This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Fessahaye G. Fitiwi,
Filed July 15, 2003
Ramsey County District Court
File No. K6-02-1917
Fred A. Reiter, Reiter & Associates, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Manuel J. Cervantes, St. Paul City Attorney, Anthony F. Tedesco, Assistant City Attorney, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
Considered and decided by Minge, Presiding Judge, Harten, Judge, and Stoneburner, Judge.
Appellant challenges his conviction of engaging in prostitution, arguing that the district court erred in rejecting his entrapment defense and that the evidence is insufficient to support his conviction. We affirm.
On 8 January 2002, the St. Paul Police Department conducted a prostitution “sting” operation using a female undercover police officer as a decoy. The officer testified at trial that appellant Fessahaye Fitiwi made eye contact with her and waved to her as he entered a Burger King restaurant. The officer waved back. A few minutes later, appellant left the Burger King and walked toward the officer, who was about two-thirds of a block away.
The officer asked appellant what he was doing and if he was looking for company. Appellant answered, “Just chilling” and “No.” The officer replied, “Okay,” and turned to walk away. Appellant then asked the officer if she was “dating.” The officer replied, “No, sweetie, I’m working.” Appellant told the officer that she was “pretty” and said, “[M]aybe one day I’ll take you.” He also asked her where she lived and how much she charged. The officer told him that she lived around the corner and that she would perform intercourse and oral sex for $30. Appellant asked her if she had a condom, and she told him she did. The officer asked appellant if he had $30 and told him that she would make it worth his time and that he would “get [his] 30 bucks worth.” Appellant asked if they could “go.” As they walked toward what the officer said was her apartment, police officers converged on their position and arrested appellant.
Appellant was charged with engaging in prostitution in a public place in violation of Minn. Stat. § 609.324, subd. 2 (2000), and engaging in prostitution in violation of Minn. Stat. § 609.324, subd. 3(1) (2000). Appellant waived his right to a jury trial and raised an entrapment defense. The district court found him guilty of engaging in prostitution in a public place. This appeal followed.
D E C I S I O N
Appellant contends that the district court erred in rejecting his entrapment defense. A successful entrapment defense requires that the accused show by a preponderance of the evidence both that the government induced the crime and that the government failed to prove beyond a reasonable doubt that the accused was predisposed to commit the crime. State v. Johnson, 511 N.W.2d 753, 754-55 (Minn. App. 1994), review denied (Minn. 19 April 1994). The district court concluded that appellant was not entrapped after finding that the undercover officer did not persuade, badger, or pressure appellant (no inducement), and that appellant was predisposed to commit the crime. Ample evidence supports the district court’s findings.
The government’s inducement must go beyond mere solicitation; it requires “something in the nature of persuasion, badgering or pressure by the state.” Id. at 755 (quoting State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980)). Although the officer asked appellant if he wanted some company, she did so only after he had initiated contact by waving to her and walking toward her from two-thirds of a block away. After appellant declined her initial offer, the officer said, “Okay,” and turned to walk away. Appellant does not show government inducement.
The state may demonstrate predisposition by showing:
(1) the defendant’s active solicitation to commit the crime; (2) defendant’s prior criminal convictions; (3) defendant’s prior criminal activity not resulting in a conviction; (4) defendant’s criminal reputation, or (5) any other adequate means.
Id. (citing State v. Grilli, 304 Minn. 80, 89, 230 N.W.2d 445, 452 (1975)). “A defendant’s ready response to the government’s solicitation of the crime satisfies the ‘other adequate means’ basis for predisposition.” Id. (quotation and citation omitted). Appellant walked toward the officer, asked if she was dating, and—after learning that she was “working”—told her that she was pretty, suggested that he might “take” her some day, and inquired about her fee, where she lived, if she lived by herself, and if she had a condom. See Grilli, 304 Minn. at 89, 230 N.W.2d at 452 (holding that predisposition may be shown by evidence of accused’s active solicitation of crime). Based on the evidence, we conclude that the district court did not err in rejecting appellant’s entrapment defense.
2. Sufficiency of the Evidence
Appellant argues that there is reasonable doubt because of the “ambiguous nature” of the circumstantial evidence, his difficulty with the English language, and his demonstrated reluctance to accept the officer’s proposals.
In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the factfinder to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court will not disturb the verdict if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Minn. Stat. § 609.324, subd. 2 (2000), provides that a person is guilty of engaging in prostitution in a public place if the person “solicits or accepts a solicitation to engage for hire in sexual penetration or sexual contact while in a public place * * * .”
Transcripts of the conversation between appellant and the officer corroborate the officer’s testimony that appellant approached her on a public street, asked about her fee and if she had a condom, agreed to go with her, and walked with her in the direction of what she said was her apartment. Viewing the evidence in the light most favorable to the conviction, we conclude that there is sufficient evidence to support the verdict.