Paul D. Mobley v. State of Indiana , 27 N.E.3d 1191 ( 2015 )

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
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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
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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
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[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
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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
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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.
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(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.
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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
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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
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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.
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[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.
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[20] Affirmed.
Baker, J., and Riley, J., concur.
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