Massa, J.
On a summer afternoon on the east side of Indianapolis, Detective Tabatha McLemore was posing as a prostitute on a corner, when she noticed Griesemer driving past and staring at her. He looped around the block and returned a few minutes later, stopping near her just before a stop sign. Through his open car window, Griesemer asked Detective McLemore if she needed a ride. Detective McLemore declined, saying she “was trying to make some money.” Tr. at 7. Griesemer nodded his head toward his passenger seat, which Detective McLemore understood to be an invitation for her to get in his car. She then asked him how much money he had, and Griesemer again nodded toward his passenger seat. When she asked him about money a second time, he told her he had twenty dollars. Detective McLemore said she could “do head” for that amount, and Griesemer nodded his head, yes, and for a third time nodded toward his passenger seat. Tr. at 7–8. Instead of getting in his car, however, she told him to pick her up just down the street. He nodded, yes, and proceeded along the same route he had taken when he initially saw Detective McLemore. A police vehicle stopped Griesemer; he was arrested and charged with patronizing a prostitute, a Class A misdemeanor.1 At a bench trial, the court found Griesemer guilty as charged and sentenced him to 180 days with 176 days suspended.
Griesemer appealed his conviction, arguing he raised the entrapment defense by showing police inducement—it was Detective McLemore who first mentioned money, sex, and the possibility of trading one for the other—and the State failed to offer any evidence of Griesemer’s predisposition to commit the offense. A majority of our Court of Appeals agreed, and it reversed Griesemer’s conviction. Griesemer v. State, 10 N.E.3d 1015, 1021 (Ind. Ct. App. 2014). Chief Judge Vaidik dissented, relying upon United States v. Fusko, 869 F.2d 1048, 1052 (7th Cir. 1989), which explained, “the most important element of the equation is whether the defendant was reluctant to commit the offense.” Griesemer, 10 N.E.3d at 1022 (Vaidik, C.J., dissenting). She found the State proved predisposition by showing Griesemer’s lack of reluctance to commit the offense: Griesemer nodded toward his passenger seat in response to Detective McLemore’s saying she was trying to make money; Griesemer was the first to mention a specific amount of money; and Griesemer promptly drove down the street just as he had done before, presumably to pick up Detective McLemore. Id. at 1022–23.
. . . .
Entrapment in Indiana is statutorily defined:
(a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.
Ind. Code § 35-41-3-9 (2008). . . . .
. . . .
We conclude the State presented sufficient evidence for a trier of fact to reasonably determine Detective McLemore’s policing efforts did not produce Griesemer’s criminal conduct. The evidence most favorable to the verdict suggests Griesemer stared at Detective McLemore from the road before turning around, he stopped his car near her to initiate their conversation, and he twice nodded his head to invite her into his car, all before she mentioned the opportunity to exchange money for a sexual act. And we find Detective McLemore’s abruptly and clinically stating “I could do head,” Tr. at 7, is more like the “flat logical assertion” of Williams, 274 Ind. at 584, 412 N.E.2d at 1215, than the “explicit directive or order” of Albaugh, 721 N.E.2d at 1237. She did not exert a persuasive or other force over Griesemer; instead, she merely afforded him “an opportunity to commit the offense,” which the statute expressly declares “does not constitute entrapment.” Ind. Code § 35-41-3-9(b). That the crime itself may be tempting, without more, is not inducement. Indeed, if we were to find entrapment on these facts, we would effectively put an end to prostitution stings. We are not willing to so limit the activity of undercover officers to the detriment of safety and quality of life in many neighborhoods.
Rush, C.J., David, J., concur.
Rucker, J., dissents with separate opinion in which Dickson, J., concurs:
Although citing portions of the dissenting opinion authored by Chief Judge Vaidik, my colleagues here apparently distance themselves from the dissent’s actual conclusion, namely: Griesemer was “predisposed” to commit the offense. See Griesemer v. State, 10 N.E.3d 1015, 1021 (Ind. Ct. App. 2014) (Vaidik, C.J., dissenting). Both the Court of Appeals majority as well as the dissent concluded that Officer McLemore induced Griesemer to commit the offense. See Id. at 1019 (Majority opinion, “Detective McLemore’s question and statements were sufficient to induce Griesemer to commit patronizing a prostitute.”); Id. at 1022 (Dissenting opinion, “I agree with the majority that Officer McLemore induced Griesemer to commit the offense.”). The debate was joined over the question of whether Griesemer was predisposed. Here, my colleagues do not reach that issue concluding instead there was no inducement. I disagree. After Griesemer offered Detective McLemore a ride, she was the first to mention money, the first to mention performance of a sexual act, and the first to mention trading a sexual act for money. As the Court of Appeals correctly observed, under nearly identical facts a defendant was found to have “‘clearly established police inducement.’” Id. at 1018 (quoting Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002) (declaring “[i]t is undisputed that [the officer] initiated the conversation regarding whether Ferge would be interested in fellatio for payment”)).
Because Griesemer clearly established inducement, “the burden shift[ed] to the State to show the defendant’s predisposition to commit the crime. . . . The standard by which the State must prove the defendant’s predisposition is beyond a reasonable doubt. . . . If the defendant shows police inducement and the State fails to show predisposition on the part of the defendant to commit the crime charged, entrapment is established as a matter of law.” Dockery v. State, 644 N.E.2d 573, 577 (Ind. 1994). Here, my colleagues’ reticence to address the issue speaks loudly and strongly suggests the State did not carry its burden of proving predisposition beyond a reasonable doubt. In my view the Court of Appeals majority got it exactly right: “Because the evidence most favorable to the State permits an inference only that the police induced Griesemer’s criminal behavior, but does not contain any evidence permitting an inference that Griesemer was predisposed to commit patronizing a prostitute, entrapment was established as a matter of law . . . .” Griesemer, 10 N.E.3d at 1021. I therefore respectfully dissent and would reverse the judgment of the trial court.
Dickson, J., concurs.