After a jury found
Jacob Mendoza “guilty of one count of child solicitation by electronic device
contrary to [New Mexico Statutes] § 30–37–3.2”, he appealed, arguing, in
part that “he was entrapped”. State
v. Mendoza, 2015 WL 5118099 (Court of Appeals of New Mexico 20150. You can, if you are interested, read a little
about how the charge arose in the news stories you can find here, here and
here.
The Court of
Appeals began its opinion by explaining that in
State v. Schaublin,
344 P.3d 1074 (2015), . . . we discussed an advertisement placed in
the Craigslist website by Agent Phil Caroland of the Curry County Sheriff's
office. This case involves the same Craigslist ad as discussed in Schaublin, by
Agent Caroland posing as `Myrna Gonzales,’ a fifteen-year-old girl. State
v. Schaublin, supra. . After engaging in a sexually explicit e-mail
discussion with Myrna, [Mendoza] arranged to meet her in person. When Defendant
appeared for the meeting, he was arrested. He was later charged with one count
of child solicitation. Additional facts are provided as necessary in our
discussion.
State v. Mendoza, supra. This
post only examines Mendoza’s argument regarding the alleged entrapment.
The opinion goes on to explain that “[p]rior to trial, [Mendoza] sought dismissal of the child solicitation
charge on the ground that he was subjectively and objectively entrapped as a
matter of law.” State v. Mendoza, supra. The Court of Appeals began its analysis of
his argument by explaining that
`New
Mexico recognizes two major approaches to the defense of entrapment, the
subjective approach and the objective approach.’ State v. Schaublin, supra.
Subjective entrapment, which focuses on the defendant's predisposition, is
normally resolved by a fact-finder and is only rarely resolved as a matter of
law by the court. State v. Schaublin, supra.
State v. Mendoza, supra.
The Court of
Appeals went on to explain that
[o]bjective entrapment, which `focuses
upon the inducements used by the police[,]’ is broken into two subsets, factual
and normative. State v.
Schaublin, supra. . . . A defendant seeking to establish objective
entrapment under a factual approach would attempt to prove to a fact-finder
that `as a matter of fact . . . police
conduct created a substantial risk that a hypothetical ordinary person not
predisposed to commit a particular crime would have been caused to commit that
crime.’ State v. Schaublin, supra
(alterations, internal quotation marks, and citation omitted). A defendant
seeking to establish objective entrapment under a normative approach, that is
as a matter of law, would seek a ruling by the district court that `as a matter
of law and policy [the] police conduct exceeded the standards of proper
investigation.’ State v. Schaublin,
supra (alternations, internal quotation marks, and citation
omitted).
In the present case, the district court
concluded [Mendoza] was not subjectively or objectively entrapped as a matter
of law, but the court allowed the jury to resolve the issue whether [he] was
subjectively or objectively entrapped, as a matter of fact. The jury rejected [Mendoza’s]
entrapment defenses when it found him guilty of child solicitation. On appeal, [he]
seeks reversal of his conviction on the grounds that he was subjectively and
objectively entrapped as a matter of law. Because Defendant challenges the
court's rejection of his entrapment defense, as a matter of law, our review is
de novo. State v. Vallejos, 122 N.M. 318, 924 P.2d 727, rev'd
in part on other grounds,. . . 123 N.M. 739, 945 P.2d 957 (New Mexico
Supreme Court 1997). [Mendoza] does not challenge the jury's conclusion that he
was not objectively entrapped as a matter of fact.
State v. Mendoza, supra.
The court then
began by outlining what constitutes subjective entrapment, noting that
`[s]ubjective entrapment occurs when
the criminal design originates with the police, and they implant in the mind of
an innocent person the disposition to commit the alleged offense and induce its
commission in order to generate a prosecution.’ State v. Schaublin, supra. . . . It is permissible for police
to set a trap for the unwary criminal by means of a ruse. State v. Schaublin, supra. The
line between the permissible use of a ruse and impermissible entrapment is
drawn at the point where the police `persuade[ ] an otherwise law abiding
citizen to engage in criminal activity through repeated and consistent
appeals[.]’ State v. Schaublin,
supra.
`[E]ntrapment as a matter of law
exists only when there is undisputed testimony which shows conclusively and
unmistakably that an otherwise innocent person was induced to commit the act.’ U.S.
v. Dozal–Bencomo, 952 F.2d 1246 (U.S. Court of Appeals for the 10th Circuit
1991) . . . (a court `may find entrapment as a matter of law if the
evidence satisfying the essential elements of entrapment is uncontradicted’). .
. . Subjective entrapment is rarely held to exist as a matter of law. State v. Schaublin, supra.
State v. Mendoza, supra.
The Court of Appeals then began analyzing Mendoza’s
argument, explaining that to
support his contention that he was
subjectively entrapped as a matter of law, Defendant argues that (1) Myrna's ad
was posted in a section of Craigslist that required each user to be at least
eighteen years old, and therefore, it was reasonable for him to assume that any
posting in that section was done by an adult; (2) he was misled by photographs
of a twenty-six-year-old woman purporting to be Myrna; and (3) Myrna “pushed to
set up a meeting with [him] after engaging him in [a] sexual discussion.
Defendant claims he lacked the predisposition to commit child solicitation and
that, but for the foregoing circumstances by which [he] argues the police
entrapped him, he would not have engaged in such `conversations[.]’
[Mendoza’s] argument in this regard
resembles the argument made by the defendant in Schaublin. In Schaublin, the
defendant argued that, because Myrna's ad was in the adults-only section of
Craigslist, the officer used an age-regressed photograph of an adult woman to
accompany the `Myrna’ persona, and Myrna `inserted sexuality into their
communications[,]’ he was subjectively entrapped as a matter of law. .
. . We held that because Myrna `informed [the d]efendant immediately, in
her response to [his] initial response to her ad, that she was fifteen years
old[,]’ and because the record reflected that the defendant, not Myrna, first
broached the topic of sexuality, `the jury could reasonably have concluded that
[the d]efendant engaged with Myrna willingly and without having been persuaded
to do so[.]’ State v. Schaublin, supra.
State v. Mendoza, supra.
The court went on to explain that Mendoza
attempts to distinguish this case
from Schaublin on the ground that the `Myrna’ photos in Schaublin
were age-regressed and that the photos in the present case depicted a
twenty-six-year-old woman whose photo had not been subject to age-regression.
This distinction is contradicted by the record in the present case in which
Agent Caroland testified that the Myrna photographs that had been sent to [Mendoza]
had been subjected to an age-regression process by the National Center for
Missing and Exploited Children and were intended to represent a pre-teen or
young teenage girl.
Furthermore, even were we to assume
that the Myrna photographs in the present case were not age-regressed, such a
fact would not `conclusively and unmistakably’ demonstrate that [Mendoza] was
not predisposed to commit child solicitation such that [he] was entitled to a
ruling that, as a matter of law, he was subjectively entrapped. See
U.S. v. Dozal–Bencomo, supra.
`[E]ntrapment as a matter of law exists
only when there is undisputed testimony which shows conclusively and
unmistakably that an otherwise innocent person was induced to commit the act.’
. . . Here, as in Schaublin, in Myrna's first reply to [Mendoza’s]
first e-mail to her, Myrna stated she was `15 and going to be in 10th grade.’
Therefore, even if we were to agree
with [Mendoza] that the Myrna photographs had not been age-regressed, at best
this would have created a circumstance in which there existed evidence
supporting [his] argument that he believed Myrna was an adult and evidence
supporting the State's position that [Mendoza] believed Myrna was a
fifteen-year-old child. Under these circumstances, the district court properly
determined that the issue of subjective entrapment should be resolved by the
jury as a matter of fact. fact. See U.S. v. Dozal–Bencomo, supra (recognizing
that subjective entrapment may only be found as a matter of law where the
relevant facts are uncontradicted).
State v. Mendoza, supra.
The court also found that,
although [Mendoza] argues that Myrna
`pushed’ to meet him after engaging in a `sexual discussion’ with him, the
record reflects [he] initiated the sexual discussion by asking Myrna, `R u
still a virgin?’ and he initiated the plan to meet by asking Myrna whether she
could `get away’ and by stating `I wanna see how well u can please me. I just
need to find us a place[.]’ The record is devoid of any evidence that Agent
Caroland used repeated and consistent appeals to persuade [him] to communicate
with or meet Myrna. Myrna. See State v. Schaublin, supra (standard used to determine whether
a defendant was subjectively entrapped includes `repeated and consistent
appeals’ to `persuade[ ] an otherwise law abiding citizen to engage in criminal
activity’). In sum, under the circumstances of this case, the district court
did not err in denying [Mendoza’s] motion to dismiss on the ground that he was
subjectively entrapped as a matter of law. See U.S. v. Dozal–Bencomo,
supra (recognizing that entrapment as a matter of law may be found where it
is unmistakable `that an otherwise innocent person was induced to commit the
act’ (internal quotation marks and citation omitted)).
State v. Mendoza, supra.
The Court of Appeals then took up “objective entrapment”,
noting that the
district court determined that the
police conduct was not unconscionable, and [Mendoza’s] motion to dismiss on the
ground that he was objectively entrapped as a matter of law was denied. [He]
challenges the district court's denial of his motion to dismiss, reiterating
that he was objectively entrapped as a matter of law.
State v. Mendoza, supra.
It began its analysis of this argument by explaining that
[o]bjective entrapment may be held to
exist as a matter of law when the district court determines that `as a matter
of law [the] police conduct exceeded the standards of proper investigation[ .]’
State v. Vallejos, 123
N.M. 739, 945 P.2d 957 (New Mexico Supreme Court 1997). This is distinct from
the issue of objective entrapment as a matter of fact in which a jury considers
whether, as a factual matter, the `police conduct created a substantial risk
that an ordinary person not predisposed to commit a particular crime would have
been caused to commit that crime[.]’ State
v. Vallejos, supra.
In his argument, [Mendoza] conflates
these distinct forms of objective entrapment and argues that he was objectively
entrapped as a matter of law because the Myrna ad `created a substantial risk
[that] an ordinary person would be lured into committing’ child solicitation. Since
[he] expressly limits his argument on appeal to the issue of objective
entrapment as a matter of law and he does not challenge the jury's verdict, we
do not consider whether the jury properly concluded that, as a matter of fact,
the police did not create a substantial risk that an ordinary person would be
lured into committing child solicitation.
Instead, we limit our discussion of
objective entrapment to [Mendoza’s] argument, that is, whether the police were
guided by an `illegitimate purpose’ and that they acted unconscionably when
they placed the ad in an adults-only section of Craigslist, used photographs of
a twenty-six-year-old woman to depict `Myrna,’ and engaged [him] in two days of
conversation `attempting to bait him into a sexual discussion[.]’
Before fully discussing [Mendoza’s]
argument, however, we observe that, although [he] characterizes the photographs
as depicting `a [twenty-six] year old,’ the evidence presented at the hearing
on the motion to dismiss on entrapment grounds was that the photographs were of
a twenty-three-year-old deputy and . . . had been age-regressed to portray a
pre-teen or young teenage girl. Therefore, we do not accept [his] characterization
that the photographs portrayed a twenty-six-year-old woman.
State v. Mendoza, supra.
The Court of
Appeals went on to point out that the issue as to whether the
law enforcement practice of posting an
ad in an adults-only section of a website and using an age-regressed photo of
an adult to accompany the false persona of a fifteen-year-old child, who
purportedly placed the ad, constitutes objective entrapment as a matter of law
is one of first impression in New Mexico. In State v. Vallejos, supra, our Supreme Court cautioned the
judiciary not to `micro-manage police investigative procedures’ and stated that
a determination of objective entrapment should be `reserved for only the most
egregious circumstances[.]’ . . . Additionally, the Supreme Court noted that
objective entrapment is not indicated simply because the police participate `in
a crime [that] they are investigating’ or use `deception to gain the confidence
of suspects[.]’
State v. Mendoza, supra.
It also noted that in State v. Vallejos, supra, the New Mexico Supreme Court illustrated
the distinction between a permissible
`degree of deception’ and impermissible `unconscionable methods’ of crime
detection [by providing] several examples to serve `as indicia of
unconscionability.’ . . . Among the examples of unconscionable police
methods are giving a defendant free illicit drugs until he is addicted and then
playing on his addiction to persuade him to purchase illicit drugs; overcoming
a defendant's demonstrated hesitancy by persistent solicitation; threatening or
using violence; appealing to sympathy or friendship; offering `inordinate gain
or . . . excessive profit’; `excessive
involvement by the police in creating the crime’; manufacturing `a crime from
whole cloth’; and acting with the `illegitimate purpose’ of `ensnar[ing] a
defendant solely for the purpose of generating criminal charges and without any
motive to prevent further crime or protect the public at large.’ . . .
The court then applied the foregoing
standards to determine that the police methods used in Vallejos, specifically,
law enforcement's use of illegal drugs to set up drug transactions and their
use of assumed identities as drug dealers to capture potential drug buyers did
not constitute objective entrapment as a matter of law because none of the
indicia of unconscionability were present. . . .
State v. Mendoza, supra.
The Court of
Appeals went on to apply these standards to the Mendoza case, noting that
[i]n the present case, the record is
void of any evidence that Agent Caroland persuaded [Mendoza] to engage in child
solicitation by any of the indicia of unconscionability discussed in Vallejos. Although [Mendoza] argues that Agent
Caroland attempted `to bait him into a sexual discussion’ with Myrna, as noted
earlier, the subject of sex was introduced into his and Myrna's conversation by
[Mendoza]. Further, the record is void of any indication that the agent used
persistent solicitation to overcome any hesitancy expressed by [him] to engage
in a sexual relationship with Myrna, attempted to appeal to [his]sense of
sympathy or friendship, or offered [Mendoza] any form of profit or gain.
Nor, under the circumstances of this
case, was the act of placing an ad in the adults-only section of Craigslist an
unconscionable police practice. Although the ad itself did not indicate Myrna's
age, Agent Caroland represented Myrna to be a fifteen-year-old child in his
first reply to Defendant's response to the ad. Thus, despite the placement of
the ad in the adults-only section of Craigslist, [Mendoza] was made aware at
the outset that the ad had not been placed by an adult.
Additionally, in terms of the
conscionability of police practices, we see little distinction between Agent
Caroland perpetuating the ruse that he was a fifteen-year-old girl who was
breaking the rules of Craigslist by posting an ad in an adult-restricted
section and the law enforcement practice of posing undercover as a drug dealer.
. . . In each instance, law enforcement is playing a role and engaging in a
ruse intended to root out criminals. Likewise, just as the Vallejos Court
approved the use of actual illicit drugs in the drug sale by undercover agents
posing as drug dealers, we approve the use in the present case of age-regressed
photographs to accompany the Myrna persona. . . .
To hold that it was impermissible for
Agent Caroland to use the age-regressed photographs that were essentially a
`prop’ that permitted him to believably maintain the Myrna persona would amount
to micro-management of police investigative procedures that is not within the
purview of this Court. . . .
State v. Mendoza, supra.
The court concluded
this section of its opinion by noting that
[o]n a final note in regard to
Defendant's objective entrapment argument, we observe that § 30–37–3.2(D) expressly
provides that `[in] a prosecution for child solicitation . . . it is not a defense that the intended victim
of the defendant was a peace officer posing as a child under sixteen years of
age.’ Thus, in drafting § 30–37–3.2(D) the Legislature appears to
have contemplated that the police would use methods such as Agent Caroland's
`Myrna’ Craigslist ad to enforce the
prohibition against child solicitation. The obvious legislative intent behind §
30–37–3.2 further supports our conclusion that the activity here did not
exceed the standards of proper investigation and was not unconscionable under State v. Vallejos, supra (stating that
the appellate court should not interfere with the policy and enforcement
decisions of the legislative and executive branches of government). In sum, [Mendoza’s]
argument that he was objectively entrapped as a matter of law does not demonstrate
grounds for reversal.
State v. Mendoza, supra.
For these and other
reasons, the Court of Appeals affirmed Mendoza’s conviction.
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