20 22 UT App 56



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appellant
, v. T IMOTHY L AVELL D ICKERSON ,

Appellee

. Opinion N o. 20191052

- CA Filed May 5, 2022

Fourth District Court, Provo Department The Honorable Derek P. Pullan No. 191401450
Sean D. Reyes and David A. Simpson
, Attorney s for Appellant Douglas J. Thompson , Attorney for Appellee

J UDGE D IANA H AGEN authored th is Opinion
, in which J UDGES G REGORY K. O RME and R YAN M. H ARRIS concurred.

HAGEN
, Judge :

¶1 After being charged with e nticement of a m inor, a ttempted

s odomy on a c hild, and various drug

- related offenses, Timothy Lavell Dickerson moved to dismiss the charges, claiming that a law enforcement officer had entrapped him into committing the offenses . T he district court denied his motion as to the drug charges but granted it as to the enticement and sodomy charges. The State now appeals. We reverse and remand for further proceedings.State v. Dickerson

20191052

- CA 2 2022 UT App 56 BACKGROUND

¶2 The Utah Attorney General ’ s Internet Crimes Against Children (ICAC) task force “ fight[s] the sexual exploitation of children online. ” In May 2019, a n ICAC special agent was using an online persona he had created to pose as a thirteen

- year

- old girl on various platforms. The agent ex plained that , because on “a lot of these platforms you have to put your age as eighteen , ” he would do so and then , “once a conversation engages or starts , ” he would “reveal [ the girl’s ] real age” as thirteen.

¶3 When he encountered Dickerson, t he special agen t was using the alias “Kailey” on a dating app

. The agent created a profile for Kailey us ing the profile name “kaileyjojo

. ” The profile listed Kailey’s age as eighteen and included a “closeup, selfie

- type picture” of a West Valley City police officer who w as in her twenties. Besides closely cropping the photo, the agent did not alter it in any way. The district court later found that the female in the profile photo “appear[ed] to be at least 18 years of age, if not older.”

¶4 Dickerson contacted Kailey using t he profile name “Lavell.” Users of the dating app c ould contact each other by “clicking on a person’s page and then initiating” a “direct chat” from there. After the initial contact, the following exchange occurred:

Dickerson: O ok then wat u did today
Kailey: I went to school and moved stuff in my room
Dickerson: o ok then wat u go to school for
Kailey: I’m in middle school
Dickerson: Girl stopState v. Dickerson

20191052

- CA 3 2022 UT App 56 Dickerson: Stop play
Kailey: No for real
Dickerson: So is that really a pic of u
Kailey: Yeah
Dickerson: So how old r u baby

Dickerson: Hello

Dickerson: I didn’t scare you off did it
Kailey: I’m here
Kailey: I’m 13
Dickerson: Forreal stop playin

Dickerson: So y it say 18 baby
Kailey: I’m serious
Kailey: I’m 13
Dickerson: O ok so wyd on here baby
Kailey: Looking for whatevs
Kailey: Idk really
Kailey: U?

Dickerson: O ok u smoke or drink

Dickerson: The same as u love

Dickerson: I’m not from here and I need a friendState v. Dickerson

20191052

- CA 4 2022 UT App 56 Kailey: I’ve smoked before
Kailey: Oh cool
Kailey: Where u fro
Dickerson: Who u stay wit

Dickerson: Atlanta

Dickerson: Wat part u stay in

Dickerson: How long u been here

Dickerson: Hello u there
Kailey: I live in Provo with my dad
Dickerson: O ok then can u get of the house
Kailey: Yeah

Dickerson: I’m forreal boo
Kailey: Me to
Kailey: What u wanna do

Dickerson: U ever been with a black dude
Kailey: Lol
Kailey: Never

Dickerson: U want to smoke or what boo

Dickerson: Forreal
Kailey: I’ll smokeState v. Dickerson

20191052

- CA 5 2022 UT App 56 The agent testified that Dickerson then “asked for my number, and I gave it to him, and it led on to text messaging.” 1

¶5 Over text messages , Dickerson suggested that they meet up and smoke some marijuana and asked Kailey , “wat else can we do baby”? Kailey’s responses were hesitant, claiming that she had “never really snuckout” before. Kailey told Dickerson she was “kinda scared” because “i dont know what u wanna do” and “ive never been with a oldr guy.” Dickerson asked, “Wats the oldest baby and I promise u on my granny I won’t hurt or nun. . . . Send me the address baby.” After Kailey replied that the oldest “was 13 in my grade,” Dickerson again asked for the address.

¶6 Kailey told Dickerson that her “ bff has a older boyfriend and she likes it.” Dickerson replied, “O she do huh and you will like it too baby.” He continued to press Kailey for the address. When Kailey asked , “r u gonna try stuff with me after we smoke? l ol,” Dickerson asked, “Do u want me to baby”? He assured her that they could do “Wateva u want baby” and “you will like it too baby.”

¶7 Kailey suggested that they meet up the n ext day, but Dickerson pleaded, “Awwwww baby y . . . I wanted to Tonite please.” Kailey said that she was just nervous, prompting the following exchange:
Dickerson: Nervous about wat baby
Kailey: if u kiss me and do more

1

. T he agent was able to confirm that the texter was the same person as the “Lavell” on the dating app because Dickerson “identified himself” on the text and because the agent compared the photos Dickerson posted to his dating app profile with those Dickerson sent by text.State v. Dickerson

20191052

- CA 6 2022 UT App 56 Dickerson: About wat
Kailey: ive on ly kissed like a couple boys
Dickerson: Ok u never had nobody play wit it or lick it
Kailey: never

Dickerson: Has ur friend

Dickerson: U want to try
Kailey: what?
Dickerson: Do ur friend and her boyfriend do that
Kailey: yeah
Dickerson: So wats up u want to
Kailey: what?
Dickerson: Do u want to try

Dickerson: Do u want to try
Kailey: lol. im so lost. t ry what
Dickerson: Lick it and play wit it
Kailey: i hpe it doesnt hurt
Dickerson: It won’t baby I’ll be gentle
Kailey: promiseState v. Dickerson

20191052

- CA 7 2022 UT App 56 Dickerson: I PROMISE BAB Y AND Do u play wit ur self some times
Kailey: tried but dont know if im doing it right
Dickerson: Well I’ll show u Tonite baby

Dickerson: U Gon send the address baby
Kailey: youll teach me

Dickerson: Yes

Dickerson: U Gon like the way I do it and daddy goi ng to teach u a lot

Dickerson: Baby

Dickerson: U playing
Kailey: im here babe sorry
Dickerson: So wats up baby
Kailey: so if u lick it and playwith it. will i get pregnant?

Dickerson: Hellllllllll nawwwwwww ww baby

Dickerson: Noooooooooooo o

Dickerson: NOOOO OOOOOOOOOO u won’t
Kailey: u sure
Dickerson: I promise

Dickerson: I promise on my dead grandmotherState v. Dickerson

20191052

- CA 8 2022 UT App 56 Kailey: so youll were a condom?

Dickerson: Do u want me to
Kailey: i dont want to get pregnant
Dickerson: And ur asking all these questions like u couldn’t also [ask] me this face to face

Dickerson: Baby I promise u can’t

Dickerson: I promise on my dead grand mother

Dickerson: U CAN ’ T GET PREGNANT

Dickerson: I wish u would believe and give me a ch ance
Kailey: can you bring a condom
Kailey: i know sorry
Kailey: dont be mad please
Dickerson: Yes baby I can if u stop playin

Dickerson: I’m not baby but I’m tryin to show u that
u can trust me
Kailey: It’s better with a condom

Dickerson: Oooooookkkkkk

Dickerson: So wats up wasting time baby

Dickerson: I’ll stop and get one
Kailey: O k I’ll sneak outState v. Dickerson

20191052

- CA 9 2022 UT App 56 Dickerson: Ok

Dickerson: I hope u forreal and not playing
Kailey: How long will u be

Dickerson: I don’t wanna to wait forever

Dickerson: I’m w aiting on u to send the address

Dickerson: U never sent the address

Dickerson: I been waiting on u

Dickerson: Awwwwwww u playing Kailey

Dickerson: Helllllllo

Dickerson: Hello
Kailey: Sorry babe
Kailey: I’m getting ready
Kailey: I’m not playing u promise
Kailey: There’s a gas station by my house

Dickerson: U haven’t sent no address

Dickerson: We’re the address

Dickerson: U got me feeling like u playing

¶8 Kailey gave Dickerson the address of a gas station next to an apartment complex and said she woul d meet him there. The two continued to exchange text messages while Dickerson was en
route. Dickerson repeatedly asked Kailey to send him a picture ofState v. Dickerson

20191052

- CA 10 2022 UT App 56 herself. When he asked what she was wearing, Kailey replied that she was in a “[p]ink shirt and jeans,” l eading to the following exchange:
Dickerson: Ok baby

Dickerson: Y u didn’t put on tights or a dress something easy
Kailey: It’s cold outside babe. Lol
Dickerson: Lol not really but ok and do u kiss baby
Kailey: Yeah

Dickerson: Can I kiss u
Kailey: I hope s o

Dickerson: Ok I am baby

Dickerson: Have u ever suck on it before
Kailey: Suck on what
Dickerson: Dick baby
Kailey: Oh never lol
Dickerson: O ok u watch porn
Kailey: I’ve seen it but don’t really watch it

Dickerson: O ok
Kailey: U still coming?

Dickerson: U want to learnState v. Dickerson

20191052

- CA 11 2022 UT App 56 Dickerson: Hell yes I’m close
Kailey: Yes
Dickerson: U want to learn baby
Kailey: I do
Dickerson: Ok u mine right
Kailey: Yeah I’m yours
Dickerson: 9 mins away baby

¶9 When Dickerson arrived at the designated meeting place, the agent was “able to confirm [Dickerson’s] identity when [he] saw him as the person that [he] had been chatting with.” Authorities arrested Dickerson. A search of his car uncovered drug paraphernali a and a “ new pack of condoms. ”

¶10 Dickerson was charged with three sexual offenses

— one count of enticing a minor to engage in illegal sexual activity and two counts of attempted sodomy upon a child

— and two drug offenses

— possession of drug paraphernalia and po ssession of a controlled substance with intent to distribute. Dickerson subsequently filed a motion to dismiss under Utah Code section 76

- 2

- 303(5), alleging that the agent had entrapped him into committing the offenses

.
¶11 After a hearing, the district court granted Dickerson’s motion as to the sex offenses but denied it as to the drug counts. In its written ruling, the district court explained that although Utah had abandoned a subjective standard of entrapment and adopted an objective standard , “over time su bjective reasoning crept back into ” Utah’s appellate decisions. In particular, the district court believed that it violate d the objective test “ to consider the impact of police inducement on the particularState v. Dickerson

20191052

- CA 12 2022 UT App 56 defendant

. ” Instead, the court believed it was limited to assessing “the impact of the inducement on a reasonable person under the circumstances of the particular case.”

¶12 Applying that standard, the court concluded “that the methods used by the [a] gent in this case created a substantial risk that the charged sex offenses would be committed by someone not otherwise ready to commit them. ” In reaching that conclusion, the court relied “on the compounding impact of three decisions by the [a]gent

— the decision to adult

- certify Kailey on [the dating app], the decision to post a picture of an adult woman on Kailey’s [dating app] profile, and the decision to first direct the text messaging toward overtly sexual topics. ” Because the court concluded that Dickerson was entrapped, it dismissed the enticement and sod omy counts

. The State appeals th e dismissal.

ISSUES AND STANDARD S OF REVIEW

¶13 We address two issues on appeal. First, we consider Dickerson’s contention that we lack jurisdiction over this appeal. Whether we have appellate jurisdiction “presents a question o f law.” Trapnell & Assocs., LLC v. Legacy Resorts, LLC , 2020 UT 44, ¶ 29, 469 P.3d 989.

¶14 Because we conclude that we have jurisdiction, we next address the State’s argument that the district court erred in concluding, as a matter of law, that Dickerson was entrapped. “An entrapment ruling involves a mixed question of law and fact.” State v. Hatchett , 2020 UT App 61, ¶ 10, 462 P.3d 1288. “A trial court’s findings of fact relating to a claim of entrapment will be reversed on appeal only if clearly erroneous.” State v. Keitz , 856 P.2d 685, 689 (Utah Ct. App. 1993)
, abrogated on other grounds by State v. Montoya , 887 P.2d 857 (Utah 1994) . “On the other hand, the trial court’s statutory construction and application of the entrapment statute present questions of la w, which we review for correctness.” Id. Entrapment is established as a matter of law onlyState v. Dickerson

20191052

- CA 13 2022 UT App 56 when the facts found by the district court are “ sure to leave all reasonable minds reasonably doubting ” whether the defendant freely and voluntarily committed the crime. State v. Hernandez , 2020 UT App 58, ¶ 6, 462 P.3d 1283 ; see also Hatchett , 2020 UT App 61, ¶ 10 (“Only when reasonable minds could not differ can we find entrapment as a matter of law.” (c leaned up) ).

ANALYSIS

I. Jurisdiction

¶15 As an initial matter
, we must address whether we have jurisdiction over the State’s appeal. After the district court dismissed the enticement and sodomy counts, the State filed both a notice of direct appeal and a petitio n for interlocutory appeal out of “an abundance of caution.” This court issued a sua sponte motion for summary disposition asking the parties to address whether the direct appeal should be dismissed for lack of jurisdiction. In response, the State initiall y argued that we had jurisdiction over a direct appeal under subsection ( 5 ) of the entrapment statute, see Utah Code Ann. § 76

- 2

- 303(5) (LexisNexis 2017 ), even though not all charges against Dickerson were dismissed

. Dickerson argued that we lacked jurisdi ction because the district court’s order was not final and appealable.

¶16 We ultimately withdrew the motion for summary disposition, ordering that a ruling on the jurisdictional issue would be deferred pending plenary presentation and consideration of the app eal. We also directed the parties to address in their briefs whether the district court’s order was final and appealable. That same day, we consolidated the two appeals and granted the State’s petition to file an interlocutory appeal . We did so without first allowing Dickerson to file a response to the State’s petition as required by rule 5(f) of the Utah Rules of Appellate Procedure

.State v. Dickerson

20191052

- CA 14 2022 UT App 56 ¶17 Upon submission of its opening brief, the State conceded that this court lacked jurisdiction over its direct app eal. Dickerson then filed a motion to dismiss the appeal in its entire t y, based on the State’s concession that we lacked jurisdiction over the direct appeal and based on this court’s failure to meet its own procedural requirements before granting the inter locutory appeal. The State responded by arguing that the procedural error in granting the interlocutory appeal without a response did not raise a jurisdictional defect but merely required the court to hold the appeal in abeyance while Dickerson was given t ime to respond. We denied Dickerson’s motion to dismiss and reiterated that Dickerson could raise these issues in his initial brief and that a ruling would be “deferred pending plenary presentation and consideration of the appeal.”

¶18 In briefing and at oral argument, Dicke r son again argued that the interlocutory appeal had been improperly granted. After oral argument, we issued an order acknowledging “that granting the petition for interlocutory appeal without calling for a response ran afoul of rule 5(f)” of our appellate rules, and we invited Dickerson to file a response to the State’s petition for interlocutory appeal within fourteen days. Dickerson filed a timely response.

¶19 Having now carefully reviewed Dickerson’s opposition to the petition for interlocuto ry review, we reaffirm our decision to grant the State’s interlocutory appeal. Even if we had timely requested and considered Dickerson’s response to the petition, we would have exercised our discretion to grant the interlocutory appeal notwithstanding his arguments in opposition. As a result, our failure to follow the procedure in rule 5(f) did not impact Dickerson’s substantial rights. See Utah R. Crim. P. 30(a) (“Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded.”)

. Because we have jurisdiction over the State’s interlocutory appeal , we denyState v. Dickerson

20191052

- CA 15 2022 UT App 56 Dickerson’s motion to dismiss that appeal and proceed to consider its merits. 2

II. Entrapment

A. Utah ’s Entrapment Standard

¶20 We begin by addressing the legal standard for entrapment in Utah

. When our legislature enacted the Utah criminal code in 1973, it adopted a statutory framework governing the asserti o n of an entrapment defense. See State v. Torres , 2000 UT 100, ¶ 7 n.1 , 16 P.3d 1242 (noting that the statute “has not been substantially altered since its enactment in 1973”). A defendant may assert the defense by filing a written motion before trial, identifying the evidentiary foundation for the claim. See Utah Code Ann. § 76

- 2

- 303(4) ( LexisNexis 2017 ) ; see also State v. Hernandez , 2020 UT App 58, ¶ 6, 462 P.3d 1283. The court then must “ hear evidence on the issue and shall determine as a matter of fact and law whether the defendant was entrapped to commit the offens e.” Utah Code Ann. § 76

- 2

- 303(4).

¶21 “Only when reasonable minds could not differ can [the court] find entrapment as a matter of law

. ” State v. Hatchett , 2020 UT App 61, ¶ 10 , 462 P.3d 1288 (cleaned up)

. If the court concludes, as a matter of law, “ that the d efendant was entrapped, it shall dismiss the case with prejudice.” Utah Code Ann. § 76

- 2

- 303( 5 ). If “reasonable minds could differ on whether or not entrapment occurred,” the court must deny the motion and

2

. Dickerson also suggests that the State’s appeal violates his d ouble jeopardy rights. But double jeopardy does not attach until “the jury is impaneled and sworn.” See Martinez v. Illinois , 572 U.S. 833, 834 (2014) (per curiam) (cleaned up)

. As a result, pre

- trial dismissals do not trigger double jeopardy protections. See State v. Cahoon , 2009 UT 9, ¶ 16, 203 P.3d 957.State v. Dickerson

20191052

- CA 16 2022 UT App 56 “allow[] the issue of entrapment to go to the jury .” State v. Beddoes , 890 P.2d 1, 2 (Utah Ct. App. 1995).

¶22 The statute also codifie s the meaning of entrapment under Utah law :
Entrapment occurs when a peace officer or a person directed by or acting in cooperation with the 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 would be committed by one not otherwise ready to commit it. Conduct merely affording a person an opportunity to c ommit an offense does not constitute entrapment.

Utah Code Ann. § 76

- 2

- 303(1)

. By adopting this definition, the legislature rejected the “ subjective test ” previously applied by Utah courts. See State v. Taylor , 599 P.2d 496, 503 (Utah 1979)

. Under the stat ute’s more objective standard, the test “is whether a law enforcement official or an agent, in order to obtain evidence of the commission of an offense, induced the defendant to commit such an offense by persuasion or inducement which would be effective to persuade an average person, other than one who was merely given the opportunity to commit the offense.” Id

.
¶23 The district court’s ruling in this case appears to have been animated by its concern that “over time subjective reasoning crept back into the anal ysis.” As examples, the court cited cases examining whether “the crime was a result of defendant’s own voluntary desire and intent to commit the crime,” see State v. Moore , 782 P.2d 497, 501 (Utah 1989), or whether the defendant “freely and voluntarily com mitted the offense,” see State v. Udell , 728 P.2d 131, 132 (Utah 1986). Under the district court’s interpretation, courts improperly “drift into subjective reasoning” when they “begin to consider the impact of police inducement onState v. Dickerson

20191052

- CA 17 2022 UT App 56 the particular defendant, rather than the impact on a reasonable person under the defendant’s circumstances.”

¶24 But neither the entrapment statute nor our case law uses a “reasonable person” standard. We find no support for the proposition that the applicable entrapment standard req uires the court to ignore a defendant’s demonstrated willingness to commit the crime or to limit its inquiry solely to the impact of the government’s conduct on a hypothetical reasonable person in the defendant’s circumstances.

¶25 Th is confusion stems from a reasonable misunderstanding about what is meant by the “objective” and “subjective” standards for entrapment. “The basic difference is that the subjective test looks primarily to a defendant’s predisposition to commit the crime, whereas the objective test looks primarily to police conduct.” State v. Salmon , 612 P.2d 366, 368 n.5 (Utah 1980). In the seminal case interpreting Utah’s entrapment statute, our supreme court quoted the following examples with approval to illustrate the difference between the subje ctive and objective approach es :
Under the [subjective theory], if A, an informer makes overreaching appeals to compassion and friendship and thus moves D to sell narcotics, D has no defense if he is predisposed to narcotics peddling. Under the [objective t heory,] a defense would be established because the police conduct, not D’s predisposition, determines the issue. Under the [subjective theory], A’s mere offer to purchase narcotics from D may give rise to the defense, provided D is not predisposed to sell. A contrary result is reached under the [objective theory]. A mere offer to buy hardly creates a serious risk of offending by the innocent.State v. Dickerson

20191052

- CA 18 2022 UT App 56 Taylor , 599 P.2d at 503 (quoting Model Penal Code § 2.10 ( Am

. L

. Inst

. , Tentative Draft No. 9 , 1959)).

¶26 The subjective test consisted of “two inquiries: (1) whether there was an inducement on the part of the government; and (2) if so, whether the defendant showed any predisposition to commit the offense.” Id. at 499

– 500. Because the subjective test turned on the defendant’s “general intention or predisposition to commit, whenever the opportunity should arise, crimes of the kind solicited,” it allowed the prosecution to admit evidence “to show the defendant’s reputation, criminal activities, and prior disposition. ” Id. at 50 1

– 0 2 (cleaned u p )

. That evidence could be properly considered to determine whether the defendant was predisposed to commit the charged crime. If the defendant was so predisposed, entrapment was no defense, regardless of the nature of the inducem ent.

¶27 The entrapment statute reject s this subjective approach. Indeed, the statute expressly provides, “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

. . . .” Utah Cod e Ann. § 76

- 2

- 303 (6) (LexisNexis 2017) . “The effect of this provision is to eliminate the opportunity for the prosecution to present proof of the accused ’s criminal character or predisposition by evidence of his past offenses.” Taylor , 599 P.2d at 503. 3 U nder the

3 . We recognize that some Utah entrapment cases have relied on propensity

- type evidence, an approach that appears to be “at odds with both the entrapment statute and our Supreme Court’s more recent articulation of the objective standard.” State v. Hatchett , 2020 UT App 61, ¶ 14 n. 7 , 462 P.3d 1288 . For example, in State v. Udell , 728 P.2d 131 (Utah 1986), the court cited the fact that the defendant “was a known drug user” and that the officer “had reason to believe that [ the ] defendant was involved in drug trafficking,” both of which seem to bear on whether the defendant (continued...)State v. Dickerson

20191052

- CA 19 2022 UT App 56 objective standard , “[i]f the police conduct would create a substantial risk that a normal law

- abiding person would be induced to commit a crime, entrapment has occurred regardless of the predisposition of the defendant.” State v. Martinez , 848 P.2d 702, 706 (Utah Ct. App. 1993). This reflects the legislative judgment that “ [ a ] ppeals to sympathy, friendship, the possibility of exorbitant gain, and so forth, can no more be tolerated when directed against a past offender than against the ordinary l aw

abiding citizen.” Taylor , 599 P.2d at 502 (quoting Sherman v. United States , 356 U.S. 369, 384

– 85 (1958) (Frankfurter, J., concurring)). The contrary view “would espouse the notion that when dealing with the criminal classes anything goes.” See i d. (cle aned up).

¶28 In short, adoption of the objective standard eliminated any “‘predisposition’ or ‘innocence’ requirement to constitute an entrapment defense.” Id. at 503. “ [ I ] f the police conduct would create a substantial risk that a normal law

- abiding person w ould be induced to commit a crime, entrapment has occurred regardless of the predisposition of the defendant.” State v. LaVesseur , 854 P.2d 1022, 1025 (Utah Ct. App. 1993) (cleaned up).

was predisposed to distribute a controlled substance. Id. at 13 3

. And in State v. Torres , 2000 UT 100, 16 P.3d 1242
, the court appeared to rely on the fact that the defendant “ was known in the community as a ‘ bi g mover of drugs,’” id. ¶ 12, to distinguish that case from one in which there was “no evidence that the defendant had previously possessed or dealt with the drug , ” State v. Kourbelas , 621 P.2d 1238, 1240 (Utah 1980) ; see Torres , 2000 UT 100, ¶ 12. Fortuna tely, to resolve this case, we are not required to reconcile the apparent conflict between our supreme court’s articulation of the objective standard and its references to predisposition evidence in Udell and Torres . Here, the record contains no predisposition evidence.State v. Dickerson

20191052

- CA 20 2022 UT App 56 ¶29 W hen we refer to the “subjective” or “objective” standards of entrapme nt in the abstract, we sometimes overlook the key difference between the two approaches

— whether the defense is available to one with a criminal history demonstrating a predisposition to commit the crime. Over time, i nstead of articulating the standard as o ne focusing primarily on police conduct, the standard began to be framed as focusing solely on police conduct. C ompare Salmon , 612 P.2d at 368 n.5 (“The basic difference is that the subjective test looks primarily to a defendant ’ s predisposition to commit the crime, whereas the objective test looks primarily to police conduct.”)
, with Torres , 2000 UT 100, ¶ 8 ( describing the “objective standard for entrapment cases, which focuses solely on police conduct, rather than on the defendant ’ s predisposition to commit a crime”). And this court once suggest ed that the objective standard made irrelevant not only the “character of the suspect” and “his predispo sition to commit the offense,” but also “his subjective intent.” State v. Wright , 744 P.2d 315, 318 (Utah Ct. App. 1987).

¶30 But as our supreme court has explained, e ntrapment operates as a defense precisely because the nature of the police conduct gives rise to “a reasonable doubt that the defendant freely and voluntarily committed the offense.” See Torres , 2000 UT 100, ¶ 8 (cleaned up)

. If there is “a reasonable basi s in the evidence upon which jurors could find beyond a reasonable doubt that the crime was a result of [the] defendant’s own voluntary desire and intent to commit the crime,” the defendant has not established entrapment as a matter of law. Moore , 782 P.2d at 501.

¶31 T h ese seemingly contradictory st atements have understandably led to some confusion. See , e.g. , Hernandez , 2020 UT App 58, ¶ 7 n.2 (noting th e apparent contradiction between an objective standard that “focus [ es ] solely on police conduct” and “the p roximate instruction” that entrapment is a defense because it raises a reasonable doubt as to whether “the defendant f r eely and voluntarily committed the offense” (cleaned up) ) ; Hatchett ,State v. Dickerson

20191052

- CA 21 2022 UT App 56 2020 UT App 61, ¶ 14 n.7 (same)

. Here, the district court conclude d that “ to consider the impact of police inducement on the particular defendant” would violate the objective test

. T he court believed it was limited to assessing “ the impact of the inducement on a reasonable person under t he circumstances of the particular case

. ”

¶32 The standard a rticulated by the district court

— that of “ a reasonable person und er the circumstances of the particular case”

— is not based on the statutory language. It is similar to the

“ individualized objective sta ndard ” used when applying the stalking statute. See Baird v. Baird , 2014 UT 08, ¶ 26, 322 P.3d 728. But unlike the stalking statute, the entrapment statute does not direct us to assess the effect of the conduct on “ a reasonable person in the [person’s] circumstances

. ” Compare Utah Code Ann. § 76

- 5

- 106.5(1)(d) (LexisNexis 2017) with id. § 76

- 2

- 303. A nd a “reasonable person” standard has never been applied in our case law interpreting the entrapment statute. T he closest articulation of such a s tandard is the suggestion that “the propriety of government action is measured by its probable effect upon a hypothetical person in the setting in which the inducement took place.” State v. Richardson , 843 P.2d 517, 520 (Utah Ct. App. 1992) (cleaned up) (q uoting Wright , 744 P.2d at 318, which is the only other Utah case in which this language is used)

.
¶33 But ever since Taylor , our supreme court has consistently instructed courts to look to all the circumstances surrounding the police conduct , including “ ‘ the response to the inducements of the agent, ’ ” in assessing “ ’ what the effect of the governmental agent’s conduct would be on a normal person. ’ ” Id. at 519 (quoting Taylor , 599 P .2d at 503)

. And both this court and our supreme court have regularly consider ed the impact of police inducement on the particular defendant. In some cases, we have relied on the defendant’s responses as evidence of a reluctance to commit the crime that su bsequently had to be overcome by police inducement. See, e.g. , State v. Kaufman , 734 P.2d 465, 467

– 68 (UtahState v. Dickerson

20191052

- CA 22 2022 UT App 56 1987) (noting the defendant had declined the undercover officer’s offer to sell him stolen jewelry and diamonds but had allowed her to leave it in h is safe when the officer, posing as a “relatively young, divorced mother of six children who was having hard times,” told him she did not like “carrying the stuff around”); State v. Kourbelas , 621 P.2d 1238, 1240 (Utah 1980) (relying on the persistent requ ests of the undercover agent to purchase drugs from the defendant); State v. Sprague , 680 P.2d 404, 406 (Utah 1984) (same). In many others, we have relied on the defendant’s responses as evidence of a willingness to commit the crime when merely presented with the opportunity

. S ee, e.g. , Hernandez , 2020 UT App 58, ¶¶ 11

– 12 (noting that when the defendant “was approached and offered the opportunity to engage in criminal conduct, he expressed interest without impermis sible prompting”); Torres , 2000 UT 100, ¶ 14 (stating that the defendant’s “persistent, and eventually successful, attempts to get the drugs to the informant, despite considerable difficulty,” illustrated “[h]is willingness to commit the crime”); State v. Byrns , 911 P.2d 981, 988 (Utah Ct. App. 1995) (explaining that the record was “replete with statements by defendant demonstrating his willingness and eagerness to set up a methamphetamine lab”); State v. Gallegos , 849 P.2d 586, 588 (Utah Ct. App. 1993) (no ting that the confidential informant asked the defendant to procure him some drugs on one occasion and “the defendant readily responded affirmatively that he would do so”).

¶34 Evidence of the defendant’s demonstrated willingness or eagerness to commit the cri me in question is distinguishable from the type of predisposition evidence that the entrapment statute prohibits. Under the statute’s objective standard, the entrapment defense is available to any defendant who can show that the government’s methods create d a substantial risk of ensnaring one not otherwise ready to commit the offense, regardless of whether the defendant has a history of prior a ctions indicating a predisposition to commit the crime. Looking at the “impact of police inducement on the particul ar defendant” is notState v. Dickerson

20191052

- CA 23 2022 UT App 56 incompatible with that standard. T he defendant’s reactions to the government inducement

— for example, whether the defendant hesitates when presented with an illegal opportunity and succumbs only to persistent pressure or, conversely, whether the defendant actively pursues the commission of the crime despite opportunities to withdraw

— are highly relevant to the statutory questio n of whether the police methods created “a substantial risk that the offense would be committed by one not otherwise ready to commit it , ” or whether those methods “ merely afford [ed] a person an opportunity to commit an offense ” that the person was “otherwi se ready to commit.” Utah Code Ann. § 76

- 2

- 303(1). Therefore, we examine Dickerson’s responses to the government inducement along with all other relevant circumstances.

B. Application of the Objective Sta n dard

¶35 “In assessing police conduct under the objective standard, the test to determine an unlawful entrapment is whether a law enforcement official or an agent, in order to obtain evidence of the commission of an offense, induced the defendant to commit such

an offense by persuasion or inducement which would be effective to persuade an average person, other than one who was merely given the opportunity to commit the offense.” State v. Taylor , 599 P.2d 496, 503 (Utah 1979)

. In other words, we ask “whether the gove rnment’s methods create a substantial risk of inducing the commission of a crime despite a person’s lack of initiative or desire to commit it.” State v. Hernandez , 2020 UT App 58, ¶ 13, 462 P.3d 1283. “Only when reasonable minds could not differ can we fin d entrapment as a matter of law.” State v. Haltom , 2005 UT App 348, ¶ 7, 121 P.3d 42. Otherwise, it is “a question properly reserved for the jury.” State v. Gallegos , 849 P.2d 586, 588 (Utah Ct. App. 1993) ; see also id. at 590

.
¶36 Entrapment “ is a highly fact

- intensive ” inquiry. State v. Torres , 2000 UT 100, ¶ 8 , 16 P.3d 1242

. The surrounding circumstances, including “the transactions leading up to theState v. Dickerson

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- CA 24 2022 UT App 56 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.” See Taylor , 599 P.2d at 503. Unlike the district court, we do not view this language as “a judge

- made multi

- factored test.” 4 Rather, it merely illustrates that the entire course of conduct must be considered in assessing the effect that the government’s methods would have on a person not otherwise ready to commit the crime. “Evidence of the setting in which the inducement took place is of course highly relevant in judging its likely effect. ” State v. Cripps , 692 P.2d 747, 750 (Utah 1984) (cleaned up) (quoting Sherman v. United States , 356 U.S. 369, 384

– 85 (1958) (Frankfurter, J., concurring)).

¶37 In the f ift y years since the entrapment statute was enacted, our supreme court has held that a defendant was entrapped as a matter of law in only two types of cases. The first type of case involv es “improper police conduct” in which the government agent applied “pers istent pressure” or “persistently pursued” the defendant to commit the crime. Torres , 2000 UT 100, ¶ 9 (citing State v. Sprague , 680 P.2d 404, 406 (Utah 1984), and State v. Kourbelas , 621 P.2d 1238, 1240 (Utah 1980)). The second type of case involv es “appe als based on sympathy, pity, or close personal friendships, or offers of inordinate sums of money.” Id. (cleaned up) (citing Taylor , 599 P.2d at 503, and State v. Kaufman , 734 P.2d

4

. Noting that “the Utah Supreme Court in recent years has embarked on a campaign to dismantle multi

- factored tests in favor of applying the language of the rules of evidence,” the district court “rej ect[ed] the amorphous standards articulated in Utah’s entrapment case law, and instead applie[d] the plain language of section 76

- 2

- 303.” This approach is incompatible with principles of vertical stare decisis , which “ compels a court to follow strictly the decisions rendered by a higher court.” State v. Benson , 2014 UT App 92, ¶ 28, 325 P.3d 855 (cleaned up).State v. Dickerson

20191052

- CA 25 2022 UT App 56 465, 468 (Utah 1987)). Neither of those impermissible methods is implicated in this case.

¶38 First, Dickerson was not subjected to persistent requests to engage in criminal conduct. We have previously recognized that “excessive pressure or goading by an undercover officer might constitute entrapment.” State v. J.D.W. , 910 P.2d 1242, 1244 (Utah Ct. App

. 1995). In Kourbelas , for example, the undercover agent “first suggested the purchas e of marijuana from the defendant, ” “renewed the contact and the request” two weeks later, and then “followed up by calling the defendant at least five times in attempting to purchase the marijuana.” 621 P.2d at 1240. Under those circumstances, our supreme court held that “there necessarily exists a reasonable doubt as to whether the offense committed was the product of the defendant’s initiative and desire, or was induced by the persistent requests of [the undercover agent].” Id

. On the other hand, in J.D. W. , this court could not say that a defendant was entrapped as a matter of law where the undercover officer merely offered to sell the defendant marijuana but “did not make repeated requests or badger ” the defendant to buy it. See J.D.W. , 920 P.2d at 1244.

¶39 Here, the undercover agent did not harass Dickerson into committing the crime. It was Dickerson who asked for Kailey’s phone number “so I can text u” after learning she was only thirteen years old. It was Dickerson who sent the first text saying, “Hey bab y its me.” And whenever Kailey did not immediately respond to a text, Dickerson sent multiple follow

- up messages, asking for reassurance that Kailey was “f o rreal” and not “playing” him. It was Dickerson who proposed that they meet in person

— “to smoke and what else can we do baby”

— and asked Kailey to send him her address. In fact, Dickerson asked Kailey for her address no less than ten times beginning at 11:51 p

. m

. , until he finally receiv ed the address at 12:47 a

. m.State v. Dickerson

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- CA 26 2022 UT App 56 ¶40 A defendant is not entitled to acquittal as a matter of law under an entrapment theory where he has actively pursued the commission of the crime despite opportunities to withdraw . For example, in Torres , despite “several opport unities to back out of [a] drug deal,” the defendant’s “willingness to commit the crime [was] illustrated by his persistent, and eventually successful, attempts to get the drugs to the informant, despite considerable difficulty.” 2000 UT 100, ¶ 14 ; see als o Hernandez , 2020 UT App 58, ¶ ¶ 11

– 12 (noting that the defendant had “an opportunity to desist” from solicitation of a prostitute when the undercover detective rejected “his initial low

- ball offer,” but persisted in making “a realistic offer of payment to the detective to engage in a sex act”). A defendant’s “independent and persistent attempts” to commit the crime demonstrate that “his actions were freely and voluntarily committed, and thus were not induced by [government] conduct.” See Torres , 2000 UT 100
, ¶ 14 (cleaned up)

.
¶41 Over the course of the three

- and

- a

- half

- hour conversation, the agent gave Dickerson multiple opportunities to back out. When Kailey expressed reluctance, Dickerson assured her that he would be gentle, that she would like it, and that s he would not get pregnant. He expressed frustrat ion that “ur asking all these questions like u couldn’t also [ask] me this face to face.” When she continued to hesitate, he begged her to stop “playin” and “wasting time” and to send him her address. Kailey even suggested that they meet up the next day, but Dickerson pleaded, “Awwwww baby y . . . I wanted to Tonite please.” Numerous times, the agent “offered [Dickerson] an opportunity to desist,” yet Dickerson persisted in soliciting sex from a thirteen

- year

- old girl “when provided with the mere opportunity to do so.” See Hernandez , 2020 UT App 58, ¶¶ 11

– 12.

¶42 In fact, Dickerso n’s response to the police inducement was remarkably like that of the defendant in State v. Hatchett , 2020 UT App 61, 462 P.3d 1288, a case in which th is court affirmed the district court’s denial of a pre

- trial motion to dismiss based onState v. Dickerson

20191052

- CA 27 2022 UT App 56 entrapment. In Ha tchett , the defendant placed an ad looking for an “18

– 25 year old guy to party and play with ”

— a reference to drug

- enhanced sexual activity

. Id. ¶ 2. An undercover agent
, posing as “Cade,” responded with the message, “ saw ur post how yung is 2 yung.” Id. ¶ 3. When Hatchett asked his age, Cade responded , “old enuff 2 no what I want, middle school but lik coke.” Id. Hatchett then asked if Cade had “a connect” (presumably to obtain cocaine), what his “stats” were, and what he was “into.” Id. Cade responded , “a lmost 14 m whatever.” Id

. Nonetheless, Hatchett continued to communicate with Cade for several weeks, making plans to meet up when Hatchett was in
town

. Id. “Whenever Hatchett asked Cade what he wanted to do when they met up, Cade would respond evasively b y stating that he did not know” and “never proposed specific sex acts.” Id. ¶ 4. But “ i t became readily apparent that Hatchett was undeterred by the fact that Cade was ‘almost 14’ years old,” and “repeated ly steered their conversation in a sexual direction .” Id

. Under these facts, the district court denied the motion to dismiss, concluding that “at most, [the agent] afforded the mere opportunity to commit the offense.” Id. ¶ 8.

¶43 In affirming that ruling on appeal, this court emphasized that the agent posing as Cade “did not persistently request that Hatchett commit an illegal offense.” Id. ¶ 16. Unlike in Kourbelas , where the agent reinitiated contact with the defendant several times , see 621 P.2d at 1240, “Hatchett was subjected to no such persistent effort , ” Hatch ett , 2020 UT App 61, ¶ 16. “To the contrary, Hatchett aggressively pursued Cade after he was made aware of Cade’s young age.” Id

. This court concluded that “this case does not present a set of circumstances under which we can hold that reasonable minds cannot differ as to whether entrapment occurred.” Id. ¶ 19 (cleaned up).

¶44 Like the defendant in Hatchett , Dickerson aggressively pursued Kailey, not the other way around. And he did so despite knowing her age and having multiple opportunities to changeState v. Dickerson

20191052

- CA 28 2022 UT App 56 course. Therefore , the facts do not present a case of “excessive pressure or goading” that would compel the conclusion that Dickerson was entrapped as a matter of law. See J.D.W. , 910 P.2d at 1244.

¶45 Second, this case does not involve the kind of “personalized high

- pressure tactics or appeals to extreme vulnerability ” that might constitute entrapment as a matter of law. S ee S tate v. Martin , 713 P.2d 60, 62 (Utah 1986). “Extreme pleas of desperate illness or appeals based primarily on sympathy, pity, or close personal friendship, or offers of inordinate sums of money, are examples, depending on an evaluation of the circumstances in each case, of w hat might constitute prohibited police conduct.” Taylor , 599 P.2d at 503. For example, i n Taylor , our supreme court held that the defendant was entrapped as a matter of law when a police informant pleaded with the defendant, with whom she had an intimate r elationship, to help her locate drugs to avoid “the agonies of withdrawal” that the defendant, as a recovering addict, had personally experienced. Id.
at 503

– 04. And i n Kaufman , the undercover agent posed as a

“ divorced mother of six children who was havin g hard times” and “first became a friend to the defendant so that it was hard for the defendant to call the police and turn her in” when she admitted that the jewelry she had sold him was stolen property. 734 P.2d at 468 (cleaned up)

.
¶46 Here, the undercover agent did not develop a personal relationship with Dickerson that he then exploited. See State v. Martinez , 848 P.2d , 702, 707 (Utah Ct. App. 1993) ( concluding that

e ntrapment “ require [ s ] some exploitation of the personal relationship”)

. He ma d e no appeal s to Dickerson’s sympath y or pity. Nor did he make any offer that a person not otherwise ready to commit the crime would be hard

- pressed to refuse. Indeed , t he agent did nothing to “induce ” Dickerson ’s participation beyond posing as a thirteen

- year

- old girl who was willing to meet him

. And i nstead of actively persuading or convincing Dickerson toState v. Dickerson

20191052

- CA 29 2022 UT App 56 commit the crime, Kailey was hesitant and noncommittal. It was Dickerson who pled with Kailey t o meet him that night. He did so “without being badgered, pressured, coerced by pleas of sympathy or a personal relationship, or tempted with an inordinate monetary incentive.” See Hernandez , 2020 UT App 58, ¶ 1 2

. “As stated in Taylor , the objective test does not prohibit the police from affording a person an opportunity to commit crime; it only prohibits active inducements on the part of the government for the purpose of luring an ‘ average ’ person into the commission of an offense.” S tate v. Salmon , 612 P.2d 366, 368 (Utah 1980)

.
¶47 The agent in this case did not “employ inducements that would have been, as a matter of law, sufficient to induce an ordinary person,” not otherwise inclined, to solicit sex from a thirteen

- year

- old

. See State v. Gallegos , 849 P.2d 586, 590 (Utah Ct. App. 1993); s ee also Hernandez , 2020 UT App 58, ¶ 13 (“We do not think a person, not otherwise inclined, would be swayed to patronize a prostitute by the methods employed in this case.”)

.

“ When there is a reasonabl e basis in the evidence upon which jurors could believe beyond a reasonable doubt that the crime was a result of a defendant ’ s own voluntary desire and intent to commit the crime, the fact that a police officer merely afforded him the opportunity to commit it, does not amount to entrapment. ” Salmon , 612 P.2d at 369

. Because the facts of this case are “not sure to leave all reasonable minds with a reasonable doubt as to whether [Dickerson] acted on his own inclination,” the motion to dismiss should have been denied and the entrapment defense presented to the jury. See Hernandez , 2020 UT App 58, ¶ 14.

C. The District Court’s Ruling

¶48 The district court based its contrary ruling on two principal factors. I t found (1) that “a reasonable person could conclude that he was chatting with an adult woman who was only pretending to be a child” because the undercover agent chose to “adult

- certifyState v. Dickerson

20191052

- CA 30 2022 UT App 56 Kailey ” on the dating app and “post the picture of an adult

woman ” on Kailey’s profile , and (2) that the agent “was the one who directed the conversation to overtly sexual topics.” Neither of t hese factors establishes entrapment as a matter of law.

¶49 First, the district court placed great weight on the techniques the agent used to gain access to the dating app

. Specifically, the court found it significant that the agent “certified that his online persona was 18 years of age or older” and “posted the picture of an adult woman on the profile,” which the court found “appear[ed] to be at least 18 years of age, if not older.” The court found these actions to be significant because a reasonable person in Dickerson’s circumstances “could justifiably conclude that he [was] chatting not with a child but with an adult woman who was pretending to be a minor and a sexual innocent.”

¶50 We see multiple problems with this analysis. For starters , t he entrapment defens e presupposes that the defendant has committed the crime charged but was entrapped into doing so. 5 If a jury finds that Dickerson believed that Kailey was “an adult woman who was pretending to be a minor and a sexual innocent,”

5 . Dickerson says that this “is manifestly not true” because the entrapment statute expressly makes the defense “available even though the actor deni es the commission of the conduct charged to constitute the offense.” See Utah Code Ann. § 76

- 2

- 303(3) ( LexisNexis 2017 ) . But the availability of a defense says nothing about whether the defenses are ultimately inconsistent. See State v. Mitcheson , 560 P.2d 1120, 1122 (Utah 1977) (observing that a defendant has “the benefit of every defense” that may raise a reasonable doubt as to his guilt, and “this is true whether his defenses are consistent or not”). A defendant may certainly maintain that he did not com mit the offense, but that, if he did, he was entrapped. A jury finding that the defendant did not commit the offense would simply obviate the need to reach the entrapment defense.State v. Dickerson

20191052

- CA 31 2022 UT App 56 Dickerson would be entitled to acquittal, not because he was entrapped, but because he did not act with the requisite mental state and is therefore factually innocent of the charged crimes. See State v. Hatchett , 2020 UT App 61, ¶ 9, 462 P.3d 1288 (noting that, in returning a guilty verdict, the jury necessarily rejected both the defendant’s entrapment defense and his claim that he believed the undercover persona “was an adult pretending to be a minor for ‘fantasy’ purposes”). And a reasonable jury could easily draw the opposite infe rence

— that Dickerson believed Kailey was a minor who had falsely certified her age and posted an adult’s photograph to circumvent the dating app’s “adults only” policy. At best, this evidence “is subject to multiple interpretations.” S ee State v. Haltom , 2005 UT App 348, ¶ 12, 121 P.3d 42.

¶51 A ddition ally , the fact that the agent initially presented the undercover persona as an adult does not establish entrapment as a matter of law

. T he undercover agent revealed that Kailey was a minor at the outset o f the conversation before any discussion of criminal activity occurred. When Kailey told Dickerson she “was in middle school,” Dickerson asked, “so how old r u baby.” Kailey said she was thirteen . When Dickerson questioned “y it say 18 baby,” Kailey replie d, “I’m serious. I’m 13.” A jury could find that

“ a person not otherwise ready to commit the crime” would have immediately terminated the conversation. Instead, he asked her why she was on the dating app , if she smoked or drank, and whether she could “get out of the house.” And, after learning that he was chatting with a thirteen

- year

- old on a dating site, Dickerson asked Kailey for her phone number to continue the conversation by text. These facts are not “sure to leave all reasonable minds reasonably doub ting whether the commission of the offense was the product of [Dickerson’s] inclination.” See State v. Hernandez , 2020 UT App 58 , ¶ 6 , 462 P.3d 1283

.
¶52 Second, the court also found it significant that the undercover agent first “directed the conversation to overtly sexual topics” when Kailey said she was “kinda scared” becauseState v. Dickerson

20191052

- CA 32 2022 UT App 56 she had “never been with a oldr guy.” As an initial matter, w e agree with the S tate that this factual finding is not supported by the evidence. Dickerson was the first to use the phrase “been with” as sexual innuendo when he asked Kailey, “U ever been with a black dude.” The district court dismissed the significance of this statement in a footnote, reasoning that, “[t]aken in the
context o f the brief [dating app] m essaging, this question was not overtly sexual.” We fail to see how Kailey’s use of the phrase could be characterized as “direct[ing] the conversation to overtly sexual topi cs” while Dickerson’s use of the same phrase was “not overtly sexual.” Moreover, the first explicit reference to a sexual act came from Dickerson when he asked Kailey, “Ok u never had nobody play wit it or lick it”? And he then promised that he would be ge ntle, that she would “like the way I do it and daddy going to teach you a lot.” Later, Dickerson was the first to explicitly reference a second sexual act when he asked Kailey, “Have u ever suck on it before . . . Dick baby”? Unquestionably, it

was Dickers on who first explicitly propose d specific sexual acts. Cf. Hatchett , 2020 UT App 61, ¶ 8.

¶53 More importantly, even if the undercover agent had initiated the discussion of sexual activity, merely proposing criminal activity is not improper inducement. In Hern andez , for example , an undercover officer approached the defendant’s car and asked him if he was “ ‘ looking for a date ’

— lingo used to offer prostitution services.” 2020 UT App 58, ¶ 2. When Hernandez responded in the affirmative, the detective asked if he had any money and “then inquired whether Hernandez wanted ‘ to fuck’ or if he just ‘wanted a blowjob.’” Id. Hernandez responded that he “wanted to go all out
, ” and t he two negotiated a price. Id. The detective directed Hernandez to meet her around the corner, where he was apprehended by law enforcement. Id.

¶54 The district court granted Hernandez’s motion to dismiss,

“ concluding as a matter of law that Hernandez was entrapped to commit th e offense of patronizing a prostitute.” Id. ¶ 14. WeState v. Dickerson

20191052

- CA 33 2022 UT App 56 reversed because a factfinder could have reasonably concluded, on the facts presented, that Hernandez was not entrapped

. Id. ¶ 5. We compared the case to State v. J.D.W. , 910 P.2d 1242 (Utah Ct. App. 199 5), in which an undercover officer randomly approached
two teens at a shopping mall and asked if they wanted to buy marijuana. Hernandez , 2020 UT App 58, ¶ 12. In both cases, “the officer merely provided the opportunity” to commit the crime. Id. ¶ 9 ; J.D.W

. , 910 P.2d at 1244

. The fact that the officer “initiated contact and started the discussion about engaging in illegal activity” did not establish entrapment as a matter of law. Hernandez , 2020 UT App 58, ¶ 12.

¶55 Similarly, in this case, even accepting the d istrict court’s factual finding that it was the agent “who directed the conversation to overtly sexual topics,” Dickerson was not entitled to acquittal as a matter of law. “In every case of this type, the intention that the particular crime be committed or iginates with the police, and without their inducement, the crime would not have occurred. Yet it is perfectly clear that where the police merely furnish an opportunity for the commission of the crime, this is insufficient for the defendant to escape convi ction.” State v. Taylor , 599 P.2d 496, 501 (Utah 1979)

.
¶56 The statutory question is whether the agent in this case used “methods creating a substantial risk that the offense would be committed by one not otherwise ready to commit it.” Utah Code Ann. § 76

- 2

- 303(1) ( LexisNexis 2017 )

. Under these facts, we have no trouble concluding that a reasonable jury could answer that question with a resounding no. At minimum, reasonable minds c ould disagree as to whether the police methods in this case created a subs tantial risk that a person not otherwise ready to entice a thirteen

- year

- old girl to engage in unlawful sex acts would commit the offense. Only when “reasonable minds cannot differ . . . can we hold that entrapment occurred as a matter of law.” State v. Be ddoes , 890 P.2d 1, 3 ( Utah Ct. App. 1995).State v. Dickerson

20191052

- CA 34 2022 UT App 56 ¶57 The factors identified by the district court

— the initial use of an adult profile and photograph and “the decision to first direct the text messaging toward overtly sexual topics”

— do not compel

a conclusion that Di ckerson was entrapped

. “Rather than an issue that could be settled as a matter of law, [Dickerson] presented the trial court with evidence that could have supported [his] entrapment defense, but that also could have been interpreted as insignificant .” See Haltom , 2005 UT App 348, ¶ 12. “ [ B ] ecause reasonable minds easily could differ on the question of entrapment as a matter of law in this case,” see id. , Dickerson’s motion should have been denied and his defense submitted to the jury.

CONCLUSION

¶58 We reverse the district court’s dismissal of the e nticement of a m inor and a ttempted s odomy on a c hild charges and remand for trial or other proceedings consistent with this opinion.