State v. Smith ( 2024 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 13IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
SHANE CRAIG SMITH,
Petitioner.
No. 20220768
Heard September 6, 2023
Filed May 2, 2024
On Certiorari to the Utah Court of Appeals
Fourth District, Provo
The Honorable James M. Brady
No. 191403507
Attorneys:
Jennifer L. Foresta, Douglas J. Thompson, Provo, for petitioner
Sean D. Reyes, Att’y Gen., David A. Simpson, Asst. Solic. Gen.,
Salt Lake City, Ryan McBride, Provo, for respondent
CHIEF JUSTICE DURRANT authored the opinion of the Court in
which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,
JUSTICE POHLMAN, and JUDGE MOW joined.
Having recused herself, JUSTICE HAGEN does not participate
herein; DISTRICT COURT JUDGE ADAM T. MOW sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
STATE v. SMITH
Opinion of the Court
INTRODUCTION
¶1 Shane Craig Smith met “Emily,” 1 a thirteen-year-old girl,
on the internet. After an eventful three hours of online
conversation, Smith drove to a gas station in Lehi to meet Emily,
with the stated plan of having her perform multiple sex acts in
exchange for Smith driving her to California. Fortunately, Emily
was not an actual teenager, and instead was a persona used as bait
in a police sting operation.
¶2 Smith was arrested at the gas station and charged with
various crimes, including attempted child kidnapping, attempted
rape of a child, and attempted sodomy of a child. He eventually
pled guilty to most of these charges while reserving the right to
appeal two issues: whether there was sufficient evidence to bind
him over for trial on the attempt charges, and whether he was
entrapped as a matter of law. The court of appeals affirmed his
convictions, and we now do the same.
BACKGROUND 2
¶3 In November 2019, Utah County Sheriff’s Detective Bagley
accessed Whisper, a mobile app, as part of a child sex trafficking
operation. Whisper is a text-based dating app where anonymous
users can create private chat rooms. To create a Whisper profile,
users must affirm that they are at least eighteen years old. Det.
Bagley created a fake profile, Emily, using an image of a woman
who was over the age of eighteen. He then went to an adult-themed
forum and created a post implying that Emily was looking to meet
up with someone for a sexual encounter.
¶4 Smith was one of many individuals who responded to this
post by initiating a private chat conversation with Emily. Shortly
into their conversation, Emily disclosed that she was thirteen years
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1 As explained below, infra ¶ 3, the girl that Smith believed he
was talking to was actually a fictitious persona created as part of a
sex trafficking sting operation. This persona was never given a
name, but we refer to her as “Emily” for simplicity.
2 “To determine whether a defendant should be bound over for
a trial, a magistrate must view all evidence in the light most
favorable to the prosecution and draw all reasonable inferences in
favor of the prosecution. We recite the facts consistent with that
standard.” State v. Schmidt, 2015 UT 65, ¶ 4, 356 P.3d 1204 (cleaned
up).
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old, had “r[u]n away from home,” and wanted to “go to
Cali[fornia].” She asked Smith if he would “give [her] $200 for food
and cash” so she could “pay someone for a ride.” In exchange, she
promised she would “do whatever [he] want[ed].” Smith, who had
opened the conversation by sending Emily photos of his penis,
responded with hesitation. Not hesitation about whether it was
appropriate for him to continue a sexually charged conversation
with someone he now knew to be a child, but instead hesitation
about whether Emily was “a cop.”
¶5 Smith tried to resolve this concern by asking Emily to send
him nude photos. When Emily refused, he insisted that she send
clothed photos of her in specified poses to prove that she was “a
real person” and “[n]ot a cop.” Emily responded by sending photos
of a twenty-three-year-old woman in the specified poses.
¶6 Apparently satisfied, Smith arranged to meet Emily at a
gas station in Lehi and discussed what sex acts she would perform
in return for him driving her to California. After Emily asked if he
wanted oral or vaginal sex, Smith said the choice was “up to [her].”
Emily responded that she would do both, and Smith seemed to
accept that offer. He later specified that he wanted Emily to begin
performing oral sex as soon as the two started driving together, and
that they would additionally “need to have some fun” before they
arrived in California. Once Emily indicated that she was ready to
be picked up, barely three hours after their conversation began,
Smith drove to the agreed-upon gas station. He texted Emily that
he had arrived, flashed his headlights to help her identify his car,
and told her to come over and get in.
¶7 Smith was then arrested in the parking lot. After waiving
his Miranda rights, he told the arresting officers that he had come
to the gas station to meet a thirteen-year-old girl, and that he had
wanted to have both oral and vaginal sex with her. Smith was
charged with several felonies, including attempted child
kidnapping, attempted rape of a child, and attempted sodomy of a
child.
¶8 After a preliminary hearing, Smith moved the district
court to decline to bind over the counts of attempted rape of a child,
attempted sodomy of a child, and attempted kidnapping of a child.
Smith argued that the State’s evidence regarding the attempt
crimes—evidence about his intent to have sexual contact with a
child and arrival at the agreed-upon location to meet that child—
did not show that his actions rose beyond solicitation or mere
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STATE v. SMITH
Opinion of the Court
preparation and was therefore insufficient to support probable
cause on the “substantial step” element of the attempt statute.
Acting as a magistrate, the district court denied the motion and
bound over all counts for trial.
¶9 Smith then filed a motion to dismiss all charges on
entrapment grounds. The State opposed the motion. After an
evidentiary hearing, the district court denied Smith’s motion,
concluding that Smith had not shown that he was entrapped as a
matter of law. Smith eventually entered a conditional guilty plea to
attempted child kidnapping, attempted sodomy of a child, and
enticement of a minor. 3 This conditional plea allowed Smith to
appeal the district court’s bindover ruling and entrapment
determination.
¶10 Smith timely appealed to the Utah Court of Appeals,
where he raised two issues: (1) “whether there was insufficient
evidence to bind over the attempt charges” for trial; and
(2) “whether the district court erred by denying his motion to
dismiss all the charges on the basis that he had been entrapped.” 4
The court of appeals affirmed the district court’s rulings. 5 Smith
petitioned for certiorari. We have jurisdiction under Utah Code
subsection 78A-3-102(3)(a).
STANDARDS OF REVIEW
¶11 On certiorari, we review the court of appeals’ decision for
correctness and give no deference to its conclusions of law. 6
¶12 A bindover determination is a mixed question of law and
fact which receives “some deference . . . commensurate with the
limited discretion under which a magistrate operates at a
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3 Utah’s sexual violence statutes use the words “minor” and
“child” inconsistently. “Minor” sometimes refers to any person less
than eighteen years old, see UTAH CODE § 76-4-401(1)(a)(i)
(enticement of a minor statute), but in other contexts refers to an
individual who is between fourteen and sixteen years old, see id.
§ 76-5-401(1)(a) (unlawful sexual activity with a minor statute),
with the word “child” used for individuals who are under fourteen
years old, see id. § 76-5-402.1(2)(a) (rape of a child statute).
4 State v. Smith, 2022 UT App 82, ¶ 1, 514 P.3d 620.
5 Id. ¶ 32.
6 State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.
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preliminary hearing.” 7 A district court’s legal conclusions
regarding entrapment are reviewed for correctness, and its factual
findings are reviewed for clear error. 8
ANALYSIS
¶13 Smith raises two claims of error. First, he argues that the
district court erred by binding him over for trial, and that the court
of appeals erred in affirming that bindover. Second, he argues that
the district court erred in denying his motion to dismiss due to
entrapment, and that the court of appeals erred in affirming that
denial. But Smith fails to show that either the bindover decision,
the denial of his motion, or the court of appeals’ review of those
rulings is in error. Accordingly, we affirm.
I. SMITH’S ACTIONS CONSTITUTE SUBSTANTIAL STEPS
¶14 In his first claim, Smith targets the district court’s decision
to bind him over for trial on all charges. The decision to bind a
criminal defendant over for trial is made by a magistrate judge at
the conclusion of a preliminary hearing. 9 At a preliminary hearing,
the State must present “evidence sufficient to support a reasonable
belief that an offense has been committed and that the defendant
committed it.”10 On appeal, Smith challenges the decision to bind
him over on three charges: attempted rape of a child, attempted
sodomy of a child, and attempted kidnapping of a child.
¶15 The elements of attempt are provided by statute. “[A]
person is guilty of an attempt to commit a crime” if they
(1) “engage[] in conduct constituting a substantial step toward
commission” of that crime, and (2) “intend[] to commit the
crime.” 11 Smith does not dispute that there was sufficient evidence
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7 State v. Schmidt, 2015 UT 65, ¶ 13, 356 P.3d 1204 (cleaned up).
8 State v. Hernandez, 2020 UT App 58, ¶ 4, 462 P.3d 1283 (citing
State v. Torres, 2000 UT 100, ¶¶ 8–14, 16 P.3d 1242; State v. Curtis,
542 P.2d 744, 746–47 (Utah 1975)).
9 See UTAH R. CRIM. P. 7B(b); State v. Ramirez, 2012 UT 59, ¶ 8, 289
P.3d 444.
10 State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d 1204 (cleaned up).
11 UTAH CODE § 76-4-101(1). Intent to commit the underlying
crime is not required if, “when causing a particular result is an
element of the crime, [the defendant] acts with an awareness that
(continued . . .)
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Opinion of the Court
for the district court to find that he had the intent to commit the
crimes that underlie his attempt charges. He instead argues that
binding him over on the attempt charges was inappropriate
because his conduct was legally insufficient to constitute a
substantial step toward committing any of the underlying offenses.
¶16 The attempt statute defines a substantial step. “[C]onduct
constitutes a substantial step if it strongly corroborates the actor’s
[intent].” 12 Smith’s claim that he did not commit substantial steps
toward the crimes for which he was bound over relies on two of
our cases that interpret this language: State v. Arave 13 and State v.
Johnson. 14
¶17 We begin with Arave. The defendant in that case, Arave,
used his bicycle to block the path of a young boy who was riding a
skateboard down a residential street.15 Arave then offered the boy
“$20 to allow [Arave] to perform oral sex” on him. 16 When the boy
didn’t respond, Arave “apologized” and the boy left.17 Arave was
subsequently convicted of attempted sodomy of a child. 18
¶18 We reversed Arave’s conviction on the ground that he
hadn’t taken a substantial step toward committing the underlying
crime. 19 But the concern that led us to that conclusion dealt
specifically with the distinction between two different crimes:
solicitation and attempt. 20 Solicitation occurs when a person “with
intent that a felony be committed,” solicits “another person to
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his conduct is reasonably certain to cause that result.” Id. § 76-4-
101(1)(b)(ii). This alternative element is not at issue here.
12 Id. § 76-4-101(2).
13 2011 UT 84, 268 P.3d 163, rev’g 2009 UT App 278, 220 P.3d 182.
14 821 P.2d 1150 (Utah 1991).
15 Arave, 2011 UT 84, ¶ 4.
16 Id.17 Id.18 Id. ¶ 8; UTAH CODE § 76-5-403.1(2)(a) (Defining sodomy upon
a child as including an actor that “engages in any sexual act” with
an individual “younger than 14 years old,” that involves “the
genitals . . . [of] the individual and the mouth . . . [of] the actor”).
19 Id. ¶ 35.
20 See id. ¶¶ 27–35.
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engage in specific conduct that under the circumstances as the actor
believes them to be would be a felony.” 21
¶19 In the context of that case, solicitation likely occurred
when Arave confronted his target and asked if the boy would
engage in felonious sex acts with him. 22 The legal problem was that
the lower court had categorized those same acts—confrontation
and request—as constituting a substantial step toward attempted
sodomy of a child. 23 We held that this categorization was
impermissible, as “[s]olicitation alone cannot constitute a
substantial step toward the commission of a crime.” 24 If that
conflation were allowed, then the crime of attempt “would swallow
the crime of solicitation.” 25
¶20 Smith argues that, like Arave, he did nothing more than
solicit someone he believed to be a child to engage in sexual acts.
The facts show that isn’t the case. Smith likely did commit
solicitation during his Whisper conversation with Emily; he asked
her to engage in sex acts that would result in the commission of a
felony and did so with the intent to carry out those acts. But this
hypothetical solicitation offense was completed while Smith was
still at his keyboard. His subsequent actions―driving to the
meeting place, texting Emily his location, telling her to get into his
car, and flashing his lights as an identifying signal―were beyond
the scope of that offense. Allowing those additional acts to
constitute a substantial step does not imperil the distinction
between solicitation and attempt. As a result, the concern we had
in Arave is absent here.
¶21 Smith’s second argument is that the facts of his case are
analogous to the facts of Johnson. 26 The defendant, Johnson, was
convicted of attempted murder after she purchased counterfeit
methamphetamine from an undercover police officer with the
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21 UTAH CODE § 76-4-203(1) (2011).
22 Arave, 2011 UT 84, ¶¶ 32–35.
23 Id. ¶ 31.
24 Id. ¶ 27.
25 Id. ¶ 28.
26 821 P.2d 1150 (Utah 1991).
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Opinion of the Court
stated intent of using the drugs to poison her husband. 27 On appeal,
the case focused on whether there was sufficient evidence to show
that Johnson’s purchase of methamphetamine strongly
corroborated her intent to use that substance to murder her
husband. 28 Our decision that the evidence was insufficient to draw
that conclusion beyond a reasonable doubt rested on three main
points.
¶22 First, the drugs that Johnson purchased were
multipurpose; methamphetamine can be used both as a poison or
recreationally.29 Second, the drugs weren’t found in Johnson’s
possession when she was arrested shortly after purchasing them.30
And third, the record was otherwise silent as to what Johnson did
with the package of drugs she purchased. There was “no showing
that she attempted to administer the [counterfeit
methamphetamine],” and indeed, “no evidence as to what she did
or attempted to do with it.”31 Based on those facts, we held that
there was insufficient evidence to find that Johnson took a
substantial step toward committing murder. 32 Instead, Johnson’s
acts were best characterized as “mere preparation.” 33
¶23 Unfortunately, the portions of Johnson that arrive at this
conclusion do not specifically explain why “mere preparation”
cannot constitute a substantial step. 34 Smith attempts to fill in the
gap, arguing that Johnson’s acts were merely preparation because,
when Johnson was arrested, she was many steps removed from
actually committing the crime of murder. And because “[t]here
were many further steps that would need to be taken” before Smith
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27 Id. at 1154–56 & n.2. Johnson was charged with three counts
of attempted murder based on her attempts to fatally poison her
husband with three separate substances. Id. Our discussion of the
case here focuses only on the second count.
28 Id. at 1157.
29 See id. (noting that Johnson “may have used [the counterfeit
methamphetamine] herself”).
30 Id.
31 Id.
32 Id.
33 Id.
34 See id.
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could have actually committed the crimes he was charged with
attempting, his “conduct also did not rise beyond preparation.”
¶24 We decline to adopt this interpretation of Johnson for two
reasons. The first reason is rooted in our endorsement of textualist
statutory interpretation—an endorsement that was firmly in place
when Johnson was decided. 35 That history leads us to assume that,
even if we didn’t explain our reasoning in Johnson, we were
applying the attempt statute without any added gloss. And both
then and now, the definition of substantial step provided by the
attempt statute speaks for itself. The statute states that “conduct
constitutes a substantial step if it strongly corroborates the actor’s”
intent to commit the underlying crime. 36 So if, in a particular case,
preparatory actions are deemed not to constitute a substantial step,
it is because the conduct in question did not strongly corroborate
the actor’s intent to commit the underlying crime under the
circumstances, not because there is a categorical rule that
preparation is insufficient as a matter of law.
¶25 The second reason is that the logic of Johnson is in line with
a textualist interpretation of the attempt statute. As mentioned, one
of the key facts we relied upon in that case was that the drugs
Johnson purchased could have been used for multiple purposes.
This, combined with the fact that the drugs weren’t found on
Johnson when she was arrested, made it plausible that she “may
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35 See, e.g., Savage Indus., Inc. v. Utah State Tax Comm’n, 811 P.2d
664, 670 (Utah 1991) (“The terms of a statute should be interpreted
in accord with usually accepted meanings.”), abrogated on other
grounds by Morton Int’l, Inc. v. Auditing Div. of Utah State Tax
Comm’n, 814 P.2d 581 (Utah 1991); Utah County v. Orem City, 699
P.2d 707, 708 (Utah 1985) (“It is a well-established rule of statutory
construction that the terms of a statute should be interpreted in
accord with usually accepted meanings.”).
36 UTAH CODE § 76-4-101(2). The attempt statute interpreted in
Johnson is functionally the same as the present version, which is the
version that applies to Smith’s acts. Compare id. § 76-4-101(2) (1990)
(“For purposes of this part, conduct does not constitute a
substantial step unless it is strongly corroborative of the actor’s
intent to commit the offense.”), with id. § 76-4-101(2) (2024) (“For
purposes of this part, conduct constitutes a substantial step if it
strongly corroborates the actor’s [intent to commit the offense].”).
For simplicity, we cite the present version.
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STATE v. SMITH
Opinion of the Court
have used [them] herself.” 37 In other words, Johnson could have
purchased the drugs either with the intent to use them
recreationally or with the intent to use them to commit murder.
And as a result, the “mere purchase of the [drugs]” did not strongly
corroborate a homicidal intent. 38
¶26 Accordingly, we reject Smith’s argument that, so long as
there are certain steps remaining before the underlying crime is
completed, an act is mere preparation under Johnson. 39 But we
agree that an act’s causal proximity to the completed offense can be
relevant to the question of whether that act strongly corroborates
the actor’s intent. And we keep that in mind as we turn to fully
examine whether Smith took substantial steps toward committing
the crimes for which he was bound over.
¶27 We begin, as did the court of appeals, by reciting the
sequence of events that led Smith to the parking lot where he was
arrested. After a conversation in which he solicited “both oral sex
and sexual intercourse” in exchange for a promise to drive Emily
to California,
Smith arranged to meet [Emily] at a convenience
store and then traveled to the meeting place in his
vehicle. Once there, he parked in a position that
would allow him to be seen from the front of the
store. He then reestablished contact with [Emily], told
her where he was parked, asked her to stand in a
particular spot and to look for blinking headlights so
that she could identify his vehicle, and then actually
blinked his headlights as a signal and directed
[Emily] to walk toward the headlights and get in the
vehicle. 40
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37 Johnson, 821 P.2d at 1157.
38 Id.39 Another reason to disfavor Smith’s theory is that, by
attempting to count the number of steps remaining in a crime, it
invites sophistry. Clever defense counsel might have argued that
Johnson still had dozens of steps remaining in the crime of murder,
as she would have needed to drive home, get out of the car, walk
to the front door of her house, and so on.
40 State v. Smith, 2022 UT App 82, ¶ 17, 514 P.3d 620.
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¶28 The first crime we analyze is attempted child kidnapping.
“An actor commits child kidnapping if the actor intentionally or
knowingly, without authority of law, and by any means and in any
manner, seizes, confines, detains, or transports a child without the
consent of the child’s parent or guardian . . . .” 41 Smith does not
challenge the determination that he intended to kidnap Emily, and
there is no issue of parental consent. So the relevant question is
whether Smith’s actions strongly corroborate his intent to seize,
confine, detain, or transport Emily.
¶29 That question isn’t hard to answer. There are certainly
many reasons why someone would drive to a convenience store,
the vast majority of which are perfectly innocent. But Smith drove
to the arranged store, at the arranged time, and gave the arranged
signal. There is no plausible reason why he would do so other than
to carry out the arranged plan. That is sufficient for us to say that
these actions strongly corroborate his intent to commit child
kidnapping. Thus, the court of appeals did not err in concluding
that Smith took a substantial step toward committing that crime.
Considering the number of steps that Smith had left to take―one or
two at most―doesn’t change that outcome.
¶30 The same logic governs our analysis of the crime of
attempted sodomy upon a child. Sodomy upon a child is
committed when an actor “engages in any sexual act upon or with
[a child] . . . [that] involves the genitals . . . of the actor . . . and the
mouth” of the child. 42 Smith’s Whisper messages make it clear that
he agreed to give Emily a ride to California only because she
promised to perform sex acts, oral sex among them. Those same
messages indicated that he planned to have Emily start performing
oral sex upon him as soon as they had “start[ed] driving.” In that
context, Smith’s actions strongly corroborate his intent to commit
sodomy of a child. Accordingly, the court of appeals did not err in
concluding that Smith took a substantial step toward committing
that crime. While there were more acts remaining to complete this
crime than there were for child kidnapping, Smith’s actions again
leave little room for ambiguity.
¶31 The attempted rape of a child charge is the closest issue.
To commit the crime of rape of a child, Smith would have had to
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41 UTAH CODE § 76-5-301.1(2).
42 Id. § 76-5-403.1(2)(a).
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Opinion of the Court
have “sexual intercourse” with Emily. 43 As above, Smith’s
statements evince a clear desire to engage in intercourse, and his
arrival at the convenience store was a necessary first step in that
process. But unlike the prior two offenses, there were potentially
more steps that Smith would have had to take before intercourse
occurred. And this does introduce some ambiguity into the
analysis; for example, it is possible that Smith would have been
satisfied with just receiving oral sex and would not have requested
vaginal intercourse as further payment.
¶32 Even so, we agree with the district court and court of
appeals: Smith’s actions strongly corroborate his intent to commit
rape of a child. We come to that conclusion in large part because of
the legal posture in which this issue arrives. The decision that Smith
challenges is bindover, and we have repeatedly described the
State’s burden of proof for such decisions as a “low bar.” 44 While
the number of steps remaining may introduce doubts about Smith’s
intent, weighing such doubts is inappropriate because, at a
preliminary hearing, all evidence and testimony must be viewed in
the light most favorable to the State, and all reasonable inferences
are drawn in favor of the State.45 And Smith’s conversation with
Emily demonstrates an intent to engage in both oral and vaginal
sex. When these factors are taken into account, we agree with the
lower courts that, for the purpose of determining bindover, Smith
took a substantial step toward committing rape of a child.
¶33 In Smith’s last argument against the district court’s
bindover decision, he contends that our prior cases on attempt
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43 Id. § 76-5-402.1(2)(a). As the court of appeals noted in In re
C.N., 2023 UT App 41, 529 P.3d 1030, the rape of a child statute does
not provide a definition of “sexual intercourse.” Id. ¶ 24.
Throughout this case, the parties have used the phrase in relation
to the act of vaginal intercourse. Given that tacit agreement, we
assume without deciding that the “sexual intercourse” required by
the statute must be vaginal intercourse.
44 State v. Lopez, 2020 UT 61, ¶ 48, 474 P.3d 949; accord State v.
Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (“Although the guarantee of
a preliminary hearing is fundamental, the evidentiary threshold at
such [a] hearing is relatively low.”); State v. Jones, 2016 UT 4, ¶ 12,
365 P.3d 1212 (describing the State’s burden at a preliminary
hearing as “light”).
45 See State v. Schmidt, 2015 UT 65, ¶ 4, 365 P.3d 1204.
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impose a requirement that is not present in the text of the attempt
statute. Specifically, Smith argues that these cases require that, for
conduct to constitute a substantial step, it must be completed in
physical proximity to the victim or target location. This misreads
our precedent on this issue. Smith is correct that many of our
attempt cases involve a defendant who completed their substantial
step in physical proximity to the place where the crime was to
occur. 46 But the attempt statute doesn’t mention physical
proximity.47 And applying that gloss to the statute would
complicate prosecutions for attempt crimes where target location is
an ambiguous concept, such as attempted tax evasion. 48 We are
thus not persuaded that this factual commonality between our
prior cases can or should be construed as an implicit recognition of
a necessary condition. 49
II. SMITH WAS NOT ENTRAPPED
¶34 Utah Code section 76-2-303 provides that entrapment
“occurs when a peace officer . . . induces the commission of an
offense in order to obtain evidence of the commission for
prosecution by methods creating a substantial risk that the offense
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46 See, e.g., Tillman v. Cook, 855 P.2d 211, 220 (Utah 1993) (setting
mattress on fire “constituted a substantial step in the commission
of aggravated arson”); State v. Hickman, 779 P.2d 670, 672 (Utah
1989) (entry into home with sawed-off shotguns constituted a
substantial step toward the commission of robbery); State v. Cantu,
750 P.2d 591, 593–94 (Utah 1988) (threatening victim with knife and
club and demanding to know where valuables were located
constituted a substantial step toward the commission of robbery).
47 UTAH CODE § 76-4-101(2) (“For purposes of this part, conduct
constitutes a substantial step if it strongly corroborates the actor’s
mental state . . . .”).
48Cf. State v. Steed, 2014 UT 16, ¶ 25, 325 P.3d 87 (listing
examples of “what might constitute willful attempt to evade”
paying taxes).
49 It is not even a commonality shared by all our prior opinions
on attempt. In State v. Pearson, for example, we upheld an
attempted burglary conviction in a case where the defendant was
arrested shortly after he began driving to the home that he intended
to burgle. 680 P.2d 406, 407–08 (Utah 1984).
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STATE v. SMITH
Opinion of the Court
would be committed by one not otherwise ready to commit it.” 50 It
further states that government conduct that “merely afford[s] a
person an opportunity to commit an offense does not constitute
entrapment.” 51
¶35 The same section also establishes the procedure that
applies to entrapment claims. A defendant may assert such a claim
“by filing a written motion before trial” that identifies “the
evidentiary foundation for the claim.” 52 The district court then
must “hear evidence on the issue” and “determine as a matter of
fact and law whether the defendant was entrapped to commit the
offense.” 53 The bar for such a motion is high; a court will hold that
entrapment occurred as a matter of law only when “reasonable
minds acting fairly on the evidence should necessarily have a
reasonable doubt as to the defendant’s guilt.” 54 If the defendant
succeeds in showing entrapment as a matter of law, the district
court “shall dismiss the case with prejudice.” 55 A defendant who
does not make that showing may present the issue “to the jury at
trial.” 56 Because Smith appeals the district court’s denial of his
motion asserting that he was entrapped as a matter of law, we will
reverse the court of appeals’ affirmance of that decision only if we
determine that reasonable jurors would necessarily agree that
entrapment occurred. 57
¶36 Our precedent provides guidance on how to interpret and
apply the statutory definition of entrapment in this case. For
example, in State v. Taylor, we established that the statute’s test is
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50 UTAH CODE § 76-2-303(1).
51 Id.
52 State v. Dickerson, 2022 UT App 56, ¶ 20, 511 P.3d 1191 (citing
UTAH CODE § 76-2-303(4)).
53 UTAH CODE § 76-2-303(4).
54 State v. Kourbelas, 621 P.2d 1238, 1240 (Utah 1980).
55 UTAH CODE § 76-2-303(5).
56 Id.
57 See State v. Beddoes, 890 P.2d 1, 3 (Utah Ct. App. 1995) (“We
will therefore uphold the fact-finder’s determination unless we can
hold, based on the given facts, that reasonable minds cannot differ
as to whether entrapment occurred. Only then can we hold that
entrapment occurred as a matter of law.”).
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objective. 58 The statutory language focuses on the conduct of the
government agent, and whether that conduct included “persuasion
or inducement which would be effective to persuade an average
person” to commit the crime in question. 59 The subjective
characteristics of the defendant, such as whether the defendant was
predisposed to commit the crime in question, are not considered.
¶37 Taylor also established that, though the statutory test
mainly examines the conduct of law enforcement, the defendant’s
responses to that conduct can be relevant to that inquiry. 60 “[T]he
transactions leading up to the offense, the interaction between the
agent and the defendant, and the response to the inducements of
the agent, are all to be considered in judging what the effect of the
governmental agent’s conduct would be on a normal person.”61
Subsequent cases applying this test have been careful to maintain
the distinction between examining the defendant’s responses to
government inducement, which the entrapment statute allows, and
examining the defendant’s predisposition to commit a crime, which
the entrapment statute forbids. 62
¶38 Finally, we have recognized that entrapment cases tend to
fall into two nonexclusive categories. 63 The first category “involves
__________________________________________________________
58 599 P.2d 496, 502–03 (Utah 1979) (comparing the objective and
subjective theories of entrapment and noting that the entrapment
statute demonstrates “legislative intent to adopt the objective
theory of entrapment” and to “specifically reject” the “subjective
test”).
59 Id. at 503.
60 Id.
61 Id.
62 See UTAH CODE § 76-2-303(6) (“In any hearing before a judge
or jury where the defense of entrapment is an issue, past offenses
of the defendant shall not be admitted . . . .”); Taylor, 599 P.2d at 503
(discussing and rejecting the use of a defendant’s predisposition to
commit a crime under the objective standard for entrapment).
63 See State v. Torres, 2000 UT 100, ¶ 9, 16 P.3d 1242. Smith argues
that the court of appeals erred by holding that entrapment could
occur only within these enumerated categories. We do not read its
opinion as imposing such a restriction. But we agree that
entrapment could occur in a situation outside of the categories
mentioned above.
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STATE v. SMITH
Opinion of the Court
improper police conduct in which the government agent applied
persistent pressure or persistently pursued the defendant to
commit the crime.” 64 We found entrapment along these lines in
State v. Sprague 65 and State v. Kourbelas. 66 In both cases, an
undercover police officer approached an unknown individual and
asked for help in acquiring marijuana. 67 In both cases, the
defendant gave a noncommittal response, leading the officers to
repeatedly contact the defendant over a period of several weeks. 68
During each subsequent contact the officer was the one who raised
the topic of selling drugs, and the defendant ultimately did so only
at the officer’s prompting. 69
¶39 The second category involves “appeals based primarily on
sympathy, pity, or close personal friendships, or offers of
inordinate sums of money.” 70 Taylor provides a good example of
the type of police conduct that falls into this category. The
government agent in that case was an informant who had
previously been in a romantic relationship with the defendant,
Taylor.71 The informant contacted Taylor, claimed to be going
through painful withdrawals from heroin addiction, and pleaded
for his help in finding drugs that would help alleviate her
suffering. 72 Taylor, himself a former heroin addict who “had
personally experienced the agonies of withdrawal, and could
empathize with this girl he loved,” eventually purchased heroin on
the informant’s behalf. 73
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64 Dickerson, 2022 UT App 56, ¶ 37 (cleaned up).
65 680 P.2d 404 (Utah 1984).
66 621 P.2d 1238 (Utah 1980).
67 Sprague, 680 P.2d at 405; Kourbelas, 621 P.2d at 1238–39.
68 Sprague, 680 P.2d at 405; Kourbelas, 621 P.2d at 1239.
69 Sprague, 680 P.2d at 405–06; Kourbelas, 621 P.2d at 1239.
70 Torres, 2000 UT 100, ¶ 9 (cleaned up).
71 Taylor, 599 P.2d at 503.
72 Id.73 Id. at 503–04.
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¶40 Smith argues his case falls into both categories. Upon
reviewing the facts, however, we agree with the court of appeals
that this “case does not fall into either.” 74
¶41 Unlike the government agents in Kourbelas, the police in
this case did not persistently solicit Smith over a period of weeks;
the entire conversation between Smith and Emily lasted less than
four hours. Unlike the agents in Sprague, the police here did not
bring up illegal activity even after Smith rejected their advances;
the record of messages shows that Smith ignored multiple
opportunities to exit or de-escalate the conversation, and
repeatedly suggested illegal acts that he wanted to perform.75
Smith correctly points out that Emily was an active participant in
the conversation and was, in some cases, the first to bring up illegal
activities. But those facts alone are insufficient to demonstrate
entrapment as a matter of law. 76 And Smith otherwise fails to show
that Emily’s willingness to engage in sex acts constituted the sort of
persistent pressure that our caselaw prohibits.
¶42 Law enforcement in this case also did not appeal to Smith’s
sympathy or pity, nor attempt to leverage a close personal
relationship. The last of these would indeed have been impossible
because Smith and Emily did not know each other before their
Whisper conversation began earlier that evening. It is true that
Emily was, in some ways, a sympathetic figure. She claimed to be
in the precarious situation of a runaway child. But unlike the
informant in Taylor, Emily did not ask Smith to commit a crime out
of sympathy or pity. Emily asked first and foremost for legal, non-
sexual assistance in the form of money that would help her “pay
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74 State v. Smith, 2022 UT App 82, ¶ 23, 514 P.3d 620.
75 For example, after Emily first told Smith that she was thirteen,
Smith demanded that Emily send him nude photographs “so [he
could] know [she was] legit.”
76 See Torres, 2000 UT 100, ¶¶ 3–4, 13–14 (rejecting entrapment
claim where a police informant proposed purchasing drugs from
the defendant because the defendant ignored “several
opportunities to back out of [the] drug deal,” and because the
defendant’s “willingness to commit the crime [was] illustrated by
his persistent . . . attempts to get the drugs to the informant, despite
considerable difficulty”).
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STATE v. SMITH
Opinion of the Court
someone for a ride” to California. 77 Her offer to perform sex acts
was presented as a reluctant form of compensation for Smith’s
assistance. So where the defendant in Taylor was forced to choose
between committing a crime or ignoring his former lover’s pleas
for help, Smith could have given Emily the help she wanted
without breaking the law.
¶43 Smith responds by arguing that the police nonetheless
“exploited [his] basic vulnerability” by placing Emily’s initial post
on “a forum of lonely people.” We note at the outset that we do not
agree that a defendant’s subjective vulnerability to criminal
suggestion can be fairly included in the entrapment analysis. Our
cases on entrapment are clear that the analysis centers on whether
law enforcement’s methods “would be effective to persuade an
average person” to commit the crime in question. 78
¶44 But even if we assume for the purpose of argument that
law enforcement’s choice to target a vulnerable population could
be relevant, the vulnerability targeted here is relatively benign.79
This is not a case where police sent an undercover heroin dealer to
vend his wares at a discount in front of a methadone clinic.
Moreover, there are obvious differences between the legal desire
for sexual congress with a consenting adult and the illegal desire to
sexually victimize a child. 80 Smith’s purported loneliness does not
change the nature of the police conduct.
¶45 Smith has failed to show that the police conduct in this case
created a substantial risk that an average person would attempt to
commit the crimes that Smith attempted. Emily did not apply
persistent pressure, nor did she exploit a close personal
relationship, nor did she appeal to Smith’s sympathy and pity. She
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77 Emily also clarified that she would “rather get cash” than
accept a ride from Smith.
78 Taylor, 599 P.2d at 503 (emphasis added).
79 Smith compares “dangl[ing] connection in front of a lonely
person” to “dangling bread in front of a starving person.” The State
counters that “[t]he next person who dies of starvation from lack of
sex will be the first.”
80 One detective testified at the entrapment hearing that “the
vast majority” of people he contacts through the Emily persona will
end the conversation immediately once they are told that the object
of their sexual desire is a thirteen-year-old.
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instead merely provided Smith with a convenient opportunity to
carry out his criminal intentions. We are satisfied that the resulting
crimes were freely and voluntarily committed.
CONCLUSION
¶46 We affirm the court of appeals’ determinations that
bindover was appropriate because Smith’s conduct constituted
substantial steps toward the commission of the underlying crimes
and that Smith was not entrapped as a matter of law.
19