Kenneth Griesemer v. State of Indiana

marital of the percent of 59.7 tribution of the percent Bruce and 40.3

estate estate to Clarenda.

marital upon re- the circumstances

Under findings and the court’s

view of the record conclusions, say cannot that Clar- we strong presumption has overcome

enda and com- court considered the trial statute, and we applicable

plied prop- of marital the division

do not disturb court’s Amended

erty forth the trial set

Order.

CONCLUSION reasons, we affirm the foregoing

For the of the marital estate.

trial court’s division

Affirmed. J., C.J., NAJAM,

VAIDIK, concur. GRIESEMER, Appellant-

Kenneth

Defendant, Indiana, Appellee-Plaintiff.

STATE of

No. 49A04-1308-CR-382. Appeals of Indiana.

Court

May $168,598.00. $190,484.16 "and the difference between Moore, Associates,

Daniel L. Moore & IN, Attorney Appellant. for Indianapolis, Zoeller, Attorney General of Gregory F. Webster, Indiana, At- Deputy Richard C. General, IN, Attor- torney Indianapolis, neys Appellee. for Opinion MAY, Judge. appeals

Kenneth Griesemer his convic- tion of A Class misdemeanor prostitute.1 argues entrapped. He he was We reverse.2 AND FACTS PROCEDURAL HISTORY 15, 2012, August Indianapolis On Metro- politan Department Police Detective Taba- prostitute posing tha McLemore was as Washington Indianapolis. on East Street in p.m., past Around 2:30 Griesemer drove passed. A few her and stared at her as he later, Griesemer drove north- minutes Street on Ew- Washington bound toward the corner ing approached Street. As he Streets, Ewing he McLemore, through his asked Detective window, open car if she needed a ride. ride, try- saying She declined the she was ing money. to make Griesmer nodded his seat, which passenger head toward his she understood to be an invitation to enter the had, money car. She asked how much he twenty he dollars. She told him said dol- perform she could fellatio Leadership § Devel- 1. Ind.Code 35-45-4-3. Indiana Bar Association’s opment Academy. We commend counsel for argument 2. We held oral on this case on quality advocacy. of their 11, 2013, Statehouse, February at the Indiana participants before an audience of in the (“Defenses “yes,” then ch. He nodded his head Code 35-41-3 Relating lars. passenger nodded toward the seat to Culpability”). “Entrapment exists where get in the car. She indicate she should law-abiding an otherwise citizen is induced “down the up asked him to her through police involvement to commit the 8.) (Tr. at Griesemer nodded in street.”3 State, charged crime.” Lahr v. 640 agreement, right then turned onto Wash- N.E.2d 760 (Ind.Ct.App.1994), trans. Street, street, ington drove down the and legislature provided denied. Our the fol- into the lot that he had pulled' parking lowing definition for entrapment: to Washington used circle back Street (a) It is a defense that: lot, the first time. In that uni- prohibited the per- conduct of the formed in a marked police officers car product son the of a law enforce- placed and him under officer, ment or his agent, using per- arrest. suasion or other likely means to cause charged The State Griesemer with one person conduct; the engage patronizing count of Class A misdemeanor trial, prostitute. Following a bench person was not court entered a conviction thereof and im- commit the offense. 180-day days sentence with 176 (b) merely Conduct affording person suspended. opportunity

an to commit the offense AND DISCUSSION DECISION entrapment. does not constitute person A commits A misde Class § Ind.Code 35-41-3-9. if prostitute meanor If a defendant asserts the de person “knowingly intentionally pays, or entrapment fense of establishes agrees pay money offers or or other inducement, then the of proof burden ... property person to another on the shifts to the State. Dockery v. 644 understanding person that the other will (Ind.1994). N.E.2d The State in ... engage deviate sexual conduct with ” disprove police must either inducement § person.... 35-45-4-3. Ind.Code demonstrating beyond a reasonable doubt Deviate sexual conduct includes acts in prohibited that “the defendant’s conduct volving organ “a sex of one and the efforts,” product was not the of the police mouth or of another person.” anus Ind. McGowan § Code 35-41-1-9. Griesemer acknowl (Ind.1996), denied, reh’g or establish the edges agreeing to have Detective predisposition defendant’s to commit the McLemore perform exchange fellatio Dockery, crime. 644 N.E.2d at 577. If dollars would constitute the State does not meet its burden of however, argues, a prostitute. He that the proof, then entrapment has been estab State did not disprove his defense of en lished as a matter of Id. law. trapment. Entrapment is a one of a handful of review a claim of entrap “We defenses that can eliminate a ment using applies defendant’s same standard that culpability challenges for acts committed. See Ind. to other sufficiency to the precise 3. The location where Griesemer was he’d have to turn on to Street go loop to meet Detective McLemore is unclear from which is what around he did speak the record. Detective McLemore testified "he when he came back to to, around, 8.) (Tr. would have in order to come back me.” of the accused. We part on the position consider at 578. We Id. evidence.” the ac- consistently the verdict held that supporting have the evidence if therefrom. inferences all reasonable cused had the draw the evidence nor reweigh Id. neither merely We afforded the crime and the If the record credibility. Id. witness judge so, him to do then opportunity an probative evidence of contains substantial entrapment is not available. defense of a reason- permitted have value that would (Ind. Baird v. beyond a guilt infer of fact to able trier 1983) (reversing con original) (emphasis doubt, uphold we will then reasonable where State entrapment based on viction Id. conviction. “pre purchase minor to alcohol and sent his police the induced Griesemer asserts absolutely no evidence of defen sented Detec- offered After Griesemer behavior. to the dant’s commit ride, was the first to a she tive McLemore crime”). Thus, merely if afford police the per- first to mention money, the mention a opportunity ed a citizen an to commit act, first to and the of a sexual formance crime, may not have in then the State money. act for trading a sexual mention behavior, see, criminal duced that citizen’s facts, we held a nearly identical Under e.g., Shelton v. “clearly police established had defendant (evidence “merely (Ind.Ct.App.1997) police State, 764 N.E.2d Ferge v. inducement.” decoy off the road where placed the deer (“It undisput- (Ind.Ct.App.2002) is could see it” was not ade the Sheltons Gehring initiated the con- that Officer ed inducement suffi quate to demonstrate Ferge would regarding whether versation jury to cient to entitle Sheltons instruction payment.”). interested in fellatio for be but it does not relieve the entrapment), on burden shifted to the Accordingly, the obligation State of its to demonstrate or disprove to either inducement predisposition. defendant’s predisposed was demonstrate Griesemer McGowan, 674 commit the crime. See to attempts analogize The State to the (holding State must dis- N.E.2d at 175 facts in this case to the facts Shelton. prove predisposition). inducement or There, a remote-con- placed officers “merely argues it afforded The State it would be decoy trol deer a field where to commit this opportunity defendant Then, driving past. persons visible to (Oral at 17:19- Argument crime.” Video Denver and Kenneth Shelton drove when 7.) Br. at In 17:22; Appellee’s see also road, the the re- down the officers used thereof, notes the second support the State to move the deer’s head. mote control defining entrapment part of the statute The Shelton brothers their vehicle “(b) merely affording a states: Conduct road, pointed shotgun on the out the the of- opportunity an to commit window, fired two shots at the deer entrapment.” does not constitute fense act, charged decoy. For that § 35-41-3-9. Ind.Code them with Class C misdemeanor road hunting. placement We held the of the However, Supreme as our Indiana decoy in the field was not sufficient to deer explained: Court that entitle demonstrate inducement would (b) explanatory of the Part statute jury to a instruction on en- the Sheltons would be police activity the level of merely had trapment, because necessary support entrapment to de- for the Sheltons provided opportunity an negate fense but this section does not at a deer. Id. at 502. necessary predis- of the shoot requirement activities.”). cannot, however, in the engage illegal that the facts hold We predisposed a defendant was to those Shelton. “Whether analogous are herein merely charged question commit the crime is a was not McLemore Detective fact,” must prove road dressed the trier of and the State the side of the standing on predisposition beyond a reasonable She was the first prostitute. like act, using subject doubt “evidence to the nor possibil a sex and the money, mention admissibility.” Dockery, Shelton to mal rules exchanging the two. For ity of may N.E.2d at 577. Several factors be decoy would have analogous, be deer determining relevant to whether a defen recording announcing to sign needed they to dant was crime: were welcome passers-by As at the deer for dollars. (1) shoot reputation the character or of the explicit no such decoy (2) the deer contained defendant; the suggestion whether behavior, we to commit criminal invitation activity of criminal was made invitation to follow Shel decline the State’s government; whether the de- question McLemore’s ton. Detective in criminal engaged fendant activi- Gries- were sufficient to induce statements ty profit; for a whether the defen- prostitute. a emer to commit dant evidenced reluctance to commit (record 764 N.E.2d at 271 Ferge, See offense, by government overcome “clearly police established inducement” of persuasion; nature initiated conversation re where officer persuasion by inducement or offered “Ferge would be interest garding whether the government. payment”); Espinoza, ed in fellatio for ef. (Ind.Ct. State, 348, 353 Kats v. 559 N.E.2d (Ind.Ct. 375, State, 385-86 v. 859 denied. App.1990), trans. Additional facts (where intercepted pack App.2006) police suggest predisposition criminal in containing marijuana and cocaine age jargon and familiarity prices, clude delivery for via UPS

was addressed transactions, engaging in or ar multiple police simply delivered the Espinoza, ranging Riley future transactions. v. UPS, package police instead of did not (Ind.1999). State, 489, 711 N.E.2d 494 criminal behavior or im Espinoza’s induce stop Griesemer notes he at a mind). in his plant design a criminal ride, sign and offered the detective Therefore, of then the detective initiated discussion to rebut Griesemer’s Furthermore, defense, Griesemer the State needed to sexual matters. entrapment asserts, no evidence prove presented to com jargon4 or prostitute. See Price v. that he was familiar with mit price prostitutes, engage of that he tried to (Ind.Ct.App. 397 N.E.2d 1046 1979) (“Insomuch multiple arrange transactions or future as the idea of the transactions, patron- that he was known to charged illegal originated conduct any ize or that he exhibited proving prostitutes, the State has the burden of police, suggests predisposi- of defendant other behavior that part on the predisposition pellant terminology "used and understood al Detective McLemore testified she told Gries- exclusively practiced illegal drug "do ‘head’ which is street emer that she could in the most However, (Tr. 7.) terminology trade”); for fellatio.” Young 620 N.E.2d traffic slang widely-know we decline to hold that 1993) "eight (Ind.Ct.App. (appellant 25 used qualifies fellatio as the kind of crimi term for quantities balls” and "sixteenths” for of co predis "jargon” suggesting person nal each), prices caine and knew the trans. prostitutes. patronize Henrichs Cf. denied. (Ind.1983) (ap 601 1020 (“The Thus, fact that (Ind.Ct.App.1980) Gries- patronize prostitutes.

tion to he had never defendant sold to a claims, reverse his convic- emer we should support seen before does not an inference N.E.2d at 271-72 Ferge, tion. See eagerness propensity. Otherwise patronizing pros- (reversing conviction any entrapped time one has been and a Ferge’s did not show titute because State occurred, the fact of sale would sale has po- the crime the predisposition to commit propensity predisposition.”). show a or a induced). lice agreeing We decline hold not con- argues Ferge The State should a crime induced the State demonstrates “[u]nlike trol the outcome herein because necessary to rebut no evidence that Ferge, [Gries- there was entrapment. Dockery, defense of See offering in the habit of rides to emer] (if prove N.E.2d at 577 State does not 8-9.) strange (Appellee’s women.” Br. at predisposition, entrapment then is estab- However, any did not have bur- Baird, law); lished as a matter of predisposition, he lacked den to (reversing N.E.2d at 344 conviction of en- impose we decline the State’s invitation to trapment where abso- “presented Baird, that burden on him. See lutely predispo- no evidence of defendant’s (reversing conviction of fur- N.E.2d 342 crime”). sition to commit the nishing alcohol to a minor because Rather, predisposition, to demonstrate 19-year-old purchase use of the beer produce State needed to evidence simi Baird was the clerk from the store where lar to that which we have found sufficient the crimi- amounted to initiation of decisions, in prior providing such as mari activity, nal and State did not offer evi- juana prior offering on a occasion and to dence that to sell predisposed Baird was sell crack cocaine to the officer in the minors). may alcohol to We not affirm (Ind. future, State, Gray v. 579 N.E.2d 605 ground conviction on the that Griesemer’s 1991), denied; reh’g selling drugs to obtain produce he did not evidence of his motiva- himself, “pinch” knowing prices and offering tion for Detective McLemore a sources, future, offering and to sell in the ride. State, Henrichs v. 455 N.E.2d Finally, argument, sug- at oral the State (Ind.1983); using drug jargon for cocaine gested nodding yes agree to Griesemer’s (“bricked packaging up”) offering and to nodding to fellatio and toward the seat for future, supply additional cocaine get Detective McLemore to into the car (Ind. State, Turner v. 993 N.E.2d predisposed demonstrate he was to commit denied; Ct.App.2013), negotiating trans. patronizing prostitute because “this is price urging for a better and the officer to everything expect we would this kind of behavior, engage in more criminal Salama (Oral Argument encounter.” Video at State, (Ind.Ct.App.1998) 690 N.E.2d 762 18:06-18:09.) Although the State does not fraud), (charged with welfare trans. de “prior need to demonstrate acts to show nied, crime, being the first to mention the ” ‘predisposition,’ Gilley v. 535 discussing payment, providing and a shot (Ind.1989), the State can- Lahr, 760; gun, 640 N.E.2d at and know not very necessary use the facts to demon- ing terminology pricing, having famil strate prostitute demon- iarity suppliers, wanting some for his use, strate that same commit Young own 620 N.E.2d crime, or the have effectively State will As the (Ind.Ct.App.1993), trans. denied. predis- present any avoided its burden to demonstrate State did not evidence that position. predis See Voirol v. could demonstrate Griesemer was driving it did not his car and no- prostitute,5 patronize See, McLemore, entrapment. e.g., Tabitha an rebut his defense ticed undercover Baird, (reversing con 446 N.E.2d at 344 posing prosti- officer who was as a activity was initi where criminal tute, viction near the corner of no evi by police presented and State ated Ewing Streets on the east side of India- predisposition). dence of defendant’s later, A few minutes napolis. he drove her if again and asked she needed a ride. the evidence most favorable to Because p. explained Tr. 6. She declined and inference permits an “trying money.” she was to make some criminal be- induced Griesemer’s Id. at 7. Griesemer then nodded his head havior, any evidence but does not contain seat, passenger indicating toward his an inference that Griesemer permitting get Officer McLemore should into his car. Id. She then asked Griesemer how much was established as prostitute, entrapment had, money responded by and he again law, we must reverse a matter of nodding passenger his head toward the Griesemer’s conviction. repeated question, seat. She and he Reversed. responded that he had dollars. Id. Officer McLemore told him that she could BAKER, J., concurs. price.6 do “head” for that Griesemer yes again shook his head nodded for VAIDIK, C.J., separate dissents with get passenger her to into seat of his opinion. car. Id. Officer McLemore then asked VAIDIK, Judge, dissenting. Chief her up “down the street.” Id. at 8. He nodded in agree- disagree majori- I respectfully ment.7 Griesemer right turned onto that there was not sufficient evi- ty’s view Washington Street from northbound Ew- entrapment de- dence to rebut Griesemer’s ing right again and then turned at the next Specifically, fense. I believe that the parking into the pulling block lot that he predisposed was to proved that Griesemer originally.” “turned in Id. at 9. In the commit the because the State es- offense lot, by he was arrested uniformed parking not tablished that Griesemer was reluctant trial, officers. After a bench the Therefore, commit I would to the offense. guilty trial court found him of Class A A affirm Griesemer’s conviction Class prostitute. patronizing prostitute. misdemeanor misdemeanor there, presence at 5.The additional fact to which the State Griesemer’s least two point meeting can is the fact that Griesemer had place blocks from the the provide parking turned into a lot that would store, parking lot of a convenience demon- alley through to an which Griesemer access predisposition strated to commit his this designated back around to the could circle crime. meeting place. The State asserts this fact Ferge, distinguishes case from in which this “Head" is a street term for fellatio. 6. nine from the the defendant had driven blocks by undercover officer before was McLemore, According 7. to Officer to her police. Ferge, 764 N.E.2d at 272. How- See up, "he'd have to turn [onto] that, arrested, ever, when the fact remains go loop Street and around the which is what was in the lot of a conven- Griesemer speak he did when he came back to and, ience store from Detective McLemore’s p. with Tr. [Officer McLemore].” description, at least two blocks from the des- meeting place. ignated We decline to hold 1022 to commit evidenced reluctance of en dant the defense asserted offense, by government is a valid the overcome Entrapment at trial.

trapment (5) the the nature of persuasion; conduct was prohibited the defense if by using persua persuasion offered officer inducement the result of cause the likely to government. or other means the sion the a crime to commit (Ind.Ct. 348, N.E.2d 353 Kats v. 559 to commit predisposed not person was adopted denied. We App.1990), trans. § 35-41-3-9. This offense. Ind.Code from the Seventh Circuit these factors has once a defendant has stated that Court Fusko, F.2d States v. United commit the was induced to proved that he Cir.1989). (7th fac explaining In “ offense, proof shifts to the burden of tors, ‘the the Fusko Court stated beyond a reason disprove State either to important equation element of the is most was induced that the defendant able doubt reluctant to whether the defendant was ” beyond a prove crime or to to commit the (quoting commit the offense.’ Id. United that the defendant was reasonable doubt (7th Thoma, 726 F.2d States the crime. Scott v. to commit predisposed Cir.1984)). also ex The Fusko Court (Ind.Ct.App. 474-75 plained that reluctance is established when tram, “ 2002), denied. degree demonstrated some of ‘evidence majority that Officer agree I coaxing Government involvement Griesemer to commit McLemore induced offense, committing the defendant into However, I disagree reason, the offense. defendant, for whatever was prove did not majority that the State in initially reluctant to become _’” to commit the predisposed Thoma, 726 F.2d (quoting volved Id. 1196). offense. to commit a can- majority

A defendant’s The asserts that the State fact, question necessary crime and we use commit very is not use the facts is used to address same standard that that a defendant a crime demonstrate sufficiency Dockery claims. that crime. was to commit (Ind.1994). up- We will more Op. agree something at 1020. I supported if the record is hold a conviction than the commission of the crime itself val- probative necessary with substantial evidence that a defendant was trier of fact ue from which a reasonable the offense. See predisposed Voirol, appellant predis- infer that the was (holding could 412 N.E.2d at 863 that the Id. willing to commit the offense. “Circum- mere fact that a defendant may evidence be sufficient to es- to a he did not know drugs stantial sell predisposition.” tablish Voirol not be construed as evidence could (Ind.Ct.App.1980). “willing eager” was the defendant drugs). But based on the Kats fac- sell may be relevant in de- Several factors tors, need to the State does not termining predis- whether a defendant was eager” to “willing the defendant crime, including: posed to commit Instead, the State commit the crime. (1) reputation the character or of the that the defendant was must establish (2) defendant; suggestion whether the the crime. not reluctant to commit activity originally was made of criminal by the State did presented The evidence government; whether the de- most favorable exactly in activi- that. The evidence engaged fendant was criminal that Griesemer judgment to the shows ty profit; for a whether the defen- any government seat evidence used passenger toward the his head nodded persuasion any told him she was to overcome reluctance McLemore after Officer money. may She then have had. make some trying to had, money he how much him asked Finally, respectfully disagree I with the that he had dollars. responded majority’s suggestion that in order to dem- the first McLemore was Although Officer predisposition, onstrate needed money for a paying the idea of to mention produce patroniz- evidence of Griesemer act, to men- Griesemer was the first sexual familiar ing prostitutes past being he been money. Had tion the amount jargon prostitution of the busi- crime, he to commit the initially reluctant ness. immediately have volunteered would not the evidence looking When most fa- car money he had his the amount I judgment, vorable to the believe the standing woman outside his an unknown proved predis- that Griesemer was agreement After the car window. Therefore, posed to commit the offense. I consummated, pick up she told him to her would find that there was sufficient evi- Griesemer then drove down the street. dence to rebut Griesemer’s entrapment de- he had lot into fense and would affirm his conviction for in, to turn presumably turned around prosti- A misdemeanor Class I up her down the street. around and tute. most favorable to believe that the evidence is sufficient to establish that judgment not reluctant prosti- A misdemeanor Class

tute. distinguishable this case from

I also find (Ind.Ct.

Ferge v. 764 N.E.2d 268 case, Ferge stopped at In that

App.2002). In the Matter of the Civil asked the undercover a corner and officer, if OF prostitute, as a COMMITMENT posing who was C.P., “maybe” a ride. She said she needed “looking if he was a little then asked C.P., Appellant-Respondent, Ferge only, responded more.” Id. at 270. in,” to each of her “yes, get questions. pertinently, after the officer told But more Community Hospital North/Gallahue alley her in an behind the Ferge to meet Health, Appellee- Mental

building, Ferge did not circle block Petitioner. instead, away alley; to the he drove return No. 49A02-1309-MH-770. by the alley until he was from away. seven blocks police approximately of Indiana. Appeals Court of Ferge, Griesemer did drive Id. Unlike turned into back to the lot had May originally. one of lack of reluctance is

While factors, important the most

the Kats it is Here, exhibited no reluc-

one. offense, nor is there

tance to commit

Case Details

Case Name: Kenneth Griesemer v. State of Indiana

Court Name: Indiana Court of Appeals

Date Published: May 23, 2014

Citation: 10 N.E.3d 1015

Docket Number: 49A04-1308-CR-382

Court Abbreviation: Ind. Ct. App.