DA 16-0538

IN THE SUPREME COURT OF THE STATE OF MONTANA

2018 MT 38

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

AREN KRISTIAN LINDQUIST,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. CDC 14-344

Honorable John A. Kutzman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Gregory D. Birdsong, Birdsong Law Office, PC, Missoula, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant

Attorney General, Emily Caton, Student Intern, Helena, Montana

Joshua A. Racki, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: January 10, 2018

 Decided: March 6, 2018

Filed:

__________________________________________

Clerk

03/06/2018

Case Number: DA 16-0538
2

Justice James Jeremiah Shea delivered the Opinion of the Court. 

¶1 Defendant Aren Kristjan Lindquist appeals the order from April 13, 2015, by the 

Eighth Judicial District Court, Cascade County, denying his motion to dismiss for 

entrapment as a matter of law. We address: 

Whether the District Court erred in denying Lindquist’s motion to dismiss for 

entrapment as a matter of law. 

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 On July 22, 2014, the Internet Crimes against Children Task Force of the Great Falls 

Police Department (“Task Force”) posted an advertisement (“Ad”) entitled “B$a$r$r$r$y 

L$e$g$a$1 – 18” in the “great falls escorts” subsection of the “great falls adult 

entertainment” section of Backpage.com. The Ad included a photograph of a scantily-clad 

female, with her face cropped out of the photograph. The text of the Ad read: 

Jessica is visiting Great Falls

Independent

Call or text

no blocked or restricted numbers

(406)285-2836

Poster’s age: 18

Location: Great Falls

Shortly after the Ad posted, Lindquist responded to the number listed and initiated the 

following text message conversation1 with the Task Force’s undercover officer (“UC”), 

posing as pimp:

Lindquist: Hey how’s it going??:-)

 

1

 All the conversations include typographical errors as found in the original transcripts. 
3

Lindquist: Saw your add would love to meet up !

UC: u in gfs

Lindquist: In Craig which is close by !

UC: my girls are under 18 is that ok

Lindquist: How old ?

UC: will I have 2 one 12 and one 15 years olds

Lindquist: Do you have pictures ?

UC: I do but I cant sent on my track phone

Lindquist: Ok do you need an e-mail ?

UC: they r pretty

UC: I don’t have a computer

UC: the picture on the ad is real

Lindquist: Ok are you a cop?

UC: no u a fuckin cop what the . . . 

UC: call if your interested

¶4 The Task Force searched the number, identified the caller as Lindquist, and applied 

for a warrant to record their conversations. Lindquist and the UC arranged to meet later 

that night, but when Lindquist did not show up, the UC texted Lindquist that his 

appointment would be canceled.

¶5 The following morning, on July 23, 2014, Lindquist replied to the previous night’s 

text message and proceeded to arrange another meeting at a motel in Great Falls for later 

that day:

Lindquist: Good morning how’s it going?
4

Lindquist: are you around today ?

UC: yes

Lindquist: Ok well I am here in great falls when do you think you will be 

around?

UC: I’m here now

UC: I guess you are going to be a no show again

Lindquist: No I am just finishing up my last errand where am I going?

UC: how long?

Lindquist: I am done

UC: do you know where the O’haire is?

Lindquist: Yes

UC: text me when your here

Lindquist: I am here 

UC: I’m in room 130

Lindquist: Do I just come in ?

UC: yeah just come to the room

Lindquist: Ok I am here

Once in the motel room, the UC and Lindquist had the following in-person conversation:

UC: Hi come in dude what’s up?

Lindquist: Nothin’ just hanging out

. . .

UC: Have a seat sorry it’s kind of messy um alright so did you want 

ok so Kim

Lindquist: Um hum
5

UC: Is that still who you want to go with ur

Lindquist: Um 

UC: Ok she’s getting ready

. . .

UC: I just need to know what your plans are and everything

Lindquist: Ok

UC: Just common in the business so

Lindquist: Ok I’m willing to do anything

UC: Ok so I mean ok so I didn’t even know are you planning on 

going full force with her are you planning on being anal 

anything that we should not got off guard you know what I’m 

saying?

Lindquist: Ok

UC: So

Lindquist: like regular

UC: Just regular intercourse or

Lindquist: Yeah

UC: Ok alright cool ok she is super cute she’s excited to meet you 

and you want 10 or 15 youth that’s who you want

Lindquist: Yeah

UC: Ok how much time do you want?

Lindquist: Well I don’t I don’t know exactly

UC: Yeah exactly so for a half hour we can do $150

Lindquist: Um k
6

UC: Um if you want less time we can negotiate that for an hour um 

with her cause she’s with Kim she’s 15 the one that’s more 

experienced she for an hour I’d probably want for you you 

probably do $250

Lindquist: Um hum

UC: So it’s up to you like

Lindquist: Um k I didn’t bring money

UC: You didn’t bring any cash with you? Oh k

Lindquist: I didn’t want I didn’t know what the I’ve never done this

UC: Ok well there’s an ATM in the Lobby

. . .

UC: Your call, um if you but dude you have to come with cash

Lindquist: Yeah

UC: You know what I’m saying?

Lindquist: Um hum

UC: But I totally understand if you just wanted to come and meet 

me and discuss things like I feel better about that any way

Lindquist: Um hum

UC: Rather than over the phone

Lindquist: Um hum

UC: Cause that can

Lindquist: Yeah

UC: You know what I’m saying because I have to be careful

Lindquist: You’re not a cop or anything?

UC: Uh are you a cop?
7

Lindquist: No

UC: Ok

Lindquist: Are you a cop

UC: No I’m not a fuckin cop

Lindquist: Ok

UC: Alright

Lindquist: Would you tell me if you [inaudible] law enforcement

UC: I’m not and I actually take offence to that so

Lindquist: I’m just

UC: If you are

Lindquist: No

UC: You know I don’t want to have anything to do with you

Lindquist: No I’m not

UC: Because I need to watch out for these girls

. . .

UC: You tell me what you want to do

Lindquist: Um half hour

UC: Half hour ok alright so if you want to go get the money

Lindquist: Um hum ok

UC: And we’ll go from there

. . .

Lindquist left the room to retrieve cash from the ATM. Once he returned and paid the UC 

$160, he confirmed he wanted the “older girl” with the following exchange:
8

UC: Ok well she’s 15 just gotta let you know that

Lindquist: Um hum

UC: She has some experience but she is 15 so if you can just be 

good to her

Lindquist: Um hum

UC: You know I can I trust you with that?

Lindquist: Um hum

UC: And that’s why I just need a little more detail on what you want 

to do with her I’m like mother now

Lindquist: Just regular sex

UC: Regular intercourse

Lindquist: Um hum

UC: Any thing else

Lindquist: [Inaudible]

UC: Ok alright ok um and you want a half hour

Lindquist: Yeah

UC: I don’t have change cause you gave me $160

Lindquist: Um hum

UC: Ok so you cool with that?

Lindquist: Yeah

UC: What I’ll do then I’ll tack on 10 minutes for you

Lindquist: Really

. . .

UC: So you’re planning on intercourse nothing weird
9

Lindquist: Nothing weird

. . .

The UC left the motel room as if to retrieve fifteen-year-old Kim, then another officer 

entered the room and arrested Lindquist. 

¶6 On August 6, 2014, the State charged Lindquist with felony Attempted Prostitution, 

in violation of §§ 45-4-103 and 45-5-601(3), MCA. On November 7, 2014, Lindquist filed 

a motion to dismiss, asserting the affirmative defense of entrapment. On April 13, 2015, 

the District Court denied Lindquist’s motion to dismiss for entrapment as a matter of law, 

holding that the record reflected conflicting facts as to the origination of criminal intent 

and Lindquist’s state of mind that made submitting the issue of entrapment to a jury proper. 

On February 23, 2016, following two trial continuances, Lindquist reached a plea 

agreement with the State and pled guilty. On July 5, 2016, the District Court sentenced 

Lindquist to the Department of Corrections for twenty-five years with twenty years 

suspended and designated him as a Tier 1 sexual offender. Lindquist timely appeals the 

District Court’s denial of his motion to dismiss on the grounds of entrapment as a matter 

of law.

STANDARDS OF REVIEW

¶7 The denial of a pretrial motion to dismiss in a criminal case is a question of law, we 

review for correctness. State v. Reynolds, 2004 MT 364, ¶ 8, 324 Mont. 495, 

104 P.3d 1056. When reviewing a denial of a motion to dismiss based on entrapment, we 

review the evidence and inferences in a light most favorable to the State. Reynolds, ¶ 8. A 

court may determine that entrapment exists as a matter of law; however, if a genuine issue 
10

of material fact exists, the issue is properly submitted to a jury. Reynolds, ¶ 9 (citing State 

v. Kim, 239 Mont. 189, 194, 779 P.2d 512, 515 (1989)). 

DISCUSSION

¶8 Whether the District Court erred in denying Lindquist’s motion to dismiss for 

entrapment as a matter of law.

¶9 Entrapment is an affirmative defense afforded to a defendant by statute:

A person is not guilty of an offense if the person’s conduct is incited or 

induced by a public servant or a public servant’s agent for the purpose of 

obtaining evidence for the prosecution of the person. However, this section 

is inapplicable if a public servant or a public servant’s agent merely affords 

to the person the opportunity or facility for committing an offense in 

furtherance of criminal purpose that the person has originated.

Section 45-2-213, MCA. A court may determine that entrapment exists as a matter of law 

in the absence of genuine issues of material fact. Reynolds, ¶ 9. If there are conflicting 

facts, the issue is properly submitted to a jury. Reynolds, ¶ 9 (citing Kim, 239 Mont. at 

194, 779 P.2d at 515); see also Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 

886 (1988) (“The question of entrapment is generally one for the jury, rather than for the 

court.”). The defendant bears the burden of proof when asserting entrapment and must 

show: (1) criminal design originating in the mind of the police officer or informer; (2) 

absence of criminal intent or design originating in the mind of the accused; and (3) luring 

or inducing the accused into committing a crime he had no intention of committing. 

Reynolds, ¶¶ 9, 12 (citing State v. Canon, 212 Mont. 157, 167, 687 P.2d 705, 710 (1984)). 

¶10 A distinction exists between inducing a person to commit an unlawful act and setting 

a trap to catch him in the execution of a criminal design of his own conception. Reynolds, 

¶ 12 (citing Canon, 212 Mont. at 167, 687 P.2d at 710). Inducement may be found when 
11

an agent pleads, begs, or coerces a person into committing a crime. State v. Harney, 

160 Mont. 55, 60, 499 P.2d 802, 805 (1972). Merely affording a person the opportunity to 

commit an offense or by setting a trap is not inducement or entrapment. Reynolds, ¶ 12 

(citing § 45-2-213, MCA). Because sex trafficking crimes are the type of offense 

committed secretly, securing evidence and catching offenders is more difficult and often 

requires law enforcement to use covert operations. Harney, 160 Mont. at 60–61, 499 P.2d 

at 805 (quoting State v. Karathanos, 158 Mont. 461, 470, 493 P.2d 326, 330–31 (1972)). 

Courts sanction the use of sting operations “if the officers do not by persuasion, deceitful 

representations or inducement, lure a person who otherwise would not be likely to break 

the law, into a criminal act.” Harney, 160 Mont. at 60–61, 499 P.2d at 805 (internal 

citations omitted).

¶11 Lindquist argues that the Task Force entrapped him into attempted prostitution with 

a minor by inducing him into replying to the Ad on Backpage.com with a seductive photo,

luring him to a motel room, and cajoling him into retrieving money from an ATM to pay 

for sex. Lindquist asserts the criminal intent to engage in prostitution originated in the 

mind of the Task Force when it placed the Ad on Backpage.com. He maintains he was 

merely curious about the Ad and did not intend to engage in sex with a minor evidenced 

by the fact that he went to the motel room without money. 

¶12 The State counters that Lindquist fails to show the record contains no conflicting 

facts regarding entrapment as a matter of law, and the District Court correctly determined 

the issue should be submitted to a jury. The State maintains Lindquist cannot prove that 

criminal intent originated with the Task Force, that he lacked criminal intent to commit the 
12

offense, or that the Task Force induced him into committing a crime he had no intention of 

committing, thus failing to establish entrapment as a matter of law. The State asserts the 

idea to purchase sex from the Backpage.com Ad originated with Lindquist as evinced by 

his series of actions.

¶13 The District Court determined conflicting facts existed regarding two of the three 

elements of entrapment as a matter of law, and that the issue of entrapment should be 

submitted to the jury. The District Court noted conflicting facts concerning: (a) whether 

the criminal design originated with the Task Force or Lindquist and (b) whether Lindquist’s 

actions could lead a jury to conclude he was merely curious with no intent to commit a 

crime or that he was induced by law enforcement to commit a crime he had no intention to 

commit. We agree. 

¶14 We have repeatedly held that affording the defendant an opportunity to commit a 

crime is not inducement or entrapment. Reynolds, ¶ 12; Harney, 160 Mont. at 60–61, 499 

P.2d at 805; Karathanos, 158 Mont. at 470, 493 P.2d at 330–31. The Task Force’s Ad on 

Backpage.com merely provided Lindquist the opportunity to commit a criminal act by 

soliciting a prostitute. It is not as if the Task Force called Lindquist. Lindquist then made 

several additional affirmative decisions from which a reasonable jury could conclude that 

the idea to engage in the criminal behavior originated in his mind. After reading the 

Backpage.com Ad, Lindquist dialed the contact information. After learning that the 

prospective sex workers were ages twelve and fifteen, Lindquist arranged a meeting at a 

Great Falls motel. In the motel room, he proceeded to negotiate for a half-hour of “regular 

sex” with a fifteen-year-old girl. After indicating that he did not bring cash with him, 
13

Lindquist retrieved $160 from an ATM, returned to the room, and paid the UC $160 cash 

to have sex with a minor. Given these facts, Lindquist’s entrapment defense would have 

been a tough sell to a jury, much less warranting dismissal as a matter of law. The District 

Court did not err when it denied Lindquist’s motion to dismiss based on the affirmative 

defense of entrapment.

CONCLUSION

¶15 The District Court correctly denied Lindquist’s motion to dismiss based on the 

affirmative defense of entrapment as a matter of law. Because conflicting facts existed as 

to whether Lindquist had the requisite intent to commit the criminal act, the District Court 

correctly denied the motion and concluded the issue of entrapment must be submitted to a 

jury. Reynolds, ¶ 9 (citing Kim, 239 Mont. at 194, 779 P.2d at 515). We affirm.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ DIRK M. SANDEFUR

/S/ LAURIE McKINNON

/S/ BETH BAKER

/S/ JIM RICE