APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Linda Brown, Judge. Cause No. 49F10-1208-CM-56547.
FOR APPELLANT: DANIEL L. MOORE, Moore & Associates, Indianapolis, Indiana.
FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; RICHARD C. WEBSTER, Deputy Attorney General, Indianapolis, Indiana.
MAY, Judge. BAKER, J., concurs. VAIDIK, C.J., dissents with separate opinion.
Kenneth Griesemer appeals his conviction of Class A misdemeanor patronizing a prostitute. He argues he was entrapped. We reverse.
FACTS AND PROCEDURAL HISTORY
On August 15, 2012, Indianapolis Metropolitan Police Department Detective Tabatha McLemore was posing as a prostitute on East Washington Street in Indianapolis. Around 2:30 p.m., Griesemer drove past her and stared at her as he passed. A few minutes later, Griesemer drove northbound toward Washington Street on Ewing Street. As he approached the corner of Ewing and Washington Streets, he asked Detective McLemore, through his open car window, if she needed a ride. She declined the ride, saying she was trying to make money. Griesmer nodded his head toward his passenger seat, which she understood to be an invitation to enter the car. She asked how much money he had, and he said twenty dollars. She told him she could perform fellatio for twenty dollars.
He nodded his head " yes," and then he nodded toward the passenger seat to indicate she should get in the car. She asked him to pick her up " down the street."  (Tr. at 8.) Griesemer nodded in agreement, then turned right onto Washington Street, drove down the street, and pulled into the parking lot that he had used to circle back to Washington Street the first time. In that parking lot, uniformed officers in a marked police car stopped Griesemer and placed him under arrest.
The State charged Griesemer with one count of Class A misdemeanor patronizing a prostitute. Following a bench trial, the court entered a conviction thereof and imposed a 180-day sentence with 176 days suspended.
DISCUSSION AND DECISION
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 . . . deviate sexual conduct with the person . . . ." Ind. Code § 35-45-4-3. Deviate sexual conduct includes acts involving " a sex organ of one person and the mouth or anus of another person." Ind. Code § 35-41-1-9. Griesemer acknowledges that agreeing to have Detective McLemore perform fellatio in exchange for twenty dollars would constitute patronizing a prostitute. He argues, however, that the State did not disprove his defense of entrapment.
Entrapment is a one of a handful of defenses that can eliminate a defendant's culpability for acts committed. See Ind. Code ch. 35-41-3 (" Defenses Relating to Culpability" ). " Entrapment exists where an otherwise law-abiding citizen is induced through police involvement to commit the charged crime." Lahr v. State, 640 N.E.2d 756, 760 (Ind.Ct.App. 1994), trans. denied . Our legislature provided the following definition for entrapment:
(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 ...