MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                        FILED
Memorandum Decision shall not be regarded as                  May 04 2017, 8:55 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,               CLERK
                                                               Indiana Supreme Court
collateral estoppel, or the law of the case.                      Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Manuel Biggs,                                            May 4, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1611-CR-2537
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable David Hooper,
State of Indiana,                                        Magistrate.
Appellee-Plaintiff.                                      Cause No. 49G08-1608-CM-33007




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2537 | May 4, 2017     Page 1 of 7
                                          Statement of the Case
[1]   Manuel Biggs appeals his conviction of patronizing a prostitute, a Class A
                            1
      misdemeanor. We affirm.


                                                    Issue
[2]   Biggs raises one issue, which we restate as: whether the State presented

      sufficient evidence to rebut Biggs’ defense of entrapment.


                                   Facts and Procedural History
[3]   On August 23, 2016, Detective Laura Spicer of the Indianapolis Metropolitan

      Police Department worked undercover with other officers as part of a

      prostitution sting operation. She had worked on similar sting operations

      “hundreds” of times before. Tr. Vol. II, p. 11.


[4]   On that day, Detective Spicer stood alone at the corner of Tenth and Tacoma

      Streets in Indianapolis. She was wearing pajama pants and a t-shirt. Other

      officers were watching her from concealed locations.


[5]   At approximately 11:40 a.m., a person, later identified as Biggs, was driving

      west on Tenth Street when he made eye contact with Detective Spicer. He




      1
          Ind. Code § 35-45-4-3 (2014).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2537 | May 4, 2017   Page 2 of 7
      nodded first at her and she nodded back. He then drove around the corner onto

      north Tacoma Street and stopped his car approximately six feet from her.


[6]   Detective Spicer walked up to the passenger side window and asked Biggs,

      “Did you stop for me?” Id. at 8. He responded, “Sure.” Id. The following

      exchange occurred, as relayed by Detective Spicer:

              I asked him, ‘Hey, where you headed?’. He said, ‘Come on’ and
              so, he didn’t say anything like do you need a ride or anything like
              that. I just said ‘Where you headed’ and he said ‘Come on’. So
              then I said, ‘Well, you got like twenty bucks for me’ and when he
              said ‘Come on’, I went ahead and opened the passenger side
              door.
      Id.


[7]   After Detective Spicer asked Biggs if he had “twenty bucks,” Biggs nodded

      affirmatively. Id. Detective Spicer asked, “Well, are you looking for head or a

      [f**k]?” Id. at 9. Biggs got angry and said, “Come on. Just get in.” Id. She

      said, “Well, you know there’s girls, a hundred girls a meter,” and “What are

      you trying to look for?” Id. Biggs said again, “Come on. Just get in. There’s

      police all around here.” Id.


[8]   Detective Spicer told him, “Well, we can go to my apartment to [f**k] or we

      can stay in the car and do head in the alley or whatever. What are you looking

      for?” Id. at 9-10. Biggs responded, “Head. Head or something.” Id. at 10.

      Biggs next stated, “Well, I’ll take care of you if you take care of me.” Id.

      During their conversation, Biggs never offered Detective Spicer a ride or asked

      whether she needed assistance.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2537 | May 4, 2017   Page 3 of 7
[9]    Detective Spicer surreptitiously signaled the other officers, closed the car door,

       and walked away. Biggs started to drive down the street, but he was stopped by

       officers in a marked police car. Detective Spicer and other officers arrested

       him.


[10]   The State charged Biggs with patronizing a prostitute. A bench trial was

       conducted, and the judge found Biggs guilty as charged and imposed

       sentencing. This appeal followed.


                                    Discussion and Decision
[11]   Biggs does not challenge the State’s evidence establishing the elements of Class

       A misdemeanor patronizing a prostitute. Instead, he argues that the State failed

       to disprove his defense of entrapment. When reviewing the sufficiency of the

       evidence to rebut a defense, we neither reweigh the evidence nor reassess the

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

       We look to the probative evidence supporting the judgment and the reasonable

       inferences drawn from that evidence. Id. If we find a reasonable trier of fact

       could infer guilt beyond a reasonable doubt, we will affirm the conviction. Id.


[12]   The defense of entrapment is defined by statute as follows:

               (a) 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.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2537 | May 4, 2017   Page 4 of 7
               (b) Conduct merely affording a person an opportunity to commit
               the offense does not constitute entrapment.

       Ind. Code § 35-41-3-9 (1977). Once a defendant indicates he or she intends to

       rely on the defense of entrapment and asserts police inducement, the burden

       shifts to the State to rebut the inducement element or demonstrate the

       defendant’s predisposition to commit the crime. Nichols v. State, 31 N.E.3d

       1038, 1041 (Ind. Ct. App. 2015). Thus, there is no entrapment if the State

       proves that either: (1) there was no police inducement; or (2) the defendant was

       predisposed to commit the crime. Mobley v. State, 27 N.E.3d 1191, 1196 (Ind.

       Ct. App. 2015). The State bears the burden of disproving entrapment beyond a

       reasonable doubt. Griesemer, 26 N.E.3d at 609.


[13]   Regarding the element of inducement, the State must prove police efforts did

       not produce the defendant’s prohibited conduct through persuasive force or

       other means. Id. In Griesemer, the defendant drove past an undercover officer

       who was posing as a prostitute before returning and parking near her. When

       the officer approached the car window, Griesemer offered her a ride but she

       declined, stating she was trying to make money. He repeatedly gestured that

       she should get in the car. The officer twice asked Griesemer how much money

       he had, and he said he had twenty dollars. She said she could perform fellatio

       for that amount, and he nodded his head in agreement. The officer told

       Griesemer to pick her up just down the street, and as he drove down the street

       other officers stopped him. Griesemer was convicted of patronizing a

       prostitute.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2537 | May 4, 2017   Page 5 of 7
[14]   On appeal, Griesemer argued the undercover officer entrapped him. The

       Indiana Supreme Court reviewed the evidence and concluded the State

       demonstrated the officer did not induce Griesemer to commit the crime. The

       Court noted Griesemer approached the officer and twice invited her into the car

       before she mentioned exchanging money for a sexual act. In addition, the

       officer merely offered him an opportunity to commit the crime and did not

       exert persuasive force over Griesemer.


[15]   There are strong parallels between this case and Griesemer. The evidence reveals

       that Biggs, like Griesemer, initiated contact with the undercover officer. Also,

       just as in Griesemer’s case, Biggs invited the undercover officer into his car first.

       Further, Biggs, like Griesemer, indicated to the officer he had twenty dollars

       before they discussed a sexual act. Finally, Detective Spicer did not attempt to

       persuade Biggs to engage in a sexual act. Instead, she merely afforded him the

       opportunity to commit the offense by presenting sexual options, and Biggs

       informed her that he wanted her to perform fellatio. In fact, the State’s

       evidence herein appears to be somewhat stronger than in Griesemer’s, because

       Griesemer initially asked the undercover officer if she needed a ride; however,

       Biggs never asked Detective Spicer if she needed a ride or other assistance. Cf.

       Ferge v. State, 764 N.E.2d 268, 271-72 (Ind. Ct. App. 2002) (State failed to rebut

       evidence of entrapment where, among other factors, defendant offered the

       undercover officer a ride and other evidence indicated defendant gave rides to

       strangers, thus demonstrating a lack of predisposition to commit the offense of

       patronizing a prostitute).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2537 | May 4, 2017   Page 6 of 7
[16]   In essence, the State presented sufficient evidence to establish that Detective

       Spicer did not use persuasion or other means to cause Biggs to engage in

       criminal conduct. Merely affording him the opportunity to commit the crime

       does not rise to the level of entrapment. The State thus rebutted Biggs’ defense

       of entrapment. See Nichols, 31 N.E.3d at 1042 (State established undercover

       officer did not induce offense where officer merely asked questions of the

       defendant and did not exert persuasive force). We need not address the element

       of predisposition.


                                                Conclusion
[17]   For the reasons stated above, we affirm the judgment of the trial court.


[18]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2537 | May 4, 2017   Page 7 of 7
