going to have sex cause I'm a virgin
Detective: Or can u give me cash
Smith: Bj or sex it's up to you
Smith: But I still need a pic for proof
Detective: I would just rather get cash also so I can eat
when I get there is that possible
Detective: U are a stranger and I want to get there safe
Detective: [photo sent of a girl in overall shorts in a
public bathroom mirror]
Detective: I guess not
Detective: Do u know anyone to help me
Smith: You said you'd do whatever what does that mean
Smith: And that pic isn't proof
Detective: I told you I'll give u bj and asked if you
could maybe give cash for me and I'll ride your 9 if it
fits
Smith: Send me a full body nude or one of your tits and pussy
so I know you're legit
Detective: No I don't want pics out of me. I would rather
do it
Smith: And I'd rather have insurance you're not a cop
Detective: Fuck off I don't care then
Detective: I'm not a cop
Smith: It's literally one pic that you could take in 30
seconds
Detective: No I had a friend get sucked into that once
Smith: Yeah and I want to make sure you're legit
Smith: Funnily I have the 200 and enough to get you to
California but it's whatever I guess you really don't
need it
Detective: I do, but I don't want nudes
Detective: They never go away
Smith: Yours are just to verify your legit. I'm not about
to keep them. That's just weird
Detective: I really need it but just please no nudes
Smith: Then send me 3 in just your underwear
Detective: I told u I would make it worth the trip
Smith: Ya still need proof first
Detective: Sorry I will not do it
Smith: Ok send me enough pics so I know you're a real
person. Not a cop
Smith: Or what's your Facebook or Instagram
so that way I can look check and see if you're legit
Detective: I feel like you are just trying to get a bunch of
pictures of me. I'll send you one more i guess but
that's it
Detective: [photo sent of girl in headphones flipping off the
camera]
Smith: Okay now that I've seen what you look like send me
two photos of you right now one touching your nose in one
touching your eyebrow that will be verification enough
Smith: If you can't touch your nose and your eyebrow then
I know you're fake because there is nothing sexy or
solicit or anything like that about touching your nose and
your eyebrow
Detective: I have done slot for u how do I not know u will
traffic me
Detective: A lot
Smith: I will if and only if you send those two verification
or you send one with you touching both
Detective: [photo sent of the same girl touching her eyebrow]
Detective: [photo sent of the same girl touching her nose]
Detective: There
Detective: Can u get me a ride tonight or in the morning?
Smith: I can give you a ride tonight. Where are you
Smith: Where are you
Smith: And where in California would we be going
Detective: San Diego?
Smith: That works we would need to have some fun before hand
Smith: Like on the way
Detective: Im at my friends by maverick by thanksgiving point
in lehi
Smith: Ok
Detective: Can I at least know ur name or a pic of ur face to
see who is getting me
Smith: My name is Shannon
Detective: K
Detective: How long I don't want to freeze
Detective: I'm a king my shit now
Detective: Pack*
Smith: Ok. About 25 minutes
Detective: K
Detective: Let me know when ur here and I'll run over
Smith: Are you gonna blow me when we start driving
Detective: If u want
Smith: Or do I need to find a place
Smith: Yes I want
Detective: We can drive and I can start I want to hit the
road
Smith: I'll be there in about 5 min
Detective: K what do I look for
Smith: I'll look for you and let you know when I see you
Detective: K
Smith: Walk to the front of the store
Detective: K
Smith: Next to the ice box outside
Detective: Get me a drink to meet
Detective: It's cold
Smith: If you want the ride you will go to the ice box rn if
not I'll go
Smith: On the North side of the store
Smith: Where are you
Detective: K
Detective: Out front
Smith: Ok look forward
Smith: Come hop in
Smith: I blinked[5] at you
Detective: Where
Detective: It's cold
Smith: In the parking lot. To your left
Smith: Go back to where you were
Smith: I know
Detective: Walk to u?
Smith: Yes
¶4
At this point, officers arrested Smith. Once he was in
custody, Smith admitted that he thought he had been
communicating with a 13-year-old girl with whom he
"wanted to have blow jobs and sex," but maintained
that, because she was a runaway, he had merely planned on
taking her to the local police station and not to California.
¶5
The State ultimately charged Smith with five crimes:
attempted rape of a child, attempted sodomy on a child,
attempted sexual exploitation of a minor, attempted child
kidnapping, and enticing a minor over the
internet.[6] At a preliminary hearing at which
Detective testified, the State sought bindover on all five
counts, and Smith challenged the State's motion as to
three of them (attempted rape, attempted sodomy, and
attempted kidnapping). In particular, Smith argued that the
State had failed to present sufficient evidence to establish
that he took a "substantial step" toward committing
any of the attempt
offenses. Following briefing and oral argument, the district
court, acting as magistrate, bound Smith over for trial on
all charges, rejecting Smith's challenge to the bindover.
¶6
Later, Smith filed a motion asking the court to...
