Matthew D. McMahon, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Matthew D. McMahon appeals his conviction for child solicitation as a level 4 felony. The court also found him to be an habitual offender. He challenges the sufficiency of the evidence to support his conviction and the sufficiency of the State's evidence disproving his entrapment claim, and he contends the sentence imposed by the trial court is inappropriate. We affirm.

Facts and Procedural History

[2] In April 2023, Franklin City Police Department Detective Jess Harris created a fictitious profile on Mega Personals, an “escorting, prostitution[-]based website” and “purely” “sex[-]based website” where the “purpose” of online communications is to “meet now ․ to have sexual conduct or sexual intercourse.” Transcript Volume II at 43-44. The profile created by Detective Harris said that the person depicted in the profile was named “Ashlie,” and she was twenty-seven years old. State's Exhibit 1. The username for the profile was “PhATaSS ASHLIE,” and the profile included a phone number at which “Ashlie” could be contacted. Id. The profile asked for “Men only” and included numerous pictures of a petite female with blonde hair. Id.

[3] On April 19, 2023, McMahon sent a text message to the phone number provided that said, “What's up[.]” State's Exhibit 2. “Ashlie” responded, “What u lookin for” and McMahon texted, “Qv bbj cim,” id., which means “quick visit, bare back blow job, come [sic] in mouth.” Transcript Volume II at 66. “Ashlie” responded, “If u treat me nice I let guys do more for same price! $50[.]” State's Exhibit 2. After McMahon indicated that he was coming to see “Ashlie” after work, and they exchanged texts discussing having oral and anal sex, Ashlie advised, “Don't get scared. I am 15 yrs old.” Id. She also advised that she was “130 pounds” and “petite.” Id.

[4] Initially, McMahon responded, “15yr old. No thanks. U need to stop this job dude.” Id. However, McMahon then requested “a video or whatever” to prove that “you are who u say match pics online. Just a simple vid of yourself. Talk also.” Id. Detective Harris provided a video using a decoy.

[5] After watching the video, McMahon texted, “Seems legit I guess lol” and advised “Ashlie” to “At least lie and say you are 18 lol[.]” Id. When “Ashlie” said she didn't “want guys surprise[d],” McMahon said, “I think u be better off lying. Once people find out you young that scares them away.” Id. He then inquired about how “Ashlie” was able to hide her activities from the adults in her life, he informed her about a “buddy” who “got in trouble for banging a 15 yr old,” and then asked her, “Are we doing this in your apartment.” Id. “Ashlie” told McMahon that it was her grandmother's apartment, but that “she gone.” Id. McMahon explained that he wanted to make sure they would be alone. He noted that “Ashlie” had referenced another client earlier in the conversation, asked if he could speak to that client to see if she was “for real legit,” and stated he would not only come see her now, he would “come and see [her] every week.” Id. “Ashlie” refused to provide another client's information, and she also refused McMahon's request for access to her TikTok or other social media accounts because she did not “need a troll.” Id. McMahon responded, “I'm not trying to troll you. I'm trying to f - - k your brains out lol.” Id.

[6] After McMahon indicated he was about to leave work and asked “Ashlie” for her address, “Ashlie” advised him to send her a photo of himself passing the Greenwood Park Mall “just so [she] would know [he was] close” and then she would send her address. Id. “Ashlie” told McMahon that he could pick up “Chick-fil-A next to the mall” and “feed [her] first.” Id. McMahon indicated that he only had $54 on him but that “Hopefully [he would] be feeding [her] twice.” Id. McMahon texted “Ashlie” when he was around fifteen to twenty minutes away and sent a picture of the mall as he was passing. “Ashlie” then provided a Greenwood address for him to meet her. Soon thereafter, McMahon texted, “I'm just getting ready to turn in” and then sent a screenshot of a news article of a Johnson County child sex sting that led to “20 arrests.” Id. McMahon stated, “I gotta have a cigarette and think about this really hard.” Id. “Ashlie” advised, “Okay I'll be inside. If you wait too long I'll find someone else.” Id. McMahon stated that he did not “have any condoms” but that he “was hoping to cum in [her] mouth. Or [he] could c[um] in [her] ass.” Id. He again advised that if she was “100% legit” that he “will come up there and [he] will see [her] every week.” Id. McMahon reiterated that he was nervous because his buddy “got 12 years lost all his s*** that he bought and worked his ass off for.” Id.

[7] “Ashlie” ended the text exchange with the comments, “I promise! Now or never[.] Tick tock[.]” Id. A decoy then spoke with McMahon on an unrecorded video call using Facetime. After the Facetime conversation, officers approached McMahon's truck, which was parked “less than a football field” away “further south and on the west side” of the parking lot of the apartment complex where the sting operation “team was located,” and arrested him. Transcript Volume II at 85.

[8] In a subsequent statement to police, McMahon stated that he “knew deep down” that “Ashlie” was probably part of a “sting,” but he showed up anyway out of “stupidity.” State's Exhibit 7 at 39:05-39:16. McMahon explained that he “goes out of [his] way” to troll the underage sex solicitation websites even though he knows it is wrong, and he admitted that the “buddy” he had referenced to “Ashlie” who went to jail for having sex with a fifteen-year-old was himself. Id. at 40:48-40:50, 45:13-45:18. He explained that he kept messaging “Ashlie” even after learning of her young age because he was “trying to relive the fantasy of what [he] did before.” Id. at 29:35.

[9] On September 12, 2023, the State charged McMahon with child solicitation as a level 4 felony and also alleged that he was an habitual offender. Following a bench trial on October 24, 2024, the court found McMahon guilty as charged. The court held a sentencing hearing on December 19, 2024. The court sentenced McMahon to nine years on the solicitation conviction, with four years as a direct placement to community corrections work release, and five years suspended, with two years to be served on active probation. The court enhanced the sentence by six years executed for the habitual offender enhancement.

Discussion

A. Sufficiency of the Evidence

[10] McMahon first contends that the State presented insufficient evidence to support his child solicitation conviction because “he never got out of his vehicle, refused to meet with the female despite enticing statements by the detective, and there was an ambiguity regarding the female's age.” Appellant's Brief at 4. When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id.

[11] Ind. Code § 35-42-4-6(c) provides that “[a] person at least twenty-one (21) years of age who knowingly or intentionally solicits a child at least fourteen (14) years of age but less than sixteen (16) years of age, or an individual the person believes to be a child at least fourteen (14) years of age but less than sixteen (16) years of age” to engage in sexual intercourse, other sexual conduct, or any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person, commits child solicitation, as a level 5 felony. The offense becomes a level 4 felony “if the person solicits the child or individual the person believes to be a child at least fourteen (14) but less than sixteen (16) years of age to engage in sexual intercourse or other sexual conduct” and “commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) and travels to meet the child or individual the person believes to be a child.” Ind. Code § 35-42-4-6(c)(1). Solicit means “to command, authorize, urge, incite, request, or advise an individual” to engage in sexual intercourse, other sexual conduct, or any fondling or touching intended to arouse: “(1) in person; (2) by telephone or wireless device; (3) in writing; (4) by using a computer network (as defined in IC 35-43-2-3(a)); (5) by advertisement of any kind; or (6) by any other means[.]” Ind. Code § 35-42-4-6(a).¹

[12] Here, the State presented evidence that McMahon knowingly and intentionally used a computer network and his cell phone to urge, incite, request, or advise a person he believed to be fifteen years old to engage in sexual intercourse and/or other sexual conduct and that he traveled to meet the child at the address provided. Indeed, McMahon contacted “Ashlie” and initially requested “quick visit, bare back blow job, come [sic] in mouth.” Transcript Volume II at 66. Then, well after being specifically advised of her young age, McMahon still messaged that he was planning to “f- -k [Ashlie's] brains out” at her grandmother's apartment after work, and he told her that if she turned out to be “100% legit” he would “come and see [her] every week” for additional sexual contact. State's Exhibit 2. McMahon's suggestion that the evidence that “[a]t no time did he get out of his vehicle” indicates a lack of intent to meet the child is unpersuasive. Appellant's Brief at 12. Moreover, McMahon's assertion that there was “an ambiguity between the ad where the female claimed to be 27 years old and the single text where she stated that she was age 15” that we must construe “against the State,” id., is inconsistent with our standard of review and simply a request for this Court to reweigh the evidence, which we will not do. The State presented evidence of probative value from which a reasonable trier of fact could find beyond a reasonable doubt that McMahon committed child solicitation as a level 4 felony.

B. Entrapment Defense

[13] McMahon maintains that the State failed to disprove his defense of entrapment “when there was police involvement in criminal activity and [he] was not predisposed to commit the crime because he refused to meet the female.” Appellant's Brief at 13 (emphasis omitted). He argues that, although his trial counsel did not expressly raise the defense of entrapment, the defense “was implied based on the evidence and trial counsel's closing argument.” Id. at 14.

[14] Entrapment is statutorily defined as a defense that: “(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and (2) the person was not predisposed to commit the offense.” Ind. Code § 35-41-3-9-(a). “Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.” Ind. Code § 35-41-3-9(b). “We review a claim of entrapment using the same standard that applies to other challenges to the sufficiency of evidence.” Griesemer v. State, 26 N.E.3d 606, 608 (Ind. 2015) (quoting Dockery v. State, 644 N.E.2d 573, 578 (Ind. 1994)). We neither reweigh the evidence nor reassess witness credibility. Id. Instead, we look to the probative evidence supporting the verdict and the reasonable inferences drawn from that evidence. Id. If we find that a reasonable trier of fact could infer guilt beyond a reasonable doubt, we will affirm the conviction. Id.

[15] A defendant does not need to formally plead the entrapment defense; rather the defense may be raised during the presentation of evidence by affirmatively showing the police were involved in the criminal activity and expressing an intent to rely on the defense. Id. at 609. Officers are involved in the criminal activity only if they “directly participate” in it. Id. (citation omitted). The State then has the opportunity for rebuttal, its burden being to disprove one of the statutory elements beyond a reasonable doubt. Id. Accordingly, there is no entrapment if the State shows either that there was no police inducement, or that the defendant was predisposed to commit the crime. Id.

[16] The State presented probative evidence from which a reasonable trier of fact could find both elements disproved beyond a reasonable doubt. “To rebut the inducement element, the State must prove police efforts did not produce the defendant's prohibited conduct[ ] because those efforts lacked a persuasive or other force.” Id. (citations and quotation marks omitted). The record reveals that McMahon initiated the conversation requesting sexual contact with “Ashlie,” and he continued the conversation even after learning of her young age. Rather than withdrawing his request for sexual contact upon being advised that she was fifteen years old, McMahon began asking “Ashlie” for proof that she was the same girl pictured on the website as well as seeking assurances that she was not a police officer. After the decoy video was provided to him, McMahon began discussing logistics of where the sexual encounter would take place. Moreover, it was McMahon, and not Detective Harris, who escalated the graphic sex talk during the conversation. Thus, we conclude that Detective Harris did not induce McMahon but merely afforded him the opportunity to commit the offense, which does not constitute entrapment.

[17] Further, the State presented evidence of a probative nature to establish that McMahon was predisposed to commit the crime, thereby defeating any entrapment claim. We note that “the critical question regarding predisposition ‘is whether criminal intent [was] deliberately implanted in the mind of an innocent person[.]’ ” Clark v. State, 209 N.E.3d 444, 449 (Ind. Ct. App. 2023) (quoting Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002)), trans. denied. Despite McMahon's claim to the contrary, the evidence supports the reasonable inference that Detective Harris did not implant criminal intent in the mind of an innocent person. Although McMahon did express some hesitancy or nervousness about meeting “Ashlie,” any hesitancy was not hesitancy about committing the criminal act, it was hesitancy about being caught. McMahon admitted to detectives that deep down he knew this was a sting operation, but he proceeded to travel to meet “Ashlie” because he had previously had sex with a fifteen-year-old girl and he was trying to relive that fantasy. We conclude the State presented evidence of a probative nature from which a reasonable trier of fact could find it met its burden to disprove at least one, if not both, of the statutory elements of entrapment beyond a reasonable doubt.

C. Inappropriate Sentence

[18] Finally, McMahon challenges the sentence imposed by the trial court as inappropriate in light of the nature of the offense and his character. Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[19] Ind. Code § 35-50-2-5.5 provides that a person who commits a level 4 felony shall be imprisoned for a fixed term of between two and twelve years, with the advisory sentence being six years. At the time McMahon committed his offense, Ind. Code § 35-50-2-8(i) provided that the court shall sentence a person found to be an habitual offender to an additional fixed term that is between six and twenty years for a person convicted of a level 4 felony.² We observe that the court here imposed a nine-year sentence, with four years served on work release and five years suspended, enhanced by the minimum allowable statutory term for the habitual offender enhancement. Accordingly, as noted by the State, the sentence imposed “already reflects a substantial amount of leniency from the trial court[.]”³ Appellee's Brief at 24.

[20] Our review of the nature of the offense reveals that McMahon solicited an individual he believed to be fifteen years of age to engage in sexual intercourse or other sexual conduct, he used a cell phone to do so, and he traveled to meet the child at a predetermined location. Our review of the character of the offender reveals that McMahon has multiple prior felony convictions, including convictions for sexual misconduct with a minor as a class B felony, escape as a level 6 felony, residential entry as a class D felony, and theft as a class D felony. He has violated past probationary terms and has had his probation revoked on multiple occasions. According to the presentence investigation report, McMahon's Static-99R score, “an empirically derived risk tool designed to evaluate risk of sexual recidivism,” places him “in the well above average risk category for being charged or convicted of another sexual offense.” Appellant's Appendix Volume II at 52.

[21] After due consideration, we conclude that McMahon has not sustained his burden of establishing that the sentence imposed by the trial court is inappropriate in light of the nature of the offense and his character.

[22] For the foregoing reasons, we affirm McMahon's conviction and sentence.

[23] Affirmed.

FOOTNOTES

1.   Subsequently amended by Pub. L. No. 133-2023, § 12 (eff. July 1, 2023).

2.   This statute was amended on July 1, 2023, to provide that the court shall sentence a person found to be an habitual offender to an additional fixed term that is between eight and twenty years for a person convicted of a level 4 felony.

3.   McMahon acknowledges, “Since the habitual offender enhancement is non[suspendable], it is understood that [he] is ineligible for house arrest/work release for that portion of the sentence.” Appellant's Brief at 21.

Brown, Judge.

Judges Bailey and Weissmann concur. Bailey, J., and Weissmann, J., concur.