                                                                       Mar 30 2015, 10:28 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Robert D. King, Jr.                                       Gregory F. Zoeller
      David R. Thompson                                         Attorney General of Indiana
      The Law Office of Robert D. King, Jr.,
      P.C.                                                      Larry D. Allen
      Indianapolis, Indiana                                     Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Paul D. Mobley,                                           March 30, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1405-CR-343
              v.                                                Appeal from the Marion Superior
                                                                Court

      State of Indiana,                                         The Honorable H. Patrick Murphy,
      Appellee-Plaintiff                                        Master Commissioner

                                                                Case No. 49F07-1203-CM-015059



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Paul D. Mobley appeals his conviction for Class A misdemeanor patronizing a

      prostitute. Mobley argues that the evidence is insufficient to sustain his

      conviction or, in the alternative, that the State failed to rebut his defense of


      Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015                 Page 1 of 12
      entrapment. We find that the evidence is sufficient to prove that Mobley

      knowingly agreed to pay an undercover detective $20 to perform fellatio on

      him. We also conclude that according to the Indiana Supreme Court’s recent

      decision in Griesemer v. State, --- N.E.3d ---, 2015 WL 970660 (Ind. 2015),

      because a reasonable trier of fact could have found the State proved, beyond a

      reasonable doubt, that the police did not induce Mobley, his entrapment

      defense fails. We therefore affirm his conviction for Class A misdemeanor

      patronizing a prostitute.



                             Facts and Procedural History
[2]   On March 6, 2012, Indianapolis Metropolitan Police Department Detective

      Tabatha McLemore was posing as a prostitute on East Washington Street in

      Indianapolis. Tr. p. 7-8. Detective McLemore performs approximately 100

      undercover investigations a year where she poses as a prostitute. Id. at 6.

      Around noon, Mobley drove slowly past Detective McLemore, staring at her

      “the whole time.” Id. at 9. Mobley then stopped his car in the middle of the

      next street near Detective McLemore. Id. Detective McLemore walked up to

      Mobley and asked, “What’s up?” State’s Ex. 1 (audio recording); Tr. p. 15. In

      response, Mobley asked Detective McLemore, “How much?” State’s Ex. 1; Tr.

      p. 11, 15. Detective McLemore told Mobley it would be “twenty for some

      head.” State’s Ex. 1; Tr. p. 11. Mobley “shook his head ‘yes’” and then “did a

      head nod” to the right to indicate that Detective McLemore should get into his

      passenger seat. Id. at 11, 15, 24-25. Detective McLemore told Mobley to pick


      Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015   Page 2 of 12
      her up in the nearby alley off East Washington Street so that the police would

      not see them. State’s Ex. 1; Tr. p. 11.


[3]   IMPD Detective Stephen Buchanan was stationed nearby in an unmarked

      police car with police lights in the un-tinted windshield. He was wearing a

      protective vest with the word “police” in large block letters on the front. When

      Detective Buchanan received a signal that Detective McLemore had been

      propositioned, he “immediately drove . . . toward[] Oakland Street” and saw

      Mobley driving toward him. Tr. p. 38-39. Detective Buchanan and Mobley

      “looked right at each other.” Id. at 39. Mobley then turned toward Detective

      McLemore and said “never mind,” to which Detective McLemore replied, “too

      late.” State’s Ex. 1; Tr. p. 11-12, 15-16, 39. Mobley was arrested and charged

      with Class A misdemeanor patronizing a prostitute. After his arrest, Mobley

      told Detective McLemore that he had a “moment of weakness.” Id. at 16, 40-

      41.


[4]   After a bench trial, Mobley was convicted of Class A misdemeanor patronizing

      a prostitute. He was sentenced to 365 days in the Indiana Department of

      Correction with credit for four days served and 361 days suspended. See

      Appellant’s App. p. 43 (Abstract of Judgment).


[5]   Mobley now appeals.



                                 Discussion and Decision


      Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015   Page 3 of 12
[6]   Mobley makes two arguments on appeal. First, he argues that the evidence is

      insufficient to sustain his conviction. In the alternative, he argues that the State

      failed to rebut his defense of entrapment.


                               I. Sufficiency of Evidence
[7]   Mobley first challenges the sufficiency of the evidence to support his conviction.

      When reviewing a challenge to the sufficiency of the evidence, we neither

      reweigh evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144,

      146 (Ind. 2007). Rather, we consider only the evidence and reasonable

      inferences most favorable to the trial court’s ruling and will affirm the

      conviction unless “no reasonable fact-finder could find the elements of the

      crime proven beyond a reasonable doubt.” Id. It is not necessary for the

      evidence to overcome every reasonable hypothesis of innocence. Id. The

      evidence will be deemed sufficient if an inference may reasonably be drawn

      from it to support the conviction. Id.


[8]   When Mobley committed the offense, Indiana Code section 35-45-4-3 provided,

      in relevant part, that a person commits Class A misdemeanor patronizing a

      prostitute if that person “knowingly or intentionally pays, or offers or agrees to

      pay, money or other property to another person . . . on the understanding that

      the other person will engage in, sexual intercourse or deviate sexual conduct

      with the person or with any other person . . . .” Ind. Code Ann. § 35-45-4-3(1)

      (West 2012). The charging information alleges that Mobley knowingly offered

      or agreed to pay “United States currency” to Detective McLemore on the


      Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015    Page 4 of 12
       understanding that she would engage in deviate sexual conduct—specifically,

       fellatio—with him. Appellant’s App. 18 (capitalization omitted).


[9]    Mobley first argues that the evidence is insufficient to prove that he knowingly

       agreed to pay “twenty for some head.” He concedes that there is evidence in

       the record that he nodded his head; however, he claims that “an ambiguous

       nod of the head cannot constitute proof beyond a reasonable doubt that [he]

       made an agreement.” Appellant’s Br. p. 9.


[10]   Here, Detective McLemore did not describe Mobley’s head nod as ambiguous

       or equivocal. Cf. Lukas v. State, 165 Ind. App. 50, 330 N.E.2d 767, 770 (1975)

       (the witness described the defendant’s head nods as: “The same, nothing verbal,

       no affirmation, no denial, just that he acknowledge[d] what I was talking about,

       that he understood it.”). Rather, Detective McLemore testified that Mobley

       nodded his head “yes” when she said it would be “twenty for some head.” Tr.

       p. 11. When defense counsel pressed Detective McLemore about whether

       Mobley really meant “yes” by his head nod, the following colloquy occurred:

               Q:       Alright again, you’re . . . not in a position to get inside
                        [Mobley’s] head to know what he meant by the nod, right?
               A:       Even babies know that a head shake “yes,” means yes.
               Q:       Well, head shakes can mean a lot of different things like I’m
                        pondering that idea, correct?
               A:       Not in this situation.
       Id. at 24. Moreover, when Mobley later saw the other detective approach in his

       car, Mobley turned toward Detective McLemore and said “never mind,” which

       suggests that Mobley indeed made an agreement with Detective McLemore but

       Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015         Page 5 of 12
       then changed his mind. Mobley’s argument that his head nod “yes” was not an

       agreement is merely an invitation for us to reweigh the evidence, which we will

       not do. See Tr. p. 44-46 (defense counsel’s closing argument making same

       argument as here). The evidence is sufficient to prove that Mobley knowingly

       made an agreement.1


[11]   Mobley next argues that the evidence is insufficient to prove that he agreed to

       pay “United States currency,” as the charging information alleges. Appellant’s

       Br. p. 12. The record shows that Mobley drove slowly past Detective

       McLemore, staring at her “the whole time.” Mobley then stopped his car in the

       middle of the street near Detective McLemore. Detective McLemore walked

       up to Mobley and asked, “What’s up?” In response, Mobley asked Detective

       McLemore, “How much?” Detective McLemore told Mobley it would be

       “twenty for some head.” Mobley makes much of the fact that Detective

       McLemore did not say “dollars” or “bucks” after twenty, as happened in other

       prostitution-sting cases. Mobley speculates that “‘twenty’ can mean many

       things.” Id. at 13.         However, given the circumstances of this case, it was

       reasonable for the trier of fact to infer that “twenty” here meant twenty dollars.

       Any other interpretation is a request to reweigh the evidence. See Tr. p. 44




       1
         Mobley cites Ferge v. State, 764 N.E.2d 268 (Ind. Ct. App. 2002), as support here. The issue in Ferge was
       whether the State negated the defendant’s defense of entrapment to Class A misdemeanor patronizing a
       prostitute. The defense of entrapment is an affirmative defense requiring admission to the elements of the
       crime. See Hoskins v. State, 563 N.E.2d 571, 576 (Ind. 1990) (holding that entrapment is a true affirmative
       defense that admits the facts of the crime but contends that the knowing or intentional acts were excused or
       justified). However, Mobley argues that the evidence does not satisfy the elements.

       Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015                          Page 6 of 12
       (defense counsel’s closing argument making same argument as here). The

       evidence is sufficient to prove that Mobley agreed to pay United States

       currency.


[12]   Finally, Mobley argues that the evidence is insufficient to prove that he

       understood that Detective McLemore would engage in fellatio with him.

       Detective McLemore told Mobley that it would be “twenty for some head,” to

       which Mobley nodded his head yes and then nodded his head a second time to

       indicate that Detective McLemore should get into his car. Detective

       McLemore testified at trial that “head” is street terminology for fellatio. Tr. p.

       17. Furthermore, Detective McLemore testified that since she had been

       working vice for the past five and one-half years, she had never used the term

       fellatio when working undercover as a prostitute. Id. at 29. She explained that

       she uses the term “head” because it is the term that solicitors use. Id. at 31.

       Detective McLemore said in all her years in vice, she had never seen anyone

       mistake the word “head” for a different meaning. Id. In fact, Mobley did not

       ask for clarification of what she meant by “head.” Id. at 32. Given the

       circumstances of this case, it was reasonable for the trier of fact to infer that

       Mobley understood that “head” meant fellatio. Any other interpretation is a

       request to reweigh the evidence. See Tr. p. 44-45 (defense counsel’s closing

       argument making same argument as here). The evidence is sufficient to prove

       that Mobley understood that Detective McLemore would engage in fellatio

       with him.




       Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015    Page 7 of 12
                                            II. Entrapment
[13]   In the alternative, Mobley argues that the State failed to rebut his defense of

       entrapment. The Indiana Supreme Court recently addressed the defense of

       entrapment in Griesemer. We review a claim of entrapment using the same

       standard that applies to other challenges to the sufficiency of evidence.

       Griesemer, 2015 WL 970660, *2.


[14]   As our Supreme Court explained in Griesemer:

               The government may use undercover agents to enforce the law.
               Indeed, undercover agents can be invaluable in the prevention,
               detection, and prosecution of crime, and “it is the duty of
               conscientious and efficient law enforcement officers to make such
               efforts.” But their tactics must be measured; we do not tolerate
               government activity that lures an otherwise law-abiding citizen to
               engage in crime. After all, the job of law enforcement is to catch
               established criminals, not manufacture new ones. Our entrapment
               defense aims to sort the two.
       Id. (citations and quotation omitted). Entrapment in Indiana is statutorily

       defined:

               (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.
               (b) Conduct merely affording a person an opportunity to commit the
               offense does not constitute entrapment.
       Ind. Code § 35-41-3-9. A defendant does not need to formally plead the

       entrapment defense; rather, it is raised, often on cross-examination of the


       Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015        Page 8 of 12
       State’s witnesses, by affirmatively showing that the police were involved in the

       criminal activity and expressing an intent to rely on the defense. Griesemer,

       2015 WL 970660, *2. Police are involved in the criminal activity only if they

       “directly participate” in it. Id. The State then has the opportunity for rebuttal,

       and its burden is to disprove one of the statutory elements beyond a reasonable

       doubt. Id. Thus, there is no entrapment if the State shows either (1) there was

       no police inducement or (2) the defendant was predisposed to commit the

       crime. Id.


[15]   To rebut the first element, inducement, the State must prove that police efforts

       did not produce the defendant’s prohibited conduct because those efforts lacked

       “a persuasive or other force.” Id. at *3 (quotation omitted).


[16]   At issue in Griesemer was whether the defendant was induced. Griesemer

       involved the same undercover officer as in this case, Detective Tabatha

       McLemore. Detective McLemore was posing as a prostitute on a corner on the

       eastside of Indianapolis when she noticed the defendant driving past and staring

       at her. He looped around the block and returned a few minutes later, stopping

       near her just before a stop sign. Through his open car window, the defendant

       asked Detective McLemore if she needed a ride. Detective McLemore

       declined, saying she “was trying to make some money.” Id. at *1. The

       defendant nodded his head toward his passenger seat, which Detective

       McLemore understood as an invitation for her to get in his car. She then asked

       him how much money he had, and the defendant again nodded toward his

       passenger seat. When she asked him about money a second time, he told her

       Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015   Page 9 of 12
       he had twenty dollars. Detective McLemore said she could “do head” for that

       amount, and the defendant nodded his head yes, and for a third time nodded

       toward his passenger seat. Id. But instead of getting in his car, she told him to

       pick her up just down the street. He nodded yes, and proceeded along the same

       route he had taken when he initially saw Detective McLemore. A police car

       stopped the defendant; he was arrested and charged with Class A misdemeanor

       patronizing a prostitute.


[17]   Our Supreme Court concluded that the State presented sufficient evidence for

       the trier of fact to reasonably determine that Detective McLemore’s policing

       efforts did not produce the defendant’s criminal conduct. Id. at *4. The Court

       stated that the evidence most favorable to the verdict shows that the defendant

       “stared at Detective McLemore from the road before turning around, he

       stopped his car near her to initiate their conversation, and he twice nodded his

       head to invite her into his car, all before she mentioned the opportunity to

       exchange money for a sexual act.” Id. The Court found that this was not an

       explicit directive or order. Cf. Albaugh v. State, 721 N.E.2d 1233 (Ind. 1999)

       (finding entrapment where a police officer told the defendant, who had been

       drinking, “you’ve got to move [your truck] and you’ve got to move it now”). In

       addition, the Court found that Detective McLemore “did not exert a persuasive

       or other force over [the defendant]; instead, she merely afforded him ‘an

       opportunity to commit the offense,’ which the statute expressly declares ‘does

       not constitute entrapment.’” Griesemer, 2015 WL 970660, *4 (quoting Ind.

       Code § 35-41-3-9(b)). The Court therefore affirmed the defendant’s conviction.


       Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015   Page 10 of 12
[18]   We reach the same conclusion here. That is, the State presented sufficient

       evidence for the trier of fact to reasonably determine that Detective

       McLemore’s policing efforts did not produce Mobley’s criminal conduct. The

       evidence most favorable to the verdict shows that Mobley drove slowly past

       Detective McLemore, staring at her the whole time; he then stopped his car in

       the middle of the street near her and asked, “How much?”—all before Detective

       McLemore mentioned the opportunity to exchange money for a sexual act.

       Detective McLemore did not give Mobley an explicit directive or order and did

       not exert a persuasive or other force over Mobley; rather, she merely afforded

       him an opportunity to commit the offense, which Indiana Code section 35-41-3-

       9(b) expressly declares “does not constitute entrapment.”


[19]   As our Supreme Court said in Griesemer,

                  That the crime itself may be tempting, without more, is not
                  inducement. 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.
       2015 WL 970660, *4. Because a reasonable trier of fact could have found the

       State proved, beyond a reasonable doubt, that the police did not induce

       Mobley, his entrapment defense fails.2 We therefore affirm his conviction for

       Class A misdemeanor patronizing a prostitute.




       2
           We therefore do not address the question of Mobley’s predisposition to commit the crime.


       Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015                       Page 11 of 12
[20]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015   Page 12 of 12
