MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                May 31 2016, 9:49 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bruce W. Graham                                         Gregory F. Zoeller
Lafayette, Indiana                                      Attorney General of Indiana
                                                        Kathrine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mathias Gaumer,                                         May 31, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1510-CR-1601
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Randy J. Williams,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79D01-1402-FC-6



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016           Page 1 of 14
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Mathias Daniel Gaumer (Gaumer), appeals his

      conviction for child solicitation, a Class C felony, Ind. Code § 35-42-4-6(c)

      (2013); and attempted possession of child pornography, a Class D felony, I.C.

      §§ 35-41-5-1(a); -42-4-4(c) (2013).


[2]   We affirm.


                                                    ISSUE

[3]   Gaumer raises one issue on appeal, which we restate as the following: Whether

      the State presented sufficient evidence to rebut Gaumer’s entrapment defense.


                           FACTS AND PROCEDURAL HISTORY

[4]   On February 5, 2014, Lieutenant Brian Gossard (Lieutenant Gossard) was

      working in the Juvenile Detective Division of the Lafayette Police Department

      in Tippecanoe County, Indiana. The Juvenile Detective Division’s “main

      responsibility was to handle cases where there were . . . crimes against

      children.” (Tr. p. 16). Because the internet is a medium that individuals utilize

      to commit crimes against children, the Juvenile Detective Division frequently

      monitors various internet sites for indications of child exploitation.


[5]   That day, as part of his regular duties, Lieutenant Gossard read through “the

      ads in the personal section of Craigslist to see if there are any key words that

      might trigger a response[.]” (Tr. p. 20). In the “casual encounters” section of

      Craigslist, Lieutenant Gossard came across the following ad:


      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 2 of 14
              freaky real slut – m4w – 44 (monticello)
              lookin to find that freaky little slut that is willing to try anything
              twice. everybody seems to be fake or just not willing to take a
              chance. I will do anything anything u want me to do for u. cant
              wait to get my mouth on some freaky pussy. just luv to lick
              pussy and dam good at it. want to slam my cock in ur mouth
              and blow my load. lets get together and have a little freaky fun..
              don’t be shy any age is fine with me.. the younger the better. but
              any age is fine u all can be a freak


      (State’s Exh. 1) (sic as to all grammatical and spelling errors). Lieutenant

      Gossard observed that this ad contained “[t]he key words” of “any age” and

      “younger” to warrant an undercover investigation. (Tr. p. 23).


[6]   Using the alias of “Jasmine Rogers” (Rogers) and an email address of “little

      jas00@gmail.com,” Lieutenant Gossard responded to the personal ad. (State’s

      Exh. 3). Throughout the day on February 5, 2014, and continuing into

      February 6, 2014, the following conversation ensued between Lieutenant

      Gossard, posing as Rogers, and the poster of the Craigslist ad:


              [Rogers:]        saw your add. i liked it. :) how young can you
                               handle?


              [Ad Poster:] i can handle as young as it can get luv the young
                           ladies they seem to be more freaky. tell me about u
                           and what u want


              [Rogers:]        im kinda new to this whole thing but my bestie had
                               a lot of fun on here. what are you into?




      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 3 of 14
          [Ad Poster:] I am into just about anything. whatever u like and
                       want is what I want to do.. no pressure to do
                       anything u don’t wanna. just wanna play and lick
                       some good tasty pussy. is urs tasty? I bet it is. tell
                       me about u age ?? have u done anything like this
                       bbefore? what do U want to do? don’t be shy


          [Rogers:]         im all about trying something at least once. :) im
                            14 now but have some experience. whats the
                            craziest thing you have done? :)


          [Ad Poster:] idk[ 1] talkin to a 14 year old is a little freaky isn’t it?
                       how do u think we ccan do this? did u look at my
                       age on the posting? do u really want to do this


          [Ad Poster:] wht experience have u had


          [Rogers:]         your age doesnt bother me. adn we could do
                            whatever you waant. ive only done the regular stuff
                            but looking to explore :)


          [Ad Poster:] send me a pic of ur pussy


          [Ad Poster:] where ru right now I will come by and see how u
                       suck dick


          [Ad Poster:] see that’s what I thought ur too young to be doin
                       this




1
    Lieutenant Gossard explained that “idk” stands for “I don’t know.” (Tr. p. 31).


Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 4 of 14
        [Rogers:]        too young?? you gotta give me a minute to hit you
                         back :) are you in town?


        [Ad Poster:] On my way to work. If u wanna play, I can come
                     get u and stay home from work and play with u.
                     Text me. [Phone number provided.]


        [Ad Poster:] We’ll. what’s up


        [Rogers:]        my parents are so lame. my dad wont give me my
                         phone back so I can text. :( so frustrated…


        [Rogers:]        are you at work?


        [Ad Poster:] Yeah at work right now. Will be getting off early
                     and be back in town bout 930. Can u go then?


        [Ad Poster:] Be in town at 930. Where ru gonna be


        [Rogers:]        cant sneak out tonight but im gonna skip school
                         tomorrow. what do you think?


        [Ad Poster:] idk that’s up to u I wont be able to get u till bout
                     noon, how u gonna do that


        [Rogers:]        thats fine. i will just go over to my cousins house
                         for a while. i have skipped before. you only get in
                         trouble if you do it to much. what are you going to
                         do when we finally meet up? ;)


        [Ad Poster:] that’s up to u we will only have a couple hours but it
                     can be fun.. how about I make u feel stuff u never


Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 5 of 14
                         have felt before.. I can promise u that what ru gonna
                         do for me


        [Rogers:]        is that going to be enough time? :) i am open to
                         anything even the crazy stuff. Will have to surprise
                         you. or you can get creative ;)


        [Ad Poster:] I can try to get u sooner how am I gonna talk to u
                     tomorrow? u still got my number? what ru gonna
                     do to me? what do u want to do to me?


        [Rogers:]        i will email you tomorrow and gonna try to get my
                         phone back. we can start slow but then gonna get
                         crazy!!!!! u use protection?


        [Ad Poster:] Always use. U gotta get that phone or we will not
                     be able to get together until. U do


        [Ad Poster:] Hey do u got a Facebook page? What is it


        [Rogers:]        you still picking me up today?


        [Ad Poster:] When and where ru


        [Rogers:]        i can walk over to the family dollar on teal. noon?


        [Ad Poster:] U wanna meet earlier than that


        [Rogers:]        i am going to shower and then i can walk over. can
                         you get here by 11?




Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 6 of 14
              [Ad Poster:] Prolly gonna be 12. Take ur time. How am I gonna
                           know who ur. We have never met


              [Rogers:]        thats fine. im short and will be wearing my blue
                               coat with fur around the hood. what will you be
                               driving? i can watch for you.


              [Ad Poster:] I will be driving a grey vlokswagen jetta I will prolly
                           be there by 1130.


              [Rogers:]        ok. What are you going to do to me when we hook
                               up? ;)


              [Ad Poster:] We will talk bout that when I get there


      (State’s Exh. 3) (sic as to all grammatical and spelling errors). During the

      course of the conversation, Lieutenant Gossard noticed that, in addition to the

      Craigslist-generated email address associated with the post—i.e., wkgd5-

      4319030578@pers.craigslist.org—several of the poster’s responses included the

      email address “tripleex69@yahoo.com.” (Tr. p. 33). The name associated with

      the Yahoo account was “Dan Gaumer.” (Tr. p. 33).


[7]   Shortly before noon on February 6, 2014, Lieutenant Gossard, along with

      several detectives and a uniformed police officer, stationed themselves in the

      vicinity of the Family Dollar store, located at 1400 Teal Road in Lafayette.

      When a gray Volkswagen Jetta pulled into the Family Dollar parking lot, the

      officers initiated a traffic stop. The driver, who was identified as forty-seven-

      year-old Gaumer, was transported to the police station. The officers searched


      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 7 of 14
      Gaumer’s vehicle and found “a couple bottles of lubricant.” (Tr. p. 52). A

      condom was also recovered from Gaumer’s coat pocket. During his police

      interview, Gaumer acknowledged that he posted the ad on Craigslist; that he

      engaged in the email correspondence with Rogers; and that his possession of

      the condom “looked bad.” (Tr. p. 99). However, Gaumer also stated that “he

      didn’t necessarily believe [that Rogers was only fourteen years old] but wasn’t

      for sure” based on the fact that Craigslist requires all users of the personal ads

      section to be at least eighteen years old. (Tr. p. 94).


[8]   On February 7, 2014, the State filed an Information, charging Gaumer with

      child solicitation, a Class C felony; and attempted possession of child

      pornography, a Class D felony. On May 20 through 21, 2014, the trial court

      conducted a jury trial. At the close of the evidence, the jury advised the court

      that it was unable to reach a verdict. Accordingly, the trial court declared a

      mistrial. On June 16 through 17, 2015, the trial court held a retrial, during

      which Gaumer raised the defense of entrapment, and the jury received an

      entrapment instruction. At the close of the evidence, the jury found Gaumer

      guilty as charged. On September 21, 2015, the trial court conducted a

      sentencing hearing. The trial court imposed a term of four years for Count I

      and a term of one and one-half years for Count II, with the sentences to run

      concurrently. Of Gaumer’s aggregate four-year-sentence, the trial court ordered

      that one year be executed in the Indiana Department of Correction and three

      years be suspended to probation.


[9]   Gaumer now appeals. Additional facts will be provided as necessary.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 8 of 14
                                  DISCUSSION AND DECISION

                                             I. Standard of Review

[10]   On appeal, Gaumer concedes that the State established the elements of Class C

       felony child solicitation and Class D felony attempted possession of child

       pornography. However, he claims that the State failed to rebut his defense of

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

       crime but claims that the act was justified.” Nichols v. State, 31 N.E.3d 1038,

       1041 (Ind. Ct. App. 2015).


[11]   When reviewing a claim of entrapment, our court relies on “the same standard

       that applies to other challenges to the sufficiency of evidence.” Griesemer v.

       State, 26 N.E.3d 606, 608 (Ind. 2015) (quoting Dockery v. State, 644 N.E.2d 573,

       578 (Ind. 1994)). Accordingly, we will neither reweigh the evidence nor assess

       the credibility of witnesses. Id. We consider “the probative evidence

       supporting the verdict and the reasonable inferences drawn from that

       evidence[,]” and we will affirm the conviction “[i]f we find a reasonable trier of

       fact could infer guilt beyond a reasonable doubt.” Id.


                                            II. Entrapment Defense

[12]   It is well established that “[t]he government may use undercover agents to

       enforce the law.” Id. (citing Sorrells v. United States, 287 U.S. 435, 441 (1932)).

       Indeed, our supreme court has recognized that “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.’” Id. (quoting Gray v. State, 231 N.E.2d 793, 795 (Ind. 1967)).
       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 9 of 14
       Nonetheless, the tactics of government agents “must be measured” as we will

       “not tolerate government activity that lures an otherwise law-abiding citizen to

       engage in crime.” Id. Because “the job of law enforcement is to catch

       established criminals, not manufacture new ones[,] [o]ur entrapment defense

       aims to sort the two.” Id.


[13]   Indiana’s entrapment statute provides 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.


       I.C. § 35-41-3-9 (2013). A defendant is not required to formally plead an

       entrapment defense; rather, it is raised “by affirmatively showing the police

       were involved in the criminal activity and expressing an intent to rely on the

       defense.” Griesemer, 26 N.E.3d at 609. Once a defendant has indicated that he

       plans to rely on an entrapment defense and has established police involvement,

       “the burden shifts to the State to rebut the inducement element, or demonstrate

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

       1041 (citations omitted).


[14]   “Officers are involved in the criminal activity only if they ‘directly participate in

       it.’” Griesemer, 26 N.E.3d at 609. In this case, there is no dispute that

       Lieutenant Gossard was a direct participant in the online exchange of sexually

       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 10 of 14
       explicit messages with Gaumer. Therefore, in order to rebut the first element—

       inducement—“the State must prove police efforts did not produce the

       defendant’s prohibited conduct because those efforts lacked a ‘persuasive or

       other force.’” Nichols, 31 N.E.3d at 1041 (quoting Griesemer, 26 N.E.3d at

       609). 2


[15]   Here, we find absolutely no indication anywhere in the conversation between

       Gaumer and Rogers that Lieutenant Gossard exerted any pressure over or gave

       an “explicit direction or order” for Gaumer to engage in the prohibited conduct.

       Albaugh v. State, 721 N.E.2d 1233, 1237-38 (Ind. 1999) (finding entrapment

       where the “law enforcement officer played a direct role in influencing Albaugh to

       leave his home in the middle of the night to move his truck, only minutes later

       arresting him for driving while intoxicated”). Rather, the evidence establishes

       that Gaumer posted a personal ad in the “casual encounters” section of

       Craigslist, seeking a “freaky little slut” of “any age”—“the younger the better.”

       (State’s Exh. 1). Lieutenant Gossard, posing as Rogers, initiated a conversation

       by inquiring as to “how young” of a woman Gaumer could “handle.” (State’s




       2
         We note that in his appellate brief, Gaumer addresses only the second prong of the entrapment statute—
       predisposition. He does not argue that the State failed to present sufficient evidence of inducement—that is,
       that Gaumer’s criminal conduct was the product of the police “using persuasion or other means likely to
       cause the person to engage in the conduct.” I.C. § 35-41-3-9(a)(1) (2013). Instead, it appears that Gaumer
       presumes the first prong is satisfied based on the mere fact that the police were “involved in the criminal
       activity” notwithstanding whether there is evidence of inducement. (Appellant’s Br. p. 10) (emphasis added).
       We disagree. See Griesemer, 26 N.E.3d at 609 (“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.”). Thus, because the
       State need only rebut one of the elements of the entrapment statute, Gaumer has waived his claim on appeal
       by failing to set forth a cogent argument regarding both prongs. Ind. Appellate Rule 46(A)(8)(a). Waiver
       notwithstanding, we elect to address this case on its merits.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016             Page 11 of 14
       Exh. 3). Gaumer responded that he “can handle as young as it can get luv the

       young ladies they seem to be more freaky.” (State’s Exh. 3) (emphasis added).


[16]   During his police interview, Gaumer stated that he “didn’t necessarily believe

       [that Rogers was only fourteen years old] but wasn’t for sure” because Craigslist

       requires its users to be at least eighteen years old. Nonetheless, after Rogers

       specifically stated that she was only fourteen years old, Gaumer did not end the

       conversation or even further probe as to whether Rogers was being honest

       about her age. Instead, Gaumer—who was specifically seeking “freaky” sexual

       conduct—suggested that Rogers’ young age constituted the “freaky” experience

       he so desired. (State’s Exh. 1 & 3). Gaumer then advised Rogers to consider

       his own age and asked whether she really “want[ed] to do this.” (State’s Exh.

       3).


[17]   Despite knowing Rogers’ age, Gaumer was the first one to explicitly mention

       sexual activity: he instructed her to “send me a pic of ur pussy” and asked

       “where ru right now I will come by and see how u suck dick.” (State’s Exh. 3).

       See Nichols, 31 N.E.3d at 1042 (finding the police officer did not induce the

       defendant to commit prostitution even though the police officer was the first to

       mention sexual activity because he was merely asking the defendant questions

       and did not exert any persuasive or other force over her to engage in the

       conduct). When Rogers did not immediately reply, Gaumer baited her by

       suggesting that she was “too young to be doin this.” (State’s Exh. 3). Despite

       his brief admission regarding Rogers’ juvenile status, Gaumer readily proposed

       that he would stay home from work to “play with” Rogers if she was willing

       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 12 of 14
       and promised to “make u feel stuff u never have felt before.” (State’s Exh. 3).

       Ultimately, Gaumer and Rogers planned to meet the following day. When

       Gaumer arrived at the meeting place at the arranged time, he was prepared to

       meet a fourteen-year-old girl for sexual activity—as evidenced by the condom

       and lubricant in his possession.


[18]   Furthermore, it was Gaumer—not Lieutenant Gossard—who was persistent in

       arranging a rendezvous with Rogers. In fact, Lieutenant Gossard, as Rogers,

       continually reminded Gaumer about her young age, such as by hinting at the

       fact that she was subject to her parents’ control regarding her inability to sneak

       out of the house and as to the use of her cell phone, as well as the fact that she

       could not drive herself and had to skip school to meet with him. Each time he

       did so, Lieutenant Gossard essentially provided Gaumer with an opportunity to

       recognize the wrongfulness of his conduct and to end the conversation.

       Instead, Gaumer continued to send provocative messages and followed through

       with his plans to meet Rogers, whom he believed to be a fourteen-year-old girl.

       Lieutenant Rogers did nothing more than present Gaumer with an opportunity

       to commit the charged offenses, which does not rise to the level of entrapment.

       I.C. § 35-41-3-9(b) (2013).


[19]   Accordingly, we find that the State presented sufficient evidence for a trier of

       fact to reasonably determine that Lieutenant Gossard’s involvement “lacked a

       ‘persuasive or other force’” necessary to induce Gaumer’s criminal conduct.

       Nichols, 31 N.E.3d at 1041 (quoting Griesemer, 26 N.E.3d at 609). Because we

       have determined that Lieutenant Gossard did not induce Gaumer’s conduct, we

       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 13 of 14
       need not address his arguments regarding his predisposition to commit the

       offense. See Griesemer, 26 N.E.3d at 610. We conclude that the State

       sufficiently rebutted Gaumer’s entrapment defense.


                                              CONCLUSION

[20]   Based on the foregoing, we conclude that the State presented sufficient evidence

       to rebut Gaumer’s entrapment defense, and we therefore affirm his conviction.


[21]   Affirmed.


[22]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016   Page 14 of 14
