Entrapment

• 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(citing Strong v. State, 591 N.E.2d 1048, 1050 (Ind. Ct. App. 1992), trans. denied)

See Grant v. State, 623 N.E.2d 1090, 1098 (Ind. Ct. App. 1993), reh’g denied, trans. denied(citing Fearrin v. State, 551 N.E.2d 472, 473 (Ind. Ct. App. 1990), trans. denied)(“[E]ntrapment exists when an otherwise law-abiding citizen is persuaded by a government agent or someone working for the agent to commit the crime charged.”)

See also Collins v. State, 520 N.E.2d 1258, 1260 (Ind. 1988)(citing Hudgins v. State, 443 N.E.2d 830, 832 (Ind. 1983))(“Entrapment exists when a government agent or someone working for the agent persuades the defendant to commit the crime charged.”)

• 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.

IC 35-41-3-9(a)

Rationale

• [W]e do not tolerate government activity that lures an otherwise law-abiding citizen to engage in crime.

Griesemer v. State, 26 N.E.3d 606, 608 (Ind. 2015)(citing Gray v. State, 231 N.E.2d 793, 795 (Ind. 1967), reh’g denied)

• After all, the job of law enforcement is to catch established criminals, not manufacture new ones. Our entrapment defense aims to sort the two.

Griesemer v. State, 26 N.E.3d 606, 608 (Ind. 2015)

Affirmative defense

• The defense of entrapment is an affirmative defense requiring admission to the elements of the crime.

Mobley v. State, 27 N.E.3d 1191, 1195 n. 1 (Ind. Ct. App. 2015)

See Hoskins v. State, 563 N.E.2d 571, 576 (Ind. 1990)(“The legislature has also created true affirmative defenses, such as entrapment or self-defense, which consist of elements which interdict criminal penalty for acts which would otherwise be punishable.”)

Police involvement in the criminal activity: In general

• In Indiana, the defense of entrapment turns upon the defendant’s state of mind, or “whether the ‘criminal intent originated with the defendant.’”

Espinoza v. State, 859 N.E.2d 375, 386 (Ind. Ct. App. 2006)(quoting Scott v. State, 772 N.E.2d 473, 475 (Ind. Ct. App. 2002), trans. denied(quoting Kats v. State, 559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied))

Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002)(quoting Kats v. State, 559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied(quoting United States v. Toro, 840 F.2d 1221, 1230 (5th Cir.1988), reh’g denied))

• “In other words, the question is whether ‘criminal intent [was] deliberately implanted in the mind of an innocent person[.]’”

Espinoza v. State, 859 N.E.2d 375, 386 (Ind. Ct. App. 2006)(quoting Scott v. State, 772 N.E.2d 473, 475 (Ind. Ct. App. 2002), trans. denied(quoting United States v. Killough, 607 F. Supp. 1009, 1011 (E.D. Ark. 1985))

Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002)(quoting Kats v. State, 559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied)(quoting United States v. Killough, 607 F. Supp. 1009, 1011 (E.D. Ark. 1985))

• “It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.”

Espinoza v. State, 859 N.E.2d 375, 386 (Ind. Ct. App. 2006)(quoting Scott v. State, 772 N.E.2d 473, 475 (Ind. Ct. App. 2002), trans. denied)

See Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002)(quoting Jacobson v. United States, 503 U.S. 540, 553-54 (1992))(“Law enforcement officials go too far when they ‘implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’”)

• If the criminal design springs from the mind of the defendant, there is no entrapment.

Wilhelm v. State, 455 N.E.2d 595, 597 (Ind. 1983)(citing Hutcherson v. State, 380 N.E.2d 1219, 1221 (Ind. 1978))

Police involvement in the criminal activity: Conduct merely providing an opportunity to commit the crime

• Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

IC 35-41-3-9(b)

• Presentment, by a police agent of the mere opportunity to commit a crime does not constitute entrapment.

Wilhelm v. State, 455 N.E.2d 595, 597 (Ind. 1983)(citing Hutcherson v. State, 380 N.E.2d 1219, 1221 (Ind. 1978))

See Whalen v. State, 442 N.E.2d 14, 16-17 (Ind. Ct. App. 1982)(citing IC 35-41-3-9)(“It is further well settled law that police activity merely providing an opportunity to commit the crime does not constitute entrapment.”)

See also Hudgins v. State, 443 N.E.2d 830, 832 (Ind. 1983)(citing Drollinger v. State, 409 N.E.2d 1084, 1086 (Ind. 1980))(“Entrapment does not occur when the government does no more than provide the defendant with the opportunity to commit an offense he is predisposed to commit.”)

• If the accused had the predisposition to commit the crime and the police merely afford the accused an opportunity to do so, then the defense of entrapment is unavailable.

Salama v. State, 690 N.E.2d 762, 764 (Ind. Ct. App. 1998), trans. denied(citing Headlee v. State, 678 N.E.2d 823, 827 (Ind. Ct. App. 1997), reh’g denied, trans. denied)

Raising the defense

• While entrapment is an affirmative defense, it need not be specifically pleaded.

Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986)(citing Jackson v. State, 441 N.E.2d 29, 33 (Ind. Ct. App. 1982))

Young v. State, 620 N.E.2d 21, 24 n. 2 (Ind. Ct. App. 1993), trans. denied(quoting Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986))

• 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 defense.

Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 2015)(citing Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986))

See Shelton v. State, 679 N.E.2d 499, 501-02 (Ind. Ct. App. 1997)(citing Strong v. State, 591 N.E.2d 1048, 1050 (Ind. Ct. App. 1992), trans. denied)(“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.”)

See also Taylor v. State, 629 N.E.2d 852, 854 (Ind. Ct. App. 1994)(citing Salinas v. State, 566 N.E.2d 1058, 1060 (Ind. Ct. App. 1991))(“We first observe that the entrapment defense is raised when the defendant affirmatively asserts it with a showing of police involvement in criminal activity.”)

Proving the defendant’s predisposition to commit the crime: In general

• Once a defendant has both indicated his intent to rely on the defense of entrapment and has established police inducement, the burden shifts to the State to show the defendant’s predisposition to commit the crime.

Dockery v. State, 644 N.E.2d 573, 577 (Ind. 1994)(citing Smith v. State, 565 N.E.2d 1059, 1063 (Ind. 1991), overruled on other grounds by Albaugh v. State, 721 N.E.2d 1233, 1235 n. 5 (Ind. 1999))

See Espinoza v. State, 859 N.E.2d 375, 386 (Ind. Ct. App. 2006)(citing Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002))(“If a defendant indicates that he intends to rely on the defense of entrapment and establishes police inducement, the burden shifts to the State to demonstrate the defendant’s predisposition to commit the crime.”)

See also Scott v. State, 772 N.E.2d 473, 474-75 (Ind. Ct. App. 2002), trans. denied(citing Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002))(“Once the defendant has indicated an intent to rely on the affirmative defense of entrapment and has established government participation, the burden shifts to the State to show the defendant’s predisposition to commit the crime beyond a reasonable doubt.”)

• The State must prove the defendant’s predisposition to commit the crime beyond a reasonable doubt.

Shelton v. State, 679 N.E.2d 499, 502 (Ind. Ct. App. 1997)(citing Dockery v. State, 644 N.E.2d 573, 577 (Ind. 1994))

See Dockery v. State, 644 N.E.2d 573, 577 (Ind. 1994)(citing Gray v. State, 579 N.E.2d 605, 609 (Ind. 1991), reh’g denied)(“The standard by which the State must prove the defendant’s predisposition is beyond a reasonable doubt.”)

See also Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002)(citing Dockery v. State, 644 N.E.2d 573, 577 (Ind. 1994))(“The State must prove the defendant’s predisposition beyond a reasonable doubt.”)

• The State must prove the defendant’s predisposition with evidence subject to the normal rules of admissibility.

Dockery v. State, 644 N.E.2d 573, 577 (Ind. 1994)(citing Stewart v. State, 390 N.E.2d 1018, 1022 (Ind. 1979))

• Evidence of events occurring at the time of, or after the initial contact by the officer with the accused, or occurring at the time of the commission of the offense, is admissible to show predisposition.

Whorton v. State, 412 N.E.2d 1219, 1222 (Ind. Ct. App. 1980)(citing Beach v. State, 411 N.E.2d 363, 366 (Ind. Ct. App. 1980), reh’g denied)

See Whalen v. State, 442 N.E.2d 14, 17 (Ind. Ct. App. 1983)(citing Sowers v. State, 416 N.E.2d 466, 469 (Ind. Ct. App. 1981))(“Evidence of events occurring at the time of or after the officer’s first contact with the defendant or at the time of the commission of the offense, is admissible to show predisposition.”)

• The following factors are important in determining whether a defendant was predisposed to commit the charged 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.

Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002)(citing Kats v. State, 559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied)

• [W]hether a defendant is predisposed to commit the crime charged is a question for the trier of fact, assuming evidence both of predisposition and a lack thereof.

Scott v. State, 772 N.E.2d 473, 475 (Ind. Ct. App. 2002), trans. denied

See Turner v. State, 993 N.E.2d 640, 644 (Ind. Ct. App. 2013), trans. denied(citing Dockery v. State, 644 N.E.2d 573, 577 (Ind. 1994))(“Whether a defendant is predisposed to commit the crime charged is a question for the trier of fact.”)

Cf. Whalen v. State, 442 N.E.2d 14, 18 (Ind. Ct. App. 1982)(internal citations omitted)(“Predisposition is a question for the jury. This issue is to be determined by the trier of fact from a consideration of all the evidence. A motion to suppress is not an appropriate vehicle for the determination of this issue. Therefore, the court committed no error in denying the motion to suppress without holding a hearing.”)

• 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)(citing Hardin v. State, 358 N.E.2d 134, 136 (Ind. 1976))

Espinoza v. State, 859 N.E.2d 375, 386 (Ind. Ct. App. 2006)(citing Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002))

See Turner v. State, 993 N.E.2d 640, 644 (Ind. Ct. App. 2013), trans. denied(citing Dockery v. State, 644 N.E.2d 573, 577 (Ind. 1994))(“Entrapment is established as a matter of law if the defendant shows police inducement and the state fails to show predisposition on the part of the defendant to commit the crime charged.”)

Proving the defendant’s predisposition to commit the crime: In regards to selling drugs

• Factors that indicate a predisposition to sell drugs include a knowledge of drug prices, use and understanding of terminology of the drug market, solicitation of future drug sales, and multiple drug sales.

Wattley v. State, 721 N.E.2d 353, 355 (Ind. Ct. App. 1999)(citing Jordan v. State, 692 N.E.2d 481, 484 (Ind. Ct. App. 1998))

See Quick v. State, 660 N.E.2d 598, 600 (Ind. Ct. App. 1996), reh’g denied(citing Young v. State, 620 N.E.2d 21, 24 (Ind. Ct. App. 1993), trans. denied)(“Factors which indicate a predisposition to sell drugs include a knowledge of drug prices and the use and understanding of terminology of the drug market.”)

Cf. McKrill v. State, 452 N.E.2d 946, 949 (Ind. 1983)(quoting Sowers v. State, 416 N.E.2d 466, 469 (Ind. Ct. App. 1981))(“Circumstances which may be considered on the issue of predisposition include: ‘the accused’s possession of a large quantity of contraband; the ability to obtain a supply within a few minutes; knowledge of price on the criminal market and of the sources of supply; familiarity with drug terminology; possession of apparatus for manufacture; the manner of the sale itself; and the accused’s readiness to participate; several different schemes to accomplish a sale; multiple sales to the officer; and solicitation, assurances, or other conduct evidencing a willingness or desire to participate in future sales.’”)

• Predisposition may also be established by evidence that the defendant could readily access sources to buy contraband in a short period of time.

Jordan v. State, 692 N.E.2d 481, 484 (Ind. Ct. App. 1998)(citing Smith v. State, 565 N.E.2d 1059, 1063 (Ind. 1991), overruled on other grounds by Albaugh v. State, 721 N.E.2d 1233, 1235 n. 5 (Ind. 1999))

• Circumstantial evidence, including evidence of events at the time of the sale or delivery, may be considered on the issue of predisposition.

Battle v. State, 498 N.E.2d 57, 59 (Ind. Ct. App. 1986)(citing Schlabach v. State, 459 N.E.2d 740, 741 (Ind. Ct. App. 1984), reh’g denied)

• Proof of predisposition is relevant only to ensure that, on the particular occasion, the proscribed activity was not solely the idea of the police officials. This purpose, coupled with the factors we use to determine predisposition, support the conclusion that the critical circumstances are those that exist at the time of the solicitation, and not before.

Young v. State, 620 N.E.2d 21, 25 (Ind. Ct. App. 1993), trans. denied(emphasis added)(quotation marks and citations omitted)

• We disagree with [the defendant] that the State must prove prior acts to show “predisposition.”

Gilley v. State, 535 N.E.2d 130, 132 (Ind. 1989)

Proving the defendant’s predisposition to commit the crime: Defendant’s recourse

• “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.”

Scott v. State, 772 N.E.2d 473, 475 (Ind. Ct. App. 2002), trans. denied(quoting Strong v. State, 591 N.E.2d 1048, 1051 (Ind. Ct. App. 1992), trans. denied)

• Thus, to successfully raise an entrapment defense, the defendant must first produce evidence of the government’s involvement in the criminal activity and, if the State makes a prima facie case of predisposition, then must also produce evidence of his lack of predisposition to commit the crime.

Scott v. State, 772 N.E.2d 473, 475 (Ind. Ct. App. 2002), trans. denied(citing Strong v. State, 591 N.E.2d 1048, 1051 (Ind. Ct. App. 1992), trans. denied)

Overcoming the defense

• For the State to overcome an entrapment defense, the State must prove beyond a reasonable doubt either “the defendant’s conduct was not a product of the efforts of a law enforcement officer or that the accused was predisposed to engage in the conduct.”

Turner v. State, 993 N.E.2d 640, 644 (Ind. Ct. App. 2013), trans. denied(quoting McGowan v. State, 674 N.E.2d 174, 175 (Ind. 1996), reh’g denied))

See Albaugh v. State, 721 N.E.2d 1233, 1235 (Ind. 1999)(quoting McGowan v. State, 674 N.E.2d 174 (Ind.1996), reh’g denied)(“[T]he State may prove either that the ‘defendant’s prohibited conduct was not the product of the police efforts or that the defendant was predisposed to engage in such conduct.’”)

See also Salama v. State, 690 N.E.2d 762, 764 (Ind. Ct. App. 1998), trans. denied(citing Headlee v. State, 678 N.E.2d 823, 827 (Ind. Ct. App. 1997), reh’g denied, trans. denied)(“To rebut a defense of entrapment, the State must prove either that the accused’s conduct was not the product of law enforcement efforts or that the accused was predisposed to engage in the prohibited conduct.”)

See also Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 2015)(citing Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999))(“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.”)

• [B]ecause “‘the defense is established by demonstrating the existence of two elements, then it is logical that the defense is rebutted by demonstrating the nonexistence of one of those two elements.’”

Albaugh v. State, 721 N.E.2d 1233, 1235 (Ind. 1999)(quoting McGowan v. State, 674 N.E.2d 174, 175 (Ind.1996))