ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel L. Moore Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Larry D. Allen
Stephen R. Creason
Richard C. Webster
Deputy Attorneys General
Indianapolis, Indiana
Mar 05 2015, 10:43 am
In the
Indiana Supreme Court
No. 49S04-1408-CR-564
KENNETH GRIESEMER,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
Appeal from the Marion Superior Court, No. 49F10-1208-CM-56547
The Honorable Linda E. Brown, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1308-CR-382
March 5, 2015
Massa, Justice.
Kenneth Griesemer appeals his conviction for patronizing a prostitute, arguing the State
failed to rebut his defense of entrapment. We are asked to decide whether the State disproved one
element of that defense—either showing there was no police inducement or showing Griesemer
was predisposed to commit the crime—beyond a reasonable doubt. Because we find the
undercover detective merely presented Griesemer with an opportunity to patronize a prostitute, we
find no inducement and therefore no entrapment. We affirm.
Facts and Procedural History
On a summer afternoon on the east side of Indianapolis, Detective Tabatha McLemore was
posing as a prostitute on a corner, when she noticed Griesemer driving past and staring at her. He
looped around the block and returned a few minutes later, stopping near her just before a stop sign.
Through his open car window, Griesemer asked Detective McLemore if she needed a ride.
Detective McLemore declined, saying she “was trying to make some money.” Tr. at 7. Griesemer
nodded his head toward his passenger seat, which Detective McLemore understood to be an
invitation for her to get in his car. She then asked him how much money he had, and Griesemer
again nodded toward his passenger seat. When she asked him about money a second time, he told
her he had twenty dollars. Detective McLemore said she could “do head” for that amount, and
Griesemer nodded his head, yes, and for a third time nodded toward his passenger seat. Tr. at 7–
8. Instead of getting in his car, however, she told him to pick her up just down the street. He
nodded, yes, and proceeded along the same route he had taken when he initially saw Detective
McLemore. A police vehicle stopped Griesemer; he was arrested and charged with patronizing a
prostitute, a Class A misdemeanor. 1 At a bench trial, the court found Griesemer guilty as charged
and sentenced him to 180 days with 176 days suspended.
1
“A person who 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 . . . commits patronizing a prostitute.” Ind. Code § 35-45-4-3 (2008). Deviate sexual
2
Griesemer appealed his conviction, arguing he raised the entrapment defense by showing
police inducement—it was Detective McLemore who first mentioned money, sex, and the
possibility of trading one for the other—and the State failed to offer any evidence of Griesemer’s
predisposition to commit the offense. A majority of our Court of Appeals agreed, and it reversed
Griesemer’s conviction. Griesemer v. State, 10 N.E.3d 1015, 1021 (Ind. Ct. App. 2014). Chief
Judge Vaidik dissented, relying upon United States v. Fusko, 869 F.2d 1048, 1052 (7th Cir. 1989),
which explained, “the most important element of the equation is whether the defendant was
reluctant to commit the offense.” Griesemer, 10 N.E.3d at 1022 (Vaidik, C.J., dissenting). She
found the State proved predisposition by showing Griesemer’s lack of reluctance to commit the
offense: Griesemer nodded toward his passenger seat in response to Detective McLemore’s saying
she was trying to make money; Griesemer was the first to mention a specific amount of money;
and Griesemer promptly drove down the street just as he had done before, presumably to pick up
Detective McLemore. Id. at 1022–23.
We granted transfer, thereby vacating the opinion below. Griesemer v. State, 15 N.E.3d
588 (Ind. 2014) (table); Ind. Appellate Rule 58(A).
Standard of Review
“We review a claim of entrapment using the same standard that applies to other challenges
to the sufficiency of evidence.” Dockery v. State, 644 N.E.2d 573, 578 (Ind. 1994). We neither
reweigh the evidence nor reassess the credibility of witnesses. Id. Instead, we look to the probative
conduct includes acts that involve “a sex organ of one person and the mouth or anus of another person.”
Ind. Code § 35-31.5-2-94.
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evidence supporting the verdict and the reasonable inferences drawn from that evidence. Id. If
we find a reasonable trier of fact could infer guilt beyond a reasonable doubt, we will affirm the
conviction. Id.
Griesemer’s Entrapment Defense Fails Because He Was Not Induced.
The government may use undercover agents to enforce the law. Sorrells v. United States,
287 U.S. 435, 441 (1932) (“Artifice and stratagem may be employed to catch those engaged in
criminal enterprises.”). Indeed, undercover agents can be invaluable in the prevention, detection,
and prosecution of crime, and “it is the duty of conscientious and efficient law enforcement officers
to make such efforts.” Gray v. State, 249 Ind. 629, 632, 231 N.E.2d 793, 795 (1967). But their
tactics must be measured; we do not tolerate government activity that lures an otherwise
law-abiding citizen to engage in crime. Id. After all, the job of law enforcement is to catch
established criminals, not manufacture new ones. Our entrapment defense aims to sort the two.
Entrapment in Indiana is statutorily defined:
(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.
Ind. Code § 35-41-3-9 (2008). A defendant does not need to formally plead the entrapment
defense; rather, it is raised, often on cross-examination of the State’s witnesses, by affirmatively
showing the police were involved in the criminal activity and expressing an intent to rely on the
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defense. Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986); Fearrin v. State, 551 N.E.2d 472, 473
(Ind. Ct. App. 1990). Officers are involved in the criminal activity only if they “directly
participate” in it. Shelton v. State, 679 N.E.2d 499, 502 (Ind. Ct. App. 1997) (finding, where
officers merely placed deer decoy in field, they did not “directly participate in the criminal activity
of road hunting,” and the defendants thus failed to raise the entrapment defense). The State then
has the opportunity for rebuttal, its burden being to disprove one of the statutory elements beyond
a reasonable doubt. Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999); McGowan v. State, 674
N.E.2d 174, 175 (Ind. 1996) (holding because entrapment is established by the existence of two
elements, it is defeated by the nonexistence of one). There is thus no entrapment if the State shows
either (1) there was no police inducement, or (2) the defendant was predisposed to commit the
crime. Riley, 711 N.E.2d at 494.
To rebut the inducement element, the State must prove police efforts did not produce the
defendant’s prohibited conduct, McGowan, 674 N.E.2d at 175, because those efforts lacked “a
persuasive or other force.” Williams v. State, 274 Ind. 578, 584, 412 N.E.2d 1211, 1215 (1980).
In Williams, for example, the defendant was upset over an article about him, and he asked an
undercover officer if he would perform an “extra service.” Id. at 580, 412 N.E.2d at 1213. When
the officer asked what he meant by that, Williams said he wanted to stop the malicious slander.
Id., 412 N.E.2d at 1213. The officer then suggested that breaking the journalist’s arms and legs
wouldn’t be enough to shut him up. Id., 412 N.E.2d at 1213. Williams again asked for an “extra
service,” this time adding: “I want [the journalist] killed. I never want to see or hear of him again.”
Id., 412 N.E.2d at 1213. After hiring another officer as a contract killer, Williams was convicted
of conspiracy to commit murder. Id. at 580–81, 412 N.E.2d at 1213. Asserting entrapment,
Williams argued the officer’s statement about breaking arms and legs implanted the criminal plan
in his mind. Id. at 583–84, 412 N.E.2d at 1215. We disagreed for two reasons: (1) Williams used
the phrase “extra service,” apparently in reference to killing the journalist, before the officer’s
comment, and (2) the officer’s comment lacked a persuasive force. Id. at 584, 412 N.E.2d at 1215.
“It was not a question calling for an answer, but a flat logical assertion.” Id., 412 N.E.2d at 1215.
5
A trier of fact could reasonably find the criminal plan was a product of Williams’s own “personal
anger and frustration,” not police efforts. Id. at 583, 412 N.E.2d at 1215.
We reached the opposite conclusion in Albaugh v. State, 721 N.E.2d 1233 (Ind. 1999). On
a snowy night, Albaugh’s truck broke down a quarter mile from his house. Id. at 1233. He and
his girlfriend left the truck, walked home, and began drinking whiskey. Id. A few hours later, two
deputies pounded on their door and said the truck needed to be moved out of the road before it
became a hazard. Id. at 1234. Although Albaugh said he would do so in the morning, the deputy
insisted, “you’ve got to move it and you’ve got to move it now.” Id. at 1237. Shortly after Albaugh
started his truck, the deputies arrested him, and he was convicted of driving while intoxicated. Id.
We found the State failed to establish Albaugh’s criminal conduct was not the product of the
deputy’s explicit demand to move the car, so Albaugh was entrapped. Id.
Here, neither side disputes the defense was adequately raised: Detective McLemore was
directly involved in the criminal act of patronizing a prostitute, which requires an “understanding”
between two people, she and Griesemer. Ind. Code § 35-45-4-3. The burden of proving either no
police inducement or predisposition to commit the crime thus shifted to the State.
We conclude the State presented sufficient evidence for a trier of fact to reasonably
determine Detective McLemore’s policing efforts did not produce Griesemer’s criminal conduct.
The evidence most favorable to the verdict suggests Griesemer stared at Detective McLemore from
the road before turning around, he stopped his car near her to initiate their conversation, and he
twice nodded his head to invite her into his car, all before she mentioned the opportunity to
exchange money for a sexual act. And we find Detective McLemore’s abruptly and clinically
stating “I could do head,” Tr. at 7, is more like the “flat logical assertion” of Williams, 274 Ind. at
584, 412 N.E.2d at 1215, than the “explicit directive or order” of Albaugh, 721 N.E.2d at 1237.
She did not exert a persuasive or other force over Griesemer; instead, she merely afforded him “an
opportunity to commit the offense,” which the statute expressly declares “does not constitute
6
entrapment.” Ind. Code § 35-41-3-9(b). That the crime itself may be tempting, without more, is
not inducement. Indeed, if we were to find entrapment on these facts, we would effectively put an
end to prostitution stings. We are not willing to so limit the activity of undercover officers to the
detriment of safety and quality of life in many neighborhoods.
Because a reasonable trier of fact could have found the State proved, beyond a reasonable
doubt, the police did not induce Griesemer, his entrapment defense fails. We need not address the
question of his predisposition to commit the crime.
Conclusion
For the reasons set forth in this opinion, we affirm the trial court.
Rush, C.J., David, J., concur.
Rucker, J., dissents with separate opinion in which Dickson, J., concurs.
7
Rucker, Justice, dissenting.
Although citing portions of the dissenting opinion authored by Chief Judge Vaidik, my
colleagues here apparently distance themselves from the dissent’s actual conclusion, namely:
Griesemer was “predisposed” to commit the offense. See Griesemer v. State, 10 N.E.3d 1015,
1021 (Ind. Ct. App. 2014) (Vaidik, C.J., dissenting). Both the Court of Appeals majority as well
as the dissent concluded that Officer McLemore induced Griesemer to commit the offense. See
Id. at 1019 (Majority opinion, “Detective McLemore’s question and statements were sufficient to
induce Griesemer to commit patronizing a prostitute.”); Id. at 1022 (Dissenting opinion, “I agree
with the majority that Officer McLemore induced Griesemer to commit the offense.”). The debate
was joined over the question of whether Griesemer was predisposed. Here, my colleagues do not
reach that issue concluding instead there was no inducement. I disagree. 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. As the Court of Appeals
correctly observed, under nearly identical facts a defendant was found to have “‘clearly established
police inducement.’” Id. at 1018 (quoting Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002)
(declaring “[i]t is undisputed that [the officer] initiated the conversation regarding whether Ferge
would be interested in fellatio for payment”)).
Because Griesemer clearly established inducement, “the burden shift[ed] to the State to
show the defendant’s predisposition to commit the crime. . . . The standard by which the State
must prove the defendant’s predisposition is beyond a reasonable doubt. . . . If the defendant
shows police inducement and the State fails to show predisposition on the part of the defendant to
commit the crime charged, entrapment is established as a matter of law.” Dockery v. State, 644
N.E.2d 573, 577 (Ind. 1994). Here, my colleagues’ reticence to address the issue speaks loudly
and strongly suggests the State did not carry its burden of proving predisposition beyond a
reasonable doubt. In my view the Court of Appeals majority got it exactly right: “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 . . . .”
Griesemer, 10 N.E.3d at 1021. I therefore respectfully dissent and would reverse the judgment of
the trial court.
Dickson, J., concurs.
2