### Filed 3/13/19 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA

2019 ND 71

State of North Dakota, Plaintiff and Appellee

v. Bhim Kumar Rai, Defendant and Appellant

No. 20180244

Appeal from the District Court of Cass County, East Central Jud icial District, the Honorable Wade L. Webb, Judge.
AFFIRMED. Opinion of the Court by VandeWalle, Chief Justice

. Reid A. Brady, Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee. Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.State v. Rai No. 20180244

VandeWalle, Chief Justice. [¶1] Bhim Kumar Rai appealed from a criminal judgment entered on a jury verdict finding him guilty of patronizing a minor for commercial sexualactivity in violation of N.D.C.C. § 12.1-41-06(1)(b), a class B felony. We affirm the criminal judgment.

I [¶2] In September 2017, Fargo police implemented an undercover o peration to apprehend individuals using the internet to arrange sexual enco unters with minors. The operation posted an ad on the BackPage website describing an eighteen-year-old woman. Sixty-two different phone numbers responded to the ad, b ut after text conversations revealing the woman was fourteen, only two indivi duals agreed to meet her at a hotel. One of these individuals was Rai, a refugee fro m Nepal. Fargo police officers arrested Rai when he arrived at the hotel room. Rai wa s read his Miranda rights and interrogated by two officers in the hotel room for a pproximately forty minutes. Other operation members were also in the room. Rai’s p hone was seized and placed in “airplane mode.” During the interrogation, the office rs read Rai messages from his conversation with the undercover officer and asked Rai for the pass code to his phone. [¶3] Rai later filed a motion to suppress evidence, arguing the officers unlawfully searched his phone and he did not validly waive his Miranda rights. The motion was denied. The case was tried to a jury in May 2018. At trial, the State put the text message conversation between Rai and the undercover officer int o evidence. At the end of the State’s case, Rai moved for a judgment of acquittal under N.D.R.Crim.P. 29(a). The district court denied the motion. After deliberation , the jury rejected Rai’s affirmative defense of entrapment and entered a guilty verdict.

1[¶4] On appeal, Rai argues his Fourth Amendment right against un lawful search and seizure was violated, his Fifth and Sixth Amendment rights were violated when officers detained and questioned him without an interpreter or counsel, the evidence was insufficient to find him guilty of patronizing a minor for commercial sexual activity, and a rational fact-finder would have found he proved the affirmative defense of entrapment by a preponderance of the evidence.

II [¶5] “[A] trial court’s disposition of a motion to suppress willnot be reversed if, after conflicts in the testimony are resolved in favor of affir mance, there is sufficient competent evidence fairly capable of supporting the trial court ’s findings, and the decision is not contrary to the manifest weight of the evidence .” State v. Montgomery , 2018 ND 20, ¶ 4, 905 N.W.2d 754. This standard of review “recog nizes the importance of the trial court’s opportunity to observe the witn esses and assess their credibility, and we accord great deference to its decision in s uppression matters.” Id

. We do not conduct a de novo review of the findings of fact, but questions of law are fully reviewable. Id. Whether findings of fact meet a legal standard is a question of law. Id

. [¶6] Rai argues the district court should have suppressed the me ssages from his cell phone because the officer placed the phone in “airplane mode.” Based on the officers’ testimony, the court found Rai’s phone was not searched before the officers received a warrant. Significantly, the court also found the messages rea d by the officers during Rai’s interrogation and entered into evidence were from the und ercover officer’s cell phone. We conclude the district court’s denial of Rai’s motion to suppress was based on sufficient competent evidence and was not contrary to the manifest weight of the evidence. [¶7] The text message conversation between Rai and the undercove r officer read during Rai’s interrogation and submitted at trial was lawfully discovered evidence. Rai voluntarily texted the phone number provided in the sting o peration’s

2advertisement and those messages were passed on from one office r to another. The messages entered into evidence were lawfully obtained from the undercover officer’s, not Rai’s, cell phone, so there is no evidence to suppress base d on alleged Fourth Amendment violations. See State v. Gregg , 2000 ND 154, ¶ 52, 615 N.W.2d 515.

III [¶8] Rai argues the district court should have suppressed eviden ce from his interrogation because he did not voluntarily, knowingly, or int elligently waive his Miranda rights. Rai asserts that officers should have provided an inte rpreter to ensure he understood his Miranda rights. The district court found that, while English is not Rai’s first language, the totality of the circumstances indicat ed Rai knowingly, voluntarily, and intelligently waived his Miranda rights. [¶9] “The adequacy of Miranda warnings involves a question of fact for the trial court to resolve, based on the circumstances of each case.” State v. Webster , 2013 ND 119, ¶ 7, 834 N.W.2d 283. This Court “considers the totality of the circumstances to determine whether or not a Miranda waiver is made voluntarily, knowingly, and intelligently.” Id . The ultimate question is whether the defendant received “a c lear and understandable warning of his rights.” Id . at ¶ 10. [¶10] This Court focuses on two elements when determining whethe r statements to law enforcement are voluntary: (1) the characteristics and cond itions of the accused at the ti me of the confession, including age, sex, race, education level, physicaland mental condition, and prior experience with police; and (2) the details of the setting in which the confession was obta ined, including the duration and conditions of detention, police atti tude toward the defendant, and the diverse pressures that sap the ac cused’s powers of resistance or self-control. State v. Hunter , 2018 ND 173, ¶ 22, 914 N.W.2d 527. This Court gives deference to the district court’s determination of voluntariness and will no t reverse the court’s decision unless it is contrary to the manifest weight of the ev idence. Id . at ¶ 23.

3[¶11] Here, Rai was a twenty-six-year-old refugee from Nepal who had been in the United States since 2011. Rai was interrogated in a two bedroom hotel room for approximately forty minutes by two officers sitti ng close to hi m with other officers also in the room. The officers testified that Rai appeared nerv ous, similar to other individuals in h is situation. Rai had taken part in the lengthytext message conversation in English, told police he spoke “a little bit” of English, and officers testified that he appeared to understand his rights and follow the conversation. Testimony established officers would rephrase a question if the y were concerned Rai did not understand, did not yell or raise their voices, and did not try to trick Rai. [¶12] The district court found the Miranda warnings were effectively presented in a way that were comprehended by Rai and that Rai knowingly, voluntarily, and intelligently waived his Miranda rights. After examining the entire record, we conclude, under the totality of the circumstances, Rai voluntarily waived his Miranda rights. The evidence supports the district court’s findings, an d its decision is not contrary to the manifest weight of the evidence.

IV [¶13] Rai argues the district court erred in denying his motion for acquittal. At the close of the State’s evidence, Rai entered a N.D.R.Crim.P. 29(a ) motion for judgment of acquittal, which the district court denied. In reviewing suf ficiency of the evidence challenges, we review the record to determine whether there is sufficient evidence that could allow a jury to draw a reasonable inference in favor of the conviction. State v. Truelove , 2017 ND 283, ¶ 7, 904 N.W.2d 342. In reviewing challenges to the sufficiency of the evidence on appeal, the defendant “bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed i n the light most favorable to the verdict.” Id . This Court does not reweigh conflicting evidence or judge the credibility of witnesses. Id. [¶14] A person commits the crime of patronizing a minor for comm ercial sexual activity if, “the person gives, agrees to give, or offers to gi ve anything of value to a

4minor or another person so that an individual may engage in com mercial sexual activity with a minor.” N.D.C.C. § 12.1-41-06(1)(b). Here, the district court admitted the text messages between Rai and the undercover officer into e vidence. That conversation supported the State’s argument that Rai believed h e was talking to a fourteen year old girl and intended to pay her for a sexual enc ounter. Testimony from officers involved in the operation also established the element s of the crime. [¶15] Rai failed to meet his burden of showing the evidence reve als no reasonable inference of guilt when viewed in the light most favorable to the verdict. Based on the record, there is sufficient evid ence to allow a jury to draw a reasonable inference in favor of conviction. We conclude the district court did not err in denying Rai’s Rule 29(a) motion for a judgment of acquittal.

V [¶16] Rai argues a rational fact-finder would have found he prov ed the affirmative defense of entrapment by a preponderance of the evidence. [¶17] Section 12.1-05-11, N.D.C.C., provides for the affirmative defense of entrapment. A law enforcement agent perpetrates an entrapment if, for the p urpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result , causes another person to engage in conduct constituting such a crime b y employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapm ent. N.D.C.C. § 12.1-05-11(2). Entrapment is a question of fact for the jury. State v. Tester , 1999 ND 60, ¶ 28, 592 N.W.2d 515; see State v. Schmidt , 2011 ND 238, ¶ 12, 807 N.W.2d 593. “North Dakota applies the objective test for entrapment, in which the focus is on the conduct of the law enforcement agents and i ts likely effect on a normally law-abiding person.” State v. Nehring , 509 N.W.2d 42, 44 (N.D. 1993). The defendant has the burden of proving entrapment by a preponderan ce of the evidence. Id .; Schmidt , at ¶¶ 8-9. To establish entrapment, a defendant must prove tw o elements: 5that law enforcement agents induced the commission of the crimeand that the inducement was likely to cause a normally law-abiding person to commit the crime. Nehring , 509 N.W.2d at 44. [¶18] “[W]hen this Court reviews a challenge to a factual conclu sion that entrapment did not occur, we do not weigh conflicting evidence, nor do we judge the credibility of witnesses; instead, we look only to the evidence and its rea sonable inferences most favorable to the verdict to see if substantial evidence exists to warrant a conviction.” Schmidt , 2011 ND 238, ¶ 7, 807 N.W.2d 593 (quotations omitted). “[E]ntrapment is not established by law enforcement conduct merely affording a p erson an opportunity to commit a crime.” Id. at ¶ 10; see N.D.C.C. § 12.1-05-11(2). The level of outrageous conduct necessary to prove entrapm ent is quite high and must sh ock the conscience of this Court. Schmidt , at ¶ 11. [¶19] Here, Rai argues he was entrapped because the online advertisement featured a photograph of an adult woman and stated the woman was eightee n years old. Rai also alleges the undercover officer, not Rai, began solicitatio n by stating “she needed money.” Further, Rai argues he was entrapped by the undercover officer sending him a text message asking if he had changed his mind after an hour of not communicating. This conduct by law enforcement does not “shock the conscience”or create a risk that a crime will be committed by a person other than one who is rea dy to commit it. See Schmidt , 2011 ND 238, ¶ 11, 807 N.W.2d 593; N.D.C.C. § 12.1-05-11(2). The online advertisement and text messages from the undercover officer mer ely afforded Rai an opportunity to commit a crime. [¶20] The jury considered the issue of entrapment and found Rai failed to meet his burden in proving the affirmativ e defense. Viewing the evidence and its reasonable inferences most favorable to the verdict, we conclude that subs tantial evidence exists to warrant the conviction and that a rational fact-finder could find Rai failed to prove entrapment by a preponderance of the evidence.

VI

6[¶21] We affirm the criminal judgment. [¶22] Gerald W. VandeWalle, C.J. Jerod E. Tufte Daniel J. Crothers Lisa Fair McEvers Jon J. Jensen

7