Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Timothy J. Burns

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Ni Kung,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 9, 2016

Court of Appeals Case No.

49A02-1504-CR-196

Appeal from the Marion Superior 

Court

The Honorable Linda E. Brown, 

Judge

The Honorable Steven Rubick, 

Magistrate

Trial Court Cause No.

49G10-1408-CM-038377

Altice, Judge.

Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016 Page 2 of 6

[1] Ni Kung appeals his conviction for Patronizing a Prostitute,1 a class A 

misdemeanor. On appeal, he argues that the State presented insufficient 

evidence to support his conviction and to rebut his entrapment defense.

[2] We affirm.

Facts & Procedural History

[3] On August 5, 2014, Detective Tabatha McLemore of the Indianapolis 

Metropolitan Police Department was working undercover by posing as a 

prostitute on a street corner in a high-prostitution area. Detective McLemore 

saw a man, later identified as Kung, park his car nearby. Kung kept looking at 

Detective McLemore and smiling, so she walked over to talk to him. Through 

the open driver-side window, Detective McLemore asked Kung if he was 

waiting for someone. Kung, who is Burmese and speaks limited English, 

initially told Detective McLemore that he was going to work. Detective 

McLemore began to walk away, and Kung asked “how much[?]” Transcript at 

8. Detective McLemore said twenty dollars, and then asked him what he 

wanted to do. Kung responded, “everything.” Id. at 9. Detective McLemore 

asked him if he meant “head” and sex, and Kung appeared not to understand. 

She then pointed at his penis and said “to suck on that and sex.” Id. Kung then 

smiled and said yes. Detective McLemore said it would be thirty dollars, and 

Kung laughed and said that was too much. Detective McLemore then said she 

 

1

Ind. Code § 35-45-4-3.
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016 Page 3 of 6

could do it for twenty dollars. Kung asked where they could go, and she told 

him to meet her at a house down the street. She then asked him if he was going 

to give her twenty dollars, and he said yes. Detective McLemore then turned to 

walk away, and Kung was stopped by other officers and arrested.

[4] As a result of these events, Kung was charged with class A misdemeanor 

patronizing a prostitute. A bench trial was held on March 11, 2015, at the 

conclusion of which Kung was found guilty as charged. Kung now appeals. 

Discussion & Decision

[5] Kung argues that the State presented insufficient evidence to support his

conviction for patronizing a prostitute. In reviewing a challenge to the 

sufficiency of the evidence, we neither reweigh the evidence nor judge the 

credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 

2009). Instead, we consider only the evidence supporting the conviction and 

the reasonable inferences flowing therefrom. Id. If there is substantial evidence 

of probative value from which a reasonable trier of fact could have drawn the 

conclusion that the defendant was guilty of the crime charged beyond a 

reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891 

N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not necessary that the evidence 

overcome every reasonable hypothesis of innocence; rather, the evidence is 

sufficient if an inference may reasonably be drawn from it to support the 

conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). 
Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-196 | February 9, 2016 Page 4 of 6

[6] In order to convict Kung of patronizing a prostitute as charged, the State was 

required to prove that he knowingly or intentionally agreed to pay money or 

other property to Detective McLemore for sexual intercourse and/or other 

sexual conduct. See I.C. § 35-45-4-3. On appeal, Kung reasserts the argument 

he made at trial—that he was unable to understand the conversation due to the 

language barrier and believed that Detective McLemore was offering to pay 

him to drive her somewhere. This argument is nothing more than a request to 

reweigh the evidence and judge witness credibility. The facts favorable to the 

conviction, as set forth above, are more than sufficient to support the 

conclusion that Kung understood the conversation and agreed to pay Detective 

McLemore for oral sex and sexual intercourse. 

[7] Kung also argues that the State presented insufficient evidence to rebut his 

defense of entrapment. The defense of entrapment is set forth in Ind. Code § 

34-41-3-9 as follows: 

(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.
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As our Supreme Court has explained, 

[a] defendant does not need to formally plead the entrapment 

defense; rather, it is raised, often on cross-examination of the 

State’s witnesses, by affirmatively showing the police were 

involved in the criminal activity and expressing an intent to rely 

on the defense. Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986); 

Fearrin v. State, 551 N.E.2d 472, 473 (Ind. Ct. App. 1990). 

Officers are involved in the criminal activity only if they “directly 

participate” in it. Shelton v. State, 679 N.E.2d 499, 502 (Ind. Ct.

App. 1997) (finding, where officers merely placed deer decoy in 

[a] field, they did not “directly participate in the criminal activity 

of road hunting,” and the defendants thus failed to raise the 

entrapment defense). The State then has the opportunity for 

rebuttal, its burden being to disprove one of the statutory 

elements beyond a reasonable doubt. Riley v. State, 711 N.E.2d 

489, 494 (Ind. 1999); McGowan v. State, 674 N.E.2d 174, 175 

(Ind. 1996) (holding because entrapment is established by the 

existence of two elements, it is defeated by the nonexistence of 

one). There is thus no entrapment if the State shows either (1) 

there was no police inducement, or (2) the defendant was 

predisposed to commit the crime. Riley, 711 N.E.2d at 494.

Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 2015). 

[8] The State argues that entrapment was not adequately raised at trial because 

Kung did not express his intent to rely on the defense. We note that Kung did 

not argue that police induced him to commit the offense of patronizing a 

prostitute. Instead, he argued that he did not commit the offense at all. 

Nevertheless, we will address Kung’s entrapment argument on its merits. 

[9] To rebut the inducement element of an entrapment defense, “the State must 

prove police efforts did not produce the defendant’s prohibited conduct . . . 
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because those efforts lacked ‘persuasive or other force.’” Id. (quoting Williams v. 

State, 412 N.E.2d 1211, 1215 (Ind. 1980)). The evidence most favorable to the 

judgment establishes that Kung parked his car in a high-prostitution area, and 

he kept looking at Detective McLemore and smiling. She approached the car 

and spoke to him through the open driver-side window, asking him if he was 

waiting for someone. He responded that he was going to work, and Detective 

McLemore had begun to walk away when Kung asked “how much[?]” 

Transcript at 8. Detective McLemore said twenty dollars, and then asked him 

what he wanted to do. Kung responded, “everything.” Id. at 9. Detective 

McLemore asked him if he meant “head” and sex, and Kung appeared 

confused. She then pointed at his penis and said “to suck on that and sex.” Id. 

Kung then smiled and said yes. Detective McLemore said it would be thirty 

dollars, and Kung laughed and said that was too much. Detective McLemore 

then said she could do it for twenty dollars, and Kung agreed to meet her at a 

house down the street. Based on this evidence, a reasonable trier of fact could 

conclude that Detective McLemore did not exert persuasive or other force over 

Kung, and instead merely offered him an opportunity to commit the offense. 

I.C. § 34-41-3-9 expressly provides that such conduct does not constitute 

entrapment. The defense of entrapment was therefore adequately rebutted. 

[10] Judgment affirmed.

[11] Robb, J., and Barnes, J., concur.