Again faced with the question of whether a defendant had been entrapped by an undercover detective posing as a prostitute, the Indiana Court of Appeals affirmed the lower court, reaching a different conclusion than they had in a similar case a year earlier.
The Court of Appeals upheld Paul Mobley’s conviction for Class A misdemeanor patronizing a prostitute in Paul D. Mobley v. State of Indiana, 49A02-1405-CR-343. The unanimous panel found the state has proved beyond a reasonable doubt that the police did not induce Mobley.
Nearly one year ago in a case involving the same detective and a very similar set of circumstances, a split Court of Appeals overturned the conviction of Class A misdemeanor patronizing a prostitute, ruling the police had induced the defendant’s criminal behavior in Kenneth Griesemer v. State of Indiana, — N.E.3d, — 2015 WL 970660 (Ind. 2015). Chief Judge Nancy Vaidik dissented, arguing the evidence was sufficient to rebut Griesemer’s entrapment defense.
The Griesemer case was appealed to the Indiana Supreme Court where 3-2 majority affirmed the conviction.
In his appeal, Mobley asserted the state failed to rebut his defense of entrapment. Mobley had slowly driven past the detective, staring at her, and then stopped his car in the middle of East Washington Street. When the detective approached his car, Mobley inquired about the price and after she named a dollar amount for a specific sexual act, he nodded for her to get into the passenger seat.
Instead, the detective told Mobley to pick her up in the nearby alley. There he was arrested and charged.
Referring to Griesemer, the Court of Appeals concluded the state presented sufficient evidence to reasonably determine that the detective’s policing efforts did not produce Mobley’s criminal conduct.
Vaidik wrote the opinion for the court, pointing out Mobley stopped his car and asked how much before the detective mentioned exchanging money for a sexual act.
“Detective (Tabatha) McLemore did not give Mobley an explicit directive or order and did not exert a persuasive or other force over Mobley; rather, she merely afford him an opportunity to commit the offense, which Indiana Code section 35-41-3-9(b) expressly declares ‘does not constitute entrapment’” Vaidik wrote.