A woman who was arrested for prostitution after she agreed to have sex in exchange for money with an undercover detective outside of a strip club was not entrapped by the detective, the Court of Appeals held Wednesday.
Nickole Nichols filed an Indiana Trial Rule 41(B) motion to dismiss the Class A misdemeanor prostitution charge, raising the affirmative defense of entrapment. She argued the state did not present sufficient evidence to rebut the defense and that the undercover detective solicited the criminal activity.
Detective Henry Castor visited the Classy Chassy strip club in Indianapolis as part of an undercover investigation. Nichols approached him and agreed to dance for him in a private room, where he asked if he could get a “hand job” or something “extra.” He also asked if they could have sex, and Nichols said yes. She also agreed to have sex with him outside of the club for $50.
The trial court denied Nichols’ motion, found the evidence established inducement but other evidence sufficiently proved Nichols was predisposed to commit prostitution.
The judges in Nickole Nichols v. State of Indiana, 49A04-1408-CR-386, found that Castor’s conduct here was similar to that of an undercover officer posing as a prostitute in Griesemer v. State, 26 N.E.3d 606, 609 (2015) The Indiana Supreme Court affirmed Griesemer’s conviction of patronizing a prostitute after finding the undercover officer in that case did not induce him to commit the crime.
“Nichols readily responded ‘yeah,’ both when Detective Castor asked if ‘fondl[ing]’ and sex were a possibility. Then, when Detective Castor asked if they could have sex outside of the establishment, Nichols readily proposed a price for that activity. Accordingly, we conclude that Detective Castor merely afforded Nichols ‘an opportunity to commit the offense,’ which does not constitute entrapment,” Judge Rudolph Pyle III wrote.
The state produced sufficient evidence to rebut her entrapment defense, so there was no error in denying her motion. Also, Nichols does not otherwise dispute the sufficiency of the evidence.