This appeal involved a question of whether a trial court improperly denied a defendant’s motion for a directed verdict, claiming he had been entrapped by an undercover police officer.
Facts of the Case
Mr. Buranek posted an ad on a dating website, writing that he was 19 and looking for a “fwb situation” and “connections” with women aged 18 to 35. Despite the website requiring users to be 18 or older, an undercover police officer posing as a 13-year-old girl (Cassidy) contacted Buranek asking to hang out. The officer told Buranek “Cassidy” was 13, and sent several photos of an office employee from when they were 15-17 years old.
Eventually, the conversation moved from email to a messaging app, where Buranek said “You’re very hot” and “Watchu got in mind tonight?” The officer responded “See where the night leads” and asked Buranek, where he hoped things would lead to? Buranek said they could “make out” and that could lead “where ever” and mentioned performing various sexual acts. Buranek agreed to meet “Cassidy” at a park, where he was arrested upon his arrival. The conversation and planned meetup occurred over the course of one night.
Buranek was charged with enticing a minor, and eventually the case went to a jury trial. At trial, the undercover officer testified he had followed best practices of stating his undercover persona’s age early on, allowing the other person to bring up sexual acts, and giving Buranek opportunities to disengage and leave the conversation. Buranek, argued in a motion for directed verdict that the State had not met its burden of proving Buranek was not entrapped. The trial court denied Buranek’s motion, concluding the State had presented enough evidence that the jury could reasonably conclude Buranek had not been entrapped. Buranek was found guilty, and appealed his conviction of enticing a minor.
Issue
The Court of Appeals reviewed the trial court’s denial of Buranek’s motion for a directed verdict. The Court specifically looked to whether, when viewed in the light most favorable to the State, some evidence existed that a reasonable jury could use to conclude Buranek had not been entrapped.
Analysis
A defendant may raise the affirmative defense of entrapment when a police officer “induces the commission of an offense…by methods creating a substantial risk that the offense would be committed by one not otherwise ready to commit it.” (State v. Taylor, Utah 1979). Utah Code § 76-2-303(1) also states that “conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”
The Court of Appeals also explained that most incidents of entrapment fall within two categories. The first involves improper police conduct where persistent pressure to commit the crime was applied, often over the course of several days or weeks. The second involves an emotional appeal to commit the crime based on sympathy, close friendship, or offers of money.
Buranek argued on appeal that the undercover officer’s actions constituted persistent pressure to convince him to entice “Cassidy” to engage in sexual conduct. Buranek claimed that because the officer had contacted Buranek first, and pressed him for sexual details, the officer had “created a substantial risk that the offense would be committed by [Buranek] who was not otherwise ready to commit it.”
The Court of Appeals reasoned, however, that the conversation, taken as a whole, showed that Buranek needed little encouragement to begin a sexually explicit conversation with someone he believed was a minor. The undercover officer told Buranek they were 13 early in the conversation, and said they were looking to play video games and hang out. The conversation only became sexual in nature when Buranek told Cassidy, “you’re hot” and said they could “make out.” The Court noted further that the entire conversation and planned meetup occurred during a single night. The State had not applied “persistent pressure” over several weeks, or even days, before Buranek wanted to meet up for sex. The undercover officer also had reminded Buranek several times that “Cassidy” was only 13, giving Buranek multiple opportunities to reconsider meeting with a minor.
Conclusion
The Court of Appeals concluded that when viewing the evidence in a light most favorable to the State, there was sufficient evidence that Buranek was only given “an opportunity to commit the offense” and thus could not have been entrapped. The Court affirmed both the trial court’s denial of a motion for directed verdict, and Buranek’s conviction.