                                                                          May 27 2015, 9:09 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Darren Bedwell                                             Gregory F. Zoeller
Marion County Public Defender’s Office                     Attorney General of Indiana
Indianapolis, Indiana
                                                           Larry D. Allen
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Nickole Nichols,                                          May 27, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A04-1408-CR-386
        v.                                                Appeal from the Marion Superior
                                                          Court

State of Indiana,                                         Lower Court Cause No.
                                                          49F08-1304-CM-22256
Appellee-Plaintiff.
                                                          The Honorable David M. Hooper,
                                                          Magistrate




Pyle, Judge.




Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015                     Page 1 of 9
                                        Statement of the Case
[1]   Appellant/Defendant, Nickole Nichols (“Nichols”), appeals her conviction,

      after a bench trial, for Class A misdemeanor prostitution.1 Nichols was arrested

      for prostitution after she agreed to have sex in exchange for money with an

      undercover detective outside of a strip club. At trial, she filed an Indiana Trial

      Rule 41(B) motion to dismiss the charge after the State presented its case-in-

      chief, raising the affirmative defense of entrapment and arguing that the State

      had not presented sufficient to rebut the defense. In support of this argument,

      she noted that the undercover detective had solicited the criminal activity. The

      trial court denied the motion, finding that, while there was evidence that the

      detective had induced Nichols’ behavior, there was also evidence that she was

      pre-disposed to prostitution and, therefore, the detective did not entrap her. On

      appeal, Nichols disputes the trial court’s denial of the motion and argues again

      that she was entrapped into committing prostitution. Because we find that the

      undercover detective presented Nichols with a mere opportunity to commit

      prostitution, but did not otherwise induce the offense, we conclude that there

      was no entrapment. In addition, there was sufficient evidence to support

      Nichols’ conviction.


      We affirm.




      1
        IND. CODE § 35-45-4-2(1). This statute was amended effective July 1, 2014. It has also been amended
      again, and the amendments will go into effect July 1, 2015. However, since Nichols committed her offense
      in 2013, we will apply the version of the statute in effect at that time.

      Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015                         Page 2 of 9
                                                          Issue
               Whether the trial court erred in denying Nichols’ Trial Rule 41(B)
               motion to dismiss.

                                                         Facts
[2]   Around 10:00 or 11:00 p.m. on April 6, 2013, Detective Henry Castor

      (“Detective Castor”), an officer in the Human Trafficking Vice Division of the

      Indianapolis Metropolitan Police Department, went to the Classy Chassy2 strip

      club in Indianapolis as part of an undercover operation. He was dressed in

      plain clothes and was tasked with determining whether any illegal acts, such as

      prostitution or drug use, were occurring in the establishment.


[3]   After Detective Castor entered the strip club, Nichols approached him, and they

      engaged in casual conversation. Detective Castor asked Nichols what private

      dances were available in the club, and she told him that there was a room where

      a patron could pay $20 per song for “one on one” time with a dancer. (Tr. 18).

      The room itself was open, and multiple dancers used the room at once. Nichols

      also told Detective Castor that there was a VIP room where a patron could pay

      $150 to be alone with a dancer for thirty minutes. Detective Castor asked if he

      could get a “hand job” or get anything “extra . . . besides just what would be

      considered a dance” if he went into the VIP room. (Tr. 19). Nichols responded

      “yes,” and the two went to the VIP room. (Tr. 19).




      2
        As the State notes, the club’s name is spelled “Class Chassis” throughout the transcript, but it appears that
      the name of the club is actually “Classy Chassy.” (App. 14).

      Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015                               Page 3 of 9
[4]   In the VIP room, Nichols began to dance, and Detective Castor asked, “could

      there be more like sex[?]” and Nichols said “[y]eah.” (Tr. 19). Detective

      Castor asked, “Well[,] what about outside of the establishment?” and Nichols

      agreed that she would have sex with Detective Castor outside of the

      establishment for an additional $50. (Tr. 19).


[5]   Shortly thereafter, Detective Castor left the club. There were several

      undercover officers at the club that night, and after Detective Castor left, other

      officers entered with a warrant and arrested several people, including Nichols.


[6]   On April 6, 2013, the State charged Nichols with Class A misdemeanor

      prostitution. The trial court held a bench trial on March 12, 2014. At the

      conclusion of the State’s presentation of evidence, Nichols moved for an

      involuntary dismissal of the charge under Trial Rule 41(B), arguing that the

      statutory defense of entrapment under INDIANA CODE § 35-41-3-9 applied, that

      the evidence established inducement, and that the State had failed to show that

      Nichols was predisposed to commit prostitution. The trial court continued the

      trial, and the parties submitted written motions and memoranda on the Trial

      Rule 41(B) motion. On June 5, 2014, the trial court denied the motion. The

      trial court found that the evidence established inducement by Detective Castor,

      but it determined that other evidence was sufficient to prove that Nichols was

      predisposed to commit prostitution.


[7]   Subsequently, the trial court concluded the trial on July 25, 2014, and Nichols

      rested her case without presenting evidence. The court found Nichols guilty as


      Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015     Page 4 of 9
      charged and sentenced her to a 365 days of supervised probation. Nichols now

      appeals.


                                                   Decision
[8]   On appeal, Nichols argues that the trial court erred in denying her Trial Rule

      41(B) motion to dismiss because the State did not produce sufficient evidence to

      rebut her entrapment defense. Therefore, she argues, there was insufficient

      evidence to support her conviction. Specifically, she asserts that Detective

      Carson induced the offense and that the State did not present any evidence that

      she was predisposed to the offense.


[9]   Our review of a trial court’s Trial Rule 41(B) decision is well-established:


              The grant or denial of a motion to dismiss made under Trial Rule
              41(B) is reviewed under the clearly erroneous standard. In
              reviewing a motion for involuntary dismissal, this [C]ourt will
              not reweigh the evidence or judge the credibility of the witnesses.
              We will reverse the trial court only if the evidence is not
              conflicting and points unerringly to a conclusion different from
              the one reached by the lower court.


      Todd v. State, 900 N.E.2d 776, 778 (Ind. Ct. App. 2009) (internal citations

      omitted). In a criminal action, “‘[t]he defendant’s [Trial Rule 41(B)] motion is

      essentially a test of the sufficiency of the State’s evidence.’” Id. (quoting

      Workman v. State, 716 N.E.2d 445, 448 (Ind. 1999)). Notably, our review of the

      denial of a motion for involuntary dismissal is limited to the State’s evidence

      presented during its case-in-chief. Id.


      Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015        Page 5 of 9
[10]   In order to prove that Nichols committed Class A misdemeanor prostitution,

       the State was required to prove that she “knowingly or intentionally: (1)

       perform[ed], or offer[ed,] or agree[d] to perform, sexual intercourse or other

       sexual conduct (as defined in [INDIANA CODE §] 35-31.5-2-221.5); . . . for

       money or other property[.]” I.C. § 35-45-4-2.


[11]   Nichols acknowledges that the State established the elements of Class A

       misdemeanor prostitution, but she argues that it did not rebut her defense of

       entrapment. Entrapment is an affirmative defense that admits the facts of the

       crime but claims that the act was justified. See Hoskins v. State, 563 N.E.2d 571,

       576 (Ind. 1990). INDIANA CODE § 35-41-3-9 defines entrapment as:

               [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.


       “Conduct merely affording a person an opportunity to commit the offense does

       not constitution entrapment.” I.C. § 35-41-3-9. Once a defendant indicates that

       she intends to rely on the defense of entrapment and establishes police

       inducement, the burden shifts to the State to rebut the inducement element,

       Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 2015), or demonstrate the

       defendant’s predisposition to commit the crime. Ferge v. State, 764 N.E.2d 268,

       271 (Ind. Ct. App. 2002).



       Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015      Page 6 of 9
[12]   To rebut the first element of the entrapment defense, inducement, the State

       must prove police efforts did not produce the defendant’s prohibited conduct

       because those efforts lacked a “‘persuasive or other force.’” Griesemer, 26

       N.E.3d at 609 (quoting Williams v. State, 412 N.E.2d 1211, 1215 (1980)). Our

       Indiana Supreme Court recently addressed the issue of inducement in Griesemer.

       There, the defendant, Griesemer, drove past an undercover police officer who

       was posing as a prostitute on a corner in Indianapolis. Id. at 607. Griesemer

       “looped around the block and returned a few minutes later, stopping near her

       just before a stop sign,” and asked her if she needed a ride. Id. The police

       officer declined, saying that she “was trying to make some money.” Id.

       Griesemer nodded his head towards his passenger seat, and the police officer

       asked him how much money he had. Id. He nodded a second time, so the

       police officer asked him about money again, and he told her that he had twenty

       dollars. Id. The officer said that she could “do head” for that amount, and

       Griesemer nodded towards his seat a third time. Id. The police officer told him

       to meet her down the street, where he was arrested and charged with

       patronizing a prostitute. Id.


[13]   The trial court found Griesemer guilty as charged, and he appealed, arguing

       that he had raised the entrapment defense by showing police inducement. Id. at

       608. Specifically, he argued that the police officer induced the conduct because

       she had been the one to first mention money, sex, and the possibility of trading

       one for the other. Id. Our supreme court found that, even though the officer

       had first mentioned the activity, “the policing efforts did not produce

       Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015    Page 7 of 9
       Griesemer’s criminal conduct.” Id. at 610. The Court reasoned that the officer

       did not give an “explicit directive or order” and “did not exert a persuasive or

       other force over Griesemer.” Id. (citing Albaugh v. State, 721 N.E.2d 1233, 1237

       (Ind. 1999)). She merely afforded him “‘an opportunity to commit the

       offense,’” which, as the Court noted, the statute expressly declares does not

       constitute entrapment. Id. (quoting I.C. § 35-41-3-9(b)).


[14]   The Court further compared the facts of Griesemer to Albaugh, where it found

       that there was entrapment. There, Albaugh’s truck broke down a quarter mile

       from his house, and he and his girlfriend went home and started drinking

       whiskey. Albaugh, 721 N.E.2d at 1233. A few hours later, two deputies came

       to Albaugh’s house and ordered him to remove his car from the road before it

       became a hazard. Id. at 1234. Although Albaugh said he would move it in the

       morning, one of the deputies said “you’ve got to move it and you’ve got to

       move it now.” Id. at 1237. Then, when Albaugh went to move the car, the

       deputies arrested him for driving while intoxicated. Id. The Court found on

       appeal that the deputies had entrapped Albaugh because their conduct

       constituted persuasion, “if not explicit direction or order.” Id.


[15]   Detective Castor’s conduct here was more closely equivalent to the undercover

       officer’s conduct in Griesemer. As in Griesemer, he was the first to mention

       sexual conduct. In addition, as the trial court noted, he was already in the

       process of exchanging money with Nichols for a legitimate business purpose

       when he mentioned the sexual conduct. However, as in Griesemer, we do not

       find that his policing efforts produced Nichols’ criminal conduct. Detective

       Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015    Page 8 of 9
       Castor merely asked Nichols questions and “did not exert a persuasive or other

       force” over her. Griesemer, 26 N.E.3d at 610. Nichols readily responded

       “yeah,” both when Detective Castor asked if “fondl[ing]” and sex were a

       possibility. (Tr. 19). Then, when Detective Castor asked if they could have sex

       outside of the establishment, Nichols readily proposed a price for that activity.

       Accordingly, we conclude that Detective Castor merely afforded Nichols “‘an

       opportunity to commit the offense,’” which does not constitute entrapment. Id.

       (quoting I.C. § 35-41-3-9(b)).


[16]   Because we determine that Detective Castor did not induce Nichols’ conduct,

       we need not address her arguments regarding her predisposition. Id. (citing

       McGowan v. State, 674 N.E.2d 174, 175 (Ind. 1996) (holding that because

       entrapment is established by the existence of two elements, it is defeated by the

       nonexistence of one)). The State produced sufficient evidence to rebut Nichols’

       entrapment defense and, thus, we conclude that the trial court did not err in

       denying Nichols’ Trial Rule 41(B) motion to dismiss. Also, as Nichols does not

       otherwise dispute the sufficiency of the evidence, we affirm her conviction.


       Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015    Page 9 of 9
