Nickole Nichols v. State of Indiana , 2015 Ind. App. LEXIS 420 ( 2015 )

May 27 2015, 9:09 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Gregory F. Zoeller
Marion County Public Defender’s Office Attorney General of Indiana
Indianapolis, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nickole Nichols, May 27, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1408-CR-386
v. Appeal from the Marion Superior
Court
State of Indiana, Lower Court Cause No.
49F08-1304-CM-22256
Appellee-Plaintiff.
The Honorable David M. Hooper,
Magistrate
Pyle, Judge.
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Statement of the Case
[1] Appellant/Defendant, Nickole Nichols (“Nichols”), appeals her conviction,
after a bench trial, for Class A misdemeanor prostitution.1 Nichols was arrested
for prostitution after she agreed to have sex in exchange for money with an
undercover detective outside of a strip club. At trial, she filed an Indiana Trial
Rule 41(B) motion to dismiss the charge after the State presented its case-in-
chief, raising the affirmative defense of entrapment and arguing that the State
had not presented sufficient to rebut the defense. In support of this argument,
she noted that the undercover detective had solicited the criminal activity. The
trial court denied the motion, finding that, while there was evidence that the
detective had induced Nichols’ behavior, there was also evidence that she was
pre-disposed to prostitution and, therefore, the detective did not entrap her. On
appeal, Nichols disputes the trial court’s denial of the motion and argues again
that she was entrapped into committing prostitution. Because we find that the
undercover detective presented Nichols with a mere opportunity to commit
prostitution, but did not otherwise induce the offense, we conclude that there
was no entrapment. In addition, there was sufficient evidence to support
Nichols’ conviction.
We affirm.
1
IND. CODE § 35-45-4-2(1). This statute was amended effective July 1, 2014. It has also been amended
again, and the amendments will go into effect July 1, 2015. However, since Nichols committed her offense
in 2013, we will apply the version of the statute in effect at that time.
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Issue
Whether the trial court erred in denying Nichols’ Trial Rule 41(B)
motion to dismiss.
Facts
[2] Around 10:00 or 11:00 p.m. on April 6, 2013, Detective Henry Castor
(“Detective Castor”), an officer in the Human Trafficking Vice Division of the
Indianapolis Metropolitan Police Department, went to the Classy Chassy2 strip
club in Indianapolis as part of an undercover operation. He was dressed in
plain clothes and was tasked with determining whether any illegal acts, such as
prostitution or drug use, were occurring in the establishment.
[3] After Detective Castor entered the strip club, Nichols approached him, and they
engaged in casual conversation. Detective Castor asked Nichols what private
dances were available in the club, and she told him that there was a room where
a patron could pay $20 per song for “one on one” time with a dancer. (Tr. 18).
The room itself was open, and multiple dancers used the room at once. Nichols
also told Detective Castor that there was a VIP room where a patron could pay
$150 to be alone with a dancer for thirty minutes. Detective Castor asked if he
could get a “hand job” or get anything “extra . . . besides just what would be
considered a dance” if he went into the VIP room. (Tr. 19). Nichols responded
“yes,” and the two went to the VIP room. (Tr. 19).
2
As the State notes, the club’s name is spelled “Class Chassis” throughout the transcript, but it appears that
the name of the club is actually “Classy Chassy.” (App. 14).
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[4] In the VIP room, Nichols began to dance, and Detective Castor asked, “could
there be more like sex[?]” and Nichols said “[y]eah.” (Tr. 19). Detective
Castor asked, “Well[,] what about outside of the establishment?” and Nichols
agreed that she would have sex with Detective Castor outside of the
establishment for an additional $50. (Tr. 19).
[5] Shortly thereafter, Detective Castor left the club. There were several
undercover officers at the club that night, and after Detective Castor left, other
officers entered with a warrant and arrested several people, including Nichols.
[6] On April 6, 2013, the State charged Nichols with Class A misdemeanor
prostitution. The trial court held a bench trial on March 12, 2014. At the
conclusion of the State’s presentation of evidence, Nichols moved for an
involuntary dismissal of the charge under Trial Rule 41(B), arguing that the
statutory defense of entrapment under INDIANA CODE § 35-41-3-9 applied, that
the evidence established inducement, and that the State had failed to show that
Nichols was predisposed to commit prostitution. The trial court continued the
trial, and the parties submitted written motions and memoranda on the Trial
Rule 41(B) motion. On June 5, 2014, the trial court denied the motion. The
trial court found that the evidence established inducement by Detective Castor,
but it determined that other evidence was sufficient to prove that Nichols was
predisposed to commit prostitution.
[7] Subsequently, the trial court concluded the trial on July 25, 2014, and Nichols
rested her case without presenting evidence. The court found Nichols guilty as
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charged and sentenced her to a 365 days of supervised probation. Nichols now
appeals.
Decision
[8] On appeal, Nichols argues that the trial court erred in denying her Trial Rule
41(B) motion to dismiss because the State did not produce sufficient evidence to
rebut her entrapment defense. Therefore, she argues, there was insufficient
evidence to support her conviction. Specifically, she asserts that Detective
Carson induced the offense and that the State did not present any evidence that
she was predisposed to the offense.
[9] Our review of a trial court’s Trial Rule 41(B) decision is well-established:
The grant or denial of a motion to dismiss made under Trial Rule
41(B) is reviewed under the clearly erroneous standard. In
reviewing a motion for involuntary dismissal, this [C]ourt will
not reweigh the evidence or judge the credibility of the witnesses.
We will reverse the trial court only if the evidence is not
conflicting and points unerringly to a conclusion different from
the one reached by the lower court.
Todd v. State, 900 N.E.2d 776, 778 (Ind. Ct. App. 2009) (internal citations
omitted). In a criminal action, “‘[t]he defendant’s [Trial Rule 41(B)] motion is
essentially a test of the sufficiency of the State’s evidence.’” Id. (quoting
Workman v. State, 716 N.E.2d 445, 448 (Ind. 1999)). Notably, our review of the
denial of a motion for involuntary dismissal is limited to the State’s evidence
presented during its case-in-chief. Id.Court of Appeals of Indiana | Opinion 49A04-1408-CR-386 | May 27, 2015 Page 5 of 9
[10] In order to prove that Nichols committed Class A misdemeanor prostitution,
the State was required to prove that she “knowingly or intentionally: (1)
perform[ed], or offer[ed,] or agree[d] to perform, sexual intercourse or other
sexual conduct (as defined in [INDIANA CODE §] 35-31.5-2-221.5); . . . for
money or other property[.]” I.C. § 35-45-4-2.
[11] Nichols acknowledges that the State established the elements of Class A
misdemeanor prostitution, but she argues that it did not rebut her defense of
entrapment. Entrapment is an affirmative defense that admits the facts of the
crime but claims that the act was justified. See Hoskins v. State, 563 N.E.2d 571,
576 (Ind. 1990). INDIANA CODE § 35-41-3-9 defines entrapment as:
[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.
“Conduct merely affording a person an opportunity to commit the offense does
not constitution entrapment.” I.C. § 35-41-3-9. Once a defendant indicates that
she intends to rely on the defense of entrapment and establishes police
inducement, the burden shifts to the State to rebut the inducement element,
Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 2015), or demonstrate the
defendant’s predisposition to commit the crime. Ferge v. State, 764 N.E.2d 268,
271 (Ind. Ct. App. 2002).
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[12] To rebut the first element of the entrapment defense, inducement, the State
must prove police efforts did not produce the defendant’s prohibited conduct
because those efforts lacked a “‘persuasive or other force.’” Griesemer, 26
N.E.3d at 609 (quoting Williams v. State, 412 N.E.2d 1211, 1215 (1980)). Our
Indiana Supreme Court recently addressed the issue of inducement in Griesemer.
There, the defendant, Griesemer, drove past an undercover police officer who
was posing as a prostitute on a corner in Indianapolis. Id. at 607. Griesemer
“looped around the block and returned a few minutes later, stopping near her
just before a stop sign,” and asked her if she needed a ride. Id. The police
officer declined, saying that she “was trying to make some money.” Id.
Griesemer nodded his head towards his passenger seat, and the police officer
asked him how much money he had. Id. He nodded a second time, so the
police officer asked him about money again, and he told her that he had twenty
dollars. Id. The officer said that she could “do head” for that amount, and
Griesemer nodded towards his seat a third time. Id. The police officer told him
to meet her down the street, where he was arrested and charged with
patronizing a prostitute. Id.
[13] The trial court found Griesemer guilty as charged, and he appealed, arguing
that he had raised the entrapment defense by showing police inducement. Id. at
608. Specifically, he argued that the police officer induced the conduct because
she had been the one to first mention money, sex, and the possibility of trading
one for the other. Id. Our supreme court found that, even though the officer
had first mentioned the activity, “the policing efforts did not produce
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Griesemer’s criminal conduct.” Id. at 610. The Court reasoned that the officer
did not give an “explicit directive or order” and “did not exert a persuasive or
other force over Griesemer.” Id. (citing Albaugh v. State, 721 N.E.2d 1233, 1237
(Ind. 1999)). She merely afforded him “‘an opportunity to commit the
offense,’” which, as the Court noted, the statute expressly declares does not
constitute entrapment. Id. (quoting I.C. § 35-41-3-9(b)).
[14] The Court further compared the facts of Griesemer to Albaugh, where it found
that there was entrapment. There, Albaugh’s truck broke down a quarter mile
from his house, and he and his girlfriend went home and started drinking
whiskey. Albaugh, 721 N.E.2d at 1233. A few hours later, two deputies came
to Albaugh’s house and ordered him to remove his car from the road before it
became a hazard. Id. at 1234. Although Albaugh said he would move it in the
morning, one of the deputies said “you’ve got to move it and you’ve got to
move it now.” Id. at 1237. Then, when Albaugh went to move the car, the
deputies arrested him for driving while intoxicated. Id. The Court found on
appeal that the deputies had entrapped Albaugh because their conduct
constituted persuasion, “if not explicit direction or order.” Id.
[15] Detective Castor’s conduct here was more closely equivalent to the undercover
officer’s conduct in Griesemer. As in Griesemer, he was the first to mention
sexual conduct. In addition, as the trial court noted, he was already in the
process of exchanging money with Nichols for a legitimate business purpose
when he mentioned the sexual conduct. However, as in Griesemer, we do not
find that his policing efforts produced Nichols’ criminal conduct. Detective
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Castor merely asked Nichols questions and “did not exert a persuasive or other
force” over her. Griesemer, 26 N.E.3d at 610. Nichols readily responded
“yeah,” both when Detective Castor asked if “fondl[ing]” and sex were a
possibility. (Tr. 19). 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. Id.
(quoting I.C. § 35-41-3-9(b)).
[16] Because we determine that Detective Castor did not induce Nichols’ conduct,
we need not address her arguments regarding her predisposition. Id. (citing
McGowan v. State, 674 N.E.2d 174, 175 (Ind. 1996) (holding that because
entrapment is established by the existence of two elements, it is defeated by the
nonexistence of one)). The State produced sufficient evidence to rebut Nichols’
entrapment defense and, thus, we conclude that the trial court did not err in
denying Nichols’ Trial Rule 41(B) motion to dismiss. Also, as Nichols does not
otherwise dispute the sufficiency of the evidence, we affirm her conviction.
Affirmed.
Crone, J., and Brown, J., concur.
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