2022 UT App 82

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

SHANE CRAIG SMITH,

Appellant.

Opinion

No. 20200782-CA

Filed June 30, 2022

Fourth District Court, Provo Department

The Honorable M. James Brady

No. 191403507

Jennifer L. Foresta, Bryson King, and Douglas J. 

Thompson, Attorneys for Appellant

Sean D. Reyes, Kris C. Leonard, and Christopher D. 

Ballard, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE

GREGORY K. ORME and JUSTICE DIANA HAGEN1 concurred.

HARRIS, Judge:

¶1 The “13-year-old girl” Shane Craig Smith met on the 

internet was, in reality, an undercover police detective. After 

arranging to pick up the “girl” in person at a convenience store, 

Smith was arrested and later charged with various crimes, 

including attempted child kidnapping and several attempted sex 

crimes. He eventually entered a conditional guilty plea to some of 

1. Justice Diana Hagen began her work on this case as a judge of 

the Utah Court of Appeals. She became a member of the Utah 

Supreme Court thereafter and completed her work on the case 

sitting by special assignment as authorized by law. See generally

Utah R. Jud. Admin. 3-108(4). 
State v. Smith

20200782-CA 2 2022 UT App 82

the charges, reserving his right to appeal two issues: whether 

there was insufficient evidence to bind over the attempt charges 

and whether the district court erred by denying his motion to 

dismiss all the charges on the basis that he had been entrapped. 

Smith now appeals, raising those two issues. For the reasons 

discussed, we affirm his convictions. 

BACKGROUND2

¶2 One evening, a police detective (Detective) was conducting 

an internet sting operation. He created an online persona on a 

text-based internet application (the app) that he understood had 

a reputation as a “hookup” site for individuals seeking sexual 

companionship. Although the app required users to be eighteen 

years of age or older, Detective had seen several cases involving 

“real child victims” on the app. In creating his online persona, 

Detective used a moniker like “Fun Girl” or “Good Time,” and 

selected as his profile picture a stock photograph of an unknown 

female; he selected that particular photo because it appeared to be 

an “attractive” woman between the ages of eighteen and twentyfive. Across the front of the profile photo, Detective affixed the 

words “Wanting to HU,” a term he stated meant to “hook up.” 

Detective posted this profile, including the message “Wanting to 

HU,” in a chat room titled “Sexual Confessions.”

¶3 Detective’s post received “hundreds” of responses, and he 

engaged in chats with “more than half of them.” One of the app 

users who responded to Detective’s post was Smith, whose initial 

response was “I’m down.” Off and on over the next three hours, 

Smith and Detective engaged in the following exchange, which 

2. When we review a “magistrate’s bindover decision, we view all 

evidence in the light most favorable to the prosecution, draw all 

reasonable inferences in favor of the prosecution, and recite the 

facts with that standard in mind.” State v. Nihells, 2019 UT App 

210, n.1, 457 P.3d 1121 (quotation simplified).
State v. Smith

20200782-CA 3 2022 UT App 82

we include here in its entirety, accompanied by some explanatory 

footnotes: 

Detective: How r u

Smith: Good you

Detective: Bored

Detective: U? 

Smith: Looking for a HU that can keep up

Smith: Lol. But other than that bored as well

Smith: So are you still looking

Detective: What kind of keep up

Smith: As in can actually go for as long as I can

Smith: Or handle my dick. I’m bigger than 

most

Detective: How long do u go? And bigger than

most huh [smirking emoji]

Smith: I can cum and keep going and yeah

Smith: [photo 1 sent of an exposed penis]

Smith: [photo 2 sent of an exposed penis]

Smith: 9 inches

Smith: 2 wide

Smith: Thoughts?

Detective: Wow that is big

Smith: Any pic you want to send me? 

Detective: I need a ride to Cali if u can hook me up

Smith: California?

Detective: Yeah

Smith: And how would you repay me?
State v. Smith

20200782-CA 4 2022 UT App 82

Detective: What do u want?

Smith: Well send me some private photos so I 

can see what I’m working with and I’ll 

tell you

Detective: I ran away from home and want to 

make it to Cali

Detective: I can send u a pic if your still good

Smith: I’m still good

Smith: ?? So

Detective: I’m 13 if that makes but willing to help 

you if you help me

Smith: Well prove it

Smith: You there

Detective: [photo sent of half a woman’s face][3]

Smith: Take one that is more skin hun

Smith: One that proves your willing to help me 

;)

Smith: Hello?

Detective: Give me the $200 for food and cash so I 

can pay someone for a ride and I’ll do 

whatever u want

3. Detective obtained this photograph (as well as the ones 

referenced later, depicting a woman flipping off the camera and 

touching her eyebrow and nose) from another officer. The 

individual in the photographs was a 23-year-old woman who 

sometimes worked with detectives as a confidential informant.

The officer who provided the photographs later explained that, in 

his view, the woman “looks a lot younger than her age” and that 

he chose her with this in mind.
State v. Smith

20200782-CA 5 2022 UT App 82

Smith: Send me a picture and once your down 

first

Smith: Like I could give you a ride

Smith: Prove*

Detective: Look I could really use the cash right 

now

Smith: And I could really use proof you’re 

serious

Detective: K thanks

Smith: Too many scams sorry but without 

proof nothing

Detective: I’m just on the streets trying to get gone 

from here

Smith: Like I said I could give you a ride

Detective: So do I need to give bjs[4] all the way 

there? Or r we going to have sex cause 

I’m a virgin

Detective: Or can u give me cash

Smith: Bj or sex it’s up to you

Smith: But I still need a pic for proof

Detective: I would just rather get cash also so I can 

eat when I get there is that possible

Detective: U are a stranger and I want to get there 

safe

Detective: [photo sent of a girl in overall shorts in 

a public bathroom mirror] 

Detective: I guess not

4. During his testimony, Detective explained that “bj” is an 

acronym for “blow job” and is intended to refer to oral sex.
State v. Smith

20200782-CA 6 2022 UT App 82

Detective: Do u know anyone to help me

Smith: You said you’d do whatever what does 

that mean

Smith: And that pic isn’t proof

Detective: I told you I’ll give u bj and asked if you 

could maybe give cash for me and I’ll 

ride your 9 if it fits

Smith: Send me a full body nude or one of your 

tits and pussy so I know you’re legit

Detective: No I don’t want pics out of me. I would 

rather do it

Smith: And I’d rather have insurance you’re 

not a cop

Detective: Fuck off I don’t care then

Detective: I’m not a cop

Smith: It’s literally one pic that you could take 

in 30 seconds

Detective: No I had a friend get sucked into that 

once

Smith: Yeah and I want to make sure you’re 

legit

Smith: Funnily I have the 200 and enough to 

get you to California but it’s whatever I 

guess you really don’t need it

Detective: I do, but I don’t want nudes

Detective: They never go away

Smith: Yours are just to verify your legit. I’m 

not about to keep them. That’s just 

weird

Detective: I really need it but just please no nudes
State v. Smith

20200782-CA 7 2022 UT App 82

Smith: Then send me 3 in just your underwear

Detective: I told u I would make it worth the trip

Smith: Ya still need proof first

Detective: Sorry I will not do it

Smith: Ok send me enough pics so I know 

you’re a real person. Not a cop

Smith: Or what’s your Facebook or Instagram 

so that way I can look check and see if 

you’re legit

Detective: I feel like you are just trying to get a 

bunch of pictures of me. I’ll send you 

one more i guess but that’s it

Detective: [photo sent of girl in headphones 

flipping off the camera]

Smith: Okay now that I’ve seen what you look 

like send me two photos of you right 

now one touching your nose in one 

touching your eyebrow that will be 

verification enough

Smith: If you can’t touch your nose and your 

eyebrow then I know you’re fake 

because there is nothing sexy or solicit 

or anything like that about touching 

your nose and your eyebrow

Detective: I have done slot for u how do I not know 

u will traffic me

Detective: A lot

Smith: I will if and only if you send those two 

verification or you send one with you 

touching both
State v. Smith

20200782-CA 8 2022 UT App 82

Detective: [photo sent of the same girl touching her 

eyebrow]

Detective: [photo sent of the same girl touching her 

nose]

Detective: There

Detective: Can u get me a ride tonight or in the 

morning?

Smith: I can give you a ride tonight. Where are 

you

Smith: Where are you

Smith: And where in California would we be 

going

Detective: San Diego?

Smith: That works we would need to have 

some fun before hand

Smith: Like on the way

Detective: Im at my friends by maverick by 

thanksgiving point in lehi

Smith: Ok

Detective: Can I at least know ur name or a pic of 

ur face to see who is getting me

Smith: My name is Shannon

Detective: K

Detective: How long I don’t want to freeze

Detective: I’m a king my shit now

Detective: Pack*

Smith: Ok. About 25 minutes

Detective: K
State v. Smith

20200782-CA 9 2022 UT App 82

Detective: Let me know when ur here and I’ll run 

over

Smith: Are you gonna blow me when we start 

driving

Detective: If u want

Smith: Or do I need to find a place

Smith: Yes I want

Detective: We can drive and I can start I want to hit 

the road

Smith: I’ll be there in about 5 min

Detective: K what do I look for

Smith: I’ll look for you and let you know when 

I see you

Detective: K

Smith: Walk to the front of the store

Detective: K

Smith: Next to the ice box outside

Detective: Get me a drink to meet

Detective: It’s cold

Smith: If you want the ride you will go to the 

ice box rn if not I’ll go

Smith: On the North side of the store

Smith: Where are you

Detective: K

Detective: Out front

Smith: Ok look forward

Smith: Come hop in
State v. Smith

20200782-CA 10 2022 UT App 82

Smith: I blinked[5] at you

Detective: Where

Detective: It’s cold

Smith: In the parking lot. To your left

Smith: Go back to where you were

Smith: I know

Detective: Walk to u?

Smith: Yes

¶4 At this point, officers arrested Smith. Once he was in 

custody, Smith admitted that he thought he had been 

communicating with a 13-year-old girl with whom he “wanted to 

have blow jobs and sex,” but maintained that, because she was a 

runaway, he had merely planned on taking her to the local police 

station and not to California.

¶5 The State ultimately charged Smith with five crimes: 

attempted rape of a child, attempted sodomy on a child, 

attempted sexual exploitation of a minor, attempted child 

kidnapping, and enticing a minor over the internet.6 At a 

preliminary hearing at which Detective testified, the State sought 

bindover on all five counts, and Smith challenged the State’s 

motion as to three of them (attempted rape, attempted sodomy, 

and attempted kidnapping). In particular, Smith argued that the 

State had failed to present sufficient evidence to establish that he 

took a “substantial step” toward committing any of the attempt 

5. Detective later clarified that Smith “blinked” by flashing his 

headlights on and off.

6. In a different case, Smith was charged with additional crimes 

related to the subsequent discovery of child pornography on the 

phone police seized from Smith when he was arrested. Those 

charges are not at issue in this appeal. 
State v. Smith

20200782-CA 11 2022 UT App 82

offenses. Following briefing and oral argument, the district court, 

acting as magistrate, bound Smith over for trial on all charges, 

rejecting Smith’s challenge to the bindover. 

¶6 Later, Smith filed a motion asking the court to dismiss all 

charges, asserting that—if he had committed the offenses—

Detective had, as a matter of law, entrapped him into doing so.

Before ruling on the motion, the court held another evidentiary 

hearing at which Detective offered additional testimony. At this 

hearing, Detective discussed the various “outs” he had provided 

to Smith during their chat. An “out,” Detective explained, is an 

attempt to give chat participants an opportunity to disengage 

themselves from the conversation, especially after learning that 

the person with whom they are communicating is underage. He 

(and another law enforcement witness) explained that most 

people disengage when they discover they are communicating 

with a minor in an adult chat room, and some of them even 

reprimand the youth or report the youth to website 

administrators. Detective identified several points during his 

online conversation with Smith that he considered “outs,” 

including the following: when Detective stated that his persona 

was thirteen years old; when he stated that his persona was a 

runaway; when he stated that his persona wanted a ride out of 

state; and when his persona told Smith to “[f]uck off.” The 

witnesses noted that Smith did not take any of the “outs” offered 

him, but continued to engage in the conversation. After the 

hearing, and after additional briefing and argument, the court 

denied Smith’s motion to dismiss. 

¶7 After the denial of both motions, Smith entered into a 

conditional plea agreement with the State. For his part, Smith 

agreed to plead guilty to attempted sodomy of a child, attempted 

child kidnapping, and enticement of a minor over the internet. In 

return, the State agreed to dismiss the two other charges (for 

attempted rape and attempted sexual exploitation of a minor),

and agreed to make certain sentencing recommendations to the 
State v. Smith

20200782-CA 12 2022 UT App 82

court. As part of the plea agreement, Smith reserved the right to 

appeal the district court’s bindover order as well as the court’s 

ruling denying his motion to dismiss.7

ISSUES AND STANDARDS OF REVIEW

¶8 Smith now appeals, and asks us to consider the two issues 

he reserved in his conditional plea. First, he contends that the

district court, acting as magistrate, erred in binding him over for 

trial on three of the attempt charges. “A decision to bind over a 

criminal defendant for trial presents a mixed question of law and 

fact and requires the application of the appropriate bindover 

standard to the underlying factual findings.” State v. Prisbrey, 2020 

UT App 172, ¶ 18, 479 P.3d 1126 (quotation simplified). “In this 

context, appellate courts give limited deference to a magistrate’s 

application of the bindover standard to the facts of each case.” Id. 

(quotation simplified); see also State v. Ramirez, 2012 UT 59, ¶ 7, 289 

P.3d 444. 

¶9 Second, Smith argues that the district court erred by 

denying his motion to dismiss in which he asserted that he had 

been entrapped as a matter of law. “An entrapment ruling 

involves a mixed question of law and fact.” State v. Hatchett, 2020 

UT App 61, ¶ 10, 462 P.3d 1288. “When considering a district 

court’s entrapment determination, we review factual findings for 

clear error and legal conclusions for correctness.” State v. 

Hernandez, 2020 UT App 58, ¶ 4, 462 P.3d 1283. 

7. The ability to enter a conditional guilty plea was first 

recognized in State v. Sery, 758 P.2d 935 (Utah Ct. App. 1988), but 

is now codified in rule 11(j) of the Utah Rules of Criminal 

Procedure. 
State v. Smith

20200782-CA 13 2022 UT App 82

ANALYSIS

I

¶10 Smith first argues that the district court, acting as 

magistrate, erred in binding him over for trial on three of the 

attempt charges, asserting that it was “not reasonable to infer 

from [the] evidence” that he had taken “the substantial step 

necessary” for conviction of an attempt to commit the charged 

crimes. We disagree. 

¶11 While the State bears the burden of establishing the 

existence of probable cause at a preliminary hearing, see State v. 

Lopez, 2020 UT 61, ¶ 46, 474 P.3d 949, “that burden is relatively 

low,” State v. Prisbrey, 2020 UT App 172, ¶ 21, 479 P.3d 1126

(quotation simplified). In fact, “to justify binding a defendant over 

for trial, the prosecution need not present evidence capable of 

supporting a finding of guilt beyond a reasonable doubt. Nor is 

the prosecution required to eliminate alternative inferences that 

could be drawn from the evidence in favor of the defense.” State 

v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (quotation simplified). 

Instead, “all that is required is reasonably believable evidence—

as opposed to speculation—sufficient to sustain each element of 

the crimes in question.” Id. (quotation simplified). In other words, 

a magistrate should bind a defendant over for trial if there is 

sufficiently credible evidence “to support a reasonable belief that 

an offense has been committed and that the defendant committed 

it.” State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d 1204 (quotation 

simplified). And when evaluating factual contentions to support 

bindover, the “magistrate must view all evidence in the light most 

favorable to the prosecution and must draw all reasonable 

inferences in favor of the prosecution.” State v. Merrill, 2012 UT 

App 3, ¶ 9, 269 P.3d 196 (quotation simplified). 

¶12 Utah’s attempt statute instructs that “a person is guilty of 

an attempt to commit a crime if he: (a) engages in conduct 

constituting a substantial step toward commission of the crime;
State v. Smith

20200782-CA 14 2022 UT App 82

and (b) intends to commit the crime.” Utah Code Ann. § 76-4-

101(1) (LexisNexis 2017). In this context, our legislature has 

determined that “conduct constitutes a substantial step if it 

strongly corroborates the actor’s mental state.” Id. § 76-4-101(2). 

Our supreme court, interpreting this statute, has explained that a 

substantial step requires “significant conduct” in the form of an 

“overt act.” See State v. Arave, 2011 UT 84, ¶ 30, 268 P.3d 163

(quotation simplified). And that act must be “something more 

than mere preparation”; it must be “a tangible step toward 

commission of a crime that transcends intent, yet fails to 

culminate in its planned accomplishment.” Id. (quotation 

simplified). 

¶13 The attempt crimes at issue here—the ones for which Smith 

challenges the district court’s bindover decision—are attempted 

rape of a child, attempted sodomy on a child, and attempted child 

kidnapping. “A person commits rape of a child when the person 

has sexual intercourse with a child who is under the age of 14.” 

Utah Code Ann. § 76-5-402.1(1) (LexisNexis 2017). “A person 

commits sodomy upon a child if the actor engages in any sexual 

act upon or with a child who is under the age of 14, involving the 

genitals or anus of the actor or the child and the mouth or anus of 

either person.” Id. § 76-5-403.1(1). And a person “commits child 

kidnapping if the [person] intentionally or knowingly, without 

authority of law, and by any means and in any manner, . . .

transports a child under the age of 14 without the consent of the 

victim’s parent or guardian.” Id. § 76-5-301.1(1). 

¶14 Smith does not dispute that he intended to engage in 

intercourse and oral sex with what he thought was a 13-year-old 

girl. Indeed, he told officers after his arrest that he “wanted to 

have blow jobs and sex” with the girl. And Smith had arranged to 

transport the girl to California, without “authority of law” and 

without the permission of her parents or guardian. Despite this 

(and other) evidence tending to corroborate his mental state, 

Smith nevertheless argues that it all amounts to nothing more 
State v. Smith

20200782-CA 15 2022 UT App 82

than “mere solicitation” or “mere preparation,” and therefore

does not constitute a “substantial step” toward commission of the 

charged crimes. In support of his argument, Smith relies 

principally on two cases: State v. Arave, 2011 UT 84, and State v. 

Johnson, 821 P.2d 1150 (Utah 1991). 

¶15 In Arave, the defendant approached an 11-year-old boy and 

offered to pay him $20 if he would agree to let Arave perform oral 

sex on him. See 2011 UT 84, ¶ 4. Arave had been fixated on the 

child for approximately one month prior to the encounter, and 

upon seeing him ride up and down the street on his skateboard, 

he decided to approach him with the explicit offer. Id. ¶¶ 4–5. The 

child did not agree to Arave’s proposal, and “rode home on his 

skateboard in tears.” Id. ¶ 5. Arave did not attempt to stop the 

child from leaving, and did not press the matter further. Id. On 

these facts, a jury convicted Arave of attempted sodomy on a 

child, but our supreme court reversed, holding that “[w]ithout 

additional preventive action—moving to block [the child’s] 

escape, take his skateboard, or otherwise restrain him—Arave did 

nothing beyond what most any defendants would do when 

committing a crime of solicitation.” Id. ¶ 32. The court noted that 

any “face-to-face solicitor would necessarily have to find a way to 

confront or face the person being solicited,” and re-emphasized 

the need for the State to show more—a “substantial step” that

“must be something more than a solicitation.” Id. ¶¶ 31–34. In the 

court’s view, to hold otherwise would “risk erasing the line 

between” attempt and solicitation. Id. ¶ 34. Thus, while Arave had

committed criminal solicitation, he took the crime no further after 

the minor rebuffed his advances and therefore could not be 

convicted of an attempt crime. See id. ¶ 35 (“The undisputed 

evidence presented to the trial court indicated that, at most, Arave 

was guilty of solicitation of sodomy on a child.”). 

¶16 In Johnson, the defendant purchased counterfeit 

methamphetamine from several undercover officers, apparently

intending to use the drugs to kill her husband. See 821 P.2d at 
State v. Smith

20200782-CA 16 2022 UT App 82

1154–55. But after purchasing the drugs, Johnson was stopped by 

police before she could arrive home, and the drugs were never 

located. Id. at 1155, 1157. She was charged with and convicted of 

attempted murder, but our supreme court reversed her 

conviction, holding that the “mere purchase of the counterfeit 

[drugs] from an undercover officer does not go beyond 

preparation and therefore is not the substantial step needed to 

support a conviction for attempted first degree murder.” Id. at 

1157. The court emphasized that “mere preparation” to commit a 

crime is insufficient to constitute an attempt and noted that, in 

that case, there was “no showing that [Johnson] attempted to 

administer the substance” to her husband. Id. In fact, there was 

“no evidence as to what she did or attempted to do with [the 

substance]. She may have used it herself or simply disposed of it.” 

Id. Accordingly, without something more to demonstrate a

substantial step toward murder, as opposed to a drug-related 

crime, the court concluded that Johnson had not committed overt 

acts sufficient to constitute an attempt to commit murder. See id. 

¶17 The facts of Arave and Johnson are materially 

distinguishable from the facts of this case. In Arave, the defendant 

did nothing more than solicit the crime before being rebuffed.8 See 

2011 UT 84, ¶ 32. And in Johnson, the defendant’s actions—buying 

methamphetamine—were not necessarily corroborative of an 

intention to commit murder (as opposed to an intention to commit 

a drug crime). See 821 P.2d at 1157. In this case, by contrast, 

Smith’s solicitation—of both oral sex and sexual intercourse—was 

accepted early in the text conversation, and additional plans were 

then made, and actions taken, toward completion of the 

8. Indeed, we suspect Arave would have come out differently if 

Arave’s indecent proposal had been accepted (rather than 

rejected), Arave had thereafter instructed the child to meet him at 

a convenience store, Arave had traveled to the store, and had been 

arrested there after again texting the child and flashing his 

headlights at him in an effort to instruct him to get in his car. 
State v. Smith

20200782-CA 17 2022 UT App 82

contemplated crimes. Smith arranged to meet the girl at a 

convenience store and then traveled to the meeting place in his 

vehicle. Once there, he parked in a position that would allow him 

to be seen from the front of the store. He then reestablished 

contact with the girl, told her where he was parked, asked her to 

stand in a particular spot and to look for blinking headlights so 

that she could identify his vehicle, and then actually blinked his 

headlights as a signal and directed the girl to walk toward the 

headlights and get in the vehicle. Here, Smith did more than 

merely solicit sexual acts; he took concrete overt steps toward the 

commission of the charged crimes, steps that certainly corroborate 

his intention to commit them. 

¶18 Smith resists this conclusion in part by asserting that there

are “many further steps that would need to be taken before a 

substantial step would be made toward any of the attempt crimes 

in this matter, such as meeting up with an actual person, getting 

in the car with an actual person, physically attempting to engage 

in sexual activity with that person, or beginning to transport that 

person with the requisite mindset.” But if overt acts of that nature 

were required, it would presumably be impossible to convict a 

defendant of an attempted sexual offense in internet sex sting 

cases involving fictitious victims. Yet the overwhelming majority 

of courts in other jurisdictions have concluded that individuals 

caught in internet sex stings, and who travel to an agreed-upon

meeting place in anticipation of sexual behavior with a fictitious 

victim, have taken a substantial step toward commission of sexual 

crimes. See, e.g., State v. Reid, 713 S.E.2d 274, 277 & n.4 (S.C. 2011) 

(agreeing with “the majority approach,” citing cases, and holding 

that “an agreement to meet a fictitious minor at a designated place 

and time, coupled with traveling to that location, may constitute 

evidence of an overt act, beyond mere preparation, in furtherance 
State v. Smith

20200782-CA 18 2022 UT App 82

of the crime” (quotation simplified)).

9 We find the reasoning of 

these cases persuasive, and in keeping with existing Utah case law 

regarding the meaning of “substantial step.” 

9. Most other courts have reached the same conclusion on similar 

facts. See United States v. Brand, 467 F.3d 179, 204 (2d Cir. 2006)

(“Brand took a ‘substantial step’ towards the completion of the 

crime because [he] actually went to . . . the meeting place he had 

established with [the fictitious girl].”), abrogated on other grounds 

by United States v. Cabrera, 13 F.4th 140 (2d Cir. 2021); United States 

v. Munro, 394 F.3d 865, 870 (10th Cir. 2005) (“Munro took a 

substantial step towards completion of the crime by actually 

going to the prearranged meeting place.”); United States v. Farner, 

251 F.3d 510, 513 (5th Cir. 2001) (holding that a defendant took a 

substantial step toward committing a crime by arranging and 

traveling to meet a fictitious minor); Kirwan v. State, 96 S.W.3d 724, 

728–31 (Ark. 2003) (similar holding); State v. Shah, 39 A.3d 1165, 

1171 (Conn. App. Ct. 2012) (holding that, after engaging in a 

sexually explicit conversation with a supposed child online, 

“travel[ing] to a prearranged place with the intent of meeting that

child” could constitute a “substantial step” toward completing 

various sex crimes); State v. Glass, 87 P.3d 302, 306–07 (Idaho Ct. 

App. 2003) (holding that arranging a meeting place for sexual 

activity with a purported minor was an overt act sufficient to 

constitute an attempt); People v. Scott, 740 N.E.2d 1201, 1208 (Ill. 

App. Ct. 2000) (noting that it is “not necessary for the defendant 

to commit an act of a sexual nature with the fictional intended 

victim in order to find that the defendant had completed a 

substantial step,” and holding that the defendant—who arranged 

to meet a fictitious minor and then drove to the agreed-upon 

location—had “completed a substantial step towards the 

commission of predatory criminal sexual assault”); State v. Tarbay, 

157 Ohio App. 3d 261, 2004-Ohio-2721, 810 N.E.2d 979, at ¶¶ 18–

22 (holding that arranging to meet a fictitious minor and then 

(continued...)
State v. Smith

20200782-CA 19 2022 UT App 82

¶19 In this case, the substantial overt actions Smith took went 

well beyond mere solicitation or preparation, and were strongly 

corroborative of his intention to transport a 13-year-old girl 

without authority or parental permission, and to engage in oral 

sex and sexual intercourse with the girl. See Utah Code Ann. § 76-

4-101(2) (“[C]onduct constitutes a substantial step if it strongly 

corroborates the actor’s mental state.”). Thus, there existed 

sufficiently credible evidence to support a reasonable belief that 

Smith committed the attempt crimes with which he was charged. 

See State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d 1204. Accordingly, 

the magistrate did not err in ordering Smith bound over for trial 

on the attempt charges. 

II

¶20 Second, Smith contends that the district court erred by 

denying his motion to dismiss, in which he asserted that he had—

traveling to the meeting place constituted a substantial step 

toward commission of a crime); State v. Townsend, 57 P.3d 255, 262 

(Wash. 2002) (holding that engaging in sexual discussions with a 

fictitious minor, arranging to meet, and then traveling to the 

meeting place constituted a substantial step toward the 

commission of a crime). Some other courts have reached different 

conclusions on similar but not identical facts, see, e.g., 

Commonwealth v. Bell, 917 N.E.2d 740, 748 (Mass. 2009), but some 

of those cases have since been overruled or superseded, either by 

subsequent case law or by statute, see, e.g., Berger v. State, 259 So. 

3d 933, 936 (Fla. Dist. Ct. App. 2018) (overruling State v. Duke, 709 

So. 2d 580 (Fla. Dist. Ct. App. 1998), and holding that “a defendant 

commits an overt act in furtherance of the crime of attempted 

sexual battery where . . . the defendant travels to and arrives at an 

agreed upon location” to meet a fictitious minor for sex); B.T.E. v. 

State, 108 N.E.3d 322, 333 (Ind. 2018) (noting that State v. Kemp, 753 

N.E.2d 47 (Ind. Ct. App. 2001), had been “superseded by statute” 

and “disapprov[ing]” of that case’s analysis). 
State v. Smith

20200782-CA 20 2022 UT App 82

as a matter of law—been entrapped by police into committing the 

crimes. Issues related to entrapment are usually reserved for the 

factfinder to resolve. See State v. Hatchett, 2020 UT App 61, ¶ 10, 

462 P.3d 1288 (“Only when reasonable minds could not differ can 

[the court] find entrapment as a matter of law.” (quotation 

simplified)); see also State v. Hernandez, 2020 UT App 58, ¶ 6, 462 

P.3d 1283 (stating that motions to dismiss criminal cases on 

entrapment grounds should be granted only where “an 

entrapment defense . . . is sure to leave all reasonable minds 

reasonably doubting whether the commission of the offense was 

the product of a defendant’s inclination”). Indeed, “if reasonable 

minds could differ on whether or not entrapment occurred, the 

court must deny” a defendant’s motion to dismiss “and allow the 

issue of entrapment to go to the jury.” State v. Dickerson, 2022 UT 

App 56, ¶ 21 (quotation simplified). In our view, the district court 

correctly concluded that this case was not one of those exceptional 

cases in which entrapment issues should be taken from the jury, 

and therefore did not err in denying Smith’s motion to dismiss. 

¶21 Under Utah law, “[e]ntrapment occurs when” law 

enforcement officers (or someone acting under their direction)

“induce[] the commission of an offense . . . by 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). However, our legislature has specified that 

“[c]onduct merely affording a person an opportunity to commit 

an offense does not constitute entrapment.” Id.

¶22 Thus, a key question posed by our entrapment statute is 

whether the defendant was “otherwise ready to commit” the 

crimes in question. See id. And an important related question is 

whether police conduct merely afforded the defendant an 

opportunity to commit offenses he was already otherwise inclined 

to commit. See Dickerson, 2022 UT App 56, ¶ 34 (quoting the 

governing statute, and stating that the “statutory question[s]” are 

“whether the police methods created a ‘substantial risk that the 
State v. Smith

20200782-CA 21 2022 UT App 82

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’”). “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.” Id. ¶ 35 (quotation simplified). In this context, 

we recently stated that—although we may not ordinarily consider 

a defendant’s prior crimes or general predisposition to commit the 

offense—a “defendant’s reactions to the government inducement 

. . . are highly relevant” in answering the pertinent statutory 

questions. See id. ¶¶ 27–29, 34. Other factors to consider include 

“the transactions leading up to the offense” and “the interaction[s]

between the agent and the defendant.” Id. ¶ 36 (quotation 

simplified). 

¶23 In interpreting the entrapment statute and in considering 

these factors, “our supreme court has held that a defendant was 

entrapped as a matter of law in only two types of cases.” Id. ¶ 37. 

The first category consists of cases involving “improper police 

conduct in which” police apply “persistent pressure or 

persistently pursued the defendant to commit the crime.” Id.

(quotation simplified) (identifying State v. Sprague, 680 P.2d 404 

(Utah 1984), and State v. Kourbelas, 621 P.2d 1238 (Utah 1980), as 

representative examples). The second category consists of cases 

involving “appeals based on sympathy, pity, or close personal 

friendships, or offers of inordinate sums of money.” Id. (quotation 

simplified) (identifying State v. Kaufman, 734 P.2d 465 (Utah 1987), 

and State v. Taylor, 599 P.2d 496 (Utah 1979), as representative 

examples). This case does not fall into either one of these two 

categories of cases. 

¶24 First, Detective’s interactions with Smith were not coercive, 

and he did not subject Smith to any improper pressure. Smith 

initiated the chat by responding to Detective’s post, and was the 

one to re-initiate communication after various pauses or lulls, 
State v. Smith

20200782-CA 22 2022 UT App 82

asking things like “?? So” and “Hello?”. Even after discovering

that the girl was thirteen years old, Smith continued to press the 

matter, repeatedly asking for explicit photos and raising the issue 

of repayment for his willingness to drive the girl to California.

Indeed, Detective gave Smith numerous opportunities to 

withdraw from the conversation, a factor that we have previously 

determined to be important. See Dickerson, 2022 UT App 56, ¶ 40

(stating that “a defendant is not entitled to acquittal as a matter of 

law under an entrapment theory where he has actively pursued 

the commission of a crime despite opportunities to withdraw,” 

and that a defendant who does not avail himself of these 

opportunities to withdraw has indicated that his “actions were 

freely and voluntarily committed” and “not induced by 

government conduct” (quotation simplified)); see also State v. 

Torres, 2000 UT 100, ¶ 14, 16 P.3d 1242 (stating that 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 “several opportunities to back out of [the]

drug deal”); State v. Hernandez, 2020 UT App 58, ¶¶ 11–12, 462 

P.3d 1283 (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 that the 

defendant persisted in engaging the detective with an offer “to 

engage in a sex act”). 

¶25 The first significant “out” that Detective offered Smith was 

simply telling him that the fictitious girl was thirteen; as the 

State’s witnesses testified, most individuals readily take that 

particular opportunity to disengage from the conversation. Smith 

didn’t. Later, Detective simply asked Smith for help, including 

money to buy food, even asking Smith if he knew “anyone to help 

me,” thus offering Smith a way to assist without engaging in any 

criminal activity. Smith redirected the conversation back to sexual 

topics, asking her what she meant when she said she would “do 

whatever,” and asking her to send him “full body nude” photos. 

Detective also twice used language that could have been 
State v. Smith

20200782-CA 23 2022 UT App 82

construed as ending the conversation, once telling Smith “K 

thanks” after he asked for nude photos and she refused to send 

them, and once telling Smith to “[f]uck off.” Smith did not avail 

himself of those opportunities to end the conversation either, but 

instead continued to press the matter by asking for photos as 

“proof” that the girl was “legit.” As in Dickerson, Detective gave 

Smith “multiple opportunities to back out,” and Smith took none 

of them, which indicated his “willingness to commit the crime.”

See 2022 UT App 56, ¶¶ 40–41 (quotation simplified). 

¶26 Smith’s response to the police activity in this case is thus 

much more like Dickerson and Hatchett than it is like Kourbelas. In 

Dickerson, the defendant responded to a profile posting on an 

internet website, and continued the conversation despite learning 

that the “girl” was underage and even after being given multiple 

opportunities to disengage. See 2022 UT App 56, ¶¶ 4, 40–44. In 

Hatchett, the defendant placed an advertisement on an internet 

site looking for an “18–25 year old guy to party and play with,” 

and an undercover detective posing as a boy who was “almost 14”

years old responded. See 2020 UT App 61, ¶¶ 2–3. The defendant 

continued the conversation, even after discovering the boy’s age, 

and re-initiated the conversation after various long pauses. Id. ¶ 4.

In Kourbelas, by contrast, our supreme court reversed the 

defendant’s conviction because the agent repeatedly and 

persistently pestered the defendant, even after long multi-day 

pauses, to sell him drugs. See 621 P.2d at 1239–40. 

¶27 In this case, as in Dickerson, it was Smith who consistently 

pursued the girl, “not the other way around,” and “he did so 

despite knowing her age and having multiple opportunities to 

change course.” See 2022 UT App 56, ¶ 44. The facts of this case 

simply do not reveal the sort of inappropriate pressure on the part 

of Detective that would amount to entrapment as a matter of law. 

See id. ¶ 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.”). 
State v. Smith

20200782-CA 24 2022 UT App 82

¶28 Second, the facts of this case do not include the sort of 

“personalized high-pressure tactics or appeals to extreme 

vulnerability” that our supreme court has viewed as problematic. 

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.” 

State v. Taylor, 599 P.2d 496, 503 (Utah 1979). In Taylor, for instance, 

the court held that the defendant was entrapped as a matter of law 

because a police informant pleaded with him to help her locate 

drugs to avoid the “agonies of withdrawal” that she was allegedly 

experiencing as a recovering addict. See id. at 503–04. And in

Kaufman, the court found it problematic when an undercover 

agent, who was posing as a “divorced mother of six children who 

was having hard times,” convinced the defendant to purchase 

stolen property. See 734 P.2d at 468.

¶29 Nothing akin to that is present in this case. Smith did not 

know the girl (she was, after all, fictitious), and so there existed no 

pre-existing relationship that might have been leveraged for 

friendship’s sake. Detective did mention that the girl had run 

away from home and asked for money, but these facts were 

offered not as a plea for sympathy or pity but as a reason why the 

girl would want a ride to California and be willing to perform sex 

acts. As in Dickerson, Detective “did [not] make any offer that a 

person not otherwise ready to commit the crime would be hardpressed to refuse,” and he “did nothing to induce [Smith’s] 

participation beyond posing as a thirteen-year-old girl who was 

willing to meet him.” See 2022 UT App 56, ¶ 46 (quotation 

simplified). Detective’s persona, like the persona in Dickerson, was 

“hesitant and noncommittal,” and Smith agreed to meet the girl 

for sex “without being badgered, pressured [or] coerced.” See id.

(quotation simplified). In short, Detective “did not employ 

inducements that would have been, as a matter of law, sufficient 
State v. Smith

20200782-CA 25 2022 UT App 82

to induce an ordinary person, not otherwise inclined, to solicit sex 

from a thirteen-year-old.” See id. ¶ 47 (quotation simplified). 

¶30 Under the circumstances presented here, the district court 

correctly denied Smith’s motion to dismiss. The facts simply do 

not amount to entrapment as a matter of law. The question of 

entrapment, in this case, was one that should have been presented 

to the jury for consideration, and the court did not err by declining 

Smith’s invitation to take the question from the jury. Smith elected 

to enter a conditional guilty plea rather than present his 

entrapment defense to a jury. Because he has not prevailed on 

appeal, he is not entitled to withdraw that plea. See Utah R. Crim. 

P. 11(j). 

CONCLUSION

¶31 The district court, acting as magistrate, did not err by 

ordering Smith bound over for trial on the attempt charges, 

because sufficient evidence existed to support a reasonable belief 

that Smith took a “substantial step” toward commission of the 

attempt crimes with which he was charged. And the court did not 

err by denying Smith’s motion to dismiss on entrapment grounds. 

¶32 Affirmed.