2022 UT App 56

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellant,

v.

TIMOTHY LAVELL DICKERSON,

Appellee.

Opinion

No. 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, 

Attorneys for Appellant

Douglas J. Thompson, Attorney for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which 

JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1 After being charged with enticement of a minor, attempted 

sodomy on a child, 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. The 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, an ICAC special agent was using 

an online persona he had created to pose as a thirteen-year-old 

girl on various platforms. The agent explained 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, the special agent was 

using the alias “Kailey” on a dating app. The agent created a 

profile for Kailey using 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 was 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 the profile name 

“Lavell.” Users of the dating app could 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 stop
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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 friend
State 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 smoke
State 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?

lol,” 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 next 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. The 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 only 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. try what

Dickerson: Lick it and play wit it

Kailey: i hpe it doesnt hurt

Dickerson: It won’t baby I’ll be gentle

Kailey: promise
State v. Dickerson

20191052-CA 7 2022 UT App 56

Dickerson: I PROMISE BABY 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 

going 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 nawwwwwwwww baby

Dickerson: Nooooooooooooo

Dickerson: NOOOOOOOOOOOOOO u won’t

Kailey: u sure

Dickerson: I promise 

Dickerson: I promise on my dead grandmother
State 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 

chance

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: Ok I’ll sneak out
State 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 waiting 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 would meet him there. The 

two continued to exchange text messages while Dickerson was en 

route. Dickerson repeatedly asked Kailey to send him a picture of 
State 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,” leading 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 so

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 learn
State 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 paraphernalia 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 possession 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 subjective reasoning 

crept back into” Utah’s appellate decisions. In particular, the 

district court believed that it violated the objective test “to 

consider the impact of police inducement on the particular 
State 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 sodomy counts. The State appeals the dismissal.

ISSUES AND STANDARDS 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 of 

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 law, which we review for 

correctness.” Id. Entrapment is established as a matter of law only 
State 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.” (cleaned 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 petition 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 initially 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 jurisdiction 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 appeal. 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 appeal. Dickerson 

then filed a motion to dismiss the appeal in its entirety, 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 interlocutory 

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 time 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, Dickerson 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 interlocutory 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 deny 
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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 assertion 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 offense.” 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 defendant 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 

double 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 codifies 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 commit 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 statute’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 analysis.” 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 committed 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 on 
State 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 requires 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 This 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 subjective and objective 

approaches:

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 theory,] 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 501–02 (cleaned up). 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 inducement.

¶27 The entrapment statute rejects 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 Code 

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 Under 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 lawabiding 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 id. (cleaned 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 would 

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 133. 

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 ‘big 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. Fortunately, 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 When we refer to the “subjective” or “objective” standards 

of entrapment 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, instead of 

articulating the standard as one focusing primarily on police 

conduct, the standard began to be framed as focusing solely on 

police conduct. Compare 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 suggested that the objective standard made 

irrelevant not only the “character of the suspect” and “his 

predisposition 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, entrapment 

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 basis 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 These seemingly contradictory statements have 

understandably led to some confusion. See, e.g., Hernandez, 2020 

UT App 58, ¶ 7 n.2 (noting the apparent contradiction between an 

objective standard that “focus[es] solely on police conduct” and 

“the proximate instruction” that entrapment is a defense because 

it raises a reasonable doubt as to whether “the defendant freely 

and voluntarily committed the offense” (cleaned up)); Hatchett, 
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20191052-CA 21 2022 UT App 56

2020 UT App 61, ¶ 14 n.7 (same). Here, the district court

concluded that “to consider the impact of police inducement on 

the particular defendant” would violate the objective test. The 

court believed it was limited to assessing “the impact of the 

inducement on a reasonable person under the circumstances of 

the particular case.”

¶32 The standard articulated by the district court—that of “a 

reasonable person under the circumstances of the particular 

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

“individualized objective standard” 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. And a 

“reasonable person” standard has never been applied in our case 

law interpreting the entrapment statute. The closest articulation 

of such a standard 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) (quoting 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 considered 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 subsequently had to be overcome by police 

inducement. See, e.g., State v. Kaufman, 734 P.2d 465, 467–68 (Utah 
State 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 his 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 requests 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. See, 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 impermissible 

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) (noting 

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 crime 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 created a substantial risk of ensnaring one 

not otherwise ready to commit the offense, regardless of whether 

the defendant has a history of prior actions indicating a 

predisposition to commit the crime. Looking at the “impact of 

police inducement on the particular defendant” is not 
State v. Dickerson

20191052-CA 23 2022 UT App 56

incompatible with that standard. The 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 

question 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 

“otherwise 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 Standard

¶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 

government’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 

find 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 the 
State v. Dickerson

20191052-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 fifty 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 

involves “improper police conduct” in which the government 

agent applied “persistent 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 involves “appeals 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 “reject[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 purchase 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 baby its me.” And whenever Kailey did not immediately 

respond to a text, Dickerson sent multiple follow-up messages, 

asking for reassurance that Kailey was “forreal” 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 received the address at 12:47 a.m.
State v. Dickerson

20191052-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 opportunities 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 also 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 she would not get 

pregnant. He expressed frustration 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, Dickerson’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 this court affirmed the 

district court’s denial of a pre-trial motion to dismiss based on 
State v. Dickerson

20191052-CA 27 2022 UT App 56

entrapment. In Hatchett, 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, “almost 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 by stating that 

he did not know” and “never proposed specific sex acts.” Id. ¶ 4.

But “it became readily apparent that Hatchett was undeterred by 

the fact that Cade was ‘almost 14’ years old,” and “repeatedly 

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,” Hatchett, 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 change 
State 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. See State 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 what might constitute prohibited 

police conduct.” Taylor, 599 P.2d at 503. For example, in 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 relationship, 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 in Kaufman, the undercover agent posed as a 

“divorced mother of six children who was having 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 

entrapment “require[s] some exploitation of the personal 

relationship”). He made no appeals to Dickerson’s sympathy 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, the 

agent did nothing to “induce” Dickerson’s participation beyond 

posing as a thirteen-year-old girl who was willing to meet him. 

And instead of actively persuading or convincing Dickerson to 
State v. Dickerson

20191052-CA 29 2022 UT App 56

commit the crime, Kailey was hesitant and noncommittal. It was 

Dickerson who pled with Kailey to 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, 

¶ 12. “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.” State 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); see 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 reasonable 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. It 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-certify 
State 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 these 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, 

the entrapment defense presupposes that the defendant has 

committed the crime charged but was entrapped into doing so.5If 

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 denies 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 commit 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 inference—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.” See

State v. Haltom, 2005 UT App 348, ¶ 12, 121 P.3d 42.

¶51 Additionally, the fact that the agent initially presented the 

undercover persona as an adult does not establish entrapment as 

a matter of law. The undercover agent revealed that Kailey was a 

minor at the outset of 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 replied, “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 doubting 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” because 
State v. Dickerson

20191052-CA 32 2022 UT App 56

she had “never been with a oldr guy.” As an initial matter, we 

agree with the State 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 of the brief [dating app] messaging, 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 topics” 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 gentle, 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 Dickerson who first explicitly proposed 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 Hernandez, 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 the 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 the offense of patronizing a prostitute.” Id. ¶ 14. We 
State 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. 1995), 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 district 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 originates 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 conviction.” 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 could disagree as to whether the police methods in this case 

created a substantial 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. Beddoes, 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 Dickerson 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 enticement 

of a minor and attempted sodomy on a child charges and remand 

for trial or other proceedings consistent with this opinion.