State v. Smith

548 P.3d 874

2024 UT 13

STATE of Utah, Respondent,

v.Shane Craig SMITH, Petitioner.

No. 20220768

Supreme Court of Utah.

Heard September 6, 2023

Filed May 2, 2024

Fourth District, Provo, The Honorable James M. Brady, No. 191403507

Jennifer L. Foresta, Douglas J. Thompson, Provo, for petitioner

Sean D. Reyes, Att’y Gen., David A. Simpson, Asst, Solic. Gen.. Salt Lake City, Ryan McBride, Provo, for respondent

Chief Justice Durrant authored the opinion of the Court in which Associate Chief Justice Pearce, Justice Petersen, Justice Pohlman, and Judge Mow joined.

On Certiorari to the Utah Court of Appeals

Chief Justice Durrant, opinion of the Court:

INTRODUCTION

¶1 Shane Craig Smith met "Emily,"¹ a thirteen-year-old girl, on the internet. After an eventful three hours of online conversation, Smith drove to a gas station in Lehi to meet Emily, with the stated plan of having her perform multiple sex acts in exchange for Smith driving her to California. Fortunately, Emily was not an actual teenager, and instead was a persona used as bait in a police sting operation.

¶2 Smith was arrested at the gas station and charged with various crimes, including attempted child kidnapping, attempted rape of a child, and attempted sodomy of a child. He eventually pled guilty to most of these charges while reserving the right to appeal two issues: whether there was sufficient evidence to bind him over for trial on the attempt charges, and whether he was entrapped as a matter of law. The court of appeals affirmed his convictions, and we now do the same.

BACKGROUND²

[1] ¶3 In November 2019, Utah County Sheriff’s Detective Bagley accessed Whisper, a mobile app. as part of a child sex trafficking operation. Whisper is a text-based dating app where anonymous users can create private chat rooms. To create a Whisper profile, users must affirm that they are at least eighteen years old. Det. Bagley created a fake profile, Emily, using an image of a woman who was over the age of eighteen. He then went to an adult-themed forum and created a post implying that Emily was looking to meet up with someone for a sexual encounter.

¶4 Smith was one of many individuals who responded to this post by initiating a private chat conversation with Emily. Shortly into their conversation, Emily disclosed that she was thirteen years old, had "r[u]n away from home," and wanted to "go to Cali[fornia]." She asked Smith if he would "give [her] $200 for food and cash" so she could "pay someone for a ride." In exchange, she promised she would "do whatever [he] want[ed]." Smith, who had opened the conversation by sending Emily photos of his penis, responded with hesitation. Not hesitation about whether it was appropriate for him to continue a sexually charged conversation with someone he now knew to be a child, but instead hesitation about whether Emily was "a cop."

¶5 Smith tried to resolve this concern by asking Emily to send him nude photos. When Emily refused, he insisted that she send clothed photos of her in specified poses to prove that she was "a real person" and "[n]ot a cop." Emily responded by sending photos of a twenty-three-year-old woman in the specified poses.

¶6 Apparently satisfied, Smith arranged to meet Emily at a gas station in Lehi and discussed what sex acts she would perform in return for him driving her to California. After Emily asked if he wanted oral or vaginal sex, Smith said the choice was "up to [her]." Emily responded that she would do both, and Smith seemed to accept that offer. He later specified that he wanted Emily to begin performing oral sex as soon as the two started driving together, and that they would additionally "need to have some fun" before they arrived in California. Once Emily indicated that she was ready to be picked up, barely three hours after their conversation began, Smith drove to the agreed-upon gas station. He texted Emily that he had arrived, flashed his headlights to help her identify his car, and told her to come over and get in.

¶7 Smith was then arrested in the parking lot. After waiving his Miranda rights, he told the arresting officers that he had come to the gas station to meet a thirteen-year-old girl, and that he had wanted to have both oral and vaginal sex with her. Smith was charged with several felonies, including attempted child kidnapping, attempted rape of a child, and attempted sodomy of a child.

¶8 After a preliminary hearing, Smith moved the district court to decline to bind over the counts of attempted rape of a child, attempted sodomy of a child, and attempted kidnapping of a child. Smith argued that the State’s evidence regarding the attempt crimes—evidence about his intent to have sexual contact with a child and arrival at the agreed-upon location to meet that child—did not show that his actions rose beyond solicitation or mere preparation and was therefore insufficient to support probable cause on the "substantial step" element of the attempt statute. Acting as a magistrate, the district court denied the motion and bound over all counts for trial.

¶9 Smith then filed a motion to dismiss all charges on entrapment grounds. The State opposed the motion. After an evidentiary hearing, the district court denied Smith’s motion, concluding that Smith had not shown that he was entrapped as a matter of law. Smith eventually entered a conditional guilty plea to attempted child kidnapping, attempted sodomy of a child, and enticement of a minor.³ This conditional plea allowed Smith to appeal the district court’s bindover ruling and entrapment determination.

¶10 Smith timely appealed to the Utah Court of Appeals, where he raised two issues: (1) "whether there was insufficient evidence to bind over the attempt charges" for trial; and (2) "whether the district court erred by denying his motion to dismiss all the charges on the basis that he had been entrapped."⁴ The court of appeals affirmed the district court’s rulings.⁵ Smith petitioned for certiorari. We have jurisdiction under Utah Code subsection 78A-3-102(3)(a).

STANDARDS OF REVIEW

[2] ¶11 On certiorari, we review the court of appeals’ decision for correctness and give no deference to its conclusions of law.⁶

[3–5] ¶12 A bindover determination is a mixed question of law and fact which receives "some deference … commensurate with the limited discretion under which a magistrate operates at a preliminary hearing."⁷ A district court’s legal conclusions regarding entrapment are reviewed for correctness, and its factual findings are reviewed for clear error.⁸

ANALYSIS

¶13 Smith raises two claims of error. First, he argues that the district court erred by binding him over for trial, and that the court of appeals erred in affirming that bindover. Second, he argues that the district court erred in denying his motion to dismiss due to entrapment, and that the court of appeals erred in affirming that denial. But Smith fails to show that either the bindover decision, the denial of his motion, or the court of appeals’ review of those rulings is in error. Accordingly, we affirm.

I. Smith’s Actions Constitute Substantial Steps

[6, 7] ¶14 In his first claim, Smith targets the district court’s decision to bind him over for trial on all charges. The decision to bind a criminal defendant over for trial is made by a magistrate judge at the conclusion of a preliminary hearing.⁹ At a preliminary hearing, the State must present "evidence sufficient to support a reasonable belief that an offense has been committed and that the defendant committed it."¹⁰ On appeal, Smith challenges the decision to bind him over on three charges: attempted rape of a child, attempted sodomy of a child, and attempted kidnapping of a child.

¶15 The elements of attempt are provided by statute. "[A] person is guilty of an attempt to commit a crime" if they (1) "engage[ ] in conduct constituting a substantial step toward commission" of that crime, and (2) "intend[ ] to commit the crime."¹¹ Smith does not dispute that there was sufficient evidence for the district court to find that he had the intent to commit the crimes that underlie his attempt charges. He instead argues that binding him over on the attempt charges was inappropriate because his conduct was legally insufficient to constitute a substantial step toward committing any of the underlying offenses.

¶16 The attempt statute defines a substantial step. "[C]onduct constitutes a substantial step if it strongly corroborates the actor’s [intent]."¹² Smith’s claim that he did not commit substantial steps toward the crimes for which he was bound over relies on two of our cases that interpret this language: State v. Arave¹³ and State v. Johnson.¹⁴

¶17 We begin with Arave. The defendant in that case, Arave, used his bicycle to block the path of a young boy who was riding a skateboard down a residential street.¹⁵ Arave then offered the boy "$20 to allow [Arave] to perform oral sex" on him.¹⁶ When the boy didn’t respond, Arave "apologized" and the boy left.¹⁷ Arave was subsequently convicted of attempted sodomy of a child.¹⁸

¶18 We reversed Arave’s conviction on the ground that he hadn’t taken a substantial step toward committing the underlying crime.¹⁹ But the concern that led us to that conclusion dealt specifically with the distinction between two different crimes: solicitation and attempt.²⁰ Solicitation occurs when a person "with intent that a felony be committed," solicits "another person to engage in specific conduct that under the circumstances as the actor believes them to be would be a felony."²¹

[8] ¶19 In the context of that case, solicitation likely occurred when Arave confronted his target and asked if the boy would engage in felonious sex acts with him.²² The legal problem was that the lower court had categorized those same acts—confrontation and request—as constituting a substantial step toward attempted sodomy of a child.²³ We held that this categorization was impermissible, as "[s]olicitation alone cannot constitute a substantial step...