FOR PUBLICATION
May 23 2014, 10:42 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DANIEL L. MOORE GREGORY F. ZOELLER
Moore & Associates Attorney General of Indiana
Indianapolis, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENNETH GRIESEMER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1308-CR-382
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Linda Brown, Judge
Cause No. 49F10-1208-CM-56547
Opinion – For Publication
May 23, 2014
MAY, Judge
Kenneth Griesemer appeals his conviction of Class A misdemeanor patronizing a
prostitute.1 He argues he was entrapped. We reverse.2
FACTS AND PROCEDURAL HISTORY
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.
1
Ind. Code § 35-45-4-3.
2
We held oral argument on this case on February 11, 2013, at the Indiana Statehouse, before an audience of
participants in the Indiana Bar Association’s Leadership Development Academy. We commend counsel for
the quality of their advocacy.
3
The precise location where Griesemer was to meet Detective McLemore is unclear from the record. Detective
McLemore testified “he would have to, in order to come back around, he’d have to turn on to Washington
Street and go around the loop which is what he did originally when he came back to speak with me.” (Tr. at
8.)
2
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.
DISCUSSION AND DECISION
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
3
does not constitute entrapment.
Ind. Code § 35-41-3-9.
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) (“It is undisputed that Officer Gehring initiated the
4
conversation regarding whether Ferge would be interested in fellatio for payment.”).
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 (holding State must disprove inducement or prove predisposition). 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) (reversing 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) (evidence police “merely placed the deer decoy off the road where the Sheltons could
see it” was not adequate to demonstrate inducement sufficient to entitle Sheltons to jury
5
instruction on entrapment), 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 (record “clearly established police inducement” where officer initiated conversation
regarding whether “Ferge would be interested in fellatio for payment”); cf. Espinoza v. State,
6
859 N.E.2d 375, 385-86 (Ind. Ct. App. 2006) (where police intercepted package containing
marijuana and cocaine that was addressed for delivery via UPS to Espinoza, and police
simply delivered the package instead of UPS, police did not induce Espinoza’s criminal
behavior or implant a criminal design in his mind).
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) (“Insomuch as the idea of the charged illegal
conduct originated with the police, the State has the burden of proving a predisposition on the
part of defendant to engage in the illegal activities.”). “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 government; (3) whether the
defendant was engaged in criminal activity for a profit; (4) whether the
defendant evidenced reluctance to commit the offense, overcome by
government persuasion; and (5) the nature of the inducement or persuasion
offered by the government.
Kats v. State, 559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied. Additional facts that
suggest criminal predisposition include familiarity with jargon and prices, engaging in
multiple transactions, or arranging future transactions. Riley v. State, 711 N.E.2d 489, 494
(Ind. 1999).
7
Griesemer notes he stopped at a stop sign and offered the detective a ride, and then the
detective initiated discussion of sexual matters. Furthermore, Griesemer asserts, the State
presented no evidence that he was familiar with the jargon4 or price of prostitutes, that he
tried to engage in multiple transactions or arrange future transactions, that he was known to
patronize prostitutes, or that he exhibited any other behavior that suggests predisposition to
patronize prostitutes. Thus, Griesemer claims, we should reverse his conviction. See Ferge,
764 N.E.2d 271-72 (reversing conviction of patronizing a prostitute because State did not
show Ferge’s predisposition to commit the crime the police induced).
The State argues Ferge should not control the outcome herein because “[u]nlike
Ferge, there was no evidence that [Griesemer] was in the habit of offering rides to strange
women.” (Appellee’s Br. at 8-9.) However, Griesemer did not have any burden to prove he
lacked predisposition, and we decline the State’s invitation to impose that burden on him.
See Baird, 446 N.E.2d 342 (reversing conviction of furnishing alcohol to a minor because
police use of 19-year-old to purchase the beer from the store where Baird was the clerk
amounted to police initiation of the criminal activity, and State did not offer evidence that
Baird was predisposed to sell alcohol to minors). We may not affirm Griesemer’s conviction
on the ground that he did not produce evidence of his motivation for offering Detective
McLemore a ride.
4
Detective McLemore testified she told Griesemer that she could “do ‘head’ which is street terminology for
fellatio.” (Tr. at 7.) However, we decline to hold that widely-know slang term for fellatio qualifies as the kind
of criminal “jargon” suggesting a person is predisposed to patronize prostitutes. Cf. Henrichs v. State, 455
N.E.2d 599, 601 (Ind. 1983) (appellant “used and understood terminology almost exclusively practiced in the
illegal drug traffic trade”); Young v. State, 620 N.E.2d 21, 25 (Ind. Ct. App. 1993) (appellant used “eight balls”
and “sixteenths” for quantities of cocaine and knew the prices for each), trans. denied.
8
Finally, at oral argument, the State suggested Griesemer’s nodding yes to agree to
fellatio and nodding toward the seat for Detective McLemore to get into the car demonstrate
he was predisposed to commit patronizing a prostitute because “this is everything we would
expect in this kind of encounter.” (Oral Argument Video at 18:06-18:09.) Although the State
does not need to demonstrate “prior acts to show ‘predisposition,’” Gilley v. State, 535
N.E.2d 130, 132 (Ind. 1989), the State cannot use the very facts necessary to demonstrate
patronizing a prostitute to demonstrate predisposition to commit that same crime, or the State
effectively will have avoided its burden to demonstrate predisposition. See Voirol v. State,
412 N.E.2d 861, 864 (Ind. Ct. App. 1980) (“The fact that defendant sold to a person he had
never seen before does not support an inference of eagerness or propensity. Otherwise any
time one has been entrapped and a sale has occurred, the fact of sale would show a
propensity or a predisposition.”). We decline to hold that agreeing to commit a crime
induced by the State demonstrates the predisposition necessary to rebut the defense of
entrapment. See Dockery, 644 N.E.2d at 577 (if State does not prove predisposition, then
entrapment is established as a matter of law); Baird, 446 N.E.2d at 344 (reversing conviction
of entrapment where State “presented absolutely no evidence of defendant’s predisposition to
commit the crime”).
Rather, to demonstrate predisposition, the State needed to produce evidence similar to
that which we have found sufficient in prior decisions, such as providing marijuana on a prior
occasion and offering to sell crack cocaine to the officer in the future, Gray v. State, 579
N.E.2d 605 (Ind. 1991), reh’g denied; selling drugs to obtain a “pinch” for himself, knowing
9
prices and sources, and offering to sell in the future, Henrichs v. State, 455 N.E.2d 599, 601
(Ind. 1983); using drug jargon for cocaine packaging (“bricked up”) and offering to supply
additional cocaine in the future, Turner v. State, 993 N.E.2d 640, 644 (Ind. Ct. App. 2013),
trans. denied; negotiating for a better price and urging the officer to engage in more criminal
behavior, Salama v. State, 690 N.E.2d 762 (Ind. Ct. App. 1998) (charged with welfare fraud),
trans. denied; being the first to mention the crime, discussing payment, and providing a
shotgun, Lahr, 640 N.E.2d at 760; and knowing terminology and pricing, having familiarity
with suppliers, wanting some for his own use, Young v. State, 620 N.E.2d 21, 25 (Ind. Ct.
App. 1993), trans. denied. As the State did not present any evidence that could demonstrate
Griesemer was predisposed to patronize a prostitute,5 it did not rebut his defense of
entrapment. See, e.g., Baird, 446 N.E.2d at 344 (reversing conviction where criminal activity
was initiated by police and State presented no evidence of defendant’s predisposition).
Because the evidence most favorable to the State permits an inference only that the
police induced Griesemer’s criminal behavior, but does not contain any evidence permitting
an inference that Griesemer was predisposed to commit patronizing a prostitute, entrapment
was established as a matter of law, and we must reverse Griesemer’s conviction.
Reversed.
5
The only additional fact to which the State can point is the fact that Griesemer had turned into a parking lot
that would provide access to an alley through which Griesemer could circle back around to the designated
meeting place. The State asserts this fact distinguishes this case from Ferge, in which the defendant had driven
nine blocks from the undercover officer before he was stopped by police. See Ferge, 764 N.E.2d at 272.
However, the fact remains that, when arrested, Griesemer was in the parking lot of a convenience store and,
from Detective McLemore’s description, at least two blocks from the designated meeting place. We decline to
hold Griesemer’s presence there, at least two blocks from the meeting place and in the parking lot of a
convenience store, demonstrated his predisposition to commit this crime.
10
BAKER, J., concurs.
VAIDIK, C.J., dissents with separate opinion.
11
IN THE
COURT OF APPEALS OF INDIANA
KENNETH GRIESEMER, )
)
Appellant-Plaintiff, )
)
vs. ) No. 49A04-1308-CR-382
)
STATE OF INDIANA, )
)
Appellee-Defendant. )
)
VAIDIK, Chief Judge, dissenting.
I respectfully disagree with the majority’s view that there was not sufficient evidence
to rebut Griesemer’s entrapment defense. Specifically, I believe that the State proved that
Griesemer was predisposed to commit the offense because the State established that
Griesemer was not reluctant to commit the offense. Therefore, I would affirm Griesemer’s
conviction for Class A misdemeanor patronizing a prostitute.
Griesemer was driving his car and noticed Tabitha McLemore, an undercover police
officer who was posing as a prostitute, near the corner of Washington and Ewing Streets on
the east side of Indianapolis. A few minutes later, he drove by again and asked her if she
12
needed a ride. Tr. p. 6. She declined and explained that she was “trying to make some
money.” Id. at 7. Griesemer then nodded his head toward his passenger seat, indicating that
Officer McLemore should get into his car. Id. She then asked Griesemer how much money
he had, and he responded by again nodding his head toward the passenger seat. She repeated
the question, and he responded that he had twenty dollars. Id. Officer McLemore told him
that she could do “head” for that price.6 Griesemer shook his head yes and again nodded for
her to get into the passenger seat of his car. Id. Officer McLemore then asked Griesemer to
pick her up “down the street.” Id. at 8. He nodded in agreement.7 Griesemer turned right
onto Washington Street from northbound Ewing and then turned right again at the next block
pulling into the parking lot that he “turned in originally.” Id. at 9. In the parking lot, he was
arrested by uniformed police officers. After a bench trial, the trial court found him guilty of
Class A misdemeanor patronizing a prostitute.
Griesemer asserted the defense of entrapment at trial. Entrapment is a valid defense if
(1) the prohibited conduct was the result of a police officer using persuasion or other means
likely to cause the person to commit a crime and (2) the person was not predisposed to
commit the offense. Ind. Code § 35-41-3-9. This Court has stated that once a defendant has
proved that he was induced to commit the offense, the burden of proof shifts to the State
either to disprove beyond a reasonable doubt that the defendant was induced to commit the
crime or to prove beyond a reasonable doubt that the defendant was predisposed to commit
6
“Head” is a street term for fellatio.
13
the crime. Scott v. State, 772 N.E.2d 473, 474-75 (Ind. Ct. App. 2002), trans. denied.
I agree with the majority that Officer McLemore induced Griesemer to commit the
offense. However, I disagree with the majority that the State did not prove that Griesemer
was predisposed to commit the offense.
A defendant’s predisposition to commit a crime is a question of fact, and we use the
same standard that is used to address sufficiency claims. Dockery v. State, 644 N.E.2d 573,
578 (Ind. 1994). We will uphold a conviction if the record is supported with substantial
evidence of probative value from which a reasonable trier of fact could infer that the
appellant was predisposed to commit the offense. Id. “Circumstantial evidence may be
sufficient to establish predisposition.” Voirol v. State, 412 N.E.2d 861, 863 (Ind. Ct. App.
1980).
Several factors may be relevant in determining whether a defendant was predisposed
to commit a crime, including:
(1) the character or reputation of the defendant; (2) whether the suggestion of criminal
activity was originally made by the government; (3) whether the defendant was
engaged in criminal activity for a profit; (4) whether the defendant evidenced
reluctance to commit the offense, overcome by government persuasion; and (5) the
nature of the inducement or persuasion offered by the government.
Kats v. State, 559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied. We adopted these
factors from the Seventh Circuit in United States v. Fusko, 869 F.2d 1048, 1052 (7th Cir.
1989). In explaining the factors, the Fusko Court stated that “‘the most important element of
the equation is whether the defendant was reluctant to commit the offense.’” Id. (quoting
7
According to Officer McLemore, to pick her up, “he’d have to turn [onto] Washington Street and go around
14
United States v. Thoma, 726 F.2d 1191, 1197 (7th Cir. 1984)). The Fusko Court also
explained that reluctance is established when “‘evidence demonstrated some degree of
Government involvement in coaxing the defendant into committing the offense, and the
defendant, for whatever reason, was initially reluctant to become involved . . . .’” Id.
(quoting Thoma, 726 F.2d at 1196).
The majority asserts that the State cannot use the very facts necessary to commit a
crime to demonstrate that a defendant was predisposed to commit that crime. Slip. op. at 9. I
agree that something more than the commission of the crime by itself is necessary to prove
that a defendant was predisposed to commit the offense. See Voirol, 412 N.E.2d at 863
(holding that the mere fact that a defendant was willing to sell drugs to a person he did not
know could not be construed as evidence that the defendant was “willing and eager” to sell
drugs). But based on the Kats factors, the State does not need to prove that the defendant is
“willing and eager” to commit the crime. Instead, the State must only establish that the
defendant was not reluctant to commit the crime.
The evidence presented by the State did exactly that. The evidence most favorable to
the judgment shows that Griesemer nodded his head toward the passenger seat after Officer
McLemore told him she was trying to make some money. She then asked him how much
money he had, and he responded that he had twenty dollars. Although Officer McLemore
was the first to mention the idea of paying money for a sexual act, Griesemer was the first to
mention the amount of money. Had he been initially reluctant to commit the crime, he would
the loop which is what he did originally when he came back to speak with [Officer McLemore].” Tr. p. 8.
15
not have immediately volunteered the amount of money he had in his car to an unknown
woman standing outside his car window. After the agreement was consummated, she told
him to pick her up down the street. Griesemer then drove into the parking lot he had
originally turned around in, presumably to turn around and pick her up down the street. I
believe that the evidence most favorable to the judgment is sufficient to establish that
Griesemer was not reluctant to commit Class A misdemeanor patronizing a prostitute.
I also find this case distinguishable from Ferge v. State, 764 N.E.2d 268 (Ind. Ct. App.
2002). In that case, Ferge stopped at a corner and asked the undercover police officer, who
was posing as a prostitute, if she needed a ride. She said “maybe” and then asked if he was
“looking for a little more.” Id. at 270. Ferge responded only, “yes, get in,” to each of her
questions. But more pertinently, after the officer told Ferge to meet her in an alley behind the
building, Ferge did not circle the block to return to the alley; instead, he drove away from the
alley until he was stopped by the police approximately seven blocks away. Id. Unlike in
Ferge, Griesemer did drive back to the parking lot he had turned into originally.
While lack of reluctance is only one of the Kats factors, it is the most important one.
Here, Griesemer exhibited no reluctance to commit the offense, nor is there any evidence that
the government used persuasion to overcome any reluctance Griesemer may have had.
Finally, I respectfully disagree with the majority’s suggestion that in order to
demonstrate predisposition, the State needed to produce evidence of Griesemer patronizing
prostitutes in the past or being familiar with the jargon of the prostitution business.
When looking at the evidence most favorable to the judgment, I believe the State
16
proved that Griesemer was predisposed to commit the offense. Therefore, I would find that
there was sufficient evidence to rebut Griesemer’s entrapment defense and would affirm his
conviction for Class A misdemeanor patronizing a prostitute.
17
Kenneth Griesemer v. State of Indiana
Combined Opinion