State v. Hatchett , 2020 UT App 61 ( 2020 )

2020 UT App 61THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
RONALD LINDSEY HATCHETT,
Appellant.
Opinion
No. 20181042-CA
Filed April 9, 2020
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 171400638
Douglas J. Thompson and Margaret P. Lindsay,
Attorneys for Appellant
Sean D. Reyes and David A. Simpson,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 Ronald Lindsey Hatchett appeals his two convictions for
enticement of a minor, arguing that the district court erred in
denying his motion to dismiss on the ground that he was
entrapped. He argues that law enforcement “created a
substantial risk that the offense of enticement would occur”
when a special agent, posing as a 13-year-old boy, responded to
Hatchett’s advertisement in the Craigslist personals section. We
disagree and affirm his convictions.
State v. Hatchett
BACKGROUND 1
¶2 In anticipation of an upcoming visit to Utah, Hatchett
posted an advertisement on Craigslist in the “men seeking men”
personals section entitled “Dad looking for Son (Provo).” The
advertisement read:
Hey Guys,
I am coming in for the weekend and am looking for
a 18–25 year old guy to party and play with. I am a
50 yr old 6’2’’ 230 lb 6’’ thick cock HIV and STD
free and you must be also. I would love to party,
and if you have a connect for Coke or whatever
that would be fantastic and play. I am vers and
love kissing, sucking, being sucked, ass and nipple
play and fucking. I will be in Saturday and will
leave Monday so if you want to spend the night
that would be fun. Hit me up and let’s plan
something out!
¶3 The advertisement caught the attention of a special agent
(Special Agent) in the Utah Attorney General’s Internet Crimes
Against Children Task Force. Posing as “Cade,” 2 Special Agent
responded to the ad: “saw ur post how yung is 2 yung.” The
following conversation then ensued via email:
1. Hatchett does not challenge the district court’s findings of fact
on appeal. Indeed, in opposing Hatchett’s motion to dismiss on
entrapment grounds, the State accepted the facts set forth in his
motion as true. Accordingly, “we recite the facts in the light most
favorable to the trial court’s findings.” State v. Eberwein, 2001 UT
App 71, ¶ 2, 21 P.3d 1139 (quotation simplified).
2. To better facilitate recounting the facts of this case, we
sometimes refer to Special Agent by his undercover persona,
“Cade,” in this opinion.
20181042-CA 2 2020 UT App 61State v. Hatchett
[Hatchett:] How old are you?
[Cade:] old enuff 2 no what i want, middle school
but lik coke
[Hatchett:] Nice. Do you have a connect?[3] What
are your stats? What are you into?
[Cade:] i wish
[Hatchett:] So what are your stats and what are you
into?
[Cade:] almost 14 m whatever
[Hatchett:] Nice. How tall, weight?
[Cade:] idk average thin
[Hatchett:] Nice. If we do meet up it would have to
be our little secret. You a top?[4]
Do you like to drink? What other kind of things do
you like to do when you party? Do you smoke
anything.
[Cade:] ya what do u want 2 do
[Hatchett:] Party and whatever happens happens
[Cade:] thats cool i would need to sneak out tho
As the conversation continued, Hatchett asked whether Cade
was “gay or just curious” and stated, “It would be fun to at least
party” with Cade during his upcoming visit to Provo,
immediately followed by the query, “You aren’t a cop right?”
Cade replied, “ya right r u dont want 2 get in trouble,” which
appeared to satisfy Hatchett’s concern.
3. This appears to be in reference to the Craigslist advertisement
in which Hatchett stated that “a connect[ion] for Coke or
whatever . . . would be fantastic.” And “Coke,” based on the
need for “a connect[ion]” and the illicit substances later found in
Hatchett’s hotel room, in all likelihood referred to cocaine rather
than the soft drink.
4. In a later conversation with Cade, Hatchett clarified that
“To[p]” refers to the man who penetrates his sexual partner
during intercourse.
20181042-CA 3 2020 UT App 61State v. Hatchett
¶4 After they eventually exchanged phone numbers,
Hatchett and Cade continued to communicate for several weeks.
Hatchett initiated at least sixteen text-message and three
telephone conversations with Cade, while Cade initiated two
text-message conversations, one of which occurred on the
morning of Hatchett’s eventual arrest. Whenever Hatchett asked
Cade what he wanted to do when they met up, Cade would
respond evasively by stating that he did not know. Cade never
proposed specific sex acts. Hatchett, on the other hand,
repeatedly steered their conversations in a sexual direction. For
example:
• “Ectacy is real cool to. Makes you feel up and
horney as hell. Lol.”
• “I think we should party for a bit maybe smoke
some weed and drink a couple of beers while
we get to know each other and then lay on the
bed and kiss and get naked and cuddle. Once
you are comfortable we might give each other a
bj [i.e., blow job] or whatever you feel
comfortable doing.”
• “I think we will party and maybe kiss and get
naked in bed and see what happens.”
• “I am nice. I have never done anything with a
guy as young as you but it’s kind of exciting.”
• “We just have to keep it on the down low. Lol. I
don’t want to end up in jail. Hahaha.”
• “What ever you want. Bj’s and maybe more if
you want and it goes there. It’s all up to
yourself. Get naked and explore each other’s
bodies. Maybe. This is making me very scared.
Your not a cop right?”
20181042-CA 4 2020 UT App 61State v. Hatchett
Hatchett also asked Cade to give measurements and send
pictures of his genitals, which Cade did not do. Hatchett also
offered to procure alcohol and drugs for their expected
encounter.
¶5 Law enforcement arrested Hatchett when he arrived at
the gas station in Provo where he and Cade had arranged to
meet. He subsequently admitted to bringing cocaine and ecstasy
with him and consented to a search of his hotel room. The search
revealed pills, “a pipe with marijuana residue,” and substances
that were later determined to be cocaine and methamphetamine.
¶6 The State charged Hatchett with two counts of enticement
of a minor and one count each of possession of a controlled
substance with intent to distribute and possession of drug
paraphernalia. Asserting the defense of entrapment, Hatchett
moved the district court to dismiss the charges against him.
¶7 At the evidentiary hearing on the motion, Hatchett
testified that “son” in the gay community “is used as a term
saying that you’re looking for someone that is younger than
your age” but not necessarily a minor. He also testified that he
“felt from the text messages that were being exchanged, that it
wasn’t a 14 year old talking to [him], it was somebody older.”
Specifically, Hatchett claimed that he believed he was speaking
to an adult because Cade did not use the teenage “lingo” that
Hatchett’s own teenagers used and because Cade did not know
much about video games. For that reason, Hatchett testified he
engaged with Cade as a “fantasy” and went to the gas station
“[j]ust to see if [Cade] was really . . . under 18. If he was,
[Hatchett] would have drove away.”
¶8 The district court denied Hatchett’s motion to dismiss. It
determined that Special Agent’s actions did not “induce[] the
commission of the offense by methods creating a substantial risk
that the offense would be committed by a reasonable person not
otherwise ready to commit it.” Specifically, the court found that
after an advertisement entitled “Dad looking for Son (Provo)”
20181042-CA 5 2020 UT App 61State v. Hatchett
“propos[ing] both a sexual encounter in Utah and use of illegal
drugs” caught his attention, Special Agent “lawfully accessed
Craigslist and created . . . a fictitious and underage persona” to
simply inquire, “‘How young is too young.’” Special Agent then
continued to respond to Hatchett after it became readily
apparent that Hatchett was undeterred by the fact that Cade was
“almost 14” years old. Following the initial conversation, Special
Agent initiated contact with Hatchett only twice and “[a]t no
time . . . propose[d] specific sex acts.” Based on these facts, the
court concluded that “[a]t most, [Special] Agent afforded the
mere opportunity to commit the offense.”
¶9 A jury, necessarily rejecting Hatchett’s entrapment
defense and his claim that he believed Cade was an adult
pretending to be a minor for “fantasy” purposes, convicted
Hatchett of all crimes charged. Hatchett appeals.
ISSUE AND STANDARD OF REVIEW
¶10 Hatchett argues that the district court erroneously denied
his motion to dismiss on entrapment grounds. 5 An entrapment
ruling involves a mixed question of law and fact. State v. Haltom,
2005 UT App 348, ¶ 7, 121 P.3d 42. Here, Hatchett does not
challenge the district court’s findings of fact. Accordingly, “we
will affirm the trial court’s decision unless we can hold, based on
the given facts, that reasonable minds cannot differ as to
whether entrapment occurred.” Id. (quotation simplified). “Only
when reasonable minds could not differ can we find entrapment
as a matter of law.” Id.
5. Hatchett addresses entrapment only in terms of his
enticement-of-a-minor convictions and his argument is silent as
to his drug-related convictions. He likewise presents no
challenge to the jury’s refusal to accept his entrapment defense
at trial.
20181042-CA 6 2020 UT App 61State v. Hatchett
ANALYSIS
¶11 The Utah Code defines the affirmative defense of
entrapment as follows:
Entrapment occurs when a peace officer or a
person directed by or acting in cooperation with
the 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 would be committed by one not
otherwise ready to commit it. Conduct merely
affording a person an opportunity to commit an
offense does not constitute entrapment.
Utah Code Ann. § 76-2-303(1) (LexisNexis 2017). This definition
“by its express terms incorporates [an] objective standard,” State
v. Taylor, 599 P.2d 496, 499 (Utah 1979), “which focuses solely on
police conduct, rather than on the defendant’s predisposition to
commit a crime,” State v. Torres, 2000 UT 100, ¶ 8, 16 P.3d 1242.
¶12 “To prove the defense of entrapment, the evidence must
be sufficient to raise a reasonable doubt that the defendant freely
and voluntarily committed the offense.” Id. (quotation
simplified). This “is a highly fact­intensive” inquiry, id.(quotation simplified), which “depend[s] on an evaluation of the
circumstances in each case,” Taylor, 599 P.2d at 503. See State v.
Haltom, 2005 UT App 348, ¶ 11, 121 P.3d 42 (“Utah has never
recognized a per se rule of entrapment.”) (quotation simplified).
Examples of improper police conduct that constitute
entrapment, “depending on an evaluation of the circumstances
in each case,” include inducement by means of “[e]xtreme pleas
of desperate illness or appeals based primarily on sympathy,
pity, or close personal friendship, or offers of inordinate sums of
money,” Taylor, 599 P.2d at 503, as well as “personalized
high­pressure tactics, and appeals to extreme vulnerability,”
State v. Martinez, 848 P.2d 702, 706 (Utah Ct. App. 1993).
20181042-CA 7 2020 UT App 61State v. Hatchett
¶13 Hatchett argues that “even though [his] response[s] to the
police inducements may seem inappropriate, they are the result
of the police methods which created a substantial risk that the
offense of enticement would occur.” He claims that Special
Agent “employed methods designed specifically to lead [his]
targets into saying what needed to be said for [the] crime to
occur,” such as “deception and innuendo.” 6 But the only
methods of which he complains are that Special Agent, “without
any prior knowledge that Hatchett had sexual interest in
minors,” responded to an advertisement specifically seeking
adult men between the ages of 18 and 25, and absent that initial
contact, “no crime would have ever occurred.” He does not rely
on the substance of Cade’s messages in asserting that Special
Agent improperly induced him into enticing a minor.
¶14 Hatchett cites State v. Kourbelas, 621 P.2d 1238 (Utah 1980),
in support of his contention that he was entrapped when law
enforcement targeted him without “any prior knowledge that
[he] had sexual interest in minors.” In Kourbelas, an undercover
narcotics officer, posing as the assistant manager of a gas dock
on Lake Powell, approached the defendant when he brought his
houseboat in for refueling. Id. at 1238–39. During the course of
their conversation, the officer “brought up the subject of selling
marijuana” and suggested that the defendant could make “‘a lot
of money.’” Id. at 1239. The defendant replied that he would
“‘see what [he] can do’” about supplying the officer with
marijuana and provided his contact information. Id. The officer
subsequently contacted the defendant at least five times
6. To the extent Hatchett is referring to Special Agent’s use of the
undercover online persona of a 13-year-old boy to contact
Hatchett, this, on its own, does not constitute entrapment. “[T]he
defense [of entrapment] does not deprive the police of the use of
decoys to afford a person an opportunity to commit crime” so
long as they refrain from “present[ing] actively, inducements for
the purpose of luring a person into the commission of an
offense.” State v. Taylor, 599 P.2d 496, 500 (Utah 1979).
20181042-CA 8 2020 UT App 61State v. Hatchett
attempting to purchase marijuana before the defendant finally
arranged to sell him some. Id. at 1240. In reversing the conviction
on entrapment grounds, our Supreme Court found significant
the facts that the officer was the one to broach the subject of
purchasing marijuana from the defendant, he repeatedly
contacted the defendant in an attempt to complete the
transaction, and “there [was] no evidence that the defendant had
previously possessed or dealt in the drug.”7 Id. Based on that set
7. This third consideration appears at odds with both the
entrapment statute and our Supreme Court’s more recent
articulation of the objective standard. See State v. Torres, 2000 UT
100, ¶ 8, 16 P.3d 1242 (“[The] objective standard for entrapment
cases . . . focuses solely on police conduct, rather than on the
defendant’s predisposition to commit a crime.”) (emphasis added)
(citing State v. Taylor, 599 P.2d 496, 500 (Utah 1979)). See also Utah
Code Ann. § 76-2-303(6) (LexisNexis 2017) (providing, with a
few exceptions not relevant here, that “[i]n any hearing before a
judge or jury where the defense of entrapment is an issue, past
offenses of the defendant shall not be admitted”). Indeed, in
Kourbelas, the Court cited State v. Curtis, 542 P.2d 744 (Utah
1975), in support of its consideration of “the fact that there is no
evidence that the defendant had previously possessed or dealt in
[marijuana].” State v. Kourbelas, 621 P.2d 1238, 1240 & n.7 (Utah
1980). But Curtis applied the subjective standard that our
Supreme Court specifically disavowed in Taylor. Under the
subjective standard, “the critical issue is whether the particular
defendant was predisposed to commit the crime; or was an
otherwise innocent person, who would not have erred, except
for the persuasion of the government’s agents.” Taylor, 599 P.2d
at 500. In Taylor, the Court determined that this standard was
inconsistent with the entrapment statute. See id. at 503 (“There is
no provision or phraseology in [section] 76­2­303(1) which can be
rationally construed as providing a ‘predisposition’ or
‘innocence’ requirement to constitute an entrapment defense.
The legislative intent to adopt the objective theory of entrapment
is further verified in subdivision (6) of [section] 76-2-303.”). See
(continued…)
20181042-CA 9 2020 UT App 61State v. Hatchett
of circumstances, the Court concluded that the officer had
entrapped the defendant. Id. Subsequent Utah Supreme Court
decisions have likewise considered whether law enforcement
had reason to suspect their targets of wrongdoing prior to
approaching them. See Torres, 2000 UT 100, ¶ 12 (“Unlike
Kourbelas, [the] defendant in this case was known in the
community as a ‘big mover of drugs.’”); State v. Udell, 728 P.2d
131, 133 (Utah 1986) (distinguishing Kourbelas and other cases
because the “defendant was a known drug user”); State v.
Sprague, 680 P.2d 404, 406 (Utah 1984) (stating that the
defendant’s reliance on Kourbelas “is well-placed” because, as in
Kourbelas, it was the undercover agent “who first approached
defendant, with no reason to believe that defendant used or sold
drugs, and suggested the purchase of drugs,” followed by three
more attempts before the defendant finally supplied the
undercover agent with marijuana).
¶15 But Hatchett’s argument on this ground is unsuccessful
for two reasons. First, Hatchett overlooks Special Agent’s
testimony regarding the reasons he chose to investigate
Hatchett’s advertisement. Based on his Craigslist-specific
training to detect posts “related or that could be related to
minors,” Special Agent testified that many people seeking sexual
intercourse with minors “know the law” and “specifically” make
law­abiding advertisements when “really wanting [someone]
(…continued)
also Torres, 2000 UT 100, ¶ 7 n.1 (noting that the entrapment
statute “has not been substantially altered since its enactment in
1973”). But despite this disavowal by Taylor and its progeny, the
subjective standard seems to have crept back into entrapment
analysis in this and certain other respects. Compare Torres, 2000
UT 100, ¶ 8 (“To prove the defense of entrapment, the evidence
must be sufficient to raise a reasonable doubt that the defendant
freely and voluntarily committed the offense.”) (quotation
simplified), with id. (“[The] objective standard for entrapment
cases . . . focuses solely on police conduct.”).
20181042-CA 10 2020 UT App 61State v. Hatchett
younger.” He testified that “key signs” of such advertisements
include the use of terms such as “young,” “incest,” “boy,” “girl,”
“children,” “adult children,” or “anything that could be related.”
For that reason, despite expressly stating that he was seeking
men between the ages of eighteen and twenty-five, Hatchett’s
advertisement entitled “Dad looking for Son (Provo)” prompted
Special Agent to investigate further whether Hatchett’s
advertisement was more nefarious than might appear at first
glance. And based on this explanation, we reject Hatchett’s
contention that Special Agent improperly initiated contact
without suspicion that Hatchett desired to engage in
wrongdoing. See Torres, 2000 UT 100, ¶ 14 (“Where it is known
or suspected that a person is engaged in criminal activities, or is
desiring to do so, it is not an entrapment to provide an
opportunity for such person to carry out his criminal
intentions.”) (quotation simplified).
¶16 Second, even if Special Agent did not suspect Hatchett of
having an interest in minors when he initiated contact, the
circumstances of this case are sufficiently distinguishable from
Kourbelas to alter the outcome of the “evaluation of the
circumstances.” See Taylor, 599 P.2d at 503. Unlike the officer in
Kourbelas, Special Agent did not persistently request that
Hatchett commit an illegal offense. Where the undercover officer
in Kourbelas “followed up” with the defendant after their initial
interaction “by calling the defendant at least five times in
attempting to purchase the marijuana,” 621 P.2d at 1240,
Hatchett was subjected to no such persistent effort. To the
contrary, Hatchett aggressively pursued Cade after he was made
aware of Cade’s young age. The district court found that
following their initial conversation, Hatchett initiated “at least
16” text­message conversations and “three phone calls” with
Cade, and Special Agent initiated only two text-message
conversations, one of which was merely to confirm the details of
their meeting time on the morning of Hatchett’s arrest. This is a
meaningful distinction between Special Agent’s actions here and
those of the undercover officer in Kourbelas.
20181042-CA 11 2020 UT App 61State v. Hatchett
¶17 Moreover, this case is further distinguishable from
Kourbelas because the undercover officer there was the one “who
first suggested the purchase of marijuana from the defendant.”
Id. Here, Special Agent was specifically trained not to raise the
subject of sex first as a means of determining whether it was the
“intent” of the poster of potentially illegal advertisements “to do
anything sexual” with his underage undercover persona. And it
certainly did not take any prompting for Hatchett to begin
engaging in a sexually explicit conversation with someone who
said he was a minor. As soon as Cade revealed that he was
“almost 14,” Hatchett responded, “Nice. How tall, weight?”
Cade’s answer to that question was then immediately followed
by, “Nice. If we do meet up it would have to be our little secret.
You a top? Do you like to drink?” For these reasons, Hatchett’s
reliance on Kourbelas is unavailing.
¶18 Finally, we address Hatchett’s suggestion that causation is
evidence of entrapment. He argues that “[w]ithout . . . police
contact, no crime would have ever occurred.” But the
entrapment statute requires more than a mere showing that law
enforcement “induce[d] the commission of [the] offense.” Utah
Code Ann. § 76-2-303(1) (LexisNexis 2017). It also requires a
showing that they did so using “methods creating a substantial
risk that the offense would be committed by one not otherwise
ready to commit it.” Id. And as discussed above, Hatchett has
not demonstrated that Special Agent engaged in any such
questionable methods.
CONCLUSION
¶19 For the foregoing reasons, this case does not present a set
of circumstances under which “we can hold . . . that reasonable
minds cannot differ as to whether entrapment occurred.” State v.
Haltom, 2005 UT App 348, ¶ 7, 121 P.3d 42 (quotation simplified).
His contention that Special Agent lacked reason to suspect him
of wishing to engage in wrongdoing is unavailing. Additionally,
although Hatchett asserts that he “fell for [Special Agent’s] trap,”
20181042-CA 12 2020 UT App 61State v. Hatchett
he does not identify any “methods” that were allegedly
“designed specifically to lead” individuals not otherwise ready
to entice minors into committing the crime. We agree with the
district court’s conclusion that, “[a]t most, [Special Agent]
afforded [Hatchett] the mere opportunity to commit the
offense.” See Utah Code Ann. § 76­2­303(1) (LexisNexis 2017).
Hatchett’s entrapment argument therefore fails.
¶20 Affirmed.
20181042-CA 13 2020 UT App 61