Cases involving law enforcement officers posing as juveniles online are common. A typical scenario is found in the recent case of State v. Anderson (WD77202) from the Western District of Missouri Court of Appeals, which was decided in May 2015. In the Anderson case, a law enforcement officer created a female online profile for a dating site, using a profile with the name Kaitlyn that alleged “she” was 19 years old. The profile was then posted to the site.
Many of these computer “decoy” cases involve scenarios where a law enforcement officer is purporting to be a minor. The issue then often becomes some version of this question: did the defendant actively participate in the exchange, or was he tricked into doing something that he might not have done otherwise?
The defendant, Anderson, then contacted “Kaitlyn.” Although he was told that “Kaitlyn” was actually only 14 years old, Anderson continued the dialogue and tried to arrange an in-person meeting. Throughout the conversations, Anderson discussed sexually related issues. A meeting time and place was arranged, and when the defendant appeared, he was arrested. He was convicted at a bench trial of felony enticement of a child under RSMo. Section 566.151, and appealed.
Under Missouri law, the crime of enticement of a child is committed if a person at least twenty-one years of age or older “persuades, solicits, coaxes, entices, or lures whether by words, actions or through communication via the Internet or any electronic communication, any person who is less than fifteen years of age for the purpose of engaging in sexual conduct.” § 566.151.1. Anderson’s raised the defense of entrapment.
The defense of entrapment is codified in RSMo. Section 562.066. This says the following:
1. The commission of acts which would otherwise constitute an offense is not criminal if the actor engaged in the prescribed conduct because he was entrapped by a law enforcement officer or person acting in cooperation with such officer.
2. An “entrapment” is perpetrated if a law enforcement officer or a person acting in cooperation with such an officer, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages or otherwise induces another person to engage in conduct when he was not ready and willing to engage in such conduct.c
It is the defendant’s burden to show entrapment. Missouri courts have adopted a two-part, subjective test for determining entrapment. State v. Munoz, 345 S.W.3d 888, 891 (Mo. App. W.D. 2011). The defendant must present evidence showing both governmental inducement to engage in unlawful conduct and defendant’s lack of a willingness to engage in such conduct.
“If [the] burden is met by the defense, then it is the State’s burden to prove lack of entrapment beyond a reasonable doubt, which may be done ‘by rebutting either defendant’s evidence of inducement or by showing his predisposition.’” Munoz, 345 S.W.3d at 892 (quoting Willis, 662 S.W.2d at 255).
Anderson argued that law enforcement officers entrapped him when they set up an online profile claiming to be 19 years old. He also argued that his intention was only to try to meet someone his own age. However, the State rebutted this argument by showing that Anderson was predisposed to commit the crime he was charged with. “Kaitlyn” had told him at the beginning of the dialogue that she was only 14 years old. He steered the conversation to sexually suggestive matters, and took active steps to try to meet Kaitlyn. It was irrelevant that the profile was a fake one.
Although he was given opportunities to back out of the meeting, Anderson always pressed forward. Anderson also tried to show his lack of intent to “entice” by pointing to the fact that he possessed no pornography or other contraband with him. The Court of Appeals found this fact to be irrelevant.
In entrapment scenarios, “The basic question is whether the defendant’s criminal activity was caused by the creative activity of the officer or by the defendant’s own predisposition.” State v. Moore, 904 S.W.2d 365, 368 (Mo. App. E.D. 1995). “[I]f criminal intent originates in the mind of the defendant, it is no defense to charge that an opportunity is furnished or that an officer aids in the commission of the crime.” State v. Arnold, 676 S.W.2d 61, 62-63 (Mo. App. S.D. 1984).
In short, there was simply no evidence of entrapment in this case.