                                                                                                03/06/2018


                                          DA 16-0538
                                                                                            Case Number: DA 16-0538

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2018 MT 38



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

AREN KRISTIAN LINDQUIST,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDC 14-344
                        Honorable John A. Kutzman, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Gregory D. Birdsong, Birdsong Law Office, PC, Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Emily Caton, Student Intern, Helena, Montana

                        Joshua A. Racki, Cascade County Attorney, Great Falls, Montana



                                                    Submitted on Briefs: January 10, 2018

                                                               Decided: March 6, 2018


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1       Defendant Aren Kristjan Lindquist appeals the order from April 13, 2015, by the

Eighth Judicial District Court, Cascade County, denying his motion to dismiss for

entrapment as a matter of law. We address:

         Whether the District Court erred in denying Lindquist’s motion to dismiss for
         entrapment as a matter of law.

¶2       We affirm.

                      PROCEDURAL AND FACTUAL BACKGROUND

¶3       On July 22, 2014, the Internet Crimes against Children Task Force of the Great Falls

Police Department (“Task Force”) posted an advertisement (“Ad”) entitled “B$a$r$r$r$y

L$e$g$a$1 – 18” in the “great falls escorts” subsection of the “great falls adult

entertainment” section of Backpage.com. The Ad included a photograph of a scantily-clad

female, with her face cropped out of the photograph. The text of the Ad read:

         Jessica is visiting Great Falls
         Independent
         Call or text
         no blocked or restricted numbers
         (406)285-2836
         Poster’s age: 18
         Location: Great Falls

Shortly after the Ad posted, Lindquist responded to the number listed and initiated the

following text message conversation1 with the Task Force’s undercover officer (“UC”),

posing as pimp:

         Lindquist:     Hey how’s it going??:-)


1
    All the conversations include typographical errors as found in the original transcripts.


                                                   2
       Lindquist:   Saw your add would love to meet up !

       UC:          u in gfs

       Lindquist:   In Craig which is close by !

       UC:          my girls are under 18 is that ok

       Lindquist:    How old ?

       UC:          will I have 2 one 12 and one 15 years olds

       Lindquist:   Do you have pictures ?

       UC:          I do but I cant sent on my track phone

       Lindquist:   Ok do you need an e-mail ?

       UC:          they r pretty

       UC:          I don’t have a computer

       UC:          the picture on the ad is real

       Lindquist:   Ok are you a cop?

       UC:          no u a fuckin cop what the . . .

       UC:          call if your interested

¶4     The Task Force searched the number, identified the caller as Lindquist, and applied

for a warrant to record their conversations. Lindquist and the UC arranged to meet later

that night, but when Lindquist did not show up, the UC texted Lindquist that his

appointment would be canceled.

¶5     The following morning, on July 23, 2014, Lindquist replied to the previous night’s

text message and proceeded to arrange another meeting at a motel in Great Falls for later

that day:

       Lindquist:   Good morning how’s it going?


                                              3
      Lindquist:    are you around today ?

      UC:           yes

      Lindquist:    Ok well I am here in great falls when do you think you will be
                    around?

      UC:           I’m here now

      UC:           I guess you are going to be a no show again

      Lindquist:    No I am just finishing up my last errand where am I going?

      UC:           how long?

      Lindquist:    I am done

      UC:           do you know where the O’haire is?

      Lindquist:    Yes

      UC:           text me when your here

      Lindquist:    I am here

      UC:           I’m in room 130

      Lindquist:    Do I just come in ?

      UC:           yeah just come to the room

      Lindquist:    Ok I am here

Once in the motel room, the UC and Lindquist had the following in-person conversation:

      UC:           Hi come in dude what’s up?

      Lindquist:    Nothin’ just hanging out

                                          .   .   .

      UC:           Have a seat sorry it’s kind of messy um alright so did you want
                    ok so Kim

      Lindquist:    Um hum


                                              4
UC:          Is that still who you want to go with ur

Lindquist:   Um

UC:          Ok she’s getting ready

                                 .    .    .

UC:          I just need to know what your plans are and everything

Lindquist:   Ok

UC:          Just common in the business so

Lindquist:   Ok I’m willing to do anything

UC:          Ok so I mean ok so I didn’t even know are you planning on
             going full force with her are you planning on being anal
             anything that we should not got off guard you know what I’m
             saying?

Lindquist:   Ok

UC:          So

Lindquist:   like regular

UC:          Just regular intercourse or

Lindquist:   Yeah

UC:          Ok alright cool ok she is super cute she’s excited to meet you
             and you want 10 or 15 youth that’s who you want

Lindquist:   Yeah

UC:          Ok how much time do you want?

Lindquist:   Well I don’t I don’t know exactly

UC:          Yeah exactly so for a half hour we can do $150

Lindquist:   Um k




                                      5
UC:          Um if you want less time we can negotiate that for an hour um
             with her cause she’s with Kim she’s 15 the one that’s more
             experienced she for an hour I’d probably want for you you
             probably do $250

Lindquist:   Um hum

UC:          So it’s up to you like

Lindquist:   Um k I didn’t bring money

UC:          You didn’t bring any cash with you? Oh k

Lindquist:   I didn’t want I didn’t know what the I’ve never done this

UC:          Ok well there’s an ATM in the Lobby

                                  .   .   .

UC:          Your call, um if you but dude you have to come with cash

Lindquist:   Yeah

UC:          You know what I’m saying?

Lindquist:   Um hum

UC:          But I totally understand if you just wanted to come and meet
             me and discuss things like I feel better about that any way

Lindquist:   Um hum

UC:          Rather than over the phone

Lindquist:   Um hum

UC:          Cause that can

Lindquist:   Yeah

UC:          You know what I’m saying because I have to be careful

Lindquist:   You’re not a cop or anything?

UC:          Uh are you a cop?


                                      6
      Lindquist:    No

      UC:           Ok

      Lindquist:    Are you a cop

      UC:           No I’m not a fuckin cop

      Lindquist:    Ok

      UC:           Alright

      Lindquist:    Would you tell me if you [inaudible] law enforcement

      UC:           I’m not and I actually take offence to that so

      Lindquist:    I’m just

      UC:           If you are

      Lindquist:    No

      UC:           You know I don’t want to have anything to do with you

      Lindquist:    No I’m not

      UC:           Because I need to watch out for these girls

                                        .   .   .

      UC:           You tell me what you want to do

      Lindquist:    Um half hour

      UC:           Half hour ok alright so if you want to go get the money

      Lindquist:    Um hum ok

      UC:           And we’ll go from there

                                        .   .   .

Lindquist left the room to retrieve cash from the ATM. Once he returned and paid the UC

$160, he confirmed he wanted the “older girl” with the following exchange:



                                            7
UC:          Ok well she’s 15 just gotta let you know that

Lindquist:   Um hum

UC:          She has some experience but she is 15 so if you can just be
             good to her

Lindquist:   Um hum

UC:          You know I can I trust you with that?

Lindquist:   Um hum

UC:          And that’s why I just need a little more detail on what you want
             to do with her I’m like mother now

Lindquist:   Just regular sex

UC:          Regular intercourse

Lindquist:   Um hum

UC:          Any thing else

Lindquist:   [Inaudible]

UC:          Ok alright ok um and you want a half hour

Lindquist:   Yeah

UC:          I don’t have change cause you gave me $160

Lindquist:   Um hum

UC:          Ok so you cool with that?

Lindquist:   Yeah

UC:          What I’ll do then I’ll tack on 10 minutes for you

Lindquist:   Really

                                   .   .   .

UC:          So you’re planning on intercourse nothing weird



                                       8
       Lindquist:    Nothing weird

                                           .   .   .

The UC left the motel room as if to retrieve fifteen-year-old Kim, then another officer

entered the room and arrested Lindquist.

¶6     On August 6, 2014, the State charged Lindquist with felony Attempted Prostitution,

in violation of §§ 45-4-103 and 45-5-601(3), MCA. On November 7, 2014, Lindquist filed

a motion to dismiss, asserting the affirmative defense of entrapment. On April 13, 2015,

the District Court denied Lindquist’s motion to dismiss for entrapment as a matter of law,

holding that the record reflected conflicting facts as to the origination of criminal intent

and Lindquist’s state of mind that made submitting the issue of entrapment to a jury proper.

On February 23, 2016, following two trial continuances, Lindquist reached a plea

agreement with the State and pled guilty. On July 5, 2016, the District Court sentenced

Lindquist to the Department of Corrections for twenty-five years with twenty years

suspended and designated him as a Tier 1 sexual offender. Lindquist timely appeals the

District Court’s denial of his motion to dismiss on the grounds of entrapment as a matter

of law.

                              STANDARDS OF REVIEW

¶7     The denial of a pretrial motion to dismiss in a criminal case is a question of law, we

review for correctness.     State v. Reynolds, 2004 MT 364, ¶ 8, 324 Mont. 495,

104 P.3d 1056. When reviewing a denial of a motion to dismiss based on entrapment, we

review the evidence and inferences in a light most favorable to the State. Reynolds, ¶ 8. A

court may determine that entrapment exists as a matter of law; however, if a genuine issue


                                               9
of material fact exists, the issue is properly submitted to a jury. Reynolds, ¶ 9 (citing State

v. Kim, 239 Mont. 189, 194, 779 P.2d 512, 515 (1989)).

                                       DISCUSSION

¶8     Whether the District Court erred in denying Lindquist’s motion to dismiss for
       entrapment as a matter of law.

¶9     Entrapment is an affirmative defense afforded to a defendant by statute:

       A person is not guilty of an offense if the person’s conduct is incited or
       induced by a public servant or a public servant’s agent for the purpose of
       obtaining evidence for the prosecution of the person. However, this section
       is inapplicable if a public servant or a public servant’s agent merely affords
       to the person the opportunity or facility for committing an offense in
       furtherance of criminal purpose that the person has originated.

Section 45-2-213, MCA. A court may determine that entrapment exists as a matter of law

in the absence of genuine issues of material fact. Reynolds, ¶ 9. If there are conflicting

facts, the issue is properly submitted to a jury. Reynolds, ¶ 9 (citing Kim, 239 Mont. at

194, 779 P.2d at 515); see also Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883,

886 (1988) (“The question of entrapment is generally one for the jury, rather than for the

court.”). The defendant bears the burden of proof when asserting entrapment and must

show: (1) criminal design originating in the mind of the police officer or informer; (2)

absence of criminal intent or design originating in the mind of the accused; and (3) luring

or inducing the accused into committing a crime he had no intention of committing.

Reynolds, ¶¶ 9, 12 (citing State v. Canon, 212 Mont. 157, 167, 687 P.2d 705, 710 (1984)).

¶10    A distinction exists between inducing a person to commit an unlawful act and setting

a trap to catch him in the execution of a criminal design of his own conception. Reynolds,

¶ 12 (citing Canon, 212 Mont. at 167, 687 P.2d at 710). Inducement may be found when


                                              10
an agent pleads, begs, or coerces a person into committing a crime. State v. Harney,

160 Mont. 55, 60, 499 P.2d 802, 805 (1972). Merely affording a person the opportunity to

commit an offense or by setting a trap is not inducement or entrapment. Reynolds, ¶ 12

(citing § 45-2-213, MCA).      Because sex trafficking crimes are the type of offense

committed secretly, securing evidence and catching offenders is more difficult and often

requires law enforcement to use covert operations. Harney, 160 Mont. at 60–61, 499 P.2d

at 805 (quoting State v. Karathanos, 158 Mont. 461, 470, 493 P.2d 326, 330–31 (1972)).

Courts sanction the use of sting operations “if the officers do not by persuasion, deceitful

representations or inducement, lure a person who otherwise would not be likely to break

the law, into a criminal act.” Harney, 160 Mont. at 60–61, 499 P.2d at 805 (internal

citations omitted).

¶11    Lindquist argues that the Task Force entrapped him into attempted prostitution with

a minor by inducing him into replying to the Ad on Backpage.com with a seductive photo,

luring him to a motel room, and cajoling him into retrieving money from an ATM to pay

for sex. Lindquist asserts the criminal intent to engage in prostitution originated in the

mind of the Task Force when it placed the Ad on Backpage.com. He maintains he was

merely curious about the Ad and did not intend to engage in sex with a minor evidenced

by the fact that he went to the motel room without money.

¶12    The State counters that Lindquist fails to show the record contains no conflicting

facts regarding entrapment as a matter of law, and the District Court correctly determined

the issue should be submitted to a jury. The State maintains Lindquist cannot prove that

criminal intent originated with the Task Force, that he lacked criminal intent to commit the


                                            11
offense, or that the Task Force induced him into committing a crime he had no intention of

committing, thus failing to establish entrapment as a matter of law. The State asserts the

idea to purchase sex from the Backpage.com Ad originated with Lindquist as evinced by

his series of actions.

¶13    The District Court determined conflicting facts existed regarding two of the three

elements of entrapment as a matter of law, and that the issue of entrapment should be

submitted to the jury. The District Court noted conflicting facts concerning: (a) whether

the criminal design originated with the Task Force or Lindquist and (b) whether Lindquist’s

actions could lead a jury to conclude he was merely curious with no intent to commit a

crime or that he was induced by law enforcement to commit a crime he had no intention to

commit. We agree.

¶14    We have repeatedly held that affording the defendant an opportunity to commit a

crime is not inducement or entrapment. Reynolds, ¶ 12; Harney, 160 Mont. at 60–61, 499

P.2d at 805; Karathanos, 158 Mont. at 470, 493 P.2d at 330–31. The Task Force’s Ad on

Backpage.com merely provided Lindquist the opportunity to commit a criminal act by

soliciting a prostitute. It is not as if the Task Force called Lindquist. Lindquist then made

several additional affirmative decisions from which a reasonable jury could conclude that

the idea to engage in the criminal behavior originated in his mind. After reading the

Backpage.com Ad, Lindquist dialed the contact information. After learning that the

prospective sex workers were ages twelve and fifteen, Lindquist arranged a meeting at a

Great Falls motel. In the motel room, he proceeded to negotiate for a half-hour of “regular

sex” with a fifteen-year-old girl. After indicating that he did not bring cash with him,


                                             12
Lindquist retrieved $160 from an ATM, returned to the room, and paid the UC $160 cash

to have sex with a minor. Given these facts, Lindquist’s entrapment defense would have

been a tough sell to a jury, much less warranting dismissal as a matter of law. The District

Court did not err when it denied Lindquist’s motion to dismiss based on the affirmative

defense of entrapment.

                                     CONCLUSION

¶15    The District Court correctly denied Lindquist’s motion to dismiss based on the

affirmative defense of entrapment as a matter of law. Because conflicting facts existed as

to whether Lindquist had the requisite intent to commit the criminal act, the District Court

correctly denied the motion and concluded the issue of entrapment must be submitted to a

jury. Reynolds, ¶ 9 (citing Kim, 239 Mont. at 194, 779 P.2d at 515). We affirm.



                                                 /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




                                            13
