STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota, City of Minneapolis,
Deborah Renee Artishon,
Filed February 5, 2002
Hennepin County District Court
File No. 00083977
Mike Hatch, Attorney General, Suite 500, 525 Park Avenue, St. Paul, MN 55103; and
Jay M. Heffern, Minneapolis City Attorney, Lisa M. Godon, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)
Stephen Simon, Assistant Hennepin County Public Defender, Shan C. Wang (certified student attorney), 229 Nineteenth Avenue South, Minneapolis, MN 55455 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Hanson, Judge.
U N P U B L I S H E D O P I N I O N
The district court denied Deborah Artishon's motion to dismiss for violation of due process and, on stipulated facts, found her guilty of offering or agreeing to engage in sex for hire within two years of a prior prostitution conviction. Renewing her due process argument, Artishon appeals her conviction. We conclude that the facts do not establish government conduct that is sufficiently outrageous to bar Artishon's conviction, and we affirm.
F A C T S
Minneapolis police conducted a prostitution sting operation in South Minneapolis in September 2000. Deborah Artishon, standing on the sidewalk in the area of 31st Street and 4th Avenue South, waved to an undercover police officer in an unmarked vehicle who was participating in the sting operation. When the officer pulled his car to the curb, Artishon opened the front passenger door and asked the officer if he was a "cop." The officer said that he was not a cop, and Artishon got into the vehicle. After they had gone a short distance, during which Artishon continued to look for police, Artishon asked the officer to prove he was not a police officer by touching her bare breasts. The officer complied, and Artishon offered to perform oral sex in exchange for $25. The officer signaled a nearby team of uniformed officers who arrested Artishon.
Following the issuance of a criminal complaint for prostitution, Artishon moved to dismiss on due process grounds. In oral findings, stated on the record, the district court denied the motion, reasoning that although the police officer's act was distasteful, it was not an act that shocked the conscience because it was done for the purpose of obtaining evidence, responded to Artishon's request, and was necessary to break through the system devised by Artishon to avoid arrest and prosecution. Artishon initially entered a plea of guilty but later withdrew the plea, waived her right to a jury trial, stipulated to the facts as stated in the police report, and submitted the case to the district court under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found Artishon guilty of the prostitution charge. Artishon appeals, arguing that the police officer's conduct violates due process, and the district court erred in its application of the law.
D E C I S I O N
The concept of fundamental fairness inherent in the guarantee of due process prevents a conviction if police are outrageously involved in instigating or participating in the crime. United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 1643 (1973); State v. Morris, 272 N.W.2d 35, 36 (Minn. 1978). Courts have recognized that to preserve the institutional integrity of the criminal-justice system, a criminal charge may not be founded on an intolerable degree of governmental participation in the criminal enterprise. See, e.g., United States v. Archer, 486 F.2d 670, 676-77 (2nd Cir. 1973). But the limitations of the Due Process Clause come into play only when police overinvolvement reaches a demonstrable level of outrageousness. Hampton v. United States, 425 U.S. 484, 495 n.7, 96 S. Ct. 1646, 1653 n.7 (1976) (Powell, J., concurring) (plurality opinion).
Artishon does not raise the defense of entrapment but argues, instead, that the undercover officer's act of touching her bare breasts is so outrageous that it constitutes a violation of due process. She also argues that the district court applied the wrong standard in finding that due process does not bar prosecution of the charge.
The supreme court has twice analyzed a similar due process challenge in the context of a prostitution charge. In State v. Morris, the defendant negotiated a price for oral sex with an undercover police officer, but before she agreed to the price, she insisted that the officer expose himself to her. 272 N.W.2d 35-36. The district court and the supreme court rejected the defendant's due process defense, concluding that the officer's conduct in exhibiting his penis to the defendant was neither unlawful nor sufficiently outrageous to bar defendant's conviction. Id. at 36. Similarly, in State v. Crist, the supreme court held that a plainclothes police officer does not violate due process when, in order to gain evidence sufficient to arrest the defendant for prostitution, he accedes to the demand that he expose himself before the defendant will negotiate a price. 281 N.W.2d 657, 658 (Minn. 1979). Morris and Crist are consistent with holdings on due process challenges in other jurisdictions. See, e.g., Municipality of Anchorage v. Flanagan, 649 P.2d 957, 962-63 (Alaska Ct. App. 1982) (holding no due process violation when undercover reserve officer allowed defendant to fondle him for several seconds but called in arrest team before defendant began to perform fellatio).
Artishon maintains that Morris and Crist are not dispositive of her due process argument because the officer's conduct in touching her bare breasts is more egregious, she was incapable of giving valid consent to the touching, and it is only the police officer's conduct, not her conduct, that must be considered in evaluating her due process defense.
We agree that the officer's act of touching Artishon's bare breasts is more physically invasive to the defendant than the acts of the officers exhibiting their penises in Morris and Crist. But we do not view this difference as sufficiently significant to require a different result. We reject Artishon's argument that the officer's conduct was a criminal act. The officer merely acceded to Artishon's request that he touch her breasts—a consensual legal act. Artishon contends that the most common reasons women engage in prostitution are economic necessity, violence, or drug addiction, all of which negate free will and make any consent to the touching invalid. Although this argument may have merit in other contexts, it is not compelling in this circumstance because Artishon did not merely consent to the officer touching her breasts, she requested it.
We also reject Artishon's argument that a contextual analysis may not be used in determining whether police conduct shocks the conscience and violates due process. Although the due process analysis focuses on police procedures, that focus necessarily takes into account the factual circumstances surrounding the act. "Due process in essence means fundamental fairness * * *." Hampton, 425 U.S. at 494 n.6, 96 S. Ct. at 1652 n.6. Thus, whether due process has been violated depends on whether "fairness has been denied an accused in light of all the circumstances." Id.
Finally, we disagree that the district court applied the wrong standard in concluding that due process did not bar Artishon's prosecution. Although the court in its findings referred to predisposition, which is part of an entrapment defense, the reference was an analogy, not the sole basis for the analysis. The court considered in its decision that Artishon, in her previous conviction, had also requested that the officer touch her breasts to show that he was not a "cop." It was permissible for the court to take into account that Artishon had established a method to attempt to evade prosecution. These are part of the circumstances that determine whether due process has been violated. In any event, the claim of due process violation is a legal defense, which, on appeal, is determined as a matter of law. Morris, 272 N.W.2d at 36.
The officer's conduct in acceding to Artishon's request to touch her bare breasts was prompted by the officer's attempt to obtain evidence sufficient to justify an arrest for prostitution, does not constitute a criminal act that is repugnant to the criminal-justice system, is not shocking to a universal sense of justice, and does not mandate dismissal of the criminal charge.