No. 89-46 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKYONG CHA KIM, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial ~istrict, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

Joseph M. Goldman and Michael F. Bailey; Goldman Law 

Offices, Missoula, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Filed : 

Submitted on Briefs: June 30, 1989 

Decided: September 18, 1989 
Justice Fred J. Weber delivered the Opinion of the Court. 

Kyong Cha Kim was convicted by jury of prostitution, a 

misdemeanor, and promoting prostitution, a misdemeanor, in 

the Fourth Judicial District Court, Missoula, Montana. Ms. 

Kim was sentenced to six months on each count, to be served 

in the Missoula County Jail, the sentences to be served 

consecutively. Both sentences were suspended. Ms. Kim was 

also fined $500 on each count. From these convictions, Ms. 

Kim appeals. We affirm. 

1. Did the District Court err in denying defendant's 

motion to dismiss based on entrapment? 

2. Did the District Court err in denying defendant's 

motion to suppress certain evidence obtained through a consent to search warrant? 

In the fall of 1987, Ms. Kim moved to Missoula, Montana, where she opened a sauna massage business named the 

Crossroads Sauna. Shortly after the business opened the 

Missoula County Attorney's office began receiving complaints 

about prostitution at the business. 

In October 1987, the county attorney's office began an 

investigation into the activities of the Crossroads Sauna. 

Initially, on October 21, 1987, two detectives, posing as 

truck drivers, went to the sauna. A female employee of the 

sauna showed them the facilities and explained that the sauna 

offered a $40, $60 and $100 massage. Both officers testified 

that when they asked what the $100 massage included, they 

were told it included "everything." The detectives did not 

request a massage during that visit. They returned on November 10, 1987, and on this visit they spoke directly to Ms. 

Kim who told them only the $100 massage was available. 

However, when the officers refused to pay $100, Ms. Kim said 

they could receive the $40 massage. Both detectives were 
then asked to sign a form acknowledging that they would not 

give anything of value for any sexual conduct. The detectives testified that the $40 massage consisted of a sauna, a 

shower, and a back rub by Ms. Kim and another employee. 

During that same visit the two detectives asked Ms. Kim 

about holding a bachelor party for a friend at the Crossroads 

Sauna. Ms. Kim agreed to the party. She stated, however, 

that each member of the party must receive the $100 massage. 

When the detectives asked her what this included she said it 

included "everything," and that she would teach the groom how 

to make love to his new wife. 

On November 19, 1987, six deputies and a deputy county 

attorney arrived at the Crossroads Sauna for the purported 

bachelor party. They brought beer with them and on the way 

there each had consumed a beer or less in order to appear to 

be partying. One officer carried a gun. Ms. Kim and two 

female employees admitted the officers. A fourth woman was 

on the premises but never became involved with the party. 

The men were escorted to a room where the groom was 

given a bottle of champagne, and seated on a chair. The 

officers testified that the two employees sat on his lap and 

began to unbutton his shirt and take off his belt. An officer and the deputy county attorney then began talking to Ms. 

Kim outside the room. Conflicting testimony was presented as 

to who initiated conversation about sexual intercourse, 

however, the officers testified that when they asked Ms. Kim 

about protection, she assured the officers that she had 

"rubbers." The negotiations ended with an agreement that for 

the $100 each, the groom would have sex with all three women, 

and the other members of the party would each have sex once. 

The officers testified that this conversation was carried on 

in a quiet and businesslike manner. 
After this conversation, Ms. Kim was arrested and 

handcuffed, as were the two employees. They were given 

Miranda rights. While one employee became very upset and had 

to be physically subdued, the officers testified that Ms. Kim 

and the other employee were cooperative and composed. Ms. 

Kim was asked if she would sign a consent form, allowing the 

officers to search the premises. She agreed to sign the form 

and a search was conducted. During the search Ms. Kim showed 

the officers where boxes of condoms were stored in her freezer. A later count revealed that this supply included 334 

condoms. Ms. Kim entered pleas of not guilty to prostitution 

and promoting prostitution. 

Ms. Kim was tried by jury in Justice Court on May 26, 

1988, and a verdict of guilty was returned on both counts. 

Ms. Kim then appealed to District Court. She moved for 

dismissal, alleging the affirmative defense of entrapment. 

She also moved to suppress the evidence seized during the 

search. The hearing on these motions was held on September 

29-30, 1988, and the court denied both motions. Ms. Kim was 

tried by jury on October 26-28, 1988, and the jury returned a 

verdict of guilty on each count. 

I 

Did the District Court err in denying defendant's 

motion to dismiss based on entrapment? 

As a pretrial motion, Ms. Kim moved to dismiss the 

charges against her based on the affirmative defense of 

entrapment. The court's hearing on this motion included 

testimony from numerous witnesses, including Ms. Kim and her 

employees, and witnesses for the State. The court denied 

this motion. 

Initially, the State contends that the defense of 

entrapment is not available to a defendant who denies 
committing the acts for which she is charged, citing State v. 

Kamrud (1980), 188 Mont. 100, 103-04, 611 P.2d 188, 190. See 

also State v. O'Donnell (1960), 138 Mont. 123, 354 P.2d 1105; 

State v. Parr (1955), 129 Mont. 175, 283 P.2d 1086. In the 

present case, Ms. Kim pled not guilty to both the charge of 

prostitution and the charge of promoting prostitution. Thus, 

the State contends that Ms. Kim was not entitled to assert 

this defense. However, because the District Court heard 

testimony on this motion we will review the defense on its 

merits. 

Entrapment is an affirmative defense available to a 

criminal defendant, and is codified in S 45-2-213, MCA, as 

follows: 

A person is not guilty of an offense if 

his conduct is incited or induced by a 

public servant or his agent for the 

purpose of obtaining evidence for the 

prosecution of such person. However, 

this section is inapplicable if a public 

servant or his agent merely affords to 

such person the opportunity or facility 

for committing an offense in furtherance 

of criminal purpose which such person 

has originated. 

The elements of this defense were further explained by 

this Court in State v. Hanley (1980), 186 Mont. 410, 414, 608 

P.2d 104, 106, wherein we enumerated the elements of entrapment as follows: 

(1) criminal intent or design 

originating in the mind of the police 

officer or informer; (2) absence of 

criminal intent or design originating in 

the mind of the accused; (3) luring or 

inducing the accused into committing a 

crime he had no intention of committinq. 

See State v. Grenfell (1977), 172 ~ont. 

345, 564 ~zd 171:State -- ex rel. Hamlin 

v. District Court (1973), 163 Mont. 16, 

515 P.2d 74; State - 

v. Karathanos, supra. 
The burden of establishing entrapment rests on the 

defendant. A court may determine that entrapment exists as a 

matter of law. Kamrud, 611 P.2d at 191; State v. Grenfell 

(1977), 172 Mont. 345, 564 P.2d 171. However, if there are 

conflicting facts, the issue is properly submitted to a jury. 

State v. McClure (1983), 659 P.2d 278, 280, 202 Mont. 500, 

503. Additionally, in reviewing the denial of a motion to 

dismiss based on entrapment, this Court will view the evidence and inferences in a light most favorable to the State. 

State v. Merrill (Wash.App. 1979), 597 P.2d 446. 

Ms. Kim contends that entrapment was established as a 

matter of law, requiring dismissal of the charges. Ms. Kim 

contends that the criminal intent originated in the minds of 

the law enforcement officers, that she had no intent herself 

to commit the crime, and that she was induced to commit the 

crime. Ms. Kim relies on the cases of Kamrud and Grenfell in 

support of her contention. Having reviewed the evidence and 

the elements of this defense, we conclude that entrapment did 

not exist as a matter of law. 

At the hearing, the officers testified that on the 

evening of the party, two of the women employees sat on the 

lap of the "groom," and began to unbutton his shirt and undo 

his belt buckle. No testimony suggested that these women 

were induced to begin these actions. Additionally, the 

testimony by law enforcement personnel indicated that Ms. Kim 

did not have to be induced to participate in discussions 

about sexual intercourse for pay. Instead, their testimony 

emphasized that Ms. Kim was totally agreeable to negotiations 

regarding sex, and that she was prepared to supply "protection" in the form of condoms. In response, Ms. Kim denied 

that she agreed to provide sex. She testified that she was 

supposed to "tease" the "groom," and that any references to 

sexual acts was all a part of the joke. This evidence 
regarding the defense of entrapment was properly submitted to 

the jury. 

Ms. Kim relies on this Court's decisions in Kamrud and 

Grenfell to support her contention that the court should have 

found entrapment as a matter of law. These cases are distinguishable in several respects, however. 

In Grenfell an informant became a friend of the defendant over a period of six months and "persistently requested" 

help from the defendant in procuring drugs. In concluding 

that entrapment had occurred, this Court stated, "The record 

shows Grenfell was not predisposed to commit this offense." 

Grenfell. 564 P.2d at 173. 

In Kamrud, law enforcement officers induced the defendant to obtain drugs for them. As inducement to commit the 

crime, the officers used marijuana themselves in the presence 

of defendant, they became friendly and held parties to ingratiate themselves with defendant. There was no evidence that 

Mr. Kamrud had sold drugs in the past, or that the idea of 

selling the drugs originated with Mr. Kamrud. In Kamrud the 

officers violated the law themselves by using and giving away 

marijuana. In concluding that entrapment was established as 

a matter of law, this Court stated: 

"In short, there is a controlling distinction 

between inducing a person to do an unlawful act and 

setting a trap to catch him in the execution of a 

criminal design of his own conception . . .I' State 

v. Karathanos (1972), 158 Mont. 461, 493 P.2d 326, 

331. . ." 

Kamrud, 611 P.2d at 191. 

Comparing the present case to the facts of Kamrud and 

Grenfell, this controlling distinction is apparent. This is 

not a case where there was no suggestion of criminal activity 

prior to the investigation. The investigation was initiated 
because of citizen complaints. In the present case the law 

enforcement officers set a trap. However, the evidence, 

including the testimony of the officers, and the large supply 

of condoms, indicated that Ms. Kim did not have to be induced 

to participate in discussions about sexual intercourse. 

There was substantial credible evidence to support a finding 

that criminal intent originated with Ms. Kim. Understandably, the District Court refused to find that as a matter of 

law Ms. Kim lacked criminal intent, or was induced to commit 

the crime. These determinations were properly left for the 

jury. We affirm the District Court's denial of Ms. Kim's 

motion to dismiss. 

11. 

Did the District Court err in denying defendant's 

motion to suppress certain evidence obtained through a consent to search warrant? 

Immediately following her arrest, Ms. Kim signed a 

consent to search which allowed the officers to search the 

Crossroads Sauna. Ms. Kim claims that her consent was not 

voluntary under the totality of the circumstances, citing 

Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 

2041, 36 L.Ed.2d 854. She contends that the court erred in 

denying her motion to suppress evidence obtained as a result 

of this search. At the hearing on this motion the District 

Court heard testimony about how the consent was obtained, and 

other relevant evidence. The court denied Ms. Kim's motion 

to suppress. 

The right to be free of an unreasonable search and 

seizure is guaranteed by the Fourth Amendment to the United 

States Constitution, and is made applicable to the states 

through the Fourteenth Amendment. One may however, consent 

to a search as long as that consent is proved by clear and 
convincing testimony and as long as it is established that 

the consent was not coerced. The State has the burden of 

showing that the consent was voluntary. Voluntariness is a 

factual issue and is determined from the totality of the 

circumstances. Schneckloth, 412 U.S. at 248-49. 

On appeal, our standard of review when considering a 

court's ruling on a motion to suppress, is whether the record 

contains substantial credible evidence to support the district court's findings, and whether those findings were 

applied correctly as a matter of law. State v. Beach (1985), 

217 Mont. 132, 147, 705 P.2d 94, 103. "The credibility of 

the witnesses at a suppression hearing is properly determined 

by the trial court that heard testimony and observed the 

witnesses." The trial court is the finder of fact in a 

suppression hearing. State v. Kirkaldie (1978), 179 Mont. 

283, 289-90, 587 P.2d 1298, 1302-03. 

Ms. Kim urges that her consent was not voluntary for 

the following reasons. She emphasizes that she was handcuffed and in the custody of seven male law enforcement 

officers. She notes that she is only five feet tall, and 

weighs only 100 pounds. She alleges that she was intimidated 

because one of her employees had to be physically subdued. 

Ms. Kim alleges that the officers threatened to "tear the 

place apart" if she did not sign the consent form. She 

alleges that one of the officers pointed a gun at one of her 

employees. Ms. Kim also claims her Korean descent and lack 

of familiarity with American processes made her vulnerable to 

the officers' requests. 

Ms. Kim signed the form approximately twenty-five 

minutes after she was arrested and approximately fifteen 

minutes after she witnessed the scuffle with her employee. 

At the time she signed, her handcuffs had been removed, and 

she was seated, drinking a pop and smoking. The officers 
testified that they read the form to Ms. Kim twice and that 

she also read it herself. The officers denied making any 

threats about "tearing the place apart." Only one officer 

was carrying a gun, and he testified that he held the gun at 

his side for less than a minute while the arrests were being 

made, then put it away. He testified that he never pointed 

it at anyone. 

While custody is a factor in the totality of the circumstances test, it does not necessarily negate consent. 

State ex rel. Kotwicki v. District Court (1975), 166 Mont. 

335, 344, 532 P.2d 694, 699. Additionally, Ms. Kim's background belies her contention that she lacked understanding of 

the proceedings. Testimony at the hearing established that 

Ms. Kim is an American citizen who has owned several businesses in America. In the past she has worked with sheriff 

and police departments as an interpreter. She has also 

worked as an interpreter in courtrooms and in jails. 

The court had the opportunity to hear the witnesses, 

judge credibility, and weigh the evidence. The court determined that under the totality of the circumstances, the 

State's evidence was clear and convincing that Ms. Kim's 

consent was obtained voluntarily. 

Ms. Kim also contends that the scope of the search 

exceeded the scope of the consent. She claims that the 

kitchen and office were not included in her consent. There 

is no merit to this claim because the consent form clearly 

authorized a search of Ms. Kim's "Premise Business located at 

Crossroads Sauna/Wye.If Additionally, one officer testified 

at the hearing that he explained to Ms. Kim that "every room 

in the entire establishment would be searched." Ms. Kim 

herself then directed the officers to the kitchen and showed 

them where the condoms were stored. We affirm the District 

Court's denial of Ms. Kim's motion to suppress. 
Affirmed. 

We C ncur: 

C ief Justice 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

In my opinion, this case involves an entrapment and 

therefore the convictions ought not to stand. 

On October 21, 1987, a captain of the Missoula County 

Sheriff's Department directed two of his officers to visit 

Kim's business premises and to investigate any possible 

illegal activities being conducted thereon. The officers 

went to the business in the guise of truck drivers, and were 

then given a tour by the defendant of her business premises. 

The men left the business, saying they would return at a 

later date. They reported to the Captain that they observed 

nothing while on the premises to indicate any illegal or 

immoral activity being conducted by the defendant or her 

employees. 

While they were at the premises on October 21, 1987, 

they discussed with Kim the services available at her 

business. She explained to them there were three types of 

services, for $40, $60 and $100, based on the length and 

thoroughness of the massage and sauna. Kim explained that 

the $100 massage and sauna included "everything." What 

"everything" means is apparently in the ear of the beholder. 

To Kim it meant everything related to massage and sauna. To 

the officers, "everything" meant some sort of sexual favors, 

although no discussion of sexual favors occurred at that 

time . 

On October 22, 1987, the Captain initiated a thorough 

investigation of Kim's background. The Captain spoke to a 

Missoulian reporter who reported that he and a newspaper 

photographer had gone undercover to Kim's business in search 

of a possible story, and had both purchased and received 

massages. Neither of them had been offered sex by the 
defendant in exchange for compensation nor had either 

observed any immoral or illegal activity. 

On October 22, 1987, the Captain telephoned officers in 

Seattle, Washington. Here it was reported to the Captain 

that there was no record of the defendant having ever been 

suspected of the charges of any offense during the years she 

resided and worked in the Seattle area. 

The Captain checked the licensing authorities in the 

state to determine whether she had a proper business license. 

He found nothing in discord. He also requested of the 

Federal Immigration and Naturalization Service a thorough 

search of the records and status of all Koreans in the state 

of Montana with special emphasis on the defendant's records 

and status. That report came back negative. He inquired of 

the owners of the premises that she was leasing. They 

advised that they had investigated her reputation and found 

nothing against her. The Captain investigated her motor 

vehicle records and found nothing in connection of her 

operation of an automobile. 

On November 10, 1987, the Captain required his two 

undercover officers again to visit ~im's premises. They were 

instructed to pay for a $40 massage and sauna. The massages 

were administered only after each officer signed an 

acknowledgement that no sex would be offered or demanded. 

After the massages, the officers returned to the front of the 

business establishment and talked to Kim. There they told 

her that they wanted to have a bachelor party for seven or 

eight friends at her place of business. She agreed to 

reserve the premises for their bachelor party. Her 

understanding was that the purpose was to tease the 

prospective groom as a part of the bachelor party. 

Thus the idea for the bachelor party originated in the 

minds of the investigating officers. The proposal was not 
one that would be a part of Kim's regular business. 

Following the second account, the officers again reported to 

their Captain that they had observed no illegal or immoral 

activity being conducted on Kim's premises. 

On November 19, 1987, six Missoula County Deputy 

Sheriffs and one Deputy County Attorney, arrived at the 

premises for the pre-arranged bachelor party. They had 

consumed alcohol prior to entering "to give the appearance of 

being on a party." They all engaged in teasing the groom 

about his upcoming marriage. The only activity that hints of 

sexuality is that one of the woman unbuttoned the groom's 

shirt and attempted to remove his belt. while it was the 

officers who were saying to the prospective groom that they 

were going to have him "laid" before his marriage, it was 

then that the officers took ~im aside, and negotiated a 

proposal for sexual favors. She was placed under arrest. No 

money changed hands. No sexual activity of any kind ensued. 

Under State v. Kamrud (1980), 188 Mont. 100, 611 P.2d 

188, this was entrapment pure and simple. 

1. The criminal design to solicit (this is a 

solicitation case) sexual activity did not originate with ~im 

but with the undercover officers. 

2. The officers did more than merely afford Kim with 

the opportunity to commit the offense, they first committed 

the offense themselves. 

3. They set up the situation by first ingratiating 

themselves with her even though they found no evidence of any 

criminal activity in connection with her business. 

4. The investigation of her background and the 

undercover investigations gave no evidence that she was 

predisposed to commit any offense or that the idea originated 

with her. 
There is no evidence that when on the second visit they 

proposed a bachelor party that the bachelor party would 

include prostitution. If that had occurred, they would have 

so reported to their supervising officer. 

The whole mess is a dirty business, but it originated in 

the Sheriff's Department. 

Mr. Justice William E. Hunt concurs with the dissent 

of Mr. Justice John C. Sheehy. 

Justice 

Mr. Justice R. C. McDonough concurs with the foregoing dissent.