may not be cited except as provided by
Minn. Stat.§ 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
David M. Perlman,
Filed September 15, 1998
Ramsey County District Court
File No. T2-97-74718
Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
David M. Perlman, Box 27221, Golden Valley, MN 55427 (appellant pro se)
Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Thoreen, Judge.*
A jury trial ensued on January 5, 1998. Officer Alberg testified that appellant made eye contact with her as he drove by and she held up her hand to acknowledge him. He parked his car and approached her. She asked him what he was looking for and he asked her if she was working (Alberg had been instructed that the word "working" in relation to prostitution meant working as a prostitute). Alberg asked appellant what he was looking for, and he asked her what she offered. She mentioned two sexual acts. Appellant asked the going rate and she asked him how much he would offer. He said $40. She asked him what he expected for $40 and he said everything. In response to cross-examination, Alberg denied flagging down appellant, reiterating that her "wave" to him was a mere acknowledgement.
Alberg had been wearing a transmitter that allowed other police officers to record her conversation with Alberg. The prosecution introduced into evidence the audiotape on which this conversation was recorded and played it for the jury. The tape corroborated Officer Alberg's recollection of the conversation.
A second police officer testified that he observed the interaction and interviewed appellant after the arrest. He testified that appellant told him that he and Alberg discussed $40 for "everything" and that he expected to have sex with her. A third officer testified that he observed the interaction between Alberg and appellant. He testified that he took $40 from appellant and placed it in a sealed envelope. The prosecution introduced an envelope containing $40, which the officer identified. A fourth officer testified that he observed the initial encounter and overheard portions of the conversation as it was being recorded--including the cash and sex terms from which he concluded that a cash-for-sex transaction had been negotiated.
Defendant did not testify or offer any evidence. The district court denied appellant's request for a jury instruction on entrapment. The jury returned a guilty verdict. This appeal followed.
A defendant is entitled to an instruction on his theory of the case if there is evidence to support it. State v. Pendleton, 567 N.W.2d 265, 271 (Minn. 1997). A district court's refusal to give a proposed jury instruction will not be reversed absent an abuse of discretion. State v. Beard, 574 N.W.2d 87, 92 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998).
A successful entrapment defense requires (1) a showing by the accused that the government induced the crime and (2) a failure by the government to prove beyond a reasonable doubt that the accused was predisposed to commit the crime. State v. Johnson, 511 N.W.2d 753, 754 (Minn. App. 1994), review denied (Minn. Apr. 19, 1994). The accused bears the burden of proving government inducement by a fair preponderance of the evidence. Id. at 755. The government's involvement must go beyond mere solicitation; it requires "something in the nature of persuasion, badgering or pressure by the state." Id. (quoting State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980)).
Here there was no evidence from which a jury could have concluded that the government induced the crime charged. At best the evidence established that when appellant drove by, Alberg made eye contact with him and raised her hand to acknowledge him. The evidence of the conversation did not establish that appellant was induced into agreeing to pay for sex. As a matter of law, the evidence did not show persuasion, badgering, or pressure by the state as required to raise the entrapment issue. Accordingly, we agree with the district court that appellant was not entitled to a jury instruction on the issue.
2. Tab Charge
The tab charge and ultimate judgment did not specify the statutory subdivision under which appellant was charged. Appellant alleges that he was charged with acting as a prostitute and the evidence introduced showing him to be a client did not support a conviction of that crime. He urges that the description "engaging in prostitution" indicates that he was charged as the sex-provider in the transaction, rather than as the cash-provider. Therefore, he concludes that the evidence did not support a conviction of a charge of acting as the sex-provider.
In order to be sufficient to support a conviction, an indictment or information must fairly apprise the accused of the charge brought against him. State v. Wurdemann, 265 Minn. 92, 94, 120 N.W.2d 317, 318 (1963). If this minimal standard is met, a mere irregularity or formal defect found in the indictment or information will not constitute ground for reversal of a conviction. Id., 120 N.W.2d at 319.
We believe that this minimal standard was met in this case. But even if it was not met, appellant cannot prevail because he failed to raise his objection to the tab charge by way of pre-trial motion in accordance with Minn. R. Crim. P. 17.06, subd. 3. And his failure to make such a motion constitutes a waiver of his objection unless the court for good cause shown grants relief from the waiver. Minn. R. Crim. P. 10.04. Appellant at no time showed good cause.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.