«ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Kathrine Modesitt ...»
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ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEEBruce W. Graham Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Kathrine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana IN THE
COURT OF APPEALS OF INDIANAMathias Gaumer, May 31, 2016 Court of Appeals Case No.
Appellant-Defendant, 79A02-1510-CR-1601 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Judge Appellee-Plaintiff.
Trial Court Cause No.
79D01-1402-FC-6 Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016 Page 1 of 14
STATEMENT OF THE CASEAppellant-Defendant, Mathias Daniel Gaumer (Gaumer), appeals his  conviction for child solicitation, a Class C felony, Ind. Code § 35-42-4-6(c) (2013); and attempted possession of child pornography, a Class D felony, I.C.
§§ 35-41-5-1(a); -42-4-4(c) (2013).
 ISSUE Gaumer raises one issue on appeal, which we restate as the following: Whether  the State presented sufficient evidence to rebut Gaumer’s entrapment defense.
FACTS AND PROCEDURAL HISTORYOn February 5, 2014, Lieutenant Brian Gossard (Lieutenant Gossard) was  working in the Juvenile Detective Division of the Lafayette Police Department in Tippecanoe County, Indiana. The Juvenile Detective Division’s “main responsibility was to handle cases where there were... crimes against children.” (Tr. p. 16). Because the internet is a medium that individuals utilize to commit crimes against children, the Juvenile Detective Division frequently monitors various internet sites for indications of child exploitation.
That day, as part of his regular duties, Lieutenant Gossard read through “the  ads in the personal section of Craigslist to see if there are any key words that might trigger a response[.]” (Tr. p. 20). In the “casual encounters” section of
Craigslist, Lieutenant Gossard came across the following ad:
(State’s Exh. 1) (sic as to all grammatical and spelling errors). Lieutenant Gossard observed that this ad contained “[t]he key words” of “any age” and “younger” to warrant an undercover investigation. (Tr. p. 23).
Using the alias of “Jasmine Rogers” (Rogers) and an email address of “little  firstname.lastname@example.org,” Lieutenant Gossard responded to the personal ad. (State’s Exh. 3). Throughout the day on February 5, 2014, and continuing into February 6, 2014, the following conversation ensued between Lieutenant
Gossard, posing as Rogers, and the poster of the Craigslist ad:
(State’s Exh. 3) (sic as to all grammatical and spelling errors). During the course of the conversation, Lieutenant Gossard noticed that, in addition to the Craigslist-generated email address associated with the post—i.e., wkgd5pers.craigslist.org—several of the poster’s responses included the email address “email@example.com.” (Tr. p. 33). The name associated with the Yahoo account was “Dan Gaumer.” (Tr. p. 33).
Shortly before noon on February 6, 2014, Lieutenant Gossard, along with  several detectives and a uniformed police officer, stationed themselves in the vicinity of the Family Dollar store, located at 1400 Teal Road in Lafayette.
When a gray Volkswagen Jetta pulled into the Family Dollar parking lot, the officers initiated a traffic stop. The driver, who was identified as forty-sevenyear-old Gaumer, was transported to the police station. The officers searched Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016 Page 7 of 14 Gaumer’s vehicle and found “a couple bottles of lubricant.” (Tr. p. 52). A condom was also recovered from Gaumer’s coat pocket. During his police interview, Gaumer acknowledged that he posted the ad on Craigslist; that he engaged in the email correspondence with Rogers; and that his possession of the condom “looked bad.” (Tr. p. 99). However, Gaumer also stated that “he didn’t necessarily believe [that Rogers was only fourteen years old] but wasn’t for sure” based on the fact that Craigslist requires all users of the personal ads section to be at least eighteen years old. (Tr. p. 94).
On February 7, 2014, the State filed an Information, charging Gaumer with  child solicitation, a Class C felony; and attempted possession of child pornography, a Class D felony. On May 20 through 21, 2014, the trial court conducted a jury trial. At the close of the evidence, the jury advised the court that it was unable to reach a verdict. Accordingly, the trial court declared a mistrial. On June 16 through 17, 2015, the trial court held a retrial, during which Gaumer raised the defense of entrapment, and the jury received an entrapment instruction. At the close of the evidence, the jury found Gaumer guilty as charged. On September 21, 2015, the trial court conducted a sentencing hearing. The trial court imposed a term of four years for Count I and a term of one and one-half years for Count II, with the sentences to run concurrently. Of Gaumer’s aggregate four-year-sentence, the trial court ordered that one year be executed in the Indiana Department of Correction and three years be suspended to probation.
Gaumer now appeals. Additional facts will be provided as necessary.
On appeal, Gaumer concedes that the State established the elements of Class C  felony child solicitation and Class D felony attempted possession of child pornography. However, he claims that the State failed to rebut his defense of entrapment. “Entrapment is an affirmative defense that admits the facts of the crime but claims that the act was justified.” Nichols v. State, 31 N.E.3d 1038,
When reviewing a claim of entrapment, our court relies on “the same standard  that applies to other challenges to the sufficiency of evidence.” Griesemer v.
State, 26 N.E.3d 606, 608 (Ind. 2015) (quoting Dockery v. State, 644 N.E.2d 573, 578 (Ind. 1994)). Accordingly, we will neither reweigh the evidence nor assess the credibility of witnesses. Id. We consider “the probative evidence supporting the verdict and the reasonable inferences drawn from that evidence[,]” and we will affirm the conviction “[i]f we find a reasonable trier of fact could infer guilt beyond a reasonable doubt.” Id.
It is well established that “[t]he government may use undercover agents to  enforce the law.” Id. (citing Sorrells v. United States, 287 U.S. 435, 441 (1932)).
Indeed, our supreme court has recognized that “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.’” Id. (quoting Gray v. State, 231 N.E.2d 793, 795 (Ind. 1967)).
Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016 Page 9 of 14 Nonetheless, the tactics of government agents “must be measured” as we will “not tolerate government activity that lures an otherwise law-abiding citizen to engage in crime.” Id. Because “the job of law enforcement is to catch established criminals, not manufacture new ones[,] [o]ur entrapment defense
I.C. § 35-41-3-9 (2013). A defendant is not required to formally plead an entrapment defense; rather, it is raised “by affirmatively showing the police were involved in the criminal activity and expressing an intent to rely on the defense.” Griesemer, 26 N.E.3d at 609. Once a defendant has indicated that he plans to rely on an entrapment defense and has established police involvement, “the burden shifts to the State to rebut the inducement element, or demonstrate the defendant’s predisposition to commit the crime.” Nichols, 31 N.E.3d at 1041 (citations omitted).
“Officers are involved in the criminal activity only if they ‘directly participate in  it.’” Griesemer, 26 N.E.3d at 609. In this case, there is no dispute that Lieutenant Gossard was a direct participant in the online exchange of sexually Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016 Page 10 of 14 explicit messages with Gaumer. Therefore, in order to rebut the first element— inducement—“the State must prove police efforts did not produce the defendant’s prohibited conduct because those efforts lacked a ‘persuasive or other force.’” Nichols, 31 N.E.3d at 1041 (quoting Griesemer, 26 N.E.3d at 609). 2 Here, we find absolutely no indication anywhere in the conversation between  Gaumer and Rogers that Lieutenant Gossard exerted any pressure over or gave an “explicit direction or order” for Gaumer to engage in the prohibited conduct.
Albaugh v. State, 721 N.E.2d 1233, 1237-38 (Ind. 1999) (finding entrapment where the “law enforcement officer played a direct role in influencing Albaugh to leave his home in the middle of the night to move his truck, only minutes later arresting him for driving while intoxicated”). Rather, the evidence establishes that Gaumer posted a personal ad in the “casual encounters” section of Craigslist, seeking a “freaky little slut” of “any age”—“the younger the better.” (State’s Exh. 1). Lieutenant Gossard, posing as Rogers, initiated a conversation by inquiring as to “how young” of a woman Gaumer could “handle.” (State’s 2 We note that in his appellate brief, Gaumer addresses only the second prong of the entrapment statute— predisposition. He does not argue that the State failed to present sufficient evidence of inducement—that is, that Gaumer’s criminal conduct was the product of the police “using persuasion or other means likely to cause the person to engage in the conduct.” I.C. § 35-41-3-9(a)(1) (2013). Instead, it appears that Gaumer presumes the first prong is satisfied based on the mere fact that the police were “involved in the criminal activity” notwithstanding whether there is evidence of inducement. (Appellant’s Br. p. 10) (emphasis added).
We disagree. See Griesemer, 26 N.E.3d at 609 (“There is thus no entrapment if the State shows either (1) there was no police inducement, or (2) the defendant was predisposed to commit the crime.”). Thus, because the State need only rebut one of the elements of the entrapment statute, Gaumer has waived his claim on appeal by failing to set forth a cogent argument regarding both prongs. Ind. Appellate Rule 46(A)(8)(a). Waiver notwithstanding, we elect to address this case on its merits.
Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016 Page 11 of 14 Exh. 3). Gaumer responded that he “can handle as young as it can get luv the young ladies they seem to be more freaky.” (State’s Exh. 3) (emphasis added).
During his police interview, Gaumer stated that he “didn’t necessarily believe  [that Rogers was only fourteen years old] but wasn’t for sure” because Craigslist requires its users to be at least eighteen years old. Nonetheless, after Rogers specifically stated that she was only fourteen years old, Gaumer did not end the conversation or even further probe as to whether Rogers was being honest about her age. Instead, Gaumer—who was specifically seeking “freaky” sexual conduct—suggested that Rogers’ young age constituted the “freaky” experience he so desired. (State’s Exh. 1 & 3). Gaumer then advised Rogers to consider his own age and asked whether she really “want[ed] to do this.” (State’s Exh.
Despite knowing Rogers’ age, Gaumer was the first one to explicitly mention  sexual activity: he instructed her to “send me a pic of ur pussy” and asked “where ru right now I will come by and see how u suck dick.” (State’s Exh. 3).
See Nichols, 31 N.E.3d at 1042 (finding the police officer did not induce the defendant to commit prostitution even though the police officer was the first to mention sexual activity because he was merely asking the defendant questions and did not exert any persuasive or other force over her to engage in the conduct). When Rogers did not immediately reply, Gaumer baited her by suggesting that she was “too young to be doin this.” (State’s Exh. 3). Despite his brief admission regarding Rogers’ juvenile status, Gaumer readily proposed that he would stay home from work to “play with” Rogers if she was willing Court of Appeals of Indiana | Memorandum Decision 79A02-1510-CR-1601 | May 31, 2016 Page 12 of 14 and promised to “make u feel stuff u never have felt before.” (State’s Exh. 3).
Ultimately, Gaumer and Rogers planned to meet the following day. When Gaumer arrived at the meeting place at the arranged time, he was prepared to meet a fourteen-year-old girl for sexual activity—as evidenced by the condom and lubricant in his possession.
Furthermore, it was Gaumer—not Lieutenant Gossard—who was persistent in  arranging a rendezvous with Rogers. In fact, Lieutenant Gossard, as Rogers, continually reminded Gaumer about her young age, such as by hinting at the fact that she was subject to her parents’ control regarding her inability to sneak out of the house and as to the use of her cell phone, as well as the fact that she could not drive herself and had to skip school to meet with him. Each time he did so, Lieutenant Gossard essentially provided Gaumer with an opportunity to recognize the wrongfulness of his conduct and to end the conversation.
Instead, Gaumer continued to send provocative messages and followed through with his plans to meet Rogers, whom he believed to be a fourteen-year-old girl.
Lieutenant Rogers did nothing more than present Gaumer with an opportunity to commit the charged offenses, which does not rise to the level of entrapment.
I.C. § 35-41-3-9(b) (2013).