State v. Dickerson , 2022 UT App 56 ( 2022 )

2022 UT App 56THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellant,
v.
TIMOTHY LAVELL DICKERSON,
Appellee.
Opinion
No. 20191052-CA
Filed May 5, 2022
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 191401450
Sean D. Reyes and David A. Simpson,
Attorneys for Appellant
Douglas J. Thompson, Attorney for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
HAGEN, Judge:
¶1 After being charged with enticement of a minor, attempted
sodomy on a child, and various drug-related offenses, Timothy
Lavell Dickerson moved to dismiss the charges, claiming that a
law enforcement officer had entrapped him into committing the
offenses. The district court denied his motion as to the drug
charges but granted it as to the enticement and sodomy charges.
The State now appeals. We reverse and remand for further
proceedings.
State v. Dickerson
BACKGROUND
¶2 The Utah Attorney General’s Internet Crimes Against
Children (ICAC) task force “fight[s] the sexual exploitation of
children online.” In May 2019, an ICAC special agent was using
an online persona he had created to pose as a thirteen-year-old
girl on various platforms. The agent explained that, because on “a
lot of these platforms you have to put your age as eighteen,” he
would do so and then, “once a conversation engages or starts,” he
would “reveal [the girl’s] real age” as thirteen.
¶3 When he encountered Dickerson, the special agent was
using the alias “Kailey” on a dating app. The agent created a
profile for Kailey using the profile name “kaileyjojo.” The profile
listed Kailey’s age as eighteen and included a “closeup, selfie-type
picture” of a West Valley City police officer who was in her
twenties. Besides closely cropping the photo, the agent did not
alter it in any way. The district court later found that the female
in the profile photo “appear[ed] to be at least 18 years of age, if
not older.”
¶4 Dickerson contacted Kailey using the profile name
“Lavell.” Users of the dating app could contact each other by
“clicking on a person’s page and then initiating” a “direct chat”
from there. After the initial contact, the following exchange
occurred:
Dickerson: O ok then wat u did today
Kailey: I went to school and moved stuff in my room
Dickerson: o ok then wat u go to school for
Kailey: I’m in middle school
Dickerson: Girl stop
20191052-CA 2 2022 UT App 56State v. Dickerson
Dickerson: Stop play
Kailey: No for real
Dickerson: So is that really a pic of u
Kailey: Yeah
Dickerson: So how old r u baby
Dickerson: Hello
Dickerson: I didn’t scare you off did it
Kailey: I’m here
Kailey: I’m 13
Dickerson: Forreal stop playin
Dickerson: So y it say 18 baby
Kailey: I’m serious
Kailey: I’m 13
Dickerson: O ok so wyd on here baby
Kailey: Looking for whatevs
Kailey: Idk really
Kailey: U?
Dickerson: O ok u smoke or drink
Dickerson: The same as u love
Dickerson: I’m not from here and I need a friend
20191052-CA 3 2022 UT App 56State v. Dickerson
Kailey: I’ve smoked before
Kailey: Oh cool
Kailey: Where u fro
Dickerson: Who u stay wit
Dickerson: Atlanta
Dickerson: Wat part u stay in
Dickerson: How long u been here
Dickerson: Hello u there
Kailey: I live in Provo with my dad
Dickerson: O ok then can u get of the house
Kailey: Yeah
Dickerson: I’m forreal boo
Kailey: Me to
Kailey: What u wanna do
Dickerson: U ever been with a black dude
Kailey: Lol
Kailey: Never
Dickerson: U want to smoke or what boo
Dickerson: Forreal
Kailey: I’ll smoke
20191052-CA 4 2022 UT App 56State v. Dickerson
The agent testified that Dickerson then “asked for my number,
and I gave it to him, and it led on to text messaging.”1
¶5 Over text messages, Dickerson suggested that they meet up
and smoke some marijuana and asked Kailey, “wat else can we
do baby”? Kailey’s responses were hesitant, claiming that she had
“never really snuckout” before. Kailey told Dickerson she was
“kinda scared” because “i dont know what u wanna do” and “ive
never been with a oldr guy.” Dickerson asked, “Wats the oldest
baby and I promise u on my granny I won’t hurt or nun. . . . Send
me the address baby.” After Kailey replied that the oldest “was 13
in my grade,” Dickerson again asked for the address.
¶6 Kailey told Dickerson that her “bff has a older boyfriend
and she likes it.” Dickerson replied, “O she do huh and you will
like it too baby.” He continued to press Kailey for the address.
When Kailey asked, “r u gonna try stuff with me after we smoke?
lol,” Dickerson asked, “Do u want me to baby”? He assured her
that they could do “Wateva u want baby” and “you will like it too
baby.”
¶7 Kailey suggested that they meet up the next day, but
Dickerson pleaded, “Awwwww baby y . . . I wanted to Tonite
please.” Kailey said that she was just nervous, prompting the
following exchange:
Dickerson: Nervous about wat baby
Kailey: if u kiss me and do more
1. The agent was able to confirm that the texter was the same
person as the “Lavell” on the dating app because Dickerson
“identified himself” on the text and because the agent compared
the photos Dickerson posted to his dating app profile with those
Dickerson sent by text.
20191052-CA 5 2022 UT App 56State v. Dickerson
Dickerson: About wat
Kailey: ive only kissed like a couple boys
Dickerson: Ok u never had nobody play wit it or lick
it
Kailey: never
Dickerson: Has ur friend
Dickerson: U want to try
Kailey: what?
Dickerson: Do ur friend and her boyfriend do that
Kailey: yeah
Dickerson: So wats up u want to
Kailey: what?
Dickerson: Do u want to try
Dickerson: Do u want to try
Kailey: lol. im so lost. try what
Dickerson: Lick it and play wit it
Kailey: i hpe it doesnt hurt
Dickerson: It won’t baby I’ll be gentle
Kailey: promise
20191052-CA 6 2022 UT App 56State v. Dickerson
Dickerson: I PROMISE BABY AND Do u play wit ur
self some times
Kailey: tried but dont know if im doing it right
Dickerson: Well I’ll show u Tonite baby
Dickerson: U Gon send the address baby
Kailey: youll teach me
Dickerson: Yes
Dickerson: U Gon like the way I do it and daddy
going to teach u a lot
Dickerson: Baby
Dickerson: U playing
Kailey: im here babe sorry
Dickerson: So wats up baby
Kailey: so if u lick it and playwith it. will i get
pregnant?
Dickerson: Hellllllllll nawwwwwwwww baby
Dickerson: Nooooooooooooo
Dickerson: NOOOOOOOOOOOOOO u won’t
Kailey: u sure
Dickerson: I promise
Dickerson: I promise on my dead grandmother
20191052-CA 7 2022 UT App 56State v. Dickerson
Kailey: so youll were a condom?
Dickerson: Do u want me to
Kailey: i dont want to get pregnant
Dickerson: And ur asking all these questions like u
couldn’t also [ask] me this face to face
Dickerson: Baby I promise u can’t
Dickerson: I promise on my dead grand mother
Dickerson: U CAN’T GET PREGNANT
Dickerson: I wish u would believe and give me a
chance
Kailey: can you bring a condom
Kailey: i know sorry
Kailey: dont be mad please
Dickerson: Yes baby I can if u stop playin
Dickerson: I’m not baby but I’m tryin to show u that
u can trust me
Kailey: It’s better with a condom
Dickerson: Oooooookkkkkk
Dickerson: So wats up wasting time baby
Dickerson: I’ll stop and get one
Kailey: Ok I’ll sneak out
20191052-CA 8 2022 UT App 56State v. Dickerson
Dickerson: Ok
Dickerson: I hope u forreal and not playing
Kailey: How long will u be
Dickerson: I don’t wanna to wait forever
Dickerson: I’m waiting on u to send the address
Dickerson: U never sent the address
Dickerson: I been waiting on u
Dickerson: Awwwwwww u playing Kailey
Dickerson: Helllllllo
Dickerson: Hello
Kailey: Sorry babe
Kailey: I’m getting ready
Kailey: I’m not playing u promise
Kailey: There’s a gas station by my house
Dickerson: U haven’t sent no address
Dickerson: We’re the address
Dickerson: U got me feeling like u playing
¶8 Kailey gave Dickerson the address of a gas station next to
an apartment complex and said she would meet him there. The
two continued to exchange text messages while Dickerson was en
route. Dickerson repeatedly asked Kailey to send him a picture of
20191052-CA 9 2022 UT App 56State v. Dickerson
herself. When he asked what she was wearing, Kailey replied that
she was in a “[p]ink shirt and jeans,” leading to the following
exchange:
Dickerson: Ok baby
Dickerson: Y u didn’t put on tights or a dress
something easy
Kailey: It’s cold outside babe. Lol
Dickerson: Lol not really but ok and do u kiss baby
Kailey: Yeah
Dickerson: Can I kiss u
Kailey: I hope so
Dickerson: Ok I am baby
Dickerson: Have u ever suck on it before
Kailey: Suck on what
Dickerson: Dick baby
Kailey: Oh never lol
Dickerson: O ok u watch porn
Kailey: I’ve seen it but don’t really watch it
Dickerson: O ok
Kailey: U still coming?
Dickerson: U want to learn
20191052-CA 10 2022 UT App 56State v. Dickerson
Dickerson: Hell yes I’m close
Kailey: Yes
Dickerson: U want to learn baby
Kailey: I do
Dickerson: Ok u mine right
Kailey: Yeah I’m yours
Dickerson: 9 mins away baby
¶9 When Dickerson arrived at the designated meeting place,
the agent was “able to confirm [Dickerson’s] identity when [he]
saw him as the person that [he] had been chatting with.”
Authorities arrested Dickerson. A search of his car uncovered
drug paraphernalia and a “new pack of condoms.”
¶10 Dickerson was charged with three sexual offenses—one
count of enticing a minor to engage in illegal sexual activity and
two counts of attempted sodomy upon a child—and two drug
offenses—possession of drug paraphernalia and possession of a
controlled substance with intent to distribute. Dickerson
subsequently filed a motion to dismiss under Utah Code section
76-2-303(5), alleging that the agent had entrapped him into
committing the offenses.
¶11 After a hearing, the district court granted Dickerson’s
motion as to the sex offenses but denied it as to the drug counts.
In its written ruling, the district court explained that although
Utah had abandoned a subjective standard of entrapment and
adopted an objective standard, “over time subjective reasoning
crept back into” Utah’s appellate decisions. In particular, the
district court believed that it violated the objective test “to
consider the impact of police inducement on the particular
20191052-CA 11 2022 UT App 56State v. Dickerson
defendant.” Instead, the court believed it was limited to assessing
“the impact of the inducement on a reasonable person under the
circumstances of the particular case.”
¶12 Applying that standard, the court concluded “that the
methods used by the [a]gent in this case created a substantial risk
that the charged sex offenses would be committed by someone
not otherwise ready to commit them.” In reaching that conclusion,
the court relied “on the compounding impact of three decisions
by the [a]gent—the decision to adult-certify Kailey on [the dating
app], the decision to post a picture of an adult woman on Kailey’s
[dating app] profile, and the decision to first direct the text
messaging toward overtly sexual topics.” Because the court
concluded that Dickerson was entrapped, it dismissed the
enticement and sodomy counts. The State appeals the dismissal.
ISSUES AND STANDARDS OF REVIEW
¶13 We address two issues on appeal. First, we consider
Dickerson’s contention that we lack jurisdiction over this appeal.
Whether we have appellate jurisdiction “presents a question of
law.” Trapnell & Assocs., LLC v. Legacy Resorts, LLC, 2020 UT 44,
¶ 29, 469 P.3d 989.
¶14 Because we conclude that we have jurisdiction, we next
address the State’s argument that the district court erred in
concluding, as a matter of law, that Dickerson was entrapped.
“An entrapment ruling involves a mixed question of law and
fact.” State v. Hatchett, 2020 UT App 61, ¶ 10, 462 P.3d 1288. “A
trial court’s findings of fact relating to a claim of entrapment will
be reversed on appeal only if clearly erroneous.” State v. Keitz, 856
P.2d 685, 689 (Utah Ct. App. 1993), abrogated on other grounds by
State v. Montoya, 887 P.2d 857 (Utah 1994). “On the other hand, the
trial court’s statutory construction and application of the
entrapment statute present questions of law, which we review for
correctness.” Id. Entrapment is established as a matter of law only
20191052-CA 12 2022 UT App 56State v. Dickerson
when the facts found by the district court are “sure to leave all
reasonable minds reasonably doubting” whether the defendant
freely and voluntarily committed the crime. State v. Hernandez,
2020 UT App 58, ¶ 6, 462 P.3d 1283; see also Hatchett, 2020 UT App
61, ¶ 10 (“Only when reasonable minds could not differ can we
find entrapment as a matter of law.” (cleaned up)).
ANALYSIS
I. Jurisdiction
¶15 As an initial matter, we must address whether we have
jurisdiction over the State’s appeal. After the district court
dismissed the enticement and sodomy counts, the State filed both
a notice of direct appeal and a petition for interlocutory appeal
out of “an abundance of caution.” This court issued a sua sponte
motion for summary disposition asking the parties to address
whether the direct appeal should be dismissed for lack of
jurisdiction. In response, the State initially argued that we had
jurisdiction over a direct appeal under subsection (5) of the
entrapment statute, see Utah Code Ann. § 76-2-303(5) (LexisNexis
2017), even though not all charges against Dickerson were
dismissed. Dickerson argued that we lacked jurisdiction because
the district court’s order was not final and appealable.
¶16 We ultimately withdrew the motion for summary
disposition, ordering that a ruling on the jurisdictional issue
would be deferred pending plenary presentation and
consideration of the appeal. We also directed the parties to
address in their briefs whether the district court’s order was final
and appealable. That same day, we consolidated the two appeals
and granted the State’s petition to file an interlocutory appeal. We
did so without first allowing Dickerson to file a response to the
State’s petition as required by rule 5(f) of the Utah Rules of
Appellate Procedure.
20191052-CA 13 2022 UT App 56State v. Dickerson
¶17 Upon submission of its opening brief, the State conceded
that this court lacked jurisdiction over its direct appeal. Dickerson
then filed a motion to dismiss the appeal in its entirety, based on
the State’s concession that we lacked jurisdiction over the direct
appeal and based on this court’s failure to meet its own
procedural requirements before granting the interlocutory
appeal. The State responded by arguing that the procedural error
in granting the interlocutory appeal without a response did not
raise a jurisdictional defect but merely required the court to hold
the appeal in abeyance while Dickerson was given time to
respond. We denied Dickerson’s motion to dismiss and reiterated
that Dickerson could raise these issues in his initial brief and that
a ruling would be “deferred pending plenary presentation and
consideration of the appeal.”
¶18 In briefing and at oral argument, Dickerson again
argued that the interlocutory appeal had been improperly
granted. After oral argument, we issued an order acknowledging
“that granting the petition for interlocutory appeal without
calling for a response ran afoul of rule 5(f)” of our appellate rules,
and we invited Dickerson to file a response to the State’s petition
for interlocutory appeal within fourteen days. Dickerson filed a
timely response.
¶19 Having now carefully reviewed Dickerson’s opposition to
the petition for interlocutory review, we reaffirm our decision to
grant the State’s interlocutory appeal. Even if we had timely
requested and considered Dickerson’s response to the petition, we
would have exercised our discretion to grant the interlocutory
appeal notwithstanding his arguments in opposition. As a result,
our failure to follow the procedure in rule 5(f) did not impact
Dickerson’s substantial rights. See Utah R. Crim. P. 30(a) (“Any
error, defect, irregularity or variance which does not affect the
substantial rights of a party shall be disregarded.”). Because we
have jurisdiction over the State’s interlocutory appeal, we deny
20191052-CA 14 2022 UT App 56State v. Dickerson
Dickerson’s motion to dismiss that appeal and proceed to
consider its merits.2
II. Entrapment
A. Utah’s Entrapment Standard
¶20 We begin by addressing the legal standard for entrapment
in Utah. When our legislature enacted the Utah criminal code in
1973, it adopted a statutory framework governing the assertion of
an entrapment defense. See State v. Torres, 2000 UT 100, ¶ 7 n.1, 16
P.3d 1242 (noting that the statute “has not been substantially
altered since its enactment in 1973”). A defendant may assert the
defense by filing a written motion before trial, identifying the
evidentiary foundation for the claim. See Utah Code Ann. § 76-2-
303(4) (LexisNexis 2017); see also State v. Hernandez, 2020 UT App
58, ¶ 6, 462 P.3d 1283. The court then must “hear evidence on the
issue and shall determine as a matter of fact and law whether the
defendant was entrapped to commit the offense.” Utah Code
Ann. § 76-2-303(4).
¶21 “Only when reasonable minds could not differ can [the
court] find entrapment as a matter of law.” State v. Hatchett, 2020
UT App 61, ¶ 10, 462 P.3d 1288 (cleaned up). If the court
concludes, as a matter of law, “that the defendant was entrapped,
it shall dismiss the case with prejudice.” Utah Code Ann. § 76-2-
303(5). If “reasonable minds could differ on whether or not
entrapment occurred,” the court must deny the motion and
2. Dickerson also suggests that the State’s appeal violates his
double jeopardy rights. But double jeopardy does not attach until
“the jury is impaneled and sworn.” See Martinez v. Illinois, 572 U.S.
833, 834 (2014) (per curiam) (cleaned up). As a result, pre-trial
dismissals do not trigger double jeopardy protections. See State v.
Cahoon, 2009 UT 9, ¶ 16, 203 P.3d 957.
20191052-CA 15 2022 UT App 56State v. Dickerson
“allow[] the issue of entrapment to go to the jury.” State v. Beddoes,
890 P.2d 1, 2 (Utah Ct. App. 1995).
¶22 The statute also codifies the meaning of entrapment under
Utah law:
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). By adopting this definition, the
legislature rejected the “subjective test” previously applied by
Utah courts. See State v. Taylor, 599 P.2d 496, 503 (Utah 1979).
Under the statute’s more objective standard, the test “is whether
a law enforcement official or an agent, in order to obtain evidence
of the commission of an offense, induced the defendant to commit
such an offense by persuasion or inducement which would be
effective to persuade an average person, other than one who was
merely given the opportunity to commit the offense.” Id.¶23 The district court’s ruling in this case appears to have been
animated by its concern that “over time subjective reasoning crept
back into the analysis.” As examples, the court cited cases
examining whether “the crime was a result of defendant’s own
voluntary desire and intent to commit the crime,” see State v.
Moore, 782 P.2d 497, 501 (Utah 1989), or whether the defendant
“freely and voluntarily committed the offense,” see State v. Udell,
728 P.2d 131, 132 (Utah 1986). Under the district court’s
interpretation, courts improperly “drift into subjective reasoning”
when they “begin to consider the impact of police inducement on
20191052-CA 16 2022 UT App 56State v. Dickerson
the particular defendant, rather than the impact on a reasonable
person under the defendant’s circumstances.”
¶24 But neither the entrapment statute nor our case law uses a
“reasonable person” standard. We find no support for the
proposition that the applicable entrapment standard requires the
court to ignore a defendant’s demonstrated willingness to commit
the crime or to limit its inquiry solely to the impact of the
government’s conduct on a hypothetical reasonable person in the
defendant’s circumstances.
¶25 This confusion stems from a reasonable misunderstanding
about what is meant by the “objective” and “subjective”
standards for entrapment. “The basic difference is that the
subjective test looks primarily to a defendant’s predisposition to
commit the crime, whereas the objective test looks primarily to
police conduct.” State v. Salmon, 612 P.2d 366, 368 n.5 (Utah 1980).
In the seminal case interpreting Utah’s entrapment statute, our
supreme court quoted the following examples with approval to
illustrate the difference between the subjective and objective
approaches:
Under the [subjective theory], if A, an informer
makes overreaching appeals to compassion and
friendship and thus moves D to sell narcotics, D has
no defense if he is predisposed to narcotics
peddling. Under the [objective theory,] a defense
would be established because the police conduct,
not D’s predisposition, determines the issue. Under
the [subjective theory], A’s mere offer to purchase
narcotics from D may give rise to the defense,
provided D is not predisposed to sell. A contrary
result is reached under the [objective theory]. A
mere offer to buy hardly creates a serious risk of
offending by the innocent.
20191052-CA 17 2022 UT App 56State v. Dickerson
Taylor, 599 P.2d at 503 (quoting Model Penal Code § 2.10 (Am. L.
Inst., Tentative Draft No. 9, 1959)).
¶26 The subjective test consisted of “two inquiries: (1) whether
there was an inducement on the part of the government; and (2) if
so, whether the defendant showed any predisposition to commit
the offense.” Id. at 499–500. Because the subjective test turned on
the defendant’s “general intention or predisposition to commit,
whenever the opportunity should arise, crimes of the kind
solicited,” it allowed the prosecution to admit evidence “to show
the defendant’s reputation, criminal activities, and prior
disposition.” Id. at 501–02 (cleaned up). That evidence could be
properly considered to determine whether the defendant was
predisposed to commit the charged crime. If the defendant was so
predisposed, entrapment was no defense, regardless of the nature
of the inducement.
¶27 The entrapment statute rejects this subjective approach.
Indeed, the statute expressly provides, “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 . . . .” Utah Code
Ann. § 76-2-303(6) (LexisNexis 2017). “The effect of this provision
is to eliminate the opportunity for the prosecution to present
proof of the accused’s criminal character or predisposition by
evidence of his past offenses.” Taylor, 599 P.2d at 503.3 Under the
3. We recognize that some Utah entrapment cases have relied on
propensity-type evidence, an approach that appears to be “at
odds with both the entrapment statute and our Supreme Court’s
more recent articulation of the objective standard.” State v.
Hatchett, 2020 UT App 61, ¶ 14 n.7, 462 P.3d 1288. For example, in
State v. Udell, 728 P.2d 131 (Utah 1986), the court cited the fact that
the defendant “was a known drug user” and that the officer “had
reason to believe that [the] defendant was involved in drug
trafficking,” both of which seem to bear on whether the defendant
(continued…)
20191052-CA 18 2022 UT App 56State v. Dickerson
objective standard, “[i]f the police conduct would create a
substantial risk that a normal law-abiding person would be
induced to commit a crime, entrapment has occurred regardless
of the predisposition of the defendant.” State v. Martinez, 848 P.2d
702, 706 (Utah Ct. App. 1993). This reflects the legislative
judgment that “[a]ppeals to sympathy, friendship, the possibility
of exorbitant gain, and so forth, can no more be tolerated when
directed against a past offender than against the ordinary law-
abiding citizen.” Taylor, 599 P.2d at 502 (quoting Sherman v. United
States, 356 U.S. 369, 384–85 (1958) (Frankfurter, J., concurring)).
The contrary view “would espouse the notion that when dealing
with the criminal classes anything goes.” See id. (cleaned up).
¶28 In short, adoption of the objective standard eliminated any
“‘predisposition’ or ‘innocence’ requirement to constitute an
entrapment defense.” Id. at 503. “[I]f the police conduct would
create a substantial risk that a normal law-abiding person would
be induced to commit a crime, entrapment has occurred
regardless of the predisposition of the defendant.” State v.
LaVesseur, 854 P.2d 1022, 1025 (Utah Ct. App. 1993) (cleaned up).
was predisposed to distribute a controlled substance. Id. at 133.
And in State v. Torres, 2000 UT 100, 16 P.3d 1242, the court
appeared to rely on the fact that the defendant “was known in the
community as a ‘big mover of drugs,’” id. ¶ 12, to distinguish that
case from one in which there was “no evidence that the defendant
had previously possessed or dealt with the drug,” State v.
Kourbelas, 621 P.2d 1238, 1240 (Utah 1980); see Torres, 2000 UT 100,
¶ 12. Fortunately, to resolve this case, we are not required to
reconcile the apparent conflict between our supreme court’s
articulation of the objective standard and its references to
predisposition evidence in Udell and Torres. Here, the record
contains no predisposition evidence.
20191052-CA 19 2022 UT App 56State v. Dickerson
¶29 When we refer to the “subjective” or “objective” standards
of entrapment in the abstract, we sometimes overlook the key
difference between the two approaches—whether the defense is
available to one with a criminal history demonstrating a
predisposition to commit the crime. Over time, instead of
articulating the standard as one focusing primarily on police
conduct, the standard began to be framed as focusing solely on
police conduct. Compare Salmon, 612 P.2d at 368 n.5 (“The basic
difference is that the subjective test looks primarily to a
defendant’s predisposition to commit the crime, whereas the
objective test looks primarily to police conduct.”), with Torres,
2000 UT 100, ¶ 8 (describing the “objective standard for
entrapment cases, which focuses solely on police conduct, rather
than on the defendant’s predisposition to commit a crime”). And
this court once suggested that the objective standard made
irrelevant not only the “character of the suspect” and “his
predisposition to commit the offense,” but also “his subjective
intent.” State v. Wright, 744 P.2d 315, 318 (Utah Ct. App. 1987).
¶30 But as our supreme court has explained, entrapment
operates as a defense precisely because the nature of the police
conduct gives rise to “a reasonable doubt that the defendant freely
and voluntarily committed the offense.” See Torres, 2000 UT 100,
¶ 8 (cleaned up). If there is “a reasonable basis in the evidence
upon which jurors could find beyond a reasonable doubt that the
crime was a result of [the] defendant’s own voluntary desire and
intent to commit the crime,” the defendant has not established
entrapment as a matter of law. Moore, 782 P.2d at 501.
¶31 These seemingly contradictory statements have
understandably led to some confusion. See, e.g., Hernandez, 2020
UT App 58, ¶ 7 n.2 (noting the apparent contradiction between an
objective standard that “focus[es] solely on police conduct” and
“the proximate instruction” that entrapment is a defense because
it raises a reasonable doubt as to whether “the defendant freely
and voluntarily committed the offense” (cleaned up)); Hatchett,
20191052-CA 20 2022 UT App 56State v. Dickerson
2020 UT App 61, ¶ 14 n.7 (same). Here, the district court
concluded that “to consider the impact of police inducement on
the particular defendant” would violate the objective test. The
court believed it was limited to assessing “the impact of the
inducement on a reasonable person under the circumstances of
the particular case.”
¶32 The standard articulated by the district court—that of “a
reasonable person under the circumstances of the particular
case”—is not based on the statutory language. It is similar to the
“individualized objective standard” used when applying the
stalking statute. See Baird v. Baird, 2014 UT 08, ¶ 26, 322 P.3d 728.
But unlike the stalking statute, the entrapment statute does not
direct us to assess the effect of the conduct on “a reasonable
person in the [person’s] circumstances.” Compare Utah Code Ann.
§ 76-5-106.5(1)(d) (LexisNexis 2017) with id. § 76-2-303. And a
“reasonable person” standard has never been applied in our case
law interpreting the entrapment statute. The closest articulation
of such a standard is the suggestion that “the propriety of
government action is measured by its probable effect upon a
hypothetical person in the setting in which the inducement took
place.” State v. Richardson, 843 P.2d 517, 520 (Utah Ct. App. 1992)
(cleaned up) (quoting Wright, 744 P.2d at 318, which is the only
other Utah case in which this language is used).
¶33 But ever since Taylor, our supreme court has consistently
instructed courts to look to all the circumstances surrounding the
police conduct, including “‘the response to the inducements of the
agent,’” in assessing “’what the effect of the governmental agent’s
conduct would be on a normal person.’” Id. at 519 (quoting Taylor,
599 P.2d at 503). And both this court and our supreme court have
regularly considered the impact of police inducement on the
particular defendant. In some cases, we have relied on the
defendant’s responses as evidence of a reluctance to commit the
crime that subsequently had to be overcome by police
inducement. See, e.g., State v. Kaufman, 734 P.2d 465, 467–68 (Utah
20191052-CA 21 2022 UT App 56State v. Dickerson
1987) (noting the defendant had declined the undercover officer’s
offer to sell him stolen jewelry and diamonds but had allowed her
to leave it in his safe when the officer, posing as a “relatively
young, divorced mother of six children who was having hard
times,” told him she did not like “carrying the stuff around”);
State v. Kourbelas, 621 P.2d 1238, 1240 (Utah 1980) (relying on the
persistent requests of the undercover agent to purchase drugs
from the defendant); State v. Sprague, 680 P.2d 404, 406 (Utah 1984)
(same). In many others, we have relied on the defendant’s
responses as evidence of a willingness to commit the crime when
merely presented with the opportunity. See, e.g., Hernandez, 2020
UT App 58, ¶¶ 11–12 (noting that when the defendant “was
approached and offered the opportunity to engage in criminal
conduct, he expressed interest without impermissible
prompting”); Torres, 2000 UT 100, ¶ 14 (stating that the
defendant’s “persistent, and eventually successful, attempts to get
the drugs to the informant, despite considerable difficulty,”
illustrated “[h]is willingness to commit the crime”); State v. Byrns,
911 P.2d 981, 988 (Utah Ct. App. 1995) (explaining that the record
was “replete with statements by defendant demonstrating his
willingness and eagerness to set up a methamphetamine lab”);
State v. Gallegos, 849 P.2d 586, 588 (Utah Ct. App. 1993) (noting
that the confidential informant asked the defendant to procure
him some drugs on one occasion and “the defendant readily
responded affirmatively that he would do so”).
¶34 Evidence of the defendant’s demonstrated willingness or
eagerness to commit the crime in question is distinguishable from
the type of predisposition evidence that the entrapment statute
prohibits. Under the statute’s objective standard, the entrapment
defense is available to any defendant who can show that the
government’s methods created a substantial risk of ensnaring one
not otherwise ready to commit the offense, regardless of whether
the defendant has a history of prior actions indicating a
predisposition to commit the crime. Looking at the “impact of
police inducement on the particular defendant” is not
20191052-CA 22 2022 UT App 56State v. Dickerson
incompatible with that standard. The defendant’s reactions to the
government inducement—for example, whether the defendant
hesitates when presented with an illegal opportunity and
succumbs only to persistent pressure or, conversely, whether the
defendant actively pursues the commission of the crime despite
opportunities to withdraw—are highly relevant to the statutory
question of whether the police methods created “a substantial risk
that the offense would be committed by one not otherwise ready
to commit it,” or whether those methods “merely afford[ed] a
person an opportunity to commit an offense” that the person was
“otherwise ready to commit.” Utah Code Ann. § 76-2-303(1).
Therefore, we examine Dickerson’s responses to the government
inducement along with all other relevant circumstances.
B. Application of the Objective Standard
¶35 “In assessing police conduct under the objective standard,
the test to determine an unlawful entrapment is whether a law
enforcement official or an agent, in order to obtain evidence of the
commission of an offense, induced the defendant to commit such
an offense by persuasion or inducement which would be effective
to persuade an average person, other than one who was merely
given the opportunity to commit the offense.” State v. Taylor, 599
P.2d 496, 503 (Utah 1979). In other words, we ask “whether the
government’s methods create a substantial risk of inducing the
commission of a crime despite a person’s lack of initiative or
desire to commit it.” State v. Hernandez, 2020 UT App 58, ¶ 13, 462
P.3d 1283. “Only when reasonable minds could not differ can we
find entrapment as a matter of law.” State v. Haltom, 2005 UT App
348, ¶ 7, 121 P.3d 42. Otherwise, it is “a question properly reserved
for the jury.” State v. Gallegos, 849 P.2d 586, 588 (Utah Ct. App.
1993); see also id. at 590.
¶36 Entrapment “is a highly fact-intensive” inquiry. State v.
Torres, 2000 UT 100, ¶ 8, 16 P.3d 1242. The surrounding
circumstances, including “the transactions leading up to the
20191052-CA 23 2022 UT App 56State v. Dickerson
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.” See Taylor, 599 P.2d at 503.
Unlike the district court, we do not view this language as “a
judge-made multi-factored test.”4 Rather, it merely illustrates that
the entire course of conduct must be considered in assessing the
effect that the government’s methods would have on a person not
otherwise ready to commit the crime. “Evidence of the setting in
which the inducement took place is of course highly relevant in
judging its likely effect.” State v. Cripps, 692 P.2d 747, 750 (Utah
1984) (cleaned up) (quoting Sherman v. United States, 356 U.S. 369,
384–85 (1958) (Frankfurter, J., concurring)).
¶37 In the fifty years since the entrapment statute was enacted,
our supreme court has held that a defendant was entrapped as a
matter of law in only two types of cases. The first type of case
involves “improper police conduct” in which the government
agent applied “persistent pressure” or “persistently pursued” the
defendant to commit the crime. Torres, 2000 UT 100, ¶ 9 (citing
State v. Sprague, 680 P.2d 404, 406 (Utah 1984), and State v.
Kourbelas, 621 P.2d 1238, 1240 (Utah 1980)). The second type of
case involves “appeals based on sympathy, pity, or close personal
friendships, or offers of inordinate sums of money.” Id. (cleaned
up) (citing Taylor, 599 P.2d at 503, and State v. Kaufman, 734 P.2d
4. Noting that “the Utah Supreme Court in recent years has
embarked on a campaign to dismantle multi-factored tests in
favor of applying the language of the rules of evidence,” the
district court “reject[ed] the amorphous standards articulated in
Utah’s entrapment case law, and instead applie[d] the plain
language of section 76-2-303.” This approach is incompatible with
principles of vertical stare decisis, which “compels a court to
follow strictly the decisions rendered by a higher court.” State v.
Benson, 2014 UT App 92, ¶ 28, 325 P.3d 855 (cleaned up).
20191052-CA 24 2022 UT App 56State v. Dickerson
465, 468 (Utah 1987)). Neither of those impermissible methods is
implicated in this case.
¶38 First, Dickerson was not subjected to persistent requests to
engage in criminal conduct. We have previously recognized that
“excessive pressure or goading by an undercover officer might
constitute entrapment.” State v. J.D.W., 910 P.2d 1242, 1244 (Utah
Ct. App. 1995). In Kourbelas, for example, the undercover agent
“first suggested the purchase of marijuana from the defendant,”
“renewed the contact and the request” two weeks later, and then
“followed up by calling the defendant at least five times in
attempting to purchase the marijuana.” 621 P.2d at 1240. Under
those circumstances, our supreme court held that “there
necessarily exists a reasonable doubt as to whether the offense
committed was the product of the defendant’s initiative and
desire, or was induced by the persistent requests of [the
undercover agent].” Id. On the other hand, in J.D.W., this court
could not say that a defendant was entrapped as a matter of law
where the undercover officer merely offered to sell the defendant
marijuana but “did not make repeated requests or badger” the
defendant to buy it. See J.D.W., 920 P.2d at 1244.
¶39 Here, the undercover agent did not harass Dickerson into
committing the crime. It was Dickerson who asked for Kailey’s
phone number “so I can text u” after learning she was only
thirteen years old. It was Dickerson who sent the first text saying,
“Hey baby its me.” And whenever Kailey did not immediately
respond to a text, Dickerson sent multiple follow-up messages,
asking for reassurance that Kailey was “forreal” and not
“playing” him. It was Dickerson who proposed that they meet in
person—“to smoke and what else can we do baby”—and asked
Kailey to send him her address. In fact, Dickerson asked Kailey
for her address no less than ten times beginning at 11:51 p.m.,
until he finally received the address at 12:47 a.m.
20191052-CA 25 2022 UT App 56State v. Dickerson
¶40 A defendant is not entitled to acquittal as a matter of law
under an entrapment theory where he has actively pursued the
commission of the crime despite opportunities to withdraw. For
example, in Torres, despite “several opportunities to back out of
[a] drug deal,” the defendant’s “willingness to commit the crime
[was] illustrated by his persistent, and eventually successful,
attempts to get the drugs to the informant, despite considerable
difficulty.” 2000 UT 100, ¶ 14; see also Hernandez, 2020 UT App 58,
¶¶ 11–12 (noting that the defendant had “an opportunity to
desist” from solicitation of a prostitute when the undercover
detective rejected “his initial low-ball offer,” but persisted in
making “a realistic offer of payment to the detective to engage in
a sex act”). A defendant’s “independent and persistent attempts”
to commit the crime demonstrate that “his actions were freely and
voluntarily committed, and thus were not induced by
[government] conduct.” See Torres, 2000 UT 100, ¶ 14 (cleaned up).
¶41 Over the course of the three-and-a-half-hour conversation,
the agent gave Dickerson multiple opportunities to back out.
When Kailey expressed reluctance, Dickerson assured her that he
would be gentle, that she would like it, and that she would not get
pregnant. He expressed frustration that “ur asking all these
questions like u couldn’t also [ask] me this face to face.” When she
continued to hesitate, he begged her to stop “playin” and
“wasting time” and to send him her address. Kailey even
suggested that they meet up the next day, but Dickerson pleaded,
“Awwwww baby y . . . I wanted to Tonite please.” Numerous
times, the agent “offered [Dickerson] an opportunity to desist,”
yet Dickerson persisted in soliciting sex from a thirteen-year-old
girl “when provided with the mere opportunity to do so.” See
Hernandez, 2020 UT App 58, ¶¶ 11–12.
¶42 In fact, Dickerson’s response to the police inducement was
remarkably like that of the defendant in State v. Hatchett, 2020 UT
App 61, 462 P.3d 1288, a case in which this court affirmed the
district court’s denial of a pre-trial motion to dismiss based on
20191052-CA 26 2022 UT App 56State v. Dickerson
entrapment. In Hatchett, the defendant placed an ad looking for
an “18–25 year old guy to party and play with”—a reference to
drug-enhanced sexual activity. Id. ¶ 2. An undercover agent,
posing as “Cade,” responded with the message, “saw ur post how
yung is 2 yung.” Id. ¶ 3. When Hatchett asked his age, Cade
responded, “old enuff 2 no what I want, middle school but lik
coke.” Id. Hatchett then asked if Cade had “a connect”
(presumably to obtain cocaine), what his “stats” were, and what
he was “into.” Id. Cade responded, “almost 14 m whatever.” Id.
Nonetheless, Hatchett continued to communicate with Cade for
several weeks, making plans to meet up when Hatchett was in
town. Id. “Whenever Hatchett asked Cade what he wanted to do
when they met up, Cade would respond evasively by stating that
he did not know” and “never proposed specific sex acts.” Id. ¶ 4.
But “it became readily apparent that Hatchett was undeterred by
the fact that Cade was ‘almost 14’ years old,” and “repeatedly
steered their conversation in a sexual direction.” Id. Under these
facts, the district court denied the motion to dismiss, concluding
that “at most, [the agent] afforded the mere opportunity to
commit the offense.” Id. ¶ 8.
¶43 In affirming that ruling on appeal, this court emphasized
that the agent posing as Cade “did not persistently request that
Hatchett commit an illegal offense.” Id. ¶ 16. Unlike in Kourbelas,
where the agent reinitiated contact with the defendant several
times, see 621 P.2d at 1240, “Hatchett was subjected to no such
persistent effort,” Hatchett, 2020 UT App 61, ¶ 16. “To the
contrary, Hatchett aggressively pursued Cade after he was made
aware of Cade’s young age.” Id. This court concluded that “this
case does not present a set of circumstances under which we can
hold that reasonable minds cannot differ as to whether
entrapment occurred.” Id. ¶ 19 (cleaned up).
¶44 Like the defendant in Hatchett, Dickerson aggressively
pursued Kailey, not the other way around. And he did so despite
knowing her age and having multiple opportunities to change
20191052-CA 27 2022 UT App 56State v. Dickerson
course. Therefore, the facts do not present a case of “excessive
pressure or goading” that would compel the conclusion that
Dickerson was entrapped as a matter of law. See J.D.W., 910 P.2d
at 1244.
¶45 Second, this case does not involve the kind of
“personalized high-pressure tactics or appeals to extreme
vulnerability” that might constitute entrapment as a matter of
law. See State v. Martin, 713 P.2d 60, 62 (Utah 1986). “Extreme pleas
of desperate illness or appeals based primarily on sympathy, pity,
or close personal friendship, or offers of inordinate sums of
money, are examples, depending on an evaluation of the
circumstances in each case, of what might constitute prohibited
police conduct.” Taylor, 599 P.2d at 503. For example, in Taylor,
our supreme court held that the defendant was entrapped as a
matter of law when a police informant pleaded with the
defendant, with whom she had an intimate relationship, to help
her locate drugs to avoid “the agonies of withdrawal” that the
defendant, as a recovering addict, had personally experienced. Id.
at 503–04. And in Kaufman, the undercover agent posed as a
“divorced mother of six children who was having hard times” and
“first became a friend to the defendant so that it was hard for the
defendant to call the police and turn her in” when she admitted
that the jewelry she had sold him was stolen property. 734 P.2d at
468 (cleaned up).
¶46 Here, the undercover agent did not develop a personal
relationship with Dickerson that he then exploited. See State v.
Martinez, 848 P.2d, 702, 707 (Utah Ct. App. 1993) (concluding that
entrapment “require[s] some exploitation of the personal
relationship”). He made no appeals to Dickerson’s sympathy or
pity. Nor did he make any offer that a person not otherwise ready
to commit the crime would be hard-pressed to refuse. Indeed, the
agent did nothing to “induce” Dickerson’s participation beyond
posing as a thirteen-year-old girl who was willing to meet him.
And instead of actively persuading or convincing Dickerson to
20191052-CA 28 2022 UT App 56State v. Dickerson
commit the crime, Kailey was hesitant and noncommittal. It was
Dickerson who pled with Kailey to meet him that night. He did so
“without being badgered, pressured, coerced by pleas of
sympathy or a personal relationship, or tempted with an
inordinate monetary incentive.” See Hernandez, 2020 UT App 58,
¶ 12. “As stated in Taylor, the objective test does not prohibit the
police from affording a person an opportunity to commit crime; it
only prohibits active inducements on the part of the government
for the purpose of luring an ‘average’ person into the commission
of an offense.” State v. Salmon, 612 P.2d 366, 368 (Utah 1980).
¶47 The agent in this case did not “employ inducements that
would have been, as a matter of law, sufficient to induce an
ordinary person,” not otherwise inclined, to solicit sex from a
thirteen-year-old. See State v. Gallegos, 849 P.2d 586, 590 (Utah Ct.
App. 1993); see also Hernandez, 2020 UT App 58, ¶ 13 (“We do not
think a person, not otherwise inclined, would be swayed to
patronize a prostitute by the methods employed in this case.”).
“When there is a reasonable basis in the evidence upon which
jurors could believe beyond a reasonable doubt that the crime was
a result of a defendant’s own voluntary desire and intent to
commit the crime, the fact that a police officer merely afforded
him the opportunity to commit it, does not amount to
entrapment.” Salmon, 612 P.2d at 369. Because the facts of this case
are “not sure to leave all reasonable minds with a reasonable
doubt as to whether [Dickerson] acted on his own inclination,” the
motion to dismiss should have been denied and the entrapment
defense presented to the jury. See Hernandez, 2020 UT App 58,
¶ 14.
C. The District Court’s Ruling
¶48 The district court based its contrary ruling on two principal
factors. It found (1) that “a reasonable person could conclude that
he was chatting with an adult woman who was only pretending
to be a child” because the undercover agent chose to “adult-certify
20191052-CA 29 2022 UT App 56State v. Dickerson
Kailey” on the dating app and “post the picture of an adult
woman” on Kailey’s profile, and (2) that the agent “was the one
who directed the conversation to overtly sexual topics.” Neither
of these factors establishes entrapment as a matter of law.
¶49 First, the district court placed great weight on the
techniques the agent used to gain access to the dating app.
Specifically, the court found it significant that the agent “certified
that his online persona was 18 years of age or older” and “posted
the picture of an adult woman on the profile,” which the court
found “appear[ed] to be at least 18 years of age, if not older.” The
court found these actions to be significant because a reasonable
person in Dickerson’s circumstances “could justifiably conclude
that he [was] chatting not with a child but with an adult woman
who was pretending to be a minor and a sexual innocent.”
¶50 We see multiple problems with this analysis. For starters,
the entrapment defense presupposes that the defendant has
committed the crime charged but was entrapped into doing so.5 If
a jury finds that Dickerson believed that Kailey was “an adult
woman who was pretending to be a minor and a sexual innocent,”
5. Dickerson says that this “is manifestly not true” because the
entrapment statute expressly makes the defense “available even
though the actor denies the commission of the conduct charged to
constitute the offense.” See Utah Code Ann. § 76-2-303(3)
(LexisNexis 2017). But the availability of a defense says nothing
about whether the defenses are ultimately inconsistent. See State
v. Mitcheson, 560 P.2d 1120, 1122 (Utah 1977) (observing that a
defendant has “the benefit of every defense” that may raise a
reasonable doubt as to his guilt, and “this is true whether his
defenses are consistent or not”). A defendant may certainly
maintain that he did not commit the offense, but that, if he did, he
was entrapped. A jury finding that the defendant did not commit
the offense would simply obviate the need to reach the
entrapment defense.
20191052-CA 30 2022 UT App 56State v. Dickerson
Dickerson would be entitled to acquittal, not because he was
entrapped, but because he did not act with the requisite mental
state and is therefore factually innocent of the charged crimes. See
State v. Hatchett, 2020 UT App 61, ¶ 9, 462 P.3d 1288 (noting that,
in returning a guilty verdict, the jury necessarily rejected both the
defendant’s entrapment defense and his claim that he believed the
undercover persona “was an adult pretending to be a minor for
‘fantasy’ purposes”). And a reasonable jury could easily draw the
opposite inference—that Dickerson believed Kailey was a minor
who had falsely certified her age and posted an adult’s
photograph to circumvent the dating app’s “adults only” policy.
At best, this evidence “is subject to multiple interpretations.” See
State v. Haltom, 2005 UT App 348, ¶ 12, 121 P.3d 42.
¶51 Additionally, the fact that the agent initially presented the
undercover persona as an adult does not establish entrapment as
a matter of law. The undercover agent revealed that Kailey was a
minor at the outset of the conversation before any discussion of
criminal activity occurred. When Kailey told Dickerson she “was
in middle school,” Dickerson asked, “so how old r u baby.” Kailey
said she was thirteen. When Dickerson questioned “y it say 18
baby,” Kailey replied, “I’m serious. I’m 13.” A jury could find that
“a person not otherwise ready to commit the crime” would have
immediately terminated the conversation. Instead, he asked her
why she was on the dating app, if she smoked or drank, and
whether she could “get out of the house.” And, after learning that
he was chatting with a thirteen-year-old on a dating site,
Dickerson asked Kailey for her phone number to continue the
conversation by text. These facts are not “sure to leave all
reasonable minds reasonably doubting whether the commission
of the offense was the product of [Dickerson’s] inclination.” See
State v. Hernandez, 2020 UT App 58, ¶ 6, 462 P.3d 1283.
¶52 Second, the court also found it significant that the
undercover agent first “directed the conversation to overtly
sexual topics” when Kailey said she was “kinda scared” because
20191052-CA 31 2022 UT App 56State v. Dickerson
she had “never been with a oldr guy.” As an initial matter, we
agree with the State that this factual finding is not supported by
the evidence. Dickerson was the first to use the phrase “been
with” as sexual innuendo when he asked Kailey, “U ever been
with a black dude.” The district court dismissed the significance
of this statement in a footnote, reasoning that, “[t]aken in the
context of the brief [dating app] messaging, this question was not
overtly sexual.” We fail to see how Kailey’s use of the phrase
could be characterized as “direct[ing] the conversation to overtly
sexual topics” while Dickerson’s use of the same phrase was “not
overtly sexual.” Moreover, the first explicit reference to a sexual
act came from Dickerson when he asked Kailey, “Ok u never had
nobody play wit it or lick it”? And he then promised that he
would be gentle, that she would “like the way I do it and daddy
going to teach you a lot.” Later, Dickerson was the first to
explicitly reference a second sexual act when he asked Kailey,
“Have u ever suck on it before . . . Dick baby”? Unquestionably, it
was Dickerson who first explicitly proposed specific sexual acts.
Cf. Hatchett, 2020 UT App 61, ¶ 8.
¶53 More importantly, even if the undercover agent had
initiated the discussion of sexual activity, merely proposing
criminal activity is not improper inducement. In Hernandez, for
example, an undercover officer approached the defendant’s car
and asked him if he was “‘looking for a date’—lingo used to offer
prostitution services.” 2020 UT App 58, ¶ 2. When Hernandez
responded in the affirmative, the detective asked if he had any
money and “then inquired whether Hernandez wanted ‘to fuck’
or if he just ‘wanted a blowjob.’” Id. Hernandez responded that he
“wanted to go all out,” and the two negotiated a price. Id. The
detective directed Hernandez to meet her around the corner,
where he was apprehended by law enforcement. Id.¶54 The district court granted Hernandez’s motion to dismiss,
“concluding as a matter of law that Hernandez was entrapped to
commit the offense of patronizing a prostitute.” Id. ¶ 14. We
20191052-CA 32 2022 UT App 56State v. Dickerson
reversed because a factfinder could have reasonably concluded,
on the facts presented, that Hernandez was not entrapped. Id. ¶ 5.
We compared the case to State v. J.D.W., 910 P.2d 1242 (Utah Ct.
App. 1995), in which an undercover officer randomly approached
two teens at a shopping mall and asked if they wanted to buy
marijuana. Hernandez, 2020 UT App 58, ¶ 12. In both cases, “the
officer merely provided the opportunity” to commit the crime. Id.
¶ 9; J.D.W., 910 P.2d at 1244. The fact that the officer “initiated
contact and started the discussion about engaging in illegal
activity” did not establish entrapment as a matter of law.
Hernandez, 2020 UT App 58, ¶ 12.
¶55 Similarly, in this case, even accepting the district court’s
factual finding that it was the agent “who directed the
conversation to overtly sexual topics,” Dickerson was not entitled
to acquittal as a matter of law. “In every case of this type, the
intention that the particular crime be committed originates with
the police, and without their inducement, the crime would not
have occurred. Yet it is perfectly clear that where the police merely
furnish an opportunity for the commission of the crime, this is
insufficient for the defendant to escape conviction.” State v. Taylor,
599 P.2d 496, 501 (Utah 1979).
¶56 The statutory question is whether the agent in this case
used “methods creating a substantial risk that the offense would
be committed by one not otherwise ready to commit it.” Utah
Code Ann. § 76-2-303(1) (LexisNexis 2017). Under these facts, we
have no trouble concluding that a reasonable jury could answer
that question with a resounding no. At minimum, reasonable
minds could disagree as to whether the police methods in this case
created a substantial risk that a person not otherwise ready to
entice a thirteen-year-old girl to engage in unlawful sex acts
would commit the offense. Only when “reasonable minds cannot
differ . . . can we hold that entrapment occurred as a matter of
law.” State v. Beddoes, 890 P.2d 1, 3 (Utah Ct. App. 1995).
20191052-CA 33 2022 UT App 56State v. Dickerson
¶57 The factors identified by the district court—the initial use
of an adult profile and photograph and “the decision to first direct
the text messaging toward overtly sexual topics”—do not compel
a conclusion that Dickerson was entrapped. “Rather than an issue
that could be settled as a matter of law, [Dickerson] presented the
trial court with evidence that could have supported [his]
entrapment defense, but that also could have been interpreted as
insignificant.” See Haltom, 2005 UT App 348, ¶ 12. “[B]ecause
reasonable minds easily could differ on the question of
entrapment as a matter of law in this case,” see id., Dickerson’s
motion should have been denied and his defense submitted to the
jury.
CONCLUSION
¶58 We reverse the district court’s dismissal of the enticement
of a minor and attempted sodomy on a child charges and remand
for trial or other proceedings consistent with this opinion.
20191052-CA 34 2022 UT App 56