MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      Feb 09 2016, 7:51 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ni Kung,                                                 February 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1504-CR-196
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Steven Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G10-1408-CM-038377



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016         Page 1 of 6
[1]   Ni Kung appeals his conviction for Patronizing a Prostitute,1 a class A

      misdemeanor. On appeal, he argues that the State presented insufficient

      evidence to support his conviction and to rebut his entrapment defense.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On August 5, 2014, Detective Tabatha McLemore of the Indianapolis

      Metropolitan Police Department was working undercover by posing as a

      prostitute on a street corner in a high-prostitution area. Detective McLemore

      saw a man, later identified as Kung, park his car nearby. Kung kept looking at

      Detective McLemore and smiling, so she walked over to talk to him. Through

      the open driver-side window, Detective McLemore asked Kung if he was

      waiting for someone. Kung, who is Burmese and speaks limited English,

      initially told Detective McLemore that he was going to work. Detective

      McLemore began to walk away, and Kung asked “how much[?]” Transcript at

      8. Detective McLemore said twenty dollars, and then asked him what he

      wanted to do. Kung responded, “everything.” Id. at 9. Detective McLemore

      asked him if he meant “head” and sex, and Kung appeared not to understand.

      She then pointed at his penis and said “to suck on that and sex.” Id. Kung then

      smiled and said yes. Detective McLemore said it would be thirty dollars, and

      Kung laughed and said that was too much. Detective McLemore then said she



      1
          Ind. Code § 35-45-4-3.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016   Page 2 of 6
      could do it for twenty dollars. Kung asked where they could go, and she told

      him to meet her at a house down the street. She then asked him if he was going

      to give her twenty dollars, and he said yes. Detective McLemore then turned to

      walk away, and Kung was stopped by other officers and arrested.


[4]   As a result of these events, Kung was charged with class A misdemeanor

      patronizing a prostitute. A bench trial was held on March 11, 2015, at the

      conclusion of which Kung was found guilty as charged. Kung now appeals.


                                          Discussion & Decision


[5]   Kung argues that the State presented insufficient evidence to support his

      conviction for patronizing a prostitute. In reviewing a challenge to the

      sufficiency of the evidence, we neither reweigh the evidence nor judge the

      credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.

      2009). Instead, we consider only the evidence supporting the conviction and

      the reasonable inferences flowing therefrom. Id. If there is substantial evidence

      of probative value from which a reasonable trier of fact could have drawn the

      conclusion that the defendant was guilty of the crime charged beyond a

      reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891

      N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not necessary that the evidence

      overcome every reasonable hypothesis of innocence; rather, the evidence is

      sufficient if an inference may reasonably be drawn from it to support the

      conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016   Page 3 of 6
[6]   In order to convict Kung of patronizing a prostitute as charged, the State was

      required to prove that he knowingly or intentionally agreed to pay money or

      other property to Detective McLemore for sexual intercourse and/or other

      sexual conduct. See I.C. § 35-45-4-3. On appeal, Kung reasserts the argument

      he made at trial—that he was unable to understand the conversation due to the

      language barrier and believed that Detective McLemore was offering to pay

      him to drive her somewhere. This argument is nothing more than a request to

      reweigh the evidence and judge witness credibility. The facts favorable to the

      conviction, as set forth above, are more than sufficient to support the

      conclusion that Kung understood the conversation and agreed to pay Detective

      McLemore for oral sex and sexual intercourse.


[7]   Kung also argues that the State presented insufficient evidence to rebut his

      defense of entrapment. The defense of entrapment is set forth in Ind. Code §

      34-41-3-9 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.


              (b) Conduct merely affording a person an opportunity to commit
              the offense does not constitute entrapment.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016   Page 4 of 6
      As our Supreme Court has explained,


              [a] defendant does not need to formally plead the entrapment
              defense; rather, it is raised, often on cross-examination of the
              State’s witnesses, by affirmatively showing the police were
              involved in the criminal activity and expressing an intent to rely
              on the defense. Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986);
              Fearrin v. State, 551 N.E.2d 472, 473 (Ind. Ct. App. 1990).
              Officers are involved in the criminal activity only if they “directly
              participate” in it. Shelton v. State, 679 N.E.2d 499, 502 (Ind. Ct.
              App. 1997) (finding, where officers merely placed deer decoy in
              [a] field, they did not “directly participate in the criminal activity
              of road hunting,” and the defendants thus failed to raise the
              entrapment defense). The State then has the opportunity for
              rebuttal, its burden being to disprove one of the statutory
              elements beyond a reasonable doubt. Riley v. State, 711 N.E.2d
              489, 494 (Ind. 1999); McGowan v. State, 674 N.E.2d 174, 175
              (Ind. 1996) (holding because entrapment is established by the
              existence of two elements, it is defeated by the nonexistence of
              one). There is thus no entrapment if the State shows either (1)
              there was no police inducement, or (2) the defendant was
              predisposed to commit the crime. Riley, 711 N.E.2d at 494.


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


[8]   The State argues that entrapment was not adequately raised at trial because

      Kung did not express his intent to rely on the defense. We note that Kung did

      not argue that police induced him to commit the offense of patronizing a

      prostitute. Instead, he argued that he did not commit the offense at all.

      Nevertheless, we will address Kung’s entrapment argument on its merits.


[9]   To rebut the inducement element of an entrapment defense, “the State must

      prove police efforts did not produce the defendant’s prohibited conduct . . .
      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016   Page 5 of 6
       because those efforts lacked ‘persuasive or other force.’” Id. (quoting Williams v.

       State, 412 N.E.2d 1211, 1215 (Ind. 1980)). The evidence most favorable to the

       judgment establishes that Kung parked his car in a high-prostitution area, and

       he kept looking at Detective McLemore and smiling. She approached the car

       and spoke to him through the open driver-side window, asking him if he was

       waiting for someone. He responded that he was going to work, and Detective

       McLemore had begun to walk away when Kung asked “how much[?]”

       Transcript at 8. Detective McLemore said twenty dollars, and then asked him

       what he wanted to do. Kung responded, “everything.” Id. at 9. Detective

       McLemore asked him if he meant “head” and sex, and Kung appeared

       confused. She then pointed at his penis and said “to suck on that and sex.” Id.

       Kung then smiled and said yes. Detective McLemore said it would be thirty

       dollars, and Kung laughed and said that was too much. Detective McLemore

       then said she could do it for twenty dollars, and Kung agreed to meet her at a

       house down the street. Based on this evidence, a reasonable trier of fact could

       conclude that Detective McLemore did not exert persuasive or other force over

       Kung, and instead merely offered him an opportunity to commit the offense.

       I.C. § 34-41-3-9 expressly provides that such conduct does not constitute

       entrapment. The defense of entrapment was therefore adequately rebutted.


[10]   Judgment affirmed.


[11]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016   Page 6 of 6
