State v. Smith , 2022 UT App 82 ( 2022 )

2022 UT App 82THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SHANE CRAIG SMITH,
Appellant.
Opinion
No. 20200782-CA
Filed June 30, 2022
Fourth District Court, Provo Department
The Honorable M. James Brady
No. 191403507
Jennifer L. Foresta, Bryson King, and Douglas J.
Thompson, Attorneys for Appellant
Sean D. Reyes, Kris C. Leonard, and Christopher D.
Ballard, Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE
GREGORY K. ORME and JUSTICE DIANA HAGEN1 concurred.
HARRIS, Judge:
¶1 The “13-year-old girl” Shane Craig Smith met on the
internet was, in reality, an undercover police detective. After
arranging to pick up the “girl” in person at a convenience store,
Smith was arrested and later charged with various crimes,
including attempted child kidnapping and several attempted sex
crimes. He eventually entered a conditional guilty plea to some of
1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
State v. Smith
the charges, reserving his right to appeal two issues: whether
there was insufficient evidence to bind over the attempt charges
and whether the district court erred by denying his motion to
dismiss all the charges on the basis that he had been entrapped.
Smith now appeals, raising those two issues. For the reasons
discussed, we affirm his convictions.
BACKGROUND2
¶2 One evening, a police detective (Detective) was conducting
an internet sting operation. He created an online persona on a
text-based internet application (the app) that he understood had
a reputation as a “hookup” site for individuals seeking sexual
companionship. Although the app required users to be eighteen
years of age or older, Detective had seen several cases involving
“real child victims” on the app. In creating his online persona,
Detective used a moniker like “Fun Girl” or “Good Time,” and
selected as his profile picture a stock photograph of an unknown
female; he selected that particular photo because it appeared to be
an “attractive” woman between the ages of eighteen and twenty-
five. Across the front of the profile photo, Detective affixed the
words “Wanting to HU,” a term he stated meant to “hook up.”
Detective posted this profile, including the message “Wanting to
HU,” in a chat room titled “Sexual Confessions.”
¶3 Detective’s post received “hundreds” of responses, and he
engaged in chats with “more than half of them.” One of the app
users who responded to Detective’s post was Smith, whose initial
response was “I’m down.” Off and on over the next three hours,
Smith and Detective engaged in the following exchange, which
2. When we review a “magistrate’s bindover decision, we view all
evidence in the light most favorable to the prosecution, draw all
reasonable inferences in favor of the prosecution, and recite the
facts with that standard in mind.” State v. Nihells, 2019 UT App
210, n.1, 457 P.3d 1121 (quotation simplified).
20200782-CA 2 2022 UT App 82State v. Smith
we include here in its entirety, accompanied by some explanatory
footnotes:
Detective: How r u
Smith: Good you
Detective: Bored
Detective: U?
Smith: Looking for a HU that can keep up
Smith: Lol. But other than that bored as well
Smith: So are you still looking
Detective: What kind of keep up
Smith: As in can actually go for as long as I can
Smith: Or handle my dick. I’m bigger than
most
Detective: How long do u go? And bigger than
most huh [smirking emoji]
Smith: I can cum and keep going and yeah
Smith: [photo 1 sent of an exposed penis]
Smith: [photo 2 sent of an exposed penis]
Smith: 9 inches
Smith: 2 wide
Smith: Thoughts?
Detective: Wow that is big
Smith: Any pic you want to send me?
Detective: I need a ride to Cali if u can hook me up
Smith: California?
Detective: Yeah
Smith: And how would you repay me?
20200782-CA 3 2022 UT App 82State v. Smith
Detective: What do u want?
Smith: Well send me some private photos so I
can see what I’m working with and I’ll
tell you
Detective: I ran away from home and want to
make it to Cali
Detective: I can send u a pic if your still good
Smith: I’m still good
Smith: ?? So
Detective: I’m 13 if that makes but willing to help
you if you help me
Smith: Well prove it
Smith: You there
Detective: [photo sent of half a woman’s face][3]
Smith: Take one that is more skin hun
Smith: One that proves your willing to help me
;)
Smith: Hello?
Detective: Give me the $200 for food and cash so I
can pay someone for a ride and I’ll do
whatever u want
3. Detective obtained this photograph (as well as the ones
referenced later, depicting a woman flipping off the camera and
touching her eyebrow and nose) from another officer. The
individual in the photographs was a 23-year-old woman who
sometimes worked with detectives as a confidential informant.
The officer who provided the photographs later explained that, in
his view, the woman “looks a lot younger than her age” and that
he chose her with this in mind.
20200782-CA 4 2022 UT App 82State v. Smith
Smith: Send me a picture and once your down
first
Smith: Like I could give you a ride
Smith: Prove*
Detective: Look I could really use the cash right
now
Smith: And I could really use proof you’re
serious
Detective: K thanks
Smith: Too many scams sorry but without
proof nothing
Detective: I’m just on the streets trying to get gone
from here
Smith: Like I said I could give you a ride
Detective: So do I need to give bjs[4] all the way
there? Or r we going to have sex cause
I’m a virgin
Detective: Or can u give me cash
Smith: Bj or sex it’s up to you
Smith: But I still need a pic for proof
Detective: I would just rather get cash also so I can
eat when I get there is that possible
Detective: U are a stranger and I want to get there
safe
Detective: [photo sent of a girl in overall shorts in
a public bathroom mirror]
Detective: I guess not
4. During his testimony, Detective explained that “bj” is an
acronym for “blow job” and is intended to refer to oral sex.
20200782-CA 5 2022 UT App 82State v. Smith
Detective: Do u know anyone to help me
Smith: You said you’d do whatever what does
that mean
Smith: And that pic isn’t proof
Detective: I told you I’ll give u bj and asked if you
could maybe give cash for me and I’ll
ride your 9 if it fits
Smith: Send me a full body nude or one of your
tits and pussy so I know you’re legit
Detective: No I don’t want pics out of me. I would
rather do it
Smith: And I’d rather have insurance you’re
not a cop
Detective: Fuck off I don’t care then
Detective: I’m not a cop
Smith: It’s literally one pic that you could take
in 30 seconds
Detective: No I had a friend get sucked into that
once
Smith: Yeah and I want to make sure you’re
legit
Smith: Funnily I have the 200 and enough to
get you to California but it’s whatever I
guess you really don’t need it
Detective: I do, but I don’t want nudes
Detective: They never go away
Smith: Yours are just to verify your legit. I’m
not about to keep them. That’s just
weird
Detective: I really need it but just please no nudes
20200782-CA 6 2022 UT App 82State v. Smith
Smith: Then send me 3 in just your underwear
Detective: I told u I would make it worth the trip
Smith: Ya still need proof first
Detective: Sorry I will not do it
Smith: Ok send me enough pics so I know
you’re a real person. Not a cop
Smith: Or what’s your Facebook or Instagram
so that way I can look check and see if
you’re legit
Detective: I feel like you are just trying to get a
bunch of pictures of me. I’ll send you
one more i guess but that’s it
Detective: [photo sent of girl in headphones
flipping off the camera]
Smith: Okay now that I’ve seen what you look
like send me two photos of you right
now one touching your nose in one
touching your eyebrow that will be
verification enough
Smith: If you can’t touch your nose and your
eyebrow then I know you’re fake
because there is nothing sexy or solicit
or anything like that about touching
your nose and your eyebrow
Detective: I have done slot for u how do I not know
u will traffic me
Detective: A lot
Smith: I will if and only if you send those two
verification or you send one with you
touching both
20200782-CA 7 2022 UT App 82State v. Smith
Detective: [photo sent of the same girl touching her
eyebrow]
Detective: [photo sent of the same girl touching her
nose]
Detective: There
Detective: Can u get me a ride tonight or in the
morning?
Smith: I can give you a ride tonight. Where are
you
Smith: Where are you
Smith: And where in California would we be
going
Detective: San Diego?
Smith: That works we would need to have
some fun before hand
Smith: Like on the way
Detective: Im at my friends by maverick by
thanksgiving point in lehi
Smith: Ok
Detective: Can I at least know ur name or a pic of
ur face to see who is getting me
Smith: My name is Shannon
Detective: K
Detective: How long I don’t want to freeze
Detective: I’m a king my shit now
Detective: Pack*
Smith: Ok. About 25 minutes
Detective: K
20200782-CA 8 2022 UT App 82State v. Smith
Detective: Let me know when ur here and I’ll run
over
Smith: Are you gonna blow me when we start
driving
Detective: If u want
Smith: Or do I need to find a place
Smith: Yes I want
Detective: We can drive and I can start I want to hit
the road
Smith: I’ll be there in about 5 min
Detective: K what do I look for
Smith: I’ll look for you and let you know when
I see you
Detective: K
Smith: Walk to the front of the store
Detective: K
Smith: Next to the ice box outside
Detective: Get me a drink to meet
Detective: It’s cold
Smith: If you want the ride you will go to the
ice box rn if not I’ll go
Smith: On the North side of the store
Smith: Where are you
Detective: K
Detective: Out front
Smith: Ok look forward
Smith: Come hop in
20200782-CA 9 2022 UT App 82State v. Smith
Smith: I blinked[5] at you
Detective: Where
Detective: It’s cold
Smith: In the parking lot. To your left
Smith: Go back to where you were
Smith: I know
Detective: Walk to u?
Smith: Yes
¶4 At this point, officers arrested Smith. Once he was in
custody, Smith admitted that he thought he had been
communicating with a 13-year-old girl with whom he “wanted to
have blow jobs and sex,” but maintained that, because she was a
runaway, he had merely planned on taking her to the local police
station and not to California.
¶5 The State ultimately charged Smith with five crimes:
attempted rape of a child, attempted sodomy on a child,
attempted sexual exploitation of a minor, attempted child
kidnapping, and enticing a minor over the internet.6 At a
preliminary hearing at which Detective testified, the State sought
bindover on all five counts, and Smith challenged the State’s
motion as to three of them (attempted rape, attempted sodomy,
and attempted kidnapping). In particular, Smith argued that the
State had failed to present sufficient evidence to establish that he
took a “substantial step” toward committing any of the attempt
5. Detective later clarified that Smith “blinked” by flashing his
headlights on and off.
6. In a different case, Smith was charged with additional crimes
related to the subsequent discovery of child pornography on the
phone police seized from Smith when he was arrested. Those
charges are not at issue in this appeal.
20200782-CA 10 2022 UT App 82State v. Smith
offenses. Following briefing and oral argument, the district court,
acting as magistrate, bound Smith over for trial on all charges,
rejecting Smith’s challenge to the bindover.
¶6 Later, Smith filed a motion asking the court to dismiss all
charges, asserting that—if he had committed the offenses—
Detective had, as a matter of law, entrapped him into doing so.
Before ruling on the motion, the court held another evidentiary
hearing at which Detective offered additional testimony. At this
hearing, Detective discussed the various “outs” he had provided
to Smith during their chat. An “out,” Detective explained, is an
attempt to give chat participants an opportunity to disengage
themselves from the conversation, especially after learning that
the person with whom they are communicating is underage. He
(and another law enforcement witness) explained that most
people disengage when they discover they are communicating
with a minor in an adult chat room, and some of them even
reprimand the youth or report the youth to website
administrators. Detective identified several points during his
online conversation with Smith that he considered “outs,”
including the following: when Detective stated that his persona
was thirteen years old; when he stated that his persona was a
runaway; when he stated that his persona wanted a ride out of
state; and when his persona told Smith to “[f]uck off.” The
witnesses noted that Smith did not take any of the “outs” offered
him, but continued to engage in the conversation. After the
hearing, and after additional briefing and argument, the court
denied Smith’s motion to dismiss.
¶7 After the denial of both motions, Smith entered into a
conditional plea agreement with the State. For his part, Smith
agreed to plead guilty to attempted sodomy of a child, attempted
child kidnapping, and enticement of a minor over the internet. In
return, the State agreed to dismiss the two other charges (for
attempted rape and attempted sexual exploitation of a minor),
and agreed to make certain sentencing recommendations to the
20200782-CA 11 2022 UT App 82State v. Smith
court. As part of the plea agreement, Smith reserved the right to
appeal the district court’s bindover order as well as the court’s
ruling denying his motion to dismiss.7
ISSUES AND STANDARDS OF REVIEW
¶8 Smith now appeals, and asks us to consider the two issues
he reserved in his conditional plea. First, he contends that the
district court, acting as magistrate, erred in binding him over for
trial on three of the attempt charges. “A decision to bind over a
criminal defendant for trial presents a mixed question of law and
fact and requires the application of the appropriate bindover
standard to the underlying factual findings.” State v. Prisbrey, 2020
UT App 172, ¶ 18, 479 P.3d 1126 (quotation simplified). “In this
context, appellate courts give limited deference to a magistrate’s
application of the bindover standard to the facts of each case.” Id.(quotation simplified); see also State v. Ramirez, 2012 UT 59, ¶ 7, 289
P.3d 444.
¶9 Second, Smith argues that the district court erred by
denying his motion to dismiss in which he asserted that he had
been entrapped as a matter of law. “An entrapment ruling
involves a mixed question of law and fact.” State v. Hatchett, 2020
UT App 61, ¶ 10, 462 P.3d 1288. “When considering a district
court’s entrapment determination, we review factual findings for
clear error and legal conclusions for correctness.” State v.
Hernandez, 2020 UT App 58, ¶ 4, 462 P.3d 1283.
7. The ability to enter a conditional guilty plea was first
recognized in State v. Sery, 758 P.2d 935 (Utah Ct. App. 1988), but
is now codified in rule 11(j) of the Utah Rules of Criminal
Procedure.
20200782-CA 12 2022 UT App 82State v. Smith
ANALYSIS
I
¶10 Smith first argues that the district court, acting as
magistrate, erred in binding him over for trial on three of the
attempt charges, asserting that it was “not reasonable to infer
from [the] evidence” that he had taken “the substantial step
necessary” for conviction of an attempt to commit the charged
crimes. We disagree.
¶11 While the State bears the burden of establishing the
existence of probable cause at a preliminary hearing, see State v.
Lopez, 2020 UT 61, ¶ 46, 474 P.3d 949, “that burden is relatively
low,” State v. Prisbrey, 2020 UT App 172, ¶ 21, 479 P.3d 1126(quotation simplified). In fact, “to justify binding a defendant over
for trial, the prosecution need not present evidence capable of
supporting a finding of guilt beyond a reasonable doubt. Nor is
the prosecution required to eliminate alternative inferences that
could be drawn from the evidence in favor of the defense.” State
v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (quotation simplified).
Instead, “all that is required is reasonably believable evidence—
as opposed to speculation—sufficient to sustain each element of
the crimes in question.” Id. (quotation simplified). In other words,
a magistrate should bind a defendant over for trial if there is
sufficiently credible evidence “to support a reasonable belief that
an offense has been committed and that the defendant committed
it.” State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d 1204 (quotation
simplified). And when evaluating factual contentions to support
bindover, the “magistrate must view all evidence in the light most
favorable to the prosecution and must draw all reasonable
inferences in favor of the prosecution.” State v. Merrill, 2012 UT
App 3, ¶ 9, 269 P.3d 196 (quotation simplified).
¶12 Utah’s attempt statute instructs that “a person is guilty of
an attempt to commit a crime if he: (a) engages in conduct
constituting a substantial step toward commission of the crime;
20200782-CA 13 2022 UT App 82State v. Smith
and (b) intends to commit the crime.” Utah Code Ann. § 76-4-
101(1) (LexisNexis 2017). In this context, our legislature has
determined that “conduct constitutes a substantial step if it
strongly corroborates the actor’s mental state.” Id. § 76-4-101(2).
Our supreme court, interpreting this statute, has explained that a
substantial step requires “significant conduct” in the form of an
“overt act.” See State v. Arave, 2011 UT 84, ¶ 30, 268 P.3d 163(quotation simplified). And that act must be “something more
than mere preparation”; it must be “a tangible step toward
commission of a crime that transcends intent, yet fails to
culminate in its planned accomplishment.” Id. (quotation
simplified).
¶13 The attempt crimes at issue here—the ones for which Smith
challenges the district court’s bindover decision—are attempted
rape of a child, attempted sodomy on a child, and attempted child
kidnapping. “A person commits rape of a child when the person
has sexual intercourse with a child who is under the age of 14.”
Utah Code Ann. § 76-5-402.1(1) (LexisNexis 2017). “A person
commits sodomy upon a child if the actor engages in any sexual
act upon or with a child who is under the age of 14, involving the
genitals or anus of the actor or the child and the mouth or anus of
either person.” Id. § 76-5-403.1(1). And a person “commits child
kidnapping if the [person] intentionally or knowingly, without
authority of law, and by any means and in any manner, . . .
transports a child under the age of 14 without the consent of the
victim’s parent or guardian.” Id. § 76-5-301.1(1).
¶14 Smith does not dispute that he intended to engage in
intercourse and oral sex with what he thought was a 13-year-old
girl. Indeed, he told officers after his arrest that he “wanted to
have blow jobs and sex” with the girl. And Smith had arranged to
transport the girl to California, without “authority of law” and
without the permission of her parents or guardian. Despite this
(and other) evidence tending to corroborate his mental state,
Smith nevertheless argues that it all amounts to nothing more
20200782-CA 14 2022 UT App 82State v. Smith
than “mere solicitation” or “mere preparation,” and therefore
does not constitute a “substantial step” toward commission of the
charged crimes. In support of his argument, Smith relies
principally on two cases: State v. Arave, 2011 UT 84, and State v.
Johnson, 821 P.2d 1150 (Utah 1991).
¶15 In Arave, the defendant approached an 11-year-old boy and
offered to pay him $20 if he would agree to let Arave perform oral
sex on him. See 2011 UT 84, ¶ 4. Arave had been fixated on the
child for approximately one month prior to the encounter, and
upon seeing him ride up and down the street on his skateboard,
he decided to approach him with the explicit offer. Id. ¶¶ 4–5. The
child did not agree to Arave’s proposal, and “rode home on his
skateboard in tears.” Id. ¶ 5. Arave did not attempt to stop the
child from leaving, and did not press the matter further. Id. On
these facts, a jury convicted Arave of attempted sodomy on a
child, but our supreme court reversed, holding that “[w]ithout
additional preventive action—moving to block [the child’s]
escape, take his skateboard, or otherwise restrain him—Arave did
nothing beyond what most any defendants would do when
committing a crime of solicitation.” Id. ¶ 32. The court noted that
any “face-to-face solicitor would necessarily have to find a way to
confront or face the person being solicited,” and re-emphasized
the need for the State to show more—a “substantial step” that
“must be something more than a solicitation.” Id. ¶¶ 31–34. In the
court’s view, to hold otherwise would “risk erasing the line
between” attempt and solicitation. Id. ¶ 34. Thus, while Arave had
committed criminal solicitation, he took the crime no further after
the minor rebuffed his advances and therefore could not be
convicted of an attempt crime. See id. ¶ 35 (“The undisputed
evidence presented to the trial court indicated that, at most, Arave
was guilty of solicitation of sodomy on a child.”).
¶16 In Johnson, the defendant purchased counterfeit
methamphetamine from several undercover officers, apparently
intending to use the drugs to kill her husband. See 821 P.2d at
20200782-CA 15 2022 UT App 82State v. Smith
1154–55. But after purchasing the drugs, Johnson was stopped by
police before she could arrive home, and the drugs were never
located. Id. at 1155, 1157. She was charged with and convicted of
attempted murder, but our supreme court reversed her
conviction, holding that the “mere purchase of the counterfeit
[drugs] from an undercover officer does not go beyond
preparation and therefore is not the substantial step needed to
support a conviction for attempted first degree murder.” Id. at
1157. The court emphasized that “mere preparation” to commit a
crime is insufficient to constitute an attempt and noted that, in
that case, there was “no showing that [Johnson] attempted to
administer the substance” to her husband. Id. In fact, there was
“no evidence as to what she did or attempted to do with [the
substance]. She may have used it herself or simply disposed of it.”
Id. Accordingly, without something more to demonstrate a
substantial step toward murder, as opposed to a drug-related
crime, the court concluded that Johnson had not committed overt
acts sufficient to constitute an attempt to commit murder. See id.
¶17 The facts of Arave and Johnson are materially
distinguishable from the facts of this case. In Arave, the defendant
did nothing more than solicit the crime before being rebuffed.8 See
2011 UT 84, ¶ 32. And in Johnson, the defendant’s actions—buying
methamphetamine—were not necessarily corroborative of an
intention to commit murder (as opposed to an intention to commit
a drug crime). See 821 P.2d at 1157. In this case, by contrast,
Smith’s solicitation—of both oral sex and sexual intercourse—was
accepted early in the text conversation, and additional plans were
then made, and actions taken, toward completion of the
8. Indeed, we suspect Arave would have come out differently if
Arave’s indecent proposal had been accepted (rather than
rejected), Arave had thereafter instructed the child to meet him at
a convenience store, Arave had traveled to the store, and had been
arrested there after again texting the child and flashing his
headlights at him in an effort to instruct him to get in his car.
20200782-CA 16 2022 UT App 82State v. Smith
contemplated crimes. Smith arranged to meet the girl 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 the girl, 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 the girl to walk toward the
headlights and get in the vehicle. Here, Smith did more than
merely solicit sexual acts; he took concrete overt steps toward the
commission of the charged crimes, steps that certainly corroborate
his intention to commit them.
¶18 Smith resists this conclusion in part by asserting that there
are “many further steps that would need to be taken before a
substantial step would be made toward any of the attempt crimes
in this matter, such as meeting up with an actual person, getting
in the car with an actual person, physically attempting to engage
in sexual activity with that person, or beginning to transport that
person with the requisite mindset.” But if overt acts of that nature
were required, it would presumably be impossible to convict a
defendant of an attempted sexual offense in internet sex sting
cases involving fictitious victims. Yet the overwhelming majority
of courts in other jurisdictions have concluded that individuals
caught in internet sex stings, and who travel to an agreed-upon
meeting place in anticipation of sexual behavior with a fictitious
victim, have taken a substantial step toward commission of sexual
crimes. See, e.g., State v. Reid, 713 S.E.2d 274, 277 & n.4 (S.C. 2011)
(agreeing with “the majority approach,” citing cases, and holding
that “an agreement to meet a fictitious minor at a designated place
and time, coupled with traveling to that location, may constitute
evidence of an overt act, beyond mere preparation, in furtherance
20200782-CA 17 2022 UT App 82State v. Smith
of the crime” (quotation simplified)).9 We find the reasoning of
these cases persuasive, and in keeping with existing Utah case law
regarding the meaning of “substantial step.”
9. Most other courts have reached the same conclusion on similar
facts. See United States v. Brand, 467 F.3d 179, 204 (2d Cir. 2006)
(“Brand took a ‘substantial step’ towards the completion of the
crime because [he] actually went to . . . the meeting place he had
established with [the fictitious girl].”), abrogated on other grounds
by United States v. Cabrera, 13 F.4th 140 (2d Cir. 2021); United States
v. Munro, 394 F.3d 865, 870 (10th Cir. 2005) (“Munro took a
substantial step towards completion of the crime by actually
going to the prearranged meeting place.”); United States v. Farner,
251 F.3d 510, 513 (5th Cir. 2001) (holding that a defendant took a
substantial step toward committing a crime by arranging and
traveling to meet a fictitious minor); Kirwan v. State, 96 S.W.3d 724,
728–31 (Ark. 2003) (similar holding); State v. Shah, 39 A.3d 1165,
1171 (Conn. App. Ct. 2012) (holding that, after engaging in a
sexually explicit conversation with a supposed child online,
“travel[ing] to a prearranged place with the intent of meeting that
child” could constitute a “substantial step” toward completing
various sex crimes); State v. Glass, 87 P.3d 302, 306–07 (Idaho Ct.
App. 2003) (holding that arranging a meeting place for sexual
activity with a purported minor was an overt act sufficient to
constitute an attempt); People v. Scott, 740 N.E.2d 1201, 1208 (Ill.
App. Ct. 2000) (noting that it is “not necessary for the defendant
to commit an act of a sexual nature with the fictional intended
victim in order to find that the defendant had completed a
substantial step,” and holding that the defendant—who arranged
to meet a fictitious minor and then drove to the agreed-upon
location—had “completed a substantial step towards the
commission of predatory criminal sexual assault”); State v. Tarbay,
157 Ohio App. 3d 261, 2004-Ohio-2721, 810 N.E.2d 979, at ¶¶ 18–
22 (holding that arranging to meet a fictitious minor and then
(continued…)
20200782-CA 18 2022 UT App 82State v. Smith
¶19 In this case, the substantial overt actions Smith took went
well beyond mere solicitation or preparation, and were strongly
corroborative of his intention to transport a 13-year-old girl
without authority or parental permission, and to engage in oral
sex and sexual intercourse with the girl. See Utah Code Ann. § 76-
4-101(2) (“[C]onduct constitutes a substantial step if it strongly
corroborates the actor’s mental state.”). Thus, there existed
sufficiently credible evidence to support a reasonable belief that
Smith committed the attempt crimes with which he was charged.
See State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d 1204. Accordingly,
the magistrate did not err in ordering Smith bound over for trial
on the attempt charges.
II
¶20 Second, Smith contends that the district court erred by
denying his motion to dismiss, in which he asserted that he had—
traveling to the meeting place constituted a substantial step
toward commission of a crime); State v. Townsend, 57 P.3d 255, 262
(Wash. 2002) (holding that engaging in sexual discussions with a
fictitious minor, arranging to meet, and then traveling to the
meeting place constituted a substantial step toward the
commission of a crime). Some other courts have reached different
conclusions on similar but not identical facts, see, e.g.,
Commonwealth v. Bell, 917 N.E.2d 740, 748 (Mass. 2009), but some
of those cases have since been overruled or superseded, either by
subsequent case law or by statute, see, e.g., Berger v. State, 259 So.
3d 933, 936 (Fla. Dist. Ct. App. 2018) (overruling State v. Duke, 709
So. 2d 580 (Fla. Dist. Ct. App. 1998), and holding that “a defendant
commits an overt act in furtherance of the crime of attempted
sexual battery where . . . the defendant travels to and arrives at an
agreed upon location” to meet a fictitious minor for sex); B.T.E. v.
State, 108 N.E.3d 322, 333 (Ind. 2018) (noting that State v. Kemp, 753
N.E.2d 47 (Ind. Ct. App. 2001), had been “superseded by statute”
and “disapprov[ing]” of that case’s analysis).
20200782-CA 19 2022 UT App 82State v. Smith
as a matter of law—been entrapped by police into committing the
crimes. Issues related to entrapment are usually reserved for the
factfinder to resolve. See State v. Hatchett, 2020 UT App 61, ¶ 10,
462 P.3d 1288 (“Only when reasonable minds could not differ can
[the court] find entrapment as a matter of law.” (quotation
simplified)); see also State v. Hernandez, 2020 UT App 58, ¶ 6, 462
P.3d 1283 (stating that motions to dismiss criminal cases on
entrapment grounds should be granted only where “an
entrapment defense . . . is sure to leave all reasonable minds
reasonably doubting whether the commission of the offense was
the product of a defendant’s inclination”). Indeed, “if reasonable
minds could differ on whether or not entrapment occurred, the
court must deny” a defendant’s motion to dismiss “and allow the
issue of entrapment to go to the jury.” State v. Dickerson, 2022 UT
App 56, ¶ 21 (quotation simplified). In our view, the district court
correctly concluded that this case was not one of those exceptional
cases in which entrapment issues should be taken from the jury,
and therefore did not err in denying Smith’s motion to dismiss.
¶21 Under Utah law, “[e]ntrapment occurs when” law
enforcement officers (or someone acting under their direction)
“induce[] the commission of an offense . . . by 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). However, our legislature has specified that
“[c]onduct merely affording a person an opportunity to commit
an offense does not constitute entrapment.” Id.¶22 Thus, a key question posed by our entrapment statute is
whether the defendant was “otherwise ready to commit” the
crimes in question. See id. And an important related question is
whether police conduct merely afforded the defendant an
opportunity to commit offenses he was already otherwise inclined
to commit. See Dickerson, 2022 UT App 56, ¶ 34 (quoting the
governing statute, and stating that the “statutory question[s]” are
“whether the police methods created a ‘substantial risk that the
20200782-CA 20 2022 UT App 82State v. Smith
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’”). “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.” Id. ¶ 35 (quotation simplified). In this context,
we recently stated that—although we may not ordinarily consider
a defendant’s prior crimes or general predisposition to commit the
offense—a “defendant’s reactions to the government inducement
. . . are highly relevant” in answering the pertinent statutory
questions. See id. ¶¶ 27–29, 34. Other factors to consider include
“the transactions leading up to the offense” and “the interaction[s]
between the agent and the defendant.” Id. ¶ 36 (quotation
simplified).
¶23 In interpreting the entrapment statute and in considering
these factors, “our supreme court has held that a defendant was
entrapped as a matter of law in only two types of cases.” Id. ¶ 37.
The first category consists of cases involving “improper police
conduct in which” police apply “persistent pressure or
persistently pursued the defendant to commit the crime.” Id.
(quotation simplified) (identifying State v. Sprague, 680 P.2d 404(Utah 1984), and State v. Kourbelas, 621 P.2d 1238 (Utah 1980), as
representative examples). The second category consists of cases
involving “appeals based on sympathy, pity, or close personal
friendships, or offers of inordinate sums of money.” Id. (quotation
simplified) (identifying State v. Kaufman, 734 P.2d 465 (Utah 1987),
and State v. Taylor, 599 P.2d 496 (Utah 1979), as representative
examples). This case does not fall into either one of these two
categories of cases.
¶24 First, Detective’s interactions with Smith were not coercive,
and he did not subject Smith to any improper pressure. Smith
initiated the chat by responding to Detective’s post, and was the
one to re-initiate communication after various pauses or lulls,
20200782-CA 21 2022 UT App 82State v. Smith
asking things like “?? So” and “Hello?”. Even after discovering
that the girl was thirteen years old, Smith continued to press the
matter, repeatedly asking for explicit photos and raising the issue
of repayment for his willingness to drive the girl to California.
Indeed, Detective gave Smith numerous opportunities to
withdraw from the conversation, a factor that we have previously
determined to be important. See Dickerson, 2022 UT App 56, ¶ 40
(stating that “a defendant is not entitled to acquittal as a matter of
law under an entrapment theory where he has actively pursued
the commission of a crime despite opportunities to withdraw,”
and that a defendant who does not avail himself of these
opportunities to withdraw has indicated that his “actions were
freely and voluntarily committed” and “not induced by
government conduct” (quotation simplified)); see also State v.
Torres, 2000 UT 100, ¶ 14, 16 P.3d 1242 (stating that 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 “several opportunities to back out of [the]
drug deal”); State v. Hernandez, 2020 UT App 58, ¶¶ 11–12, 462
P.3d 1283 (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 that the
defendant persisted in engaging the detective with an offer “to
engage in a sex act”).
¶25 The first significant “out” that Detective offered Smith was
simply telling him that the fictitious girl was thirteen; as the
State’s witnesses testified, most individuals readily take that
particular opportunity to disengage from the conversation. Smith
didn’t. Later, Detective simply asked Smith for help, including
money to buy food, even asking Smith if he knew “anyone to help
me,” thus offering Smith a way to assist without engaging in any
criminal activity. Smith redirected the conversation back to sexual
topics, asking her what she meant when she said she would “do
whatever,” and asking her to send him “full body nude” photos.
Detective also twice used language that could have been
20200782-CA 22 2022 UT App 82State v. Smith
construed as ending the conversation, once telling Smith “K
thanks” after he asked for nude photos and she refused to send
them, and once telling Smith to “[f]uck off.” Smith did not avail
himself of those opportunities to end the conversation either, but
instead continued to press the matter by asking for photos as
“proof” that the girl was “legit.” As in Dickerson, Detective gave
Smith “multiple opportunities to back out,” and Smith took none
of them, which indicated his “willingness to commit the crime.”
See 2022 UT App 56, ¶¶ 40–41 (quotation simplified).
¶26 Smith’s response to the police activity in this case is thus
much more like Dickerson and Hatchett than it is like Kourbelas. In
Dickerson, the defendant responded to a profile posting on an
internet website, and continued the conversation despite learning
that the “girl” was underage and even after being given multiple
opportunities to disengage. See 2022 UT App 56, ¶¶ 4, 40–44. In
Hatchett, the defendant placed an advertisement on an internet
site looking for an “18–25 year old guy to party and play with,”
and an undercover detective posing as a boy who was “almost 14”
years old responded. See 2020 UT App 61, ¶¶ 2–3. The defendant
continued the conversation, even after discovering the boy’s age,
and re-initiated the conversation after various long pauses. Id. ¶ 4.
In Kourbelas, by contrast, our supreme court reversed the
defendant’s conviction because the agent repeatedly and
persistently pestered the defendant, even after long multi-day
pauses, to sell him drugs. See 621 P.2d at 1239–40.
¶27 In this case, as in Dickerson, it was Smith who consistently
pursued the girl, “not the other way around,” and “he did so
despite knowing her age and having multiple opportunities to
change course.” See 2022 UT App 56, ¶ 44. The facts of this case
simply do not reveal the sort of inappropriate pressure on the part
of Detective that would amount to entrapment as a matter of law.
See id. ¶ 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.”).
20200782-CA 23 2022 UT App 82State v. Smith
¶28 Second, the facts of this case do not include the sort of
“personalized high-pressure tactics or appeals to extreme
vulnerability” that our supreme court has viewed as problematic.
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.”
State v. Taylor, 599 P.2d 496, 503 (Utah 1979). In Taylor, for instance,
the court held that the defendant was entrapped as a matter of law
because a police informant pleaded with him to help her locate
drugs to avoid the “agonies of withdrawal” that she was allegedly
experiencing as a recovering addict. See id. at 503–04. And in
Kaufman, the court found it problematic when an undercover
agent, who was posing as a “divorced mother of six children who
was having hard times,” convinced the defendant to purchase
stolen property. See 734 P.2d at 468.
¶29 Nothing akin to that is present in this case. Smith did not
know the girl (she was, after all, fictitious), and so there existed no
pre-existing relationship that might have been leveraged for
friendship’s sake. Detective did mention that the girl had run
away from home and asked for money, but these facts were
offered not as a plea for sympathy or pity but as a reason why the
girl would want a ride to California and be willing to perform sex
acts. As in Dickerson, Detective “did [not] make any offer that a
person not otherwise ready to commit the crime would be hard-
pressed to refuse,” and he “did nothing to induce [Smith’s]
participation beyond posing as a thirteen-year-old girl who was
willing to meet him.” See 2022 UT App 56, ¶ 46 (quotation
simplified). Detective’s persona, like the persona in Dickerson, was
“hesitant and noncommittal,” and Smith agreed to meet the girl
for sex “without being badgered, pressured [or] coerced.” See id.(quotation simplified). In short, Detective “did not employ
inducements that would have been, as a matter of law, sufficient
20200782-CA 24 2022 UT App 82State v. Smith
to induce an ordinary person, not otherwise inclined, to solicit sex
from a thirteen-year-old.” See id. ¶ 47 (quotation simplified).
¶30 Under the circumstances presented here, the district court
correctly denied Smith’s motion to dismiss. The facts simply do
not amount to entrapment as a matter of law. The question of
entrapment, in this case, was one that should have been presented
to the jury for consideration, and the court did not err by declining
Smith’s invitation to take the question from the jury. Smith elected
to enter a conditional guilty plea rather than present his
entrapment defense to a jury. Because he has not prevailed on
appeal, he is not entitled to withdraw that plea. See Utah R. Crim.
P. 11(j).
CONCLUSION
¶31 The district court, acting as magistrate, did not err by
ordering Smith bound over for trial on the attempt charges,
because sufficient evidence existed to support a reasonable belief
that Smith took a “substantial step” toward commission of the
attempt crimes with which he was charged. And the court did not
err by denying Smith’s motion to dismiss on entrapment grounds.
¶32 Affirmed.
20200782-CA 25 2022 UT App 82