ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LARRY R. CHAMPION STEVE CARTER
KRISTOPHER N. KAZMIERCZAK Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JAMES S. FERGE, )
vs. ) No. 49A02-0108-CR-530
STATE OF INDIANA, )
APPEAL FROM THE MARION COUNTY SUPERIOR COURT
CRIMINAL DIVISION, ROOM 7
The Honorable Israel Nunez Cruz, Commissioner
Cause No. 49F07-0008-CM-131178
February 28, 2002
OPINION - FOR PUBLICATION
James Ferge (Ferge) was convicted of patronizing a prostitute,
as a Class A
misdemeanor, in Marion Superior Court. He was sentenced to serve one year
in the Marion County Jail and was given credit time of four days.
The remaining 361 days were suspended, and Ferge was placed on probation
for 180 days. He appeals raising three issues; however, we find the
following issue to be dispositive: whether the State presented sufficient evidence to rebut
Ferges defense of entrapment.
Facts and Procedural History
On July 31, 2000, Indianapolis Police Officer Genae Gehring (Officer Gehring) was working
an undercover vice detail as a prostitute in the vicinity of Euclid Avenue
and Washington Street on the east side of Indianapolis. There were approximately
ten officers working in the immediate area with Officer Gehring. The goal
of this operation was to arrest solicitors for prostitution.
At approximately 4:00 p.m., Ferge, driving his company truck southbound on Euclid Avenue,
was stopped at a two-way stop sign at the intersection of Euclid Avenue
and Washington Street. Officer Gehring was walking north on Euclid Avenue when
she made eye contact with Ferge. Officer Gehring walked over to Ferges
truck and the following exchange took place:
Officer Gehring: Hey whats going on?
Ferge: Do you need a ride?
Officer Gehring: Maybe.
Ferge: Well, come on and get in.
Officer Gehring: Are you looking for a little more?
Ferge: Yes, get in.
Officer Gehring: Are you looking for a little head?
Ferge: Yes, come on and get in.
Officer Gehring: Twenty bucks?
Ferge: Okay, get in.
Tr. p. 22. Officer Gehring then told Ferge to meet her in
an alley behind a building on the northeast corner of the intersection, and
proceeded to walk toward the alley. She also signaled the two officers
observing the interaction between herself and Ferge.
Ferge turned right onto Washington Street, heading west. Instead of circling around
the block to return to Euclid Avenue and meet Officer Gehring in the
alley, he proceeded west on Washington Street for approximately seven blocks. At
the intersection of Washington Street and Sherman Drive, he turned north onto Sherman
Drive. Two blocks later, he was stopped by police at the intersection
of Sherman Drive and Michigan Street and arrested.
On August 1, 2001, Ferge was charged with patronizing a prostitute, as a
Class A misdemeanor. A jury trial was held on July 17, 2001.
Ferge testified at trial that he offered Officer Gehring a ride because
it was raining. He stated that he could not understand everything she
was saying because of the noise from the diesel engine of his truck.
Ferge testified that he was surprised when Officer Gehring started asking him
questions about sex and told her that if she wanted a ride, that
was fine, but if she did not want a lift that was the
end of it. Tr. p. 63.
The jury found Ferge guilty of patronizing a prostitute, as a Class A
misdemeanor. Ferge was sentenced to serve 365 days in the Marion County
Jail and given credit time of four days. The remaining 361 days
were suspended, and Ferge was placed on probation for 180 days. He
Discussion and Decision
Ferge argues that the State failed to produce sufficient probative evidence to negate
his defense of entrapment. Specifically, he contends that the State failed to
prove beyond a reasonable doubt that Ferge was predisposed to commit the crime
of patronizing a prostitute. When we review a claim of entrapment, we
use the same standard that applies to other challenges to the sufficiency of
evidence. Dockery v. State, 644 N.E.2d 573, 578 (Ind. 1994) (citations omitted).
We consider only the evidence that supports the verdict, and we draw all
reasonable inferences from that evidence. We will neither reweigh the evidence nor
judge the credibility of witnesses. We will uphold a conviction if the
record supports it with substantial evidence of probative value from which a reasonable
trier of fact could infer that the appellant was guilty beyond a reasonable
Id. (citations omitted).
Indiana Code section 35-41-3-9 defines the defense of entrapment and provides:
(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.
Once a defendant indicates that he intends to rely on the defense of
entrapment and establishes police inducement, the burden shifts to the State to demonstrate
the defendants predisposition to commit the crime. Dockery, 644 N.E.2d at
577. Whether a defendant was predisposed to commit the crime charged is
a question for the trier of fact. Id. The State must
prove the defendants predisposition beyond a reasonable doubt. Id. If the
defendant shows police inducement and the State fails to show predisposition on the
part of the defendant to commit the crime charged, entrapment is established as
a matter of law. Id.
The defense of entrapment turns upon the defendants state of mind, or whether
the criminal intent originated with the defendant.
Kats v. State, 559 N.E.2d
348, 353 (Ind. Ct. App. 1990), trans. denied, (quoting U.S. v. Toro, 840
F.2d 1221, 1230 (5th Cir. 1988)). In other words, the question is
whether criminal intent [was] deliberately implanted in the mind of an innocent person[.]
Id. (quoting U.S. v. Killough, 607 F. Supp. 1009, 1011 (E.D. Ark
1985)). The following factors are important in determining whether a defendant was
predisposed to commit the charged crime:
1) the character or reputation of the defendant, 2) whether the suggestion of
criminal activity was originally made by the government, 3) whether the defendant was
engaged in criminal activity for a profit, 4) whether the defendant evidenced reluctance
to commit the offense, overcome by government persuasion, and 5) the nature of
the inducement or persuasion offered by the government.
Id. (citing U.S. v. Fusko, 869 F.2d 1048, 1052 (7th Cir. 1989)).
Additionally, the United States Supreme Court has stated:
Law enforcement officials go too far when they implant in the mind of
an innocent person the disposition to commit the alleged offense and induce its
commission in order that they may prosecute.. . . When the Governments
quest for conviction leads to the apprehension of an otherwise law-abiding citizen who,
if left to his own devices, likely would have never run afoul of
the law, the courts should intervene.
Jacobson v. U.S., 503 U.S. 540, 553-54 (1992) (internal citation omitted).
In this case, Ferge clearly established police inducement; therefore, the State was required
to prove Ferges predisposition to commit the crime of patronizing a prostitute beyond
a reasonable doubt. The evidence presented at trial revealed that Ferge was
stopped at a stop sign at the intersection of Washington Street and Euclid
Avenue when he made eye contract with Officer Gehring. Ferge offered her
a ride, and at trial, Ferges wife testified that it was not uncommon
for him to give rides to strangers. It is undisputed that Officer
Gehring initiated the conversation regarding whether Ferge would be interested in fellatio for
payment. Officer Gehring testified that she believed they had made a deal
whereby she would perform fellatio on Ferge for twenty dollars, and instructed Ferge
to meet her in the alley across the street. However, Ferge did
not circle the block and meet Officer Gehring in the alley, but proceeded
to drive away until he was stopped by the police nine blocks from
the intersection of Washington Street and Euclid Avenue.
It is clear from the facts discussed above that the suggestion of criminal
activity was made by Officer Gehring after Ferge offered her a ride.
Ferges action in driving away from the alley where Officer Gehring told Ferge
to meet her is evidence that he did not intend to make a
deal with Officer Gehring for sexual activity, as well as evidence that he
was not predisposed to commit the crime of patronizing a prostitute.
See footnote Under
these facts and circumstances, we find that the State did not present sufficient
evidence at trial to prove that Ferge was predisposed to commit the crime
of patronizing a prostitute, and that he established the defense of entrapment as
a matter of law.
See Dockery, 644 N.E.2d at 577.
BROOK, C. J., and RILEY, J., concur.
Ind. Code § 35-45-4-3 (1998).
Footnote: Street terminology for fellatio. Tr. p. 22.
Footnote: We also note that the jury was not instructed that the State
had to prove beyond a reasonable doubt that Ferge was predisposed to commit
the crime of patronizing a prostitute.