State v. Smith

514 P.3d 620

STATE of Utah, Appellee,

v.Shane Craig SMITH, Appellant.

No. 20200782-CA

Court of Appeals of Utah.

Filed June 30, 2022

Jennifer L. Foresta, Bryson King, and Douglas J. Thompson, Attorneys for Appellant

Sean D. Reyes, Kris C. Leonard, and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judge Gregory K. Orme and Justice Diana Hagen¹ concurred.

Opinion

HARRIS, Judge:

¶1 The "13-year-old girl" Shane Craig Smith met on the internet was, in reality, an undercover police detective. After arranging to pick up the "girl" in person at a convenience store, Smith was arrested and later charged with various crimes, including attempted child kidnapping and several attempted sex crimes. He eventually entered a conditional guilty plea to some of the charges, reserving his right to appeal two issues: whether there was insufficient evidence to bind over the attempt charges and whether the district court erred by denying his motion to dismiss all the charges on the basis that he had been entrapped. Smith now appeals, raising those two issues. For the reasons discussed, we affirm his convictions.

BACKGROUND²

¶2 One evening, a police detective (Detective) was conducting an internet sting operation. He created an online persona on a text-based internet application (the app) that he understood had a reputation as a "hookup" site for individuals seeking sexual companionship. Although the app required users to be eighteen years of age or older, Detective had seen several cases involving "real child victims" on the app. In creating his online persona, Detective used a moniker like "Fun Girl" or "Good Time," and selected as his profile picture a stock photograph of an unknown female; he selected that particular photo because it appeared to be an "attractive" woman between the ages of eighteen and twenty-five. Across the front of the profile photo, Detective affixed the words "Wanting to HU," a term he stated meant to "hook up." Detective posted this profile, including the message "Wanting to HU," in a chat room titled "Sexual Confessions."

¶3 Detective's post received "hundreds" of responses, and he engaged in chats with "more than half of them." One of the app users who responded to Detective's post was Smith, whose initial response was "I'm down." Off and on over the next three hours, Smith and Detective engaged in the following exchange, which we include here in its entirety, accompanied by some explanatory footnotes:

Detective: How r u

Smith: Good you

Detective: Bored

Detective: U?

Smith: Looking for a HU that can keep up

Smith: Lol. But other than that bored as well

Smith: So are you still looking

Detective: What kind of keep up

Smith: As in can actually go for as long as I can

Smith: Or handle my dick. I'm bigger than most

Detective: How long do u go? And bigger than most huh [smirking emoji]

Smith: I can cum and keep going and yeah

Smith: [photo 1 sent of an exposed penis]

Smith: [photo 2 sent of an exposed penis]

Smith: 9 inches

Smith: 2 wide

Smith: Thoughts?

Detective: Wow that is big

Smith: Any pic you want to send me?

Detective: I need a ride to Cali if u can hook me up

Smith: California?

Detective: Yeah

Smith: And how would you repay me?

Detective: What do u want?

Smith: Well send me some private photos so I can see what I'm working with and I'll tell you

Detective: I ran away from home and want to make it to Cali

Detective: I can send u a pic if your still good

Smith: I'm still good

Smith: ?? So

Detective: I'm 13 if that makes but willing to help you if you help me

Smith: Well prove it

Smith: You there

Detective: [photo sent of half a woman's face]^[3]

Smith: Take one that is more skin hun

Smith: One that proves your willing to help me ;)

Smith: Hello?

Detective: Give me the $200 for food and cash so I can pay someone for a ride and I'll do whatever u want

Smith: Send me a picture and once your down first

Smith: Like I could give you a ride

Smith: Prove*

Detective: Look I could really use the cash right now

Smith: And I could really use proof you're serious

Detective: K thanks

Smith: Too many scams sorry but without proof nothing

Detective: I'm just on the streets trying to get gone from here

Smith: Like I said I could give you a ride

Detective: So do I need to give bjs^[4] all the way there? Or r we going to have sex cause I'm a virgin

Detective: Or can u give me cash

Smith: Bj or sex it's up to you

Smith: But I still need a pic for proof

Detective: I would just rather get cash also so I can eat when I get there is that possible

Detective: U are a stranger and I want to get there safe

Detective: [photo sent of a girl in overall shorts in a public bathroom mirror]

Detective: I guess not

Detective: Do u know anyone to help me

Smith: You said you'd do whatever what does that mean

Smith: And that pic isn't proof

Detective: I told you I'll give u bj and asked if you could maybe give cash for me and I'll ride your 9 if it fits

Smith: Send me a full body nude or one of your tits and pussy so I know you're legit

Detective: No I don't want pics out of me. I would rather do it

Smith: And I'd rather have insurance you're not a cop

Detective: Fuck off I don't care then

Detective: I'm not a cop

Smith: It's literally one pic that you could take in 30 seconds

Detective: No I had a friend get sucked into that once

Smith: Yeah and I want to make sure you're legit

Smith: Funnily I have the 200 and enough to get you to California but it's whatever I guess you really don't need it

Detective: I do, but I don't want nudes

Detective: They never go away

Smith: Yours are just to verify your legit. I'm not about to keep them. That's just weird

Detective: I really need it but just please no nudes

Smith: Then send me 3 in just your underwear

Detective: I told u I would make it worth the trip

Smith: Ya still need proof first

Detective: Sorry I will not do it

Smith: Ok send me enough pics so I know you're a real person. Not a cop

Smith: Or what's your Facebook or Instagram so that way I can look check and see if you're legit

Detective: I feel like you are just trying to get a bunch of pictures of me. I'll send you one more i guess but that's it

Detective: [photo sent of girl in headphones flipping off the camera]

Smith: Okay now that I've seen what you look like send me two photos of you right now one touching your nose in one touching your eyebrow that will be verification enough

Smith: If you can't touch your nose and your eyebrow then I know you're fake because there is nothing sexy or solicit or anything like that about touching your nose and your eyebrow

Detective: I have done slot for u how do I not know u will traffic me

Detective: A lot

Smith: I will if and only if you send those two verification or you send one with you touching both

Detective: [photo sent of the same girl touching her eyebrow]

Detective: [photo sent of the same girl touching her nose]

Detective: There

Detective: Can u get me a ride tonight or in the morning?

Smith: I can give you a ride tonight. Where are you

Smith: Where are you

Smith: And where in California would we be going

Detective: San Diego?

Smith: That works we would need to have some fun before hand

Smith: Like on the way

Detective: Im at my friends by maverick by thanksgiving point in lehi

Smith: Ok

Detective: Can I at least know ur name or a pic of ur face to see who is getting me

Smith: My name is Shannon

Detective: K

Detective: How long I don't want to freeze

Detective: I'm a king my shit now

Detective: Pack*

Smith: Ok. About 25 minutes

Detective: K

Detective: Let me know when ur here and I'll run over

Smith: Are you gonna blow me when we start driving Detective: If u want

Smith: Or do I need to find a place

Smith: Yes I want

Detective: We can drive and I can start I want to hit the road

Smith: I'll be there in about 5 min

Detective: K what do I look for

Smith: I'll look for you and let you know when I see you

Detective: K

Smith: Walk to the front of the store

Detective: K

Smith: Next to the ice box outside

Detective: Get me a drink to meet

Detective: It's cold

Smith: If you want the ride you will go to the ice box rn if not I'll go

Smith: On the North side of the store

Smith: Where are you

Detective: K

Detective: Out front

Smith: Ok look forward

Smith: Come hop in

Smith: I blinked^[5] at you

Detective: Where

Detective: It's cold

Smith: In the parking lot. To your left

Smith: Go back to where you were

Smith: I know

Detective: Walk to u?

Smith: Yes

¶4 At this point, officers arrested Smith. Once he was in custody, Smith admitted that he thought he had been communicating with a 13-year-old girl with whom he "wanted to have blow jobs and sex," but maintained that, because she was a runaway, he had merely planned on taking her to the local police station and not to California.

¶5 The State ultimately charged Smith with five crimes: attempted rape of a child, attempted sodomy on a child, attempted sexual exploitation of a minor, attempted child kidnapping, and enticing a minor over the internet.⁶ At a preliminary hearing at which Detective testified, the State sought bindover on all five counts, and Smith challenged the State's motion as to three of them (attempted rape, attempted sodomy, and attempted kidnapping). In particular, Smith argued that the State had failed to present sufficient evidence to establish that he took a "substantial step" toward committing any of the attempt offenses. Following briefing and oral argument, the district court, acting as magistrate, bound Smith over for trial on all charges, rejecting Smith's challenge to the bindover.

¶6 Later, Smith filed a motion asking the court to dismiss all charges, asserting that—if he had committed the offenses— Detective had, as a matter of law, entrapped him into doing so. Before ruling on the motion, the court held another evidentiary hearing at which Detective offered additional testimony. At this hearing, Detective discussed the various "outs" he had provided to Smith during their chat. An "out," Detective explained, is an attempt to give chat participants an opportunity to disengage themselves from the...