Providing temptation to commit crime is not inducement, majority rules

Jennifer Nelson for www.threindianalawyer.com

The Indiana Supreme Court affirmed a man’s conviction of patronizing a prostitute, with the majority ruling the state rebutted his defense of entrapment by showing there was no police inducement.

Kenneth Griesemer drove by undercover detective Tabatha McLemore as she posed as a prostitute on an Indianapolis street corner. He circled back and stopped his car to ask if she needed a ride. She told him she was trying to make some money. He nodded toward his passenger seat, so she asked how much money he had. He again nodded toward the passenger seat and later said he had $20. She said she could “do head” for that amount, he nodded yes and she told him to drive down the street to pick her up. He was then arrested by police and charged with and convicted of Class A misdemeanor patronizing a prostitute.

A divided Court of Appeals reversed, finding he raised the entrapment defense by showing police inducement.

In Kenneth Griesemer v. State of Indiana, 49S04-1408-CR-564, the majority noted that Griesemer adequately raised the entrapment defense as a police detective was directly involved in the criminal act of patronizing a prostitute. The burden of proving either no police inducement or predisposition to commit the crime then shifted to the state, which presented sufficient evidence for a trier of fact to reasonably determine McLemore’s policing efforts did not produce Griesemer’s criminal conduct, the majority concluded.

“That the crime may be tempting, without more, is not inducement,” Justice Mark Massa wrote. “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.”

Justice Robert Rucker wrote a separate opinion, in which Justice Brent Dickson concurred, addressing the question of whether Griesemer was predisposed to commit the crime, which the majority chose not to address.

Because, he believed, Griesemer clearly established inducement as McLemore was the first to mention performance of a sex act and the first to mention trading a sexual act for money, the state had to show Griesemer’s predisposition to commit the crime.

“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,” Rucker wrote. “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. …’”