
    STATE of Minnesota, Respondent, v. Juan Neil GARCIA, Appellant.
    A18-0343
    Court of Appeals of Minnesota.
    Filed April 22, 2019
    Keith Ellison, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Charles C. Cremens, Assistant County Attorney, Hastings, Minnesota (for respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
    Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Jesson, Judge.
    ROSS, Judge Juan Garcia acted as the middleman in a parking-lot drug exchange between a drug seller and a confidential police informant after the informant had urged him many times to serve as the courier between the two. Garcia challenged his consequent drug-sale charge by arguing that police had entrapped him. The district court rejected the argument and found Garcia guilty of first-degree sale of a controlled substance. We reverse and remand for more proceedings because the district court erroneously held that Garcia failed to show that the government induced him to participate in the transaction.
    FACTS
    The state charged Juan Garcia with first-degree sale of a controlled substance under Minnesota Statutes, section 152.021, subdivision 1(1) (2014), and Garcia challenged the charge by claiming entrapment, alleging the following facts.
    A casual acquaintance of Garcia's, R.M., introduced his girlfriend H.F. to Garcia in 2014. Garcia encountered H.F. again at a fantasy-football draft party about a year later in August 2015. He saw her with Michael Walker, whom she described as her drug source. She urged Garcia not to tell R.M. about her being there with Walker, saying that she feared that R.M. would suspect that she and Walker were romantically involved.
    In November 2015, H.F. contacted Garcia through social media, asking for his phone number. Garcia gave her his number and she called him. She told Garcia about tension between her and R.M. and asked if he would help her get drugs from Walker. She told him that R.M. would beat her out of jealousy if she contacted Walker directly. Garcia said no. He said that he was on parole and did not want to be involved in any crime. H.F. then offered to give Garcia $ 50 to help her get drugs from Walker. Garcia again refused, and the call ended. H.F. called Garcia multiple times in the following weeks, but Garcia refused to answer because he believed that she intended to keep urging him to serve as a middleman in her drug dealing with Walker and he did not want to participate.
    Garcia eventually answered a call from H.F. in December 2015. She asked what he was doing. He said that he was planning to attend a fantasy-football meeting and that, afterwards, he needed to pick up pre-ordered Christmas gifts at the West St. Paul Walmart. H.F. asked if Walker would be at the meeting, and Garcia said that he assumed he would be. H.F. asked Garcia if he would agree to hand his cell phone to Walker so she could arrange to buy drugs from him. She told him that she had become desperate for drugs, reiterated that she could not contact Walker directly, and emphasized that she feared she would be beaten by R.M. if she did so. Garcia then agreed to let Walker use his phone at the meeting if he showed up.
    At the meeting Walker asked Garcia to use his cell phone, promising to erase any history of his call to H.F. Garcia allowed Walker to use his phone. Garcia believed that any drug deal between H.F. and Walker would occur at the meeting and that they would not ask him to be involved.
    But after Walker ended his hour-long discussion with H.F. on Garcia's phone, Walker told Garcia that he and H.F. had arranged to complete the drug exchange at the West St. Paul Walmart after the meeting. He told Garcia to go there and look for H.F. in a blue Cadillac.
    Garcia went to the Walmart and shopped. H.F. called him while he was inside the store, summoning him outside. Garcia left the store and went to H.F.'s car in the parking lot. Walker's truck was in the parking lot also. Garcia left H.F.'s car and walked over to Walker's truck. Walker handed Garcia a bag containing methamphetamine. Garcia walked the bag back to H.F., who gave Garcia cash. Garcia walked the cash over to Walker and handed it to him. Garcia did not use any of the drugs, took no money, and was not involved any further.
    H.F. had been working all along as a confidential informant for the Dakota County Drug Task Force. She had struck a deal to make controlled-drug purchases in exchange for reduced criminal charges. Sixteen months after the Walmart exchange, the state charged Garcia with first-degree sale of a controlled substance. Garcia proffered an entrapment defense, and after an omnibus hearing the district court entered factual findings essentially as just described. The district court rejected Garcia's entrapment defense. The parties agreed to a stipulated-facts trial under Minnesota Rule of Criminal Procedure 26.01, subdivision 3, and the district court found Garcia guilty.
    Garcia appeals.
    ISSUE
    Did the district court properly consider Garcia's entrapment defense?
    ANALYSIS
    Garcia challenges the district court's decision rejecting his entrapment defense. "The thought at the basis of [entrapment] is that officers of the law shall not incite crime to punish its perpetrator, shall not lead a man into crime, making him a criminal, merely to convict and punish him ...." State v. Boylan , 158 Minn. 263, 197 N.W. 281, 281 (1924). The parties disagree about our standard of review of the district court's entrapment decision. Garcia argues that we must review the district court's rejection of the defense de novo. The state maintains instead that we review only the district court's legal conclusions de novo but its factual findings for clear error. For the following reasons, the state is correct.
    The entrapment-defense procedure guides the standard we apply. The defendant initiates the process by informing the "prosecutor of the facts supporting the defense" and whether the defendant chooses to have the court or a jury decide the issue of entrapment. Minn. R. Crim. P. 9.02, subd. 1(6)(a). When the defendant elects to have the court decide the defense, as Garcia did, the district court holds a hearing and decides the question of entrapment. Id. , subd. 1(6)(c). The district court addresses the entrapment defense in two steps. In the first step, "[t]he burden is on the defendant to raise by a fair preponderance of the evidence the issue of entrapment for consideration by the court or jury." State v. Grilli , 304 Minn. 80, 230 N.W.2d 445, 456 (1975). He does so by showing that the government engaged in inducement. Id . at 453. If the defendant makes the requisite showing, in the second step the burden shifts to "the state to prove beyond a reasonable doubt that the accused was predisposed to commit the crime charged." Id . at 456. The district court must support its decision with factual findings and legal conclusions on the record. Minn. R. Crim. P. 9.02, subd. 1(6)(c). In sum, "if the trial court as trier of fact decides that there was no entrapment, the defendant is barred from raising the issue during the jury phase of the trial. On the other hand, if the trial court decides the issue in the defendant's favor, that is the same as a finding of not guilty and therefore ends the matter ...." State v. Abraham , 335 N.W.2d 745, 749 (Minn. 1983).
    Garcia argues that we should review the district court's rejection of the defense de novo, giving no deference to the district court. He bases this argument on the supreme court's statement in Grilli that an entrapment defense presented to the district court is decided "as a matter of law." 230 N.W.2d at 455. The supreme court rejected this argument in State v. Ford :
    Some confusion has arisen by the use of the same term, "entrapment as a matter of law," to refer to different things. In the Grilli case we used the term to refer to the situation in which the defendant waives his right to have entrapment decided by the jury and elects to have the trial court decide it as trier of fact. Secondly, some cases use the phrase to refer to what, for the sake of clarity, should be termed the due-process defense. Thirdly, the phrase could be used to refer to those rare situations in which, although the defendant did not elect to have the trial court decide entrapment as trier of fact, the evidence which has come out at trial is such that the court is required to take the case from the jury and rule that there was entrapment as a matter of law. For clarity's sake, in the future we will use the phrase only when referring to this last situation.
    276 N.W.2d 178, 183 (Minn. 1979) ; see also Abraham , 335 N.W.2d at 748 ("[W]hen the defendant elects to have the claim of entrapment decided by the trial court, the trial court decides it as trier of fact ."). The Grilli court did not establish a process by which the district court's assessment is, in all respects, to be treated on appeal as a legal decision subject entirely to de novo review.
    As the supreme court and this court have frequently repeated, "We review questions of law de novo." Wayne v. State , 860 N.W.2d 702, 704 (Minn. 2015) ; In re R.J.E. , 642 N.W.2d 708, 710-11 (Minn. 2002) ; State v. McCormick , 835 N.W.2d 498, 506 (Minn. App. 2013), review denied (Minn. Oct. 15, 2013); State v. Vivier , 453 N.W.2d 713, 715 (Minn. App. 1990). And it is similarly axiomatic that "we review findings of fact for clear error," deferring substantially to the district court's assessments. Erickson v. State , 842 N.W.2d 314, 318 (Minn. 2014) ; State v. Britton , 604 N.W.2d 84, 87 (Minn. 2000) ; State v. Marinaro , 768 N.W.2d 393, 397 (Minn. App. 2009). Although the district court's legal conclusions under rule 9 are questions of law subject to our de novo review, nothing in Grilli or any other published case we have found leads us to abandon our deferential review of the district court's factual findings.
    We add as further support that "the hearing on entrapment must be included in the Omnibus Hearing under Rule 11 or in the evidentiary hearing under Rule 12." Minn. R. Crim. P. 9.02, subd. 1(6)(c). Issues the district court resolves in an omnibus hearing are routinely considered in the same fashion on appeal-with legal conclusions reviewed de novo and factual findings reviewed for clear error. See, e.g. , State v. Lemieux , 726 N.W.2d 783, 787 (Minn. 2007) (describing the standard of review for omnibus-hearing determinations of reasonable suspicion and probable cause); State v. Jones , 566 N.W.2d 317, 324 (Minn. 1997) (describing the standard of review for omnibus-hearing determinations of waiver of the right to remain silent). Rule 9.02 therefore corroborates our understanding that we review the district court's entrapment decisions following our customary approach to mixed questions of fact and law. We hold that this court will consider the district court's omnibus-hearing decision rejecting an entrapment defense by reviewing its factual findings for clear error and its legal conclusions de novo.
   Given Garcia's misunderstanding of the review standard, he did not challenge as clearly erroneous any of the district court's factual findings. We will rely on those findings and limit our de novo review to whether the district court properly applied the law to the facts in concluding that Garcia failed to meet his burden to raise the entrapment defense.

The district court erred in applying the law to the facts. The district court concluded that Garcia "did not meet the burden of showing by a preponderance of the evidence that the government agent here entrapped him into committing the crime ." (Emphasis added.) The district court's conclusion and its reasoning reflect a misunderstanding of Garcia's burden. It reasoned that, although "Garcia was persuaded ... to commit the crime," H.F.'s conduct could not have been the source of this persuasion because Garcia's effort to prevent H.F. from being beaten "would be effective only until she needed drugs again" and because it was "clear that H.F. and [Walker had been] in direct contact with each other" before the fantasy-football meeting where Garcia let Walker use his phone. It rephrased its conclusion by stating that Garcia "did not show that his motivation came from actions by the government agent claiming that he would be protecting her from assault."

The district court's reasoning indicates that it improperly conflated the two elemental steps of the entrapment analysis into one, loading Garcia with an expanded burden of proof. The defendant has the burden of showing inducement, not proving that the inducement was his motivating force. The supreme court follows "the majority view" on the first element, which is that, "[w]ith respect to proof of the element of inducement, ... the evidence must show that the state did something more than merely solicit the commission of a crime." State v. Olkon , 299 N.W.2d 89, 107 (Minn. 1980). The first step therefore focuses on the state's actions ("that the state did something"), while the second step focuses on the defendant's predisposal to commit the offending act. Id. (emphasis added). In State v. Vaughn the supreme court demonstrated that the focus in the first step is on the officer's conduct rather than on the effect that the officer's conduct had on the defendant, rejecting an entrapment defense because officers "did not pressure or otherwise induce [the defendant] to commit [the crimes]." Id. , 361 N.W.2d 54, 57 (Minn. 1985). We must infer that the defendant's burden is not to prove that the government's conduct actually induced him but merely to make a showing from the evidence that the state's conduct demonstrated inducement. See id. ("Once the defendant has raised the issue by showing inducement, to obtain a conviction the state must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.").

The supreme court's clearest summary of the defendant's burden establishes expressly that it is not a burden of proof, but a burden merely of production. In State v. Charlton the court explained that "a lesser burden rests on a defendant pleading ... entrapment":

The lesser burden is one of production, which requires the defendant to come forward and present a sufficient threshold of evidence to [raise] the defense .... Once the issue is sufficiently raised, as determined as a matter of law by the trial court, the burden of proof beyond a reasonable doubt on the [substantive] issue ... is on the state.

338 N.W.2d 26, 29 (Minn. 1983) ; see also State v. Niska , 514 N.W.2d 260, 264 (Minn. 1994) (restating that "defendants pleading self-defense or entrapment need only fairly raise those defenses and then the burden of disproving them beyond a reasonable doubt falls on the state").

We have consistently followed this approach in requiring a mere showing of evidence of inducement based on a preponderance of the evidence, not proof that the inducement was the defendant's actual motivation. See State v. Oanes , 543 N.W.2d 658, 664 (Minn. App. 1996) ("A defendant must raise an entrapment defense by establishing by a fair preponderance of the evidence that a government actor initiated the criminal idea."); State v. Johnson , 511 N.W.2d 753, 755 (Minn. App. 1994) (holding that defendant showed "by a fair preponderance of the evidence that the government induced the crime" based on the government's conduct in "solicit[ing] the encounter" and "continu[ing] to press its offer even after Johnson initially refused to buy any marijuana"), review denied (Minn. Apr. 19, 1994); In re Welfare of G.D. , 473 N.W.2d 878, 883 (Minn. App. 1991) ("To establish inducement, appellant had to produce evidence of persuasion, badgering, or pressure by the state." (quotation omitted)); cf. State v. Ketter , 364 N.W.2d 459, 463 (Minn. App. 1985) (holding that the trial court erred by refusing to give an entrapment instruction when conflicting evidence included testimony of the prostitution defendant that she had declined the undercover officer's "requests for sexual services and that she engaged in the sexual contact for the purpose of putting an end to his sexual advances").

By contrast to this standard, the district court here did not decide whether Garcia met his burden of mere production by presenting a preponderance of evidence showing that H.F.'s actions were persuading, badgering, or pressuring or that they otherwise constitute inducement. Its order instead addressed the different question-whether Garcia proved that H.F.'s badgering and pressuring was the force that motivated Garcia's participation. The order followed the same reasoning the district court gave when ruling from the bench: "I don't know what [was] the inducement or the incentive that caused him to decide [to change his mind and participate in the drug transfer], but he decided that he was going to do that act and it wasn't just because the government was inducing him to do that. So it's my finding." This approach placed a substantively expanded burden on Garcia and constitutes error.

Garcia maintains that the evidence he presented met his burden of production by a preponderance of the evidence. The district court's findings support his contention. A preponderance of the evidence exists when it is more probable than not that a fact exists. Christie v. Estate of Christie , 911 N.W.2d 833, 838-39 (Minn. 2018). Based on the district court's factual findings, H.F.'s actions constitute inducement. She repeatedly asked Garcia to participate in the drug deal despite his multiple refusals. She repeatedly reminded him that his participation would prevent her from being beaten by her boyfriend. She appealed to his sympathies. She offered him cash. And in a move that is likely unprecedented in our entrapment caselaw, she even arranged for the crime to follow Garcia to a store where she knew he would be shopping and at the time that she knew he would be there. The district court never analyzed whether this conduct makes it more probable than not that H.F. was engaged in persuading, badgering, or pressuring. But we need not remand for the district court to decide that issue because the district court's express findings summarized above necessarily compel the conclusion-by more than a preponderance of evidence-that H.F. was engaged in persuading, badgering, and pressuring. Garcia met his burden of production to raise the entrapment defense.

That Garcia met his burden of production to raise the defense does not end the question of entrapment, however, because establishing the defense merely shifts the burden to the state, and the state must be afforded the opportunity to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. Grilli , 230 N.W.2d at 456. The district court never reached this second step because it ruled that Garcia failed on the first and, it ended the hearing without giving the state the opportunity to present its predisposition evidence. The hearing should resume at this juncture on remand.

We observe that the district court's statements and reasoning imply that it thought Garcia's freely choosing to participate in the crime precluded a finding of entrapment without regard to whether he was so predisposed. It is true that a defendant might establish that the "the conduct of the government in participating in or inducing the commission of the crime is sufficiently outrageous" to trigger a constitutional due-process defense and that this defense would prevent a conviction regardless of whether the defendant was predisposed to commit the crime. Ford , 276 N.W.2d at 179, 182 ("Unlike the entrapment defense, the due-process defense bars conviction of even a predisposed defendant if the conduct of the government in participating in or inducing the commission of the crime is sufficiently outrageous."). But Garcia has not argued that the agent's badgering constitutes outrageous, unconstitutional police conduct. And a defendant's freely choosing to participate in a crime cannot defeat an entrapment defense because the defense presupposes that the defendant exercised his free choice but bars criminal liability based on the government's attempt to unfairly induce that choice. The district court must address the second element of predisposition.

DECISION

Because the facts found by the district court necessarily establish by more than a preponderance of the evidence that the state's agent engaged in inducement by persuading, badgering, or pressuring, Garcia met his burden of production on the first element of his entrapment defense. The district court ostensibly ruled from the bench on this element and ended the hearing before the state had the opportunity to introduce any evidence on the second element, Garcia's alleged predisposition to commit the crime. We accept the district court's fact findings and reverse its conclusion on the first element of the entrapment defense. We therefore remand for the district court to resume the hearing and make findings of fact and conclusions of law on the second element.

Reversed and remanded.  