Strong v. State
| Decision Date | 26 May 1992 |
| Docket Number | No. 49A02-9110-CR-460,49A02-9110-CR-460 |
| Citation | 591 N.E.2d 1048 |
| Parties | Donald STRONG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1 |
| Court | Indiana Appellate Court |
Gregory S. Fehribach, Tucker Surface & Fehribach, Indianapolis, for appellant-defendant.
Linley E. Pearson, Atty. Gen., and Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Donald Strong appeals his conviction after a bifurcated jury trial of prostitution as a class D felony. In the enhancement stage, the State proved that Strong has been convicted twice previously of prostitution. Strong was sentenced to three (3) years imprisonment. Strong raises two (2) issues. But, because we have found reversible error in the trial court's refusal to give Strong's tendered instruction on the entrapment defense, we address that issue only.
The facts in the light most favorable to the verdict indicate that on February 20 Without being asked to do so, Strong got into the police officer's van and expressed some concern about being taken to jail. When asked, Strong stated he gave "good head." The police officer asked Strong, "Do you f---?" Strong responded yes, but indicated that while he was willing to commit an act of fellatio in return for some marijuana, the police officer would have to give him more than marijuana if he wanted Strong to submit to intercourse.
1991, an undercover police officer was driving an old, red-panel van in a known prostitution area. Strong waived him down. The police officer drove around the block and, when he returned, Strong again waved him over. When the police officer stopped the van, Strong opened the passenger door and asked, "What are you doing?" The police officer replied that he was looking for some "head," a street term used to describe fellatio. Strong asked, "you're not a cop, are you?" The police officer responded in the negative. Strong asked the police officer if he would give him some marijuana. The police officer said he did not have any of the drug with him, but indicated he had marijuana cigarettes or "joints" at his place
The police officer then asked "Can I come in your mouth?" ("come" was explained as a street term meaning ejaculate). Strong replied, "If you want to, I aim to please." Strong went on to say "I think a person should be satisfied for what they are paying ... or giving."
Additional facts are supplied as necessary.
Whether the trial court erred by refusing to give Strong's tendered instruction on the entrapment defense?
The trial court refused to give Strong's tendered instruction on the entrapment defense noting on the record that Strong had failed to raise the issue at trial. (R. p. 192) The trial court reasoned that Strong's denial that he committed the crime precluded the raising of the entrapment defense. (R. p. 192) The State does not dispute that Strong's tendered instruction was a correct statement of the law.
The well-settled standard of review for the determination of whether the refusal of a tendered jury instruction was error is:
(1) whether the tendered instruction correctly states the law, (2) whether there is evidence in the record to support the giving of the instruction, and (3) whether the substance of the instruction is covered by other instructions given.
Banks v. State (1991), Ind., 567 N.E.2d 1126, 1128. Instructional errors which do not prejudice the substantial rights of the defendant do not inevitably require reversal. Boyd v. State (1991), Ind., 564 N.E.2d 519. A criminal defendant is entitled to an instruction on any defense which has some foundation in the evidence, even if the evidence is weak and inconsistent. Harrington v. State (1980), Ind.App., 413 N.E.2d 622, trans. denied.
The defense of entrapment is defined by IND.CODE 35-41-3-9 which reads:
(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.
Entrapment exists when a government agent or someone working for the agent persuades the defendant to commit the crime charged. Gossmeyer v. State (1985), Ind., 482 N.E.2d 239. The efficacy of the entrapment defense depends on whether the defendant was induced to commit the crime by police activity or whether he was already predisposed to do so. Harrington, 413 N.E.2d 622.
It is incumbent upon the defendant to affirmatively raise the defense of entrapment. Fearrin v. State (1990), Ind.App. 551 N.E.2d 472, trans. denied. If the defendant has not raised the issue of entrapment, he is not entitled to an instruction on that defense. Harrington, 413 N.E.2d 622. The entrapment defense is raised once the evidence includes a showing of police involvement in the criminal activity: no formal pleading of the defense is required. Fearrin, 551 N.E.2d 472. The indicia of entrapment can be demonstrated by the State unilaterally. Id. The defendant can reveal his intention to rely on the entrapment defense during the cross-examination of the State's witnesses. Id.
To sufficiently raise an entrapment defense, a defendant must produce evidence of both the Government's inducement and his own lack of predisposition. United States v. Gunter (7th Cir., 1984), 741 F.2d 151. Even in the context of undisputed police participation in criminal activity, if evidence of the defendant's predisposition to commit the crime is presented, the defendant is not entitled to an instruction on the entrapment defense unless he presents evidence showing a lack of predisposition. Salinas v. State (1991), Ind.App., 566 N.E.2d 1058.
In the present case, the indicia of entrapment cannot be seriously disputed. The arresting police officer testified that he was out "trolling" for prostitutes. The police officer defined trolling as working vice or undercover, looking to make a prostitution arrest by getting a prostitute to agree to have sex with him for remuneration. (R. p. 102, 134, 135, 141).
Our review of the record leads us to the conclusion that Strong presented substantial evidence which purported to demonstrate his lack of predisposition to commit the crime of prostitution. On cross-examination of the arresting police officer, Strong explored the nature of the police officer's "trolling" operation. (R. p. 134-136) During this cross-examination, Strong established that the police officer, and not Strong, brought up the subject of sexual activity and Strong did not say anything about sexual activity before getting into the police officer's van. (R. p. 136, 146).
Strong testified in his own defense. He denied that he agreed to commit an act of fellatio upon the police officer for any remuneration including marijuana. (R. p. 155, 157, 174, 175, 177, 178) Strong also testified that: 1) he did not wave to the police officer to attract his intention as the police officer had testified but that the police officer had waved him down (R. p. 153, 162, 163); 2) he got into the police officer's van in response to the police officer's invitation to give him a ride home (R. p. 154, 156, 157, 165, 166-169, 174); 3) he never asked the police...
To continue reading
Request your trial
-
Rivera v. State
...203 Ga.App. 1, 416 S.E.2d 350 (1992); James, 484 N.W.2d 799; State v. Grilli, 304 Minn. 80, 230 N.W.2d 445 (1975); Strong v. State, 591 N.E.2d 1048 (Ind.App.1992); State v. Tate, 593 So.2d 864 (La.App.1992); and State v. King, 17 Kan.App.2d 349, 838 P.2d 349 15 Justice Brandeis, in his diss......
-
Suits v. State
...to evidence that he or she lacked criminal predisposition and that there was inordinate government inducement. See Strong v. State, 591 N.E.2d 1048, 1051-52 (Ind.Ct.App. 1992); Buendia, 912 P.2d at 289. Thus, in line with Mathews, many state courts have concluded that, if a defendant disput......
-
State v. Buendia
...defense should be submitted to the jury. See, e.g., Medina v. State, 634 So.2d 1149, 1151 (Fla.Dist.Ct.App.1994); Strong v. State, 591 N.E.2d 1048, 1051 (Ind.Ct.App.1992); Commonwealth v. Tracey, 416 Mass. 528, 624 N.E.2d 84, 88 (1993); Daniels v. State, 422 So.2d 289, 291 (Miss.1982); Stat......
-
Lacey v. State
...on any defense which has some foundation in the evidence, even when that evidence is weak or inconsistent." (citing Strong v. State, 591 N.E.2d 1048, 1050 (Ind.Ct.App.1992), trans. denied ). The self defense statute provides, in relevant part: (d) Notwithstanding subsections (a), (b), and (......
-
Sex Work
...occurred but claiming that, with respect to prostitution, non-marital coupledom is no defense). 95. See, e.g. , Strong v. State, 591 N.E.2d 1048, 1050–51 (Ind. Ct. App. 1992) (holding that the trial court erred in refusing to give instruction on entrapment defense where defendant showed tha......
-
Sex Work
...83. See , e.g. , Thaeter v. Palm Beach Cnty. Sheriff’s Off., 449 F.3d 1342, 1353 n.8 (11th Cir. 2006). 84. See, e.g. , Strong v. State, 591 N.E.2d 1048, 1050–51 (Ind. Ct. App. 1992) (holding that the trial court erred in refusing to give instruction on entrapment defense where defendant sho......