This opinion is subject to revision before final

publication in the Pacific Reporter

2024 UT 13

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Respondent,

v.

SHANE CRAIG SMITH,

Petitioner.

No. 20220768

Heard September 6, 2023

Filed May 2, 2024

On Certiorari to the Utah Court of Appeals

Fourth District, Provo

The Honorable James M. Brady

No. 191403507

Attorneys:

Jennifer L. Foresta, Douglas J. Thompson, Provo, for petitioner

Sean D. Reyes, Att’y Gen., David A. Simpson, Asst. Solic. Gen., 

Salt Lake City, Ryan McBride, Provo, for respondent

CHIEF JUSTICE DURRANT authored the opinion of the Court in 

which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,

JUSTICE POHLMAN, and JUDGE MOW joined.

Having recused herself, JUSTICE HAGEN does not participate 

herein; DISTRICT COURT JUDGE ADAM T. MOW sat.

CHIEF JUSTICE DURRANT, opinion of the Court:
STATE v. SMITH

Opinion of the Court

2

INTRODUCTION

¶1 Shane Craig Smith met “Emily,”1 a thirteen-year-old girl, 

on the internet. After an eventful three hours of online 

conversation, Smith drove to a gas station in Lehi to meet Emily, 

with the stated plan of having her perform multiple sex acts in 

exchange for Smith driving her to California. Fortunately, Emily

was not an actual teenager, and instead was a persona used as bait 

in a police sting operation.

¶2 Smith was arrested at the gas station and charged with 

various crimes, including attempted child kidnapping, attempted 

rape of a child, and attempted sodomy of a child. He eventually 

pled guilty to most of these charges while reserving the right to 

appeal two issues: whether there was sufficient evidence to bind 

him over for trial on the attempt charges, and whether he was 

entrapped as a matter of law. The court of appeals affirmed his 

convictions, and we now do the same.

BACKGROUND2

¶3 In November 2019, Utah County Sheriff’s Detective Bagley 

accessed Whisper, a mobile app, as part of a child sex trafficking 

operation. Whisper is a text-based dating app where anonymous 

users can create private chat rooms. To create a Whisper profile, 

users must affirm that they are at least eighteen years old. Det. 

Bagley created a fake profile, Emily, using an image of a woman 

who was over the age of eighteen. He then went to an adult-themed 

forum and created a post implying that Emily was looking to meet

up with someone for a sexual encounter.

¶4 Smith was one of many individuals who responded to this 

post by initiating a private chat conversation with Emily. Shortly 

into their conversation, Emily disclosed that she was thirteen years 

__________________________________________________________

1 As explained below, infra ¶ 3, the girl that Smith believed he 

was talking to was actually a fictitious persona created as part of a 

sex trafficking sting operation. This persona was never given a 

name, but we refer to her as “Emily” for simplicity.

2 “To determine whether a defendant should be bound over for 

a trial, a magistrate must view all evidence in the light most 

favorable to the prosecution and draw all reasonable inferences in 

favor of the prosecution. We recite the facts consistent with that 

standard.” State v. Schmidt, 2015 UT 65, ¶ 4, 356 P.3d 1204 (cleaned 

up).
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Opinion of the Court

3

old, had “r[u]n away from home,” and wanted to “go to 

Cali[fornia].” She asked Smith if he would “give [her] $200 for food 

and cash” so she could “pay someone for a ride.” In exchange, she 

promised she would “do whatever [he] want[ed].” Smith, who had 

opened the conversation by sending Emily photos of his penis,

responded with hesitation. Not hesitation about whether it was 

appropriate for him to continue a sexually charged conversation 

with someone he now knew to be a child, but instead hesitation 

about whether Emily was “a cop.”

¶5 Smith tried to resolve this concern by asking Emily to send 

him nude photos. When Emily refused, he insisted that she send 

clothed photos of her in specified poses to prove that she was “a 

real person” and “[n]ot a cop.” Emily responded by sending photos

of a twenty-three-year-old woman in the specified poses.

¶6 Apparently satisfied, Smith arranged to meet Emily at a 

gas station in Lehi and discussed what sex acts she would perform 

in return for him driving her to California. After Emily asked if he 

wanted oral or vaginal sex, Smith said the choice was “up to [her].”

Emily responded that she would do both, and Smith seemed to 

accept that offer. He later specified that he wanted Emily to begin 

performing oral sex as soon as the two started driving together, and 

that they would additionally “need to have some fun” before they 

arrived in California. Once Emily indicated that she was ready to 

be picked up, barely three hours after their conversation began,

Smith drove to the agreed-upon gas station. He texted Emily that 

he had arrived, flashed his headlights to help her identify his car, 

and told her to come over and get in.

¶7 Smith was then arrested in the parking lot. After waiving 

his Miranda rights, he told the arresting officers that he had come 

to the gas station to meet a thirteen-year-old girl, and that he had 

wanted to have both oral and vaginal sex with her. Smith was 

charged with several felonies, including attempted child 

kidnapping, attempted rape of a child, and attempted sodomy of a 

child.

¶8 After a preliminary hearing, Smith moved the district 

court to decline to bind over the counts of attempted rape of a child, 

attempted sodomy of a child, and attempted kidnapping of a child. 

Smith argued that the State’s evidence regarding the attempt 

crimes—evidence about his intent to have sexual contact with a 

child and arrival at the agreed-upon location to meet that child—

did not show that his actions rose beyond solicitation or mere 
STATE v. SMITH

Opinion of the Court

4

preparation and was therefore insufficient to support probable 

cause on the “substantial step” element of the attempt statute. 

Acting as a magistrate, the district court denied the motion and 

bound over all counts for trial.

¶9 Smith then filed a motion to dismiss all charges on 

entrapment grounds. The State opposed the motion. After an 

evidentiary hearing, the district court denied Smith’s motion, 

concluding that Smith had not shown that he was entrapped as a 

matter of law. Smith eventually entered a conditional guilty plea to 

attempted child kidnapping, attempted sodomy of a child, and 

enticement of a minor.3 This conditional plea allowed Smith to 

appeal the district court’s bindover ruling and entrapment 

determination.

¶10 Smith timely appealed to the Utah Court of Appeals, 

where he raised two issues: (1) “whether there was insufficient 

evidence to bind over the attempt charges” for trial; and 

(2) “whether the district court erred by denying his motion to 

dismiss all the charges on the basis that he had been entrapped.”4

The court of appeals affirmed the district court’s rulings.5 Smith 

petitioned for certiorari. We have jurisdiction under Utah Code 

subsection 78A-3-102(3)(a).

STANDARDS OF REVIEW

¶11 On certiorari, we review the court of appeals’ decision for 

correctness and give no deference to its conclusions of law.6

¶12 A bindover determination is a mixed question of law and 

fact which receives “some deference . . . commensurate with the 

limited discretion under which a magistrate operates at a 

__________________________________________________________

3 Utah’s sexual violence statutes use the words “minor” and 

“child” inconsistently. “Minor” sometimes refers to any person less 

than eighteen years old, see UTAH CODE § 76-4-401(1)(a)(i) 

(enticement of a minor statute), but in other contexts refers to an 

individual who is between fourteen and sixteen years old, see id. 

§ 76-5-401(1)(a) (unlawful sexual activity with a minor statute), 

with the word “child” used for individuals who are under fourteen 

years old, see id. § 76-5-402.1(2)(a) (rape of a child statute).

4 State v. Smith, 2022 UT App 82, ¶ 1, 514 P.3d 620.

5 Id. ¶ 32.

6 State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.
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Opinion of the Court

5

preliminary hearing.”7 A district court’s legal conclusions 

regarding entrapment are reviewed for correctness, and its factual 

findings are reviewed for clear error.8

ANALYSIS

¶13 Smith raises two claims of error. First, he argues that the 

district court erred by binding him over for trial, and that the court 

of appeals erred in affirming that bindover. Second, he argues that 

the district court erred in denying his motion to dismiss due to

entrapment, and that the court of appeals erred in affirming that 

denial. But Smith fails to show that either the bindover decision, 

the denial of his motion, or the court of appeals’ review of those 

rulings is in error. Accordingly, we affirm.

I. SMITH’S ACTIONS CONSTITUTE SUBSTANTIAL STEPS

¶14 In his first claim, Smith targets the district court’s decision 

to bind him over for trial on all charges. The decision to bind a 

criminal defendant over for trial is made by a magistrate judge at 

the conclusion of a preliminary hearing.9 At a preliminary hearing,

the State must present “evidence sufficient to support a reasonable 

belief that an offense has been committed and that the defendant 

committed it.”10 On appeal, Smith challenges the decision to bind 

him over on three charges: attempted rape of a child, attempted 

sodomy of a child, and attempted kidnapping of a child.

¶15 The elements of attempt are provided by statute. “[A] 

person is guilty of an attempt to commit a crime” if they 

(1) “engage[] in conduct constituting a substantial step toward 

commission” of that crime, and (2) “intend[] to commit the 

crime.”11 Smith does not dispute that there was sufficient evidence 

__________________________________________________________

7 State v. Schmidt, 2015 UT 65, ¶ 13, 356 P.3d 1204 (cleaned up).

8 State v. Hernandez, 2020 UT App 58, ¶ 4, 462 P.3d 1283 (citing 

State v. Torres, 2000 UT 100, ¶¶ 8–14, 16 P.3d 1242; State v. Curtis, 

542 P.2d 744, 746–47 (Utah 1975)).

9 See UTAH R. CRIM. P. 7B(b); State v. Ramirez, 2012 UT 59, ¶ 8, 289 

P.3d 444.

10 State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d 1204 (cleaned up).

11 UTAH CODE § 76-4-101(1). Intent to commit the underlying 

crime is not required if, “when causing a particular result is an 

element of the crime, [the defendant] acts with an awareness that 

(continued . . .)
STATE v. SMITH

Opinion of the Court

6

for the district court to find that he had the intent to commit the

crimes that underlie his attempt charges. He instead argues that 

binding him over on the attempt charges was inappropriate 

because his conduct was legally insufficient to constitute a 

substantial step toward committing any of the underlying offenses.

¶16 The attempt statute defines a substantial step. “[C]onduct 

constitutes a substantial step if it strongly corroborates the actor’s

[intent].”12 Smith’s claim that he did not commit substantial steps 

toward the crimes for which he was bound over relies on two of 

our cases that interpret this language: State v. Arave13 and State v. 

Johnson.14

¶17 We begin with Arave. The defendant in that case, Arave, 

used his bicycle to block the path of a young boy who was riding a 

skateboard down a residential street.15 Arave then offered the boy 

“$20 to allow [Arave] to perform oral sex” on him.16 When the boy 

didn’t respond, Arave “apologized” and the boy left.17 Arave was 

subsequently convicted of attempted sodomy of a child.18

¶18 We reversed Arave’s conviction on the ground that he

hadn’t taken a substantial step toward committing the underlying 

crime.19 But the concern that led us to that conclusion dealt 

specifically with the distinction between two different crimes: 

solicitation and attempt.20 Solicitation occurs when a person “with 

intent that a felony be committed,” solicits “another person to 

__________________________________________________________

his conduct is reasonably certain to cause that result.” Id. § 76-4-

101(1)(b)(ii). This alternative element is not at issue here.

12 Id. § 76-4-101(2).

13 2011 UT 84, 268 P.3d 163, rev’g 2009 UT App 278, 220 P.3d 182.

14 821 P.2d 1150 (Utah 1991).

15 Arave, 2011 UT 84, ¶ 4.

16 Id.

17 Id.

18 Id. ¶ 8; UTAH CODE § 76-5-403.1(2)(a) (Defining sodomy upon 

a child as including an actor that “engages in any sexual act” with 

an individual “younger than 14 years old,” that involves “the 

genitals . . . [of] the individual and the mouth . . . [of] the actor”).

19 Id. ¶ 35.

20 See id. ¶¶ 27–35.
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Opinion of the Court

7

engage in specific conduct that under the circumstances as the actor 

believes them to be would be a felony.”21

¶19 In the context of that case, solicitation likely occurred 

when Arave confronted his target and asked if the boy would 

engage in felonious sex acts with him.22 The legal problem was that 

the lower court had categorized those same acts—confrontation 

and request—as constituting a substantial step toward attempted 

sodomy of a child.23 We held that this categorization was 

impermissible, as “[s]olicitation alone cannot constitute a 

substantial step toward the commission of a crime.”24 If that

conflation were allowed, then the crime of attempt “would swallow 

the crime of solicitation.”25

¶20 Smith argues that, like Arave, he did nothing more than 

solicit someone he believed to be a child to engage in sexual acts. 

The facts show that isn’t the case. Smith likely did commit 

solicitation during his Whisper conversation with Emily; he asked

her to engage in sex acts that would result in the commission of a 

felony and did so with the intent to carry out those acts. But this 

hypothetical solicitation offense was completed while Smith was 

still at his keyboard. His subsequent actions―driving to the 

meeting place, texting Emily his location, telling her to get into his 

car, and flashing his lights as an identifying signal―were beyond 

the scope of that offense. Allowing those additional acts to

constitute a substantial step does not imperil the distinction 

between solicitation and attempt. As a result, the concern we had 

in Arave is absent here.

¶21 Smith’s second argument is that the facts of his case are 

analogous to the facts of Johnson.26 The defendant, Johnson, was 

convicted of attempted murder after she purchased counterfeit 

methamphetamine from an undercover police officer with the 

__________________________________________________________

21 UTAH CODE § 76-4-203(1) (2011).

22 Arave, 2011 UT 84, ¶¶ 32–35.

23 Id. ¶ 31.

24 Id. ¶ 27.

25 Id. ¶ 28.

26 821 P.2d 1150 (Utah 1991).
STATE v. SMITH

Opinion of the Court

8

stated intent of using the drugs to poison her husband.27 On appeal, 

the case focused on whether there was sufficient evidence to show 

that Johnson’s purchase of methamphetamine strongly 

corroborated her intent to use that substance to murder her 

husband.28 Our decision that the evidence was insufficient to draw 

that conclusion beyond a reasonable doubt rested on three main 

points.

¶22 First, the drugs that Johnson purchased were 

multipurpose; methamphetamine can be used both as a poison or

recreationally.29 Second, the drugs weren’t found in Johnson’s 

possession when she was arrested shortly after purchasing them.30

And third, the record was otherwise silent as to what Johnson did 

with the package of drugs she purchased. There was “no showing 

that she attempted to administer the [counterfeit 

methamphetamine],” and indeed, “no evidence as to what she did 

or attempted to do with it.”31 Based on those facts, we held that 

there was insufficient evidence to find that Johnson took a 

substantial step toward committing murder.32 Instead, Johnson’s 

acts were best characterized as “mere preparation.”33

¶23 Unfortunately, the portions of Johnson that arrive at this 

conclusion do not specifically explain why “mere preparation” 

cannot constitute a substantial step.34 Smith attempts to fill in the 

gap, arguing that Johnson’s acts were merely preparation because, 

when Johnson was arrested, she was many steps removed from 

actually committing the crime of murder. And because “[t]here 

were many further steps that would need to be taken” before Smith 

__________________________________________________________

27 Id. at 1154–56 & n.2. Johnson was charged with three counts 

of attempted murder based on her attempts to fatally poison her 

husband with three separate substances. Id. Our discussion of the 

case here focuses only on the second count.

28 Id. at 1157.

29 See id. (noting that Johnson “may have used [the counterfeit 

methamphetamine] herself”).

30 Id.

31 Id.

32 Id.

33 Id.

34 See id.
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Opinion of the Court

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could have actually committed the crimes he was charged with 

attempting, his “conduct also did not rise beyond preparation.”

¶24 We decline to adopt this interpretation of Johnson for two

reasons. The first reason is rooted in our endorsement of textualist 

statutory interpretation—an endorsement that was firmly in place 

when Johnson was decided.35 That history leads us to assume that, 

even if we didn’t explain our reasoning in Johnson, we were 

applying the attempt statute without any added gloss. And both 

then and now, the definition of substantial step provided by the 

attempt statute speaks for itself. The statute states that “conduct 

constitutes a substantial step if it strongly corroborates the actor’s” 

intent to commit the underlying crime.36 So if, in a particular case, 

preparatory actions are deemed not to constitute a substantial step,

it is because the conduct in question did not strongly corroborate 

the actor’s intent to commit the underlying crime under the 

circumstances, not because there is a categorical rule that 

preparation is insufficient as a matter of law.

¶25 The second reason is that the logic of Johnson is in line with 

a textualist interpretation of the attempt statute. As mentioned, one 

of the key facts we relied upon in that case was that the drugs 

Johnson purchased could have been used for multiple purposes. 

This, combined with the fact that the drugs weren’t found on 

Johnson when she was arrested, made it plausible that she “may 

__________________________________________________________

35 See, e.g., Savage Indus., Inc. v. Utah State Tax Comm’n, 811 P.2d 

664, 670 (Utah 1991) (“The terms of a statute should be interpreted 

in accord with usually accepted meanings.”), abrogated on other 

grounds by Morton Int’l, Inc. v. Auditing Div. of Utah State Tax 

Comm’n, 814 P.2d 581 (Utah 1991); Utah County v. Orem City, 699 

P.2d 707, 708 (Utah 1985) (“It is a well-established rule of statutory 

construction that the terms of a statute should be interpreted in 

accord with usually accepted meanings.”).

36 UTAH CODE § 76-4-101(2). The attempt statute interpreted in 

Johnson is functionally the same as the present version, which is the 

version that applies to Smith’s acts. Compare id. § 76-4-101(2) (1990) 

(“For purposes of this part, conduct does not constitute a 

substantial step unless it is strongly corroborative of the actor’s 

intent to commit the offense.”), with id. § 76-4-101(2) (2024) (“For 

purposes of this part, conduct constitutes a substantial step if it 

strongly corroborates the actor’s [intent to commit the offense].”). 

For simplicity, we cite the present version.
STATE v. SMITH

Opinion of the Court

10

have used [them] herself.”37 In other words, Johnson could have 

purchased the drugs either with the intent to use them 

recreationally or with the intent to use them to commit murder. 

And as a result, the “mere purchase of the [drugs]” did not strongly 

corroborate a homicidal intent.38

¶26 Accordingly, we reject Smith’s argument that, so long as 

there are certain steps remaining before the underlying crime is 

completed, an act is mere preparation under Johnson.39 But we 

agree that an act’s causal proximity to the completed offense can be 

relevant to the question of whether that act strongly corroborates 

the actor’s intent. And we keep that in mind as we turn to fully 

examine whether Smith took substantial steps toward committing 

the crimes for which he was bound over.

¶27 We begin, as did the court of appeals, by reciting the

sequence of events that led Smith to the parking lot where he was 

arrested. After a conversation in which he solicited “both oral sex 

and sexual intercourse” in exchange for a promise to drive Emily

to California,

Smith arranged to meet [Emily] at a convenience 

store and then traveled to the meeting place in his 

vehicle. Once there, he parked in a position that 

would allow him to be seen from the front of the 

store. He then reestablished contact with [Emily], told 

her where he was parked, asked her to stand in a 

particular spot and to look for blinking headlights so 

that she could identify his vehicle, and then actually 

blinked his headlights as a signal and directed 

[Emily] to walk toward the headlights and get in the 

vehicle.40

__________________________________________________________

37 Johnson, 821 P.2d at 1157.

38 Id.

39 Another reason to disfavor Smith’s theory is that, by 

attempting to count the number of steps remaining in a crime, it 

invites sophistry. Clever defense counsel might have argued that 

Johnson still had dozens of steps remaining in the crime of murder, 

as she would have needed to drive home, get out of the car, walk 

to the front door of her house, and so on.

40 State v. Smith, 2022 UT App 82, ¶ 17, 514 P.3d 620.
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Opinion of the Court

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¶28 The first crime we analyze is attempted child kidnapping. 

“An actor commits child kidnapping if the actor intentionally or 

knowingly, without authority of law, and by any means and in any 

manner, seizes, confines, detains, or transports a child without the 

consent of the child’s parent or guardian . . . .”41 Smith does not 

challenge the determination that he intended to kidnap Emily, and 

there is no issue of parental consent. So the relevant question is 

whether Smith’s actions strongly corroborate his intent to seize, 

confine, detain, or transport Emily.

¶29 That question isn’t hard to answer. There are certainly 

many reasons why someone would drive to a convenience store, 

the vast majority of which are perfectly innocent. But Smith drove 

to the arranged store, at the arranged time, and gave the arranged 

signal. There is no plausible reason why he would do so other than 

to carry out the arranged plan. That is sufficient for us to say that 

these actions strongly corroborate his intent to commit child 

kidnapping. Thus, the court of appeals did not err in concluding 

that Smith took a substantial step toward committing that crime. 

Considering the number of steps that Smith had left to take―one or 

two at most―doesn’t change that outcome.

¶30 The same logic governs our analysis of the crime of 

attempted sodomy upon a child. Sodomy upon a child is 

committed when an actor “engages in any sexual act upon or with 

[a child] . . . [that] involves the genitals . . . of the actor . . . and the 

mouth” of the child.42 Smith’s Whisper messages make it clear that 

he agreed to give Emily a ride to California only because she 

promised to perform sex acts, oral sex among them. Those same 

messages indicated that he planned to have Emily start performing 

oral sex upon him as soon as they had “start[ed] driving.” In that 

context, Smith’s actions strongly corroborate his intent to commit 

sodomy of a child. Accordingly, the court of appeals did not err in 

concluding that Smith took a substantial step toward committing 

that crime. While there were more acts remaining to complete this 

crime than there were for child kidnapping, Smith’s actions again 

leave little room for ambiguity.

¶31 The attempted rape of a child charge is the closest issue.

To commit the crime of rape of a child, Smith would have had to 

__________________________________________________________

41 UTAH CODE § 76-5-301.1(2).

42 Id. § 76-5-403.1(2)(a).
STATE v. SMITH

Opinion of the Court

12

have “sexual intercourse” with Emily.43 As above, Smith’s 

statements evince a clear desire to engage in intercourse, and his

arrival at the convenience store was a necessary first step in that 

process. But unlike the prior two offenses, there were potentially 

more steps that Smith would have had to take before intercourse 

occurred. And this does introduce some ambiguity into the 

analysis; for example, it is possible that Smith would have been 

satisfied with just receiving oral sex and would not have requested

vaginal intercourse as further payment.

¶32 Even so, we agree with the district court and court of 

appeals: Smith’s actions strongly corroborate his intent to commit 

rape of a child. We come to that conclusion in large part because of 

the legal posture in which this issue arrives. The decision that Smith 

challenges is bindover, and we have repeatedly described the 

State’s burden of proof for such decisions as a “low bar.”44 While

the number of steps remaining may introduce doubts about Smith’s 

intent, weighing such doubts is inappropriate because, at a 

preliminary hearing, all evidence and testimony must be viewed in 

the light most favorable to the State, and all reasonable inferences 

are drawn in favor of the State.45 And Smith’s conversation with 

Emily demonstrates an intent to engage in both oral and vaginal 

sex. When these factors are taken into account, we agree with the

lower courts that, for the purpose of determining bindover, Smith 

took a substantial step toward committing rape of a child.

¶33 In Smith’s last argument against the district court’s 

bindover decision, he contends that our prior cases on attempt 

__________________________________________________________

43 Id. § 76-5-402.1(2)(a). As the court of appeals noted in In re 

C.N., 2023 UT App 41, 529 P.3d 1030, the rape of a child statute does 

not provide a definition of “sexual intercourse.” Id. ¶ 24. 

Throughout this case, the parties have used the phrase in relation 

to the act of vaginal intercourse. Given that tacit agreement, we 

assume without deciding that the “sexual intercourse” required by 

the statute must be vaginal intercourse.

44 State v. Lopez, 2020 UT 61, ¶ 48, 474 P.3d 949; accord State v. 

Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (“Although the guarantee of 

a preliminary hearing is fundamental, the evidentiary threshold at 

such [a] hearing is relatively low.”); State v. Jones, 2016 UT 4, ¶ 12, 

365 P.3d 1212 (describing the State’s burden at a preliminary 

hearing as “light”).

45 See State v. Schmidt, 2015 UT 65, ¶ 4, 365 P.3d 1204.
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Opinion of the Court

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impose a requirement that is not present in the text of the attempt 

statute. Specifically, Smith argues that these cases require that, for 

conduct to constitute a substantial step, it must be completed in 

physical proximity to the victim or target location. This misreads 

our precedent on this issue. Smith is correct that many of our 

attempt cases involve a defendant who completed their substantial 

step in physical proximity to the place where the crime was to 

occur.46 But the attempt statute doesn’t mention physical 

proximity.47 And applying that gloss to the statute would 

complicate prosecutions for attempt crimes where target location is 

an ambiguous concept, such as attempted tax evasion.48 We are

thus not persuaded that this factual commonality between our 

prior cases can or should be construed as an implicit recognition of 

a necessary condition.49

II. SMITH WAS NOT ENTRAPPED

¶34 Utah Code section 76-2-303 provides that entrapment 

“occurs when a peace officer . . . induces the commission of an 

offense in order to obtain evidence of the commission for 

prosecution by methods creating a substantial risk that the offense 

__________________________________________________________

46 See, e.g., Tillman v. Cook, 855 P.2d 211, 220 (Utah 1993) (setting 

mattress on fire “constituted a substantial step in the commission 

of aggravated arson”); State v. Hickman, 779 P.2d 670, 672 (Utah 

1989) (entry into home with sawed-off shotguns constituted a 

substantial step toward the commission of robbery); State v. Cantu, 

750 P.2d 591, 593–94 (Utah 1988) (threatening victim with knife and 

club and demanding to know where valuables were located 

constituted a substantial step toward the commission of robbery).

47 UTAH CODE § 76-4-101(2) (“For purposes of this part, conduct 

constitutes a substantial step if it strongly corroborates the actor’s 

mental state . . . .”).

48 Cf. State v. Steed, 2014 UT 16, ¶ 25, 325 P.3d 87 (listing 

examples of “what might constitute willful attempt to evade” 

paying taxes).

49 It is not even a commonality shared by all our prior opinions 

on attempt. In State v. Pearson, for example, we upheld an

attempted burglary conviction in a case where the defendant was 

arrested shortly after he began driving to the home that he intended 

to burgle. 680 P.2d 406, 407–08 (Utah 1984).
STATE v. SMITH

Opinion of the Court

14

would be committed by one not otherwise ready to commit it.”50 It 

further states that government conduct that “merely afford[s] a 

person an opportunity to commit an offense does not constitute 

entrapment.”51

¶35 The same section also establishes the procedure that 

applies to entrapment claims. A defendant may assert such a claim 

“by filing a written motion before trial” that identifies “the 

evidentiary foundation for the claim.”52 The district court then

must “hear evidence on the issue” and “determine as a matter of 

fact and law whether the defendant was entrapped to commit the 

offense.”53 The bar for such a motion is high; a court will hold that 

entrapment occurred as a matter of law only when “reasonable 

minds acting fairly on the evidence should necessarily have a 

reasonable doubt as to the defendant’s guilt.”54 If the defendant 

succeeds in showing entrapment as a matter of law, the district 

court “shall dismiss the case with prejudice.”55 A defendant who

does not make that showing may present the issue “to the jury at 

trial.”56 Because Smith appeals the district court’s denial of his 

motion asserting that he was entrapped as a matter of law, we will 

reverse the court of appeals’ affirmance of that decision only if we 

determine that reasonable jurors would necessarily agree that 

entrapment occurred.57

¶36 Our precedent provides guidance on how to interpret and 

apply the statutory definition of entrapment in this case. For 

example, in State v. Taylor, we established that the statute’s test is 

__________________________________________________________

50 UTAH CODE § 76-2-303(1).

51 Id.

52 State v. Dickerson, 2022 UT App 56, ¶ 20, 511 P.3d 1191 (citing

UTAH CODE § 76-2-303(4)).

53 UTAH CODE § 76-2-303(4).

54 State v. Kourbelas, 621 P.2d 1238, 1240 (Utah 1980).

55 UTAH CODE § 76-2-303(5).

56 Id.

57 See State v. Beddoes, 890 P.2d 1, 3 (Utah Ct. App. 1995) (“We 

will therefore uphold the fact-finder’s determination unless we can 

hold, based on the given facts, that reasonable minds cannot differ 

as to whether entrapment occurred. Only then can we hold that 

entrapment occurred as a matter of law.”).
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Opinion of the Court

15

objective.58 The statutory language focuses on the conduct of the 

government agent, and whether that conduct included “persuasion 

or inducement which would be effective to persuade an average 

person” to commit the crime in question.59 The subjective 

characteristics of the defendant, such as whether the defendant was 

predisposed to commit the crime in question, are not considered.

¶37 Taylor also established that, though the statutory test 

mainly examines the conduct of law enforcement, the defendant’s 

responses to that conduct can be relevant to that inquiry.60 “[T]he 

transactions leading up to the offense, the interaction between the 

agent and the defendant, and the response to the inducements of 

the agent, are all to be considered in judging what the effect of the 

governmental agent’s conduct would be on a normal person.”61

Subsequent cases applying this test have been careful to maintain 

the distinction between examining the defendant’s responses to 

government inducement, which the entrapment statute allows, and 

examining the defendant’s predisposition to commit a crime, which 

the entrapment statute forbids.62

¶38 Finally, we have recognized that entrapment cases tend to 

fall into two nonexclusive categories.63 The first category “involves 

__________________________________________________________

58 599 P.2d 496, 502–03 (Utah 1979) (comparing the objective and 

subjective theories of entrapment and noting that the entrapment 

statute demonstrates “legislative intent to adopt the objective 

theory of entrapment” and to “specifically reject” the “subjective 

test”).

59 Id. at 503.

60 Id.

61 Id.

62 See UTAH CODE § 76-2-303(6) (“In any hearing before a judge 

or jury where the defense of entrapment is an issue, past offenses 

of the defendant shall not be admitted . . . .”); Taylor, 599 P.2d at 503 

(discussing and rejecting the use of a defendant’s predisposition to 

commit a crime under the objective standard for entrapment).

63 See State v. Torres, 2000 UT 100, ¶ 9, 16 P.3d 1242. Smith argues 

that the court of appeals erred by holding that entrapment could 

occur only within these enumerated categories. We do not read its

opinion as imposing such a restriction. But we agree that 

entrapment could occur in a situation outside of the categories 

mentioned above.
STATE v. SMITH

Opinion of the Court

16

improper police conduct in which the government agent applied 

persistent pressure or persistently pursued the defendant to 

commit the crime.”64 We found entrapment along these lines in 

State v. Sprague65 and State v. Kourbelas.66 In both cases, an

undercover police officer approached an unknown individual and 

asked for help in acquiring marijuana.67 In both cases, the 

defendant gave a noncommittal response, leading the officers to 

repeatedly contact the defendant over a period of several weeks.68

During each subsequent contact the officer was the one who raised 

the topic of selling drugs, and the defendant ultimately did so only

at the officer’s prompting.69

¶39 The second category involves “appeals based primarily on 

sympathy, pity, or close personal friendships, or offers of 

inordinate sums of money.”70 Taylor provides a good example of 

the type of police conduct that falls into this category. The

government agent in that case was an informant who had 

previously been in a romantic relationship with the defendant,

Taylor.71 The informant contacted Taylor, claimed to be going 

through painful withdrawals from heroin addiction, and pleaded 

for his help in finding drugs that would help alleviate her 

suffering.72 Taylor, himself a former heroin addict who “had 

personally experienced the agonies of withdrawal, and could 

empathize with this girl he loved,” eventually purchased heroin on 

the informant’s behalf.73

__________________________________________________________

64 Dickerson, 2022 UT App 56, ¶ 37 (cleaned up).

65 680 P.2d 404 (Utah 1984).

66 621 P.2d 1238 (Utah 1980).

67 Sprague, 680 P.2d at 405; Kourbelas, 621 P.2d at 1238–39.

68 Sprague, 680 P.2d at 405; Kourbelas, 621 P.2d at 1239.

69 Sprague, 680 P.2d at 405–06; Kourbelas, 621 P.2d at 1239.

70 Torres, 2000 UT 100, ¶ 9 (cleaned up).

71 Taylor, 599 P.2d at 503.

72 Id.

73 Id. at 503–04.
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Opinion of the Court

17

¶40 Smith argues his case falls into both categories. Upon 

reviewing the facts, however, we agree with the court of appeals 

that this “case does not fall into either.”74

¶41 Unlike the government agents in Kourbelas, the police in 

this case did not persistently solicit Smith over a period of weeks; 

the entire conversation between Smith and Emily lasted less than 

four hours. Unlike the agents in Sprague, the police here did not 

bring up illegal activity even after Smith rejected their advances; 

the record of messages shows that Smith ignored multiple 

opportunities to exit or de-escalate the conversation, and 

repeatedly suggested illegal acts that he wanted to perform.75

Smith correctly points out that Emily was an active participant in 

the conversation and was, in some cases, the first to bring up illegal 

activities. But those facts alone are insufficient to demonstrate

entrapment as a matter of law.76 And Smith otherwise fails to show

that Emily’s willingness to engage in sex acts constituted the sort of 

persistent pressure that our caselaw prohibits.

¶42 Law enforcement in this case also did not appeal to Smith’s

sympathy or pity, nor attempt to leverage a close personal 

relationship. The last of these would indeed have been impossible 

because Smith and Emily did not know each other before their 

Whisper conversation began earlier that evening. It is true that 

Emily was, in some ways, a sympathetic figure. She claimed to be 

in the precarious situation of a runaway child. But unlike the 

informant in Taylor, Emily did not ask Smith to commit a crime out 

of sympathy or pity. Emily asked first and foremost for legal, nonsexual assistance in the form of money that would help her “pay 

__________________________________________________________

74 State v. Smith, 2022 UT App 82, ¶ 23, 514 P.3d 620.

75 For example, after Emily first told Smith that she was thirteen, 

Smith demanded that Emily send him nude photographs “so [he 

could] know [she was] legit.”

76 See Torres, 2000 UT 100, ¶¶ 3–4, 13–14 (rejecting entrapment 

claim where a police informant proposed purchasing drugs from 

the defendant because the defendant ignored “several 

opportunities to back out of [the] drug deal,” and because the 

defendant’s “willingness to commit the crime [was] illustrated by 

his persistent . . . attempts to get the drugs to the informant, despite 

considerable difficulty”).
STATE v. SMITH

Opinion of the Court

18

someone for a ride” to California.77 Her offer to perform sex acts 

was presented as a reluctant form of compensation for Smith’s 

assistance. So where the defendant in Taylor was forced to choose 

between committing a crime or ignoring his former lover’s pleas 

for help, Smith could have given Emily the help she wanted

without breaking the law.

¶43 Smith responds by arguing that the police nonetheless 

“exploited [his] basic vulnerability” by placing Emily’s initial post 

on “a forum of lonely people.” We note at the outset that we do not 

agree that a defendant’s subjective vulnerability to criminal 

suggestion can be fairly included in the entrapment analysis. Our 

cases on entrapment are clear that the analysis centers on whether 

law enforcement’s methods “would be effective to persuade an 

average person” to commit the crime in question.78

¶44 But even if we assume for the purpose of argument that

law enforcement’s choice to target a vulnerable population could 

be relevant, the vulnerability targeted here is relatively benign.79

This is not a case where police sent an undercover heroin dealer to 

vend his wares at a discount in front of a methadone clinic.

Moreover, there are obvious differences between the legal desire 

for sexual congress with a consenting adult and the illegal desire to 

sexually victimize a child.80 Smith’s purported loneliness does not 

change the nature of the police conduct.

¶45 Smith has failed to show that the police conduct in this case

created a substantial risk that an average person would attempt to 

commit the crimes that Smith attempted. Emily did not apply 

persistent pressure, nor did she exploit a close personal 

relationship, nor did she appeal to Smith’s sympathy and pity. She

__________________________________________________________

77 Emily also clarified that she would “rather get cash” than 

accept a ride from Smith.

78 Taylor, 599 P.2d at 503 (emphasis added).

79 Smith compares “dangl[ing] connection in front of a lonely 

person” to “dangling bread in front of a starving person.” The State 

counters that “[t]he next person who dies of starvation from lack of 

sex will be the first.”

80 One detective testified at the entrapment hearing that “the 

vast majority” of people he contacts through the Emily persona will 

end the conversation immediately once they are told that the object 

of their sexual desire is a thirteen-year-old.
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Opinion of the Court

19

instead merely provided Smith with a convenient opportunity to 

carry out his criminal intentions. We are satisfied that the resulting 

crimes were freely and voluntarily committed.

CONCLUSION

¶46 We affirm the court of appeals’ determinations that 

bindover was appropriate because Smith’s conduct constituted 

substantial steps toward the commission of the underlying crimes

and that Smith was not entrapped as a matter of law.