Court of Appeals of Indiana | Opinion 49A02-1405-CR-343 | March 30, 2015 Page 1 of 12

ATTORNEYS FOR APPELLANT

Robert D. King, Jr.

David R. Thompson 

The Law Office of Robert D. King, Jr., 

P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General of Indiana 

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Paul D. Mobley,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 30, 2015

Court of Appeals Case No.

49A02-1405-CR-343

Appeal from the Marion Superior 

Court

The Honorable H. Patrick Murphy, 

Master Commissioner 

Case No. 49F07-1203-CM-015059

Vaidik, Chief Judge.

Case Summary 

[1] Paul D. Mobley appeals his conviction for Class A misdemeanor patronizing a 

prostitute. Mobley argues that the evidence is insufficient to sustain his 

conviction or, in the alternative, that the State failed to rebut his defense of 
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entrapment. We find that the evidence is sufficient to prove that Mobley 

knowingly agreed to pay an undercover detective $20 to perform fellatio on 

him. We also conclude that according to the Indiana Supreme Court’s recent 

decision in Griesemer v. State, --- N.E.3d ---, 2015 WL 970660 (Ind. 2015), 

because a reasonable trier of fact could have found the State proved, beyond a 

reasonable doubt, that the police did not induce Mobley, his entrapment 

defense fails. We therefore affirm his conviction for Class A misdemeanor 

patronizing a prostitute. 

Facts and Procedural History

[2] On March 6, 2012, Indianapolis Metropolitan Police Department Detective 

Tabatha McLemore was posing as a prostitute on East Washington Street in 

Indianapolis. Tr. p. 7-8. Detective McLemore performs approximately 100 

undercover investigations a year where she poses as a prostitute. Id. at 6. 

Around noon, Mobley drove slowly past Detective McLemore, staring at her 

“the whole time.” Id. at 9. Mobley then stopped his car in the middle of the

next street near Detective McLemore. Id. Detective McLemore walked up to 

Mobley and asked, “What’s up?” State’s Ex. 1 (audio recording); Tr. p. 15. In 

response, Mobley asked Detective McLemore, “How much?” State’s Ex. 1; Tr. 

p. 11, 15. Detective McLemore told Mobley it would be “twenty for some 

head.” State’s Ex. 1; Tr. p. 11. Mobley “shook his head ‘yes’” and then “did a 

head nod” to the right to indicate that Detective McLemore should get into his 

passenger seat. Id. at 11, 15, 24-25. Detective McLemore told Mobley to pick 
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her up in the nearby alley off East Washington Street so that the police would 

not see them. State’s Ex. 1; Tr. p. 11. 

[3] IMPD Detective Stephen Buchanan was stationed nearby in an unmarked 

police car with police lights in the un-tinted windshield. He was wearing a 

protective vest with the word “police” in large block letters on the front. When 

Detective Buchanan received a signal that Detective McLemore had been 

propositioned, he “immediately drove . . . toward[] Oakland Street” and saw 

Mobley driving toward him. Tr. p. 38-39. Detective Buchanan and Mobley 

“looked right at each other.” Id. at 39. Mobley then turned toward Detective 

McLemore and said “never mind,” to which Detective McLemore replied, “too 

late.” State’s Ex. 1; Tr. p. 11-12, 15-16, 39. Mobley was arrested and charged 

with Class A misdemeanor patronizing a prostitute. After his arrest, Mobley 

told Detective McLemore that he had a “moment of weakness.” Id. at 16, 40-

41. 

[4] After a bench trial, Mobley was convicted of Class A misdemeanor patronizing 

a prostitute. He was sentenced to 365 days in the Indiana Department of 

Correction with credit for four days served and 361 days suspended. See

Appellant’s App. p. 43 (Abstract of Judgment). 

[5] Mobley now appeals.

Discussion and Decision 
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[6] Mobley makes two arguments on appeal. First, he argues that the evidence is 

insufficient to sustain his conviction. In the alternative, he argues that the State 

failed to rebut his defense of entrapment. 

I. Sufficiency of Evidence

[7] Mobley first challenges the sufficiency of the evidence to support his conviction. 

When reviewing a challenge to the sufficiency of the evidence, we neither 

reweigh evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 

146 (Ind. 2007). Rather, we consider only the evidence and reasonable 

inferences most favorable to the trial court’s ruling and will affirm the 

conviction unless “no reasonable fact-finder could find the elements of the 

crime proven beyond a reasonable doubt.” Id. It is not necessary for the 

evidence to overcome every reasonable hypothesis of innocence. Id. The 

evidence will be deemed sufficient if an inference may reasonably be drawn 

from it to support the conviction. Id.

[8] When Mobley committed the offense, Indiana Code section 35-45-4-3 provided,

in relevant part, that a person commits Class A misdemeanor patronizing a 

prostitute if that person “knowingly or intentionally pays, or offers or agrees to 

pay, money or other property to another person . . . on the understanding that 

the other person will engage in, sexual intercourse or deviate sexual conduct

with the person or with any other person . . . .” Ind. Code Ann. § 35-45-4-3(1) 

(West 2012). The charging information alleges that Mobley knowingly offered 

or agreed to pay “United States currency” to Detective McLemore on the 
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understanding that she would engage in deviate sexual conduct—specifically, 

fellatio—with him. Appellant’s App. 18 (capitalization omitted). 

[9] Mobley first argues that the evidence is insufficient to prove that he knowingly 

agreed to pay “twenty for some head.” He concedes that there is evidence in 

the record that he nodded his head; however, he claims that “an ambiguous 

nod of the head cannot constitute proof beyond a reasonable doubt that [he] 

made an agreement.” Appellant’s Br. p. 9. 

[10] Here, Detective McLemore did not describe Mobley’s head nod as ambiguous 

or equivocal. Cf. Lukas v. State, 165 Ind. App. 50, 330 N.E.2d 767, 770 (1975) 

(the witness described the defendant’s head nods as: “The same, nothing verbal, 

no affirmation, no denial, just that he acknowledge[d] what I was talking about, 

that he understood it.”). Rather, Detective McLemore testified that Mobley 

nodded his head “yes” when she said it would be “twenty for some head.” Tr. 

p. 11. When defense counsel pressed Detective McLemore about whether 

Mobley really meant “yes” by his head nod, the following colloquy occurred:

Q: Alright again, you’re . . . not in a position to get inside 

[Mobley’s] head to know what he meant by the nod, right?

A: Even babies know that a head shake “yes,” means yes.

Q: Well, head shakes can mean a lot of different things like I’m 

pondering that idea, correct?

A: Not in this situation.

Id. at 24. Moreover, when Mobley later saw the other detective approach in his

car, Mobley turned toward Detective McLemore and said “never mind,” which 

suggests that Mobley indeed made an agreement with Detective McLemore but 
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then changed his mind. Mobley’s argument that his head nod “yes” was not an 

agreement is merely an invitation for us to reweigh the evidence, which we will 

not do. See Tr. p. 44-46 (defense counsel’s closing argument making same 

argument as here). The evidence is sufficient to prove that Mobley knowingly 

made an agreement.1

[11] Mobley next argues that the evidence is insufficient to prove that he agreed to 

pay “United States currency,” as the charging information alleges. Appellant’s 

Br. p. 12. The record shows that Mobley drove slowly past Detective 

McLemore, staring at her “the whole time.” Mobley then stopped his car in the 

middle of the street near Detective McLemore. Detective McLemore walked 

up to Mobley and asked, “What’s up?” In response, Mobley asked Detective 

McLemore, “How much?” Detective McLemore told Mobley it would be 

“twenty for some head.” Mobley makes much of the fact that Detective 

McLemore did not say “dollars” or “bucks” after twenty, as happened in other 

prostitution-sting cases. Mobley speculates that “‘twenty’ can mean many 

things.” Id. at 13. However, given the circumstances of this case, it was 

reasonable for the trier of fact to infer that “twenty” here meant twenty dollars. 

Any other interpretation is a request to reweigh the evidence. See Tr. p. 44 

 

1 Mobley cites Ferge v. State, 764 N.E.2d 268 (Ind. Ct. App. 2002), as support here. The issue in Ferge was 

whether the State negated the defendant’s defense of entrapment to Class A misdemeanor patronizing a 

prostitute. The defense of entrapment is an affirmative defense requiring admission to the elements of the 

crime. See Hoskins v. State, 563 N.E.2d 571, 576 (Ind. 1990) (holding that entrapment is a true affirmative 

defense that admits the facts of the crime but contends that the knowing or intentional acts were excused or 

justified). However, Mobley argues that the evidence does not satisfy the elements. 
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(defense counsel’s closing argument making same argument as here). The 

evidence is sufficient to prove that Mobley agreed to pay United States 

currency. 

[12] Finally, Mobley argues that the evidence is insufficient to prove that he 

understood that Detective McLemore would engage in fellatio with him. 

Detective McLemore told Mobley that it would be “twenty for some head,” to 

which Mobley nodded his head yes and then nodded his head a second time to 

indicate that Detective McLemore should get into his car. Detective 

McLemore testified at trial that “head” is street terminology for fellatio. Tr. p. 

17. Furthermore, Detective McLemore testified that since she had been 

working vice for the past five and one-half years, she had never used the term 

fellatio when working undercover as a prostitute. Id. at 29. She explained that 

she uses the term “head” because it is the term that solicitors use. Id. at 31. 

Detective McLemore said in all her years in vice, she had never seen anyone 

mistake the word “head” for a different meaning. Id. In fact, Mobley did not 

ask for clarification of what she meant by “head.” Id. at 32. Given the 

circumstances of this case, it was reasonable for the trier of fact to infer that 

Mobley understood that “head” meant fellatio. Any other interpretation is a 

request to reweigh the evidence. See Tr. p. 44-45 (defense counsel’s closing 

argument making same argument as here). The evidence is sufficient to prove 

that Mobley understood that Detective McLemore would engage in fellatio 

with him. 
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II. Entrapment 

[13] In the alternative, Mobley argues that the State failed to rebut his defense of 

entrapment. The Indiana Supreme Court recently addressed the defense of 

entrapment in Griesemer. We review a claim of entrapment using the same 

standard that applies to other challenges to the sufficiency of evidence. 

Griesemer, 2015 WL 970660, *2.

[14] As our Supreme Court explained in Griesemer:

The government may use undercover agents to enforce the law. 

Indeed, undercover agents can be invaluable in the prevention,

detection, and prosecution of crime, and “it is the duty of 

conscientious and efficient law enforcement officers to make such 

efforts.” But their tactics must be measured; we do not tolerate 

government activity that lures an otherwise law-abiding citizen to 

engage in crime. After all, the job of law enforcement is to catch 

established criminals, not manufacture new ones. Our entrapment 

defense aims to sort the two.

Id. (citations and quotation omitted). Entrapment in Indiana is statutorily 

defined:

(a) It is a defense that:

(1) the prohibited conduct of the person was the product of a 

law enforcement officer, or his agent, using persuasion or other 

means likely to cause the person to engage in the conduct; and

(2) the person was not predisposed to commit the offense.

(b) Conduct merely affording a person an opportunity to commit the 

offense does not constitute entrapment.

Ind. Code § 35-41-3-9. A defendant does not need to formally plead the 

entrapment defense; rather, it is raised, often on cross-examination of the 
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State’s witnesses, by affirmatively showing that the police were involved in the 

criminal activity and expressing an intent to rely on the defense. Griesemer, 

2015 WL 970660, *2. Police are involved in the criminal activity only if they 

“directly participate” in it. Id. The State then has the opportunity for rebuttal, 

and its burden is to disprove one of the statutory elements beyond a reasonable 

doubt. Id. Thus, there is no entrapment if the State shows either (1) there was 

no police inducement or (2) the defendant was predisposed to commit the 

crime. Id.

[15] To rebut the first element, inducement, the State must prove that police efforts 

did not produce the defendant’s prohibited conduct because those efforts lacked 

“a persuasive or other force.” Id. at *3 (quotation omitted).

[16] At issue in Griesemer was whether the defendant was induced. Griesemer

involved the same undercover officer as in this case, Detective Tabatha 

McLemore. Detective McLemore was posing as a prostitute on a corner on the 

eastside of Indianapolis when she noticed the defendant driving past and staring 

at her. He looped around the block and returned a few minutes later, stopping 

near her just before a stop sign. Through his open car window, the defendant 

asked Detective McLemore if she needed a ride. Detective McLemore 

declined, saying she “was trying to make some money.” Id. at *1. The 

defendant nodded his head toward his passenger seat, which Detective 

McLemore understood as an invitation for her to get in his car. She then asked 

him how much money he had, and the defendant again nodded toward his 

passenger seat. When she asked him about money a second time, he told her 
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he had twenty dollars. Detective McLemore said she could “do head” for that 

amount, and the defendant nodded his head yes, and for a third time nodded 

toward his passenger seat. Id. But instead of getting in his car, she told him to 

pick her up just down the street. He nodded yes, and proceeded along the same 

route he had taken when he initially saw Detective McLemore. A police car

stopped the defendant; he was arrested and charged with Class A misdemeanor 

patronizing a prostitute. 

[17] Our Supreme Court concluded that the State presented sufficient evidence for 

the trier of fact to reasonably determine that Detective McLemore’s policing 

efforts did not produce the defendant’s criminal conduct. Id. at *4. The Court 

stated that the evidence most favorable to the verdict shows that the defendant 

“stared at Detective McLemore from the road before turning around, he 

stopped his car near her to initiate their conversation, and he twice nodded his 

head to invite her into his car, all before she mentioned the opportunity to 

exchange money for a sexual act.” Id. The Court found that this was not an 

explicit directive or order. Cf. Albaugh v. State, 721 N.E.2d 1233 (Ind. 1999) 

(finding entrapment where a police officer told the defendant, who had been 

drinking, “you’ve got to move [your truck] and you’ve got to move it now”). In 

addition, the Court found that Detective McLemore “did not exert a persuasive 

or other force over [the defendant]; instead, she merely afforded him ‘an 

opportunity to commit the offense,’ which the statute expressly declares ‘does 

not constitute entrapment.’” Griesemer, 2015 WL 970660, *4 (quoting Ind. 

Code § 35-41-3-9(b)). The Court therefore affirmed the defendant’s conviction.
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[18] We reach the same conclusion here. That is, the State presented sufficient 

evidence for the trier of fact to reasonably determine that Detective 

McLemore’s policing efforts did not produce Mobley’s criminal conduct. The 

evidence most favorable to the verdict shows that Mobley drove slowly past 

Detective McLemore, staring at her the whole time; he then stopped his car in 

the middle of the street near her and asked, “How much?”—all before Detective 

McLemore mentioned the opportunity to exchange money for a sexual act. 

Detective McLemore did not give Mobley an explicit directive or order and did 

not exert a persuasive or other force over Mobley; rather, she merely afforded 

him an opportunity to commit the offense, which Indiana Code section 35-41-3-

9(b) expressly declares “does not constitute entrapment.” 

[19] As our Supreme Court said in Griesemer, 

That the crime itself may be tempting, without more, is not 

inducement. Indeed, if we were to find entrapment on these facts, we 

would effectively put an end to prostitution stings. We are not willing 

to so limit the activity of undercover officers to the detriment of safety 

and quality of life in many neighborhoods.

2015 WL 970660, *4. Because a reasonable trier of fact could have found the 

State proved, beyond a reasonable doubt, that the police did not induce 

Mobley, his entrapment defense fails.2 We therefore affirm his conviction for 

Class A misdemeanor patronizing a prostitute.

 

2 We therefore do not address the question of Mobley’s predisposition to commit the crime. 
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[20] Affirmed.

Baker, J., and Riley, J., concur.