Appeal from the Marion Superior Court, No. 49F10-1208-CM-56547. The Honorable Linda E. Brown, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1308-CR-382.
ATTORNEYS FOR APPELLANT: Daniel L. Moore, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Larry D. Allen, Stephen R. Creason, Richard C. Webster, Deputy Attorneys General, Indianapolis, Indiana.
Massa, Justice. Rush, C.J., David, J., concur. Rucker, J., dissents with separate opinion in which Dickson, J., concurs. Dickson, J., concurs. Rucker, Justice, dissenting.
Kenneth Griesemer appeals his conviction for patronizing a prostitute, arguing the State failed to rebut his defense of entrapment. We are asked to decide whether the State disproved one element of that defense--either showing there was no police inducement or showing Griesemer was predisposed to commit the crime--beyond a reasonable doubt. Because we find the undercover detective merely presented Griesemer with an opportunity to patronize a prostitute, we find no inducement and therefore no entrapment. We affirm.
Facts and Procedural History
On a summer afternoon on the east side of Indianapolis, Detective Tabatha McLemore was posing as a prostitute on a corner, when she noticed Griesemer 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, Griesemer asked Detective McLemore if she needed a ride. Detective McLemore declined, saying she " was trying to make some money." Tr. at 7. Griesemer nodded his head toward his passenger seat, which Detective McLemore understood to be an invitation for her to get in his car. She then asked him how much money he had, and Griesemer again nodded toward his passenger seat. When she asked him about money a second time, he told her he had twenty dollars. Detective McLemore said she could " do head" for that amount, and Griesemer nodded his head, yes, and for a third time nodded toward his passenger seat. Tr. at 7--8. Instead of getting in his car, however, 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 vehicle stopped Griesemer; he was arrested and charged with patronizing a prostitute, a Class A misdemeanor.  At a bench trial, the court
found Griesemer guilty as charged and sentenced him to 180 days with 176 days suspended.
Griesemer appealed his conviction, arguing he raised the entrapment defense by showing police inducement--it was Detective McLemore who first mentioned money, sex, and the possibility of trading one for the other--and the State failed to offer any evidence of Griesemer's predisposition to commit the offense. A majority of our Court of Appeals agreed, and it reversed Griesemer's conviction. Griesemer v. State, 10 N.E.3d 1015, 1021 (Ind.Ct.App. 2014). Chief Judge Vaidik dissented, relying upon United States v. Fusko, 869 F.2d 1048, 1052 (7th Cir. 1989), which explained, " the most important element of the equation is whether the defendant was reluctant to commit the offense."
Griesemer, 10 N.E.3d at 1022 (Vaidik, C.J., dissenting). She found the State proved predisposition by showing Griesemer's lack of reluctance to commit the offense: Griesemer nodded toward his passenger seat in response to Detective McLemore's saying she was trying to make money; Griesemer was the first to mention a specific amount of money; and Griesemer promptly drove down the street just as he had done before, presumably to pick up Detective McLemore. Id. at 1022-23.
We granted transfer, thereby vacating the opinion below. Griesemer v. State, 15 N.E.3d 588 (Ind. 2014) ...