State v. Slater - Entrapment Defense Rejected, Conviction Affirmed

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April 16, 2026 Get Citation Alerts Download PDF Add Note

State v. Slater

Court of Appeals of Utah

• Citations: 2026 UT App 60

• Docket Number: Case No. 20221006-CA

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (46.9K)

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Combined Opinion

2026 UT App 60

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MARK ALMA SLATER,
Appellant.

Opinion
No. 20221006-CA
Filed April 16, 2026

Second District Court, Farmington Department
The Honorable Michael D. DiReda
No. 201701757

Scott L Wiggins, Attorney for Appellant
Derek E. Brown and Hwa Sung Doucette,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.

MORTENSEN, Judge:

¶1 Mark Alma Slater was convicted of enticing a minor after
he attempted to meet up with a police decoy posing as a thirteen-
year-old girl. He now argues that his trial counsel (Counsel)
provided constitutionally ineffective assistance by withdrawing a
requested jury instruction regarding the affirmative defense of
entrapment. Because Counsel’s decision to abandon the
entrapment defense was an objectively reasonable strategic
choice, we affirm the conviction.
State v. Slater

BACKGROUND

¶2 An officer with an Internet Crimes Against Children task
force created an online decoy profile on Whisper, which is an
internet “application for people to meet and have sex.” The officer
used a photograph of a female co-worker who was twenty-four
years old for the decoy. The decoy’s profile picture showed her
partially covered face with a superimposed message on her
photograph that said, “Looking for fun!”

¶3 Slater responded to the decoy with the messages “Me too”
and “Go down on you? Meet at park? Help me javkoff in car?
What fun you want?” 1 The decoy then introduced herself as
“Jenny” and stated that she was only thirteen years old. Slater
responded to her age revelation with “Lol” and “Fuck.” Over the
next couple hours, the two continued to exchange messages.
Slater repeatedly demanded Jenny send him photographs to
prove her identity. Slater also repeatedly asked Jenny explicit
questions about her sexual history and what she would like him
to do to her and how he could “pleasure” her. He also suggested
that they could meet and “touch each other.” Specifically, Slater
suggested that he could give her an orgasm by oral and digital
stimulation and that he could “direct [her] to make [him]
orgasm.”

¶4 Slater made arrangements to meet Jenny so that she could
give him a “hand job.” Slater drove to Jenny’s location and sent
her a message instructing her to “[s]tep outside.” A female
member of the taskforce poked her head out from around the
corner of an apartment building. Slater messaged Jenny that she
“look[ed] old.” Nevertheless, Slater continued to drive toward the
taskforce member. Other members of the task force then pulled
Slater over and arrested him. Slater was charged with one count
of enticing a minor.

1. We have retained Slater’s spelling here.

20221006-CA 2 2026 UT App 60
State v. Slater

¶5 About a week before trial, Counsel filed a motion to
dismiss based on entrapment or, in the alternative, to give an
entrapment instruction to the jury. The court decided it would
hear arguments on the motion after the State presented its
evidence.

¶6 At trial, the State presented the testimony of the officer,
who detailed his communications with Slater as recounted above.
Notably, the officer testified that he intentionally steered the
communication in a way to defend against accusations of
entrapment. Specifically, such safeguards included discussing the
age of the decoy “early in the conversation . . . so the suspect has
an opportunity to leave the conversation and not commit a
crime.” The officer testified that he allows “the suspect to initiate”
topics “such as talking about sex or meeting up for sex” so that
the police are not “accused of entrapment or enticing [the suspect]
to commit a crime.” In addition, the officer testified that he was
trained to “give as many outs as possible” so that a suspect can
“leave the conversation and not commit the crime.” Relevant to
Slater’s case, the officer testified that he included many such
“outs.” On cross-examination, Counsel made a point of asking the
officer if Slater believed that Jenny was really thirteen. The officer
admitted that Slater appeared to be “unsure.” Counsel even asked
the officer to offer a legal opinion on this issue: “If he didn’t
believe that he was talking to a 13-year-old, would any of his
conduct been a crime?” The officer opined, “According to these
chats, this is still a crime. . . . Due to the elements of the crime, all
that’s necessary is for him to communicate with an individual
online who poses as—or who identifies as a 13-year-old.”

¶7 The State rested its case after the officer’s testimony, at
which point the court turned to consider Slater’s entrapment
motion. Counsel withdrew the motion for dismissal because he
didn’t believe the evidence was sufficient to establish entrapment
as a matter of law, but he asserted there was “still a question as to
whether or not [Slater would] be eligible to have a jury

20221006-CA 3 2026 UT App 60
State v. Slater

instruction” on entrapment. The court questioned whether an
entrapment instruction would even be possible, noting that
Slater’s defense—apparently obvious from Counsel’s cross-
examination of the officer—seemed to be that he “believed all
along that this was an undercover sting operation of some sort.”
Given this circumstance, the court was skeptical that an
entrapment instruction could “even be given because factually, [it
was] no longer an entrapment case” but “a question of mens rea.”
The court continued, “It’s a question of whether he even intended
to commit the crime if he never believed that the individual he
was communicating with was a minor. . . . I don’t think that you
can advance the argument that he believed all along it was an
undercover officer, but then offer an entrapment instruction. I
think the entrapment instruction only works if he believed the
person he was talking to was a 13-year-old.” Counsel agreed with
the court that an entrapment instruction would be appropriate
only if Slater, in fact, believed the person he was talking to was a
minor.

¶8 Slater elected to testify in his own defense. He stated that
he did not believe Jenny was a thirteen-year-old female. He
claimed that he had twice reported her profile earlier in the day
as being suspicious, which should have led to its removal from
the platform if she really was a minor. Instead, he thought Jenny’s
profile was created by “law enforcement” or “one of those
parent—or what are they called—predator groups.” Slater
admitted he had sent all the messages in the Whisper chat that the
State had offered into evidence. But he asserted that he kept
asking for details and pictures from Jenny because he wanted to
know how law enforcement was “portraying this fake [thirteen-
year-old] female.” He testified that after he saw the female
taskforce member poke her head out from around the corner, his
suspicions were “validated” and he intended to drive away, but
he was pulled over by police before he could do so. On cross-
examination, Slater admitted (1) that he initiated the sexually
explicit conversation, (2) that he suggested meeting Jenny, (3) that

20221006-CA 4 2026 UT App 60
State v. Slater

the officer did not pressure him to talk about sex, (4) that the
officer did not pressure him to meet, “goad” him, “badger” him,
or “make repeated requests for any kind of activity,” and (5) that
the officer did not “rely on any sympathy,” “talk . . . about
personal friendship,” or make an “offer [of] money.” Slater also
conceded that it was “fair to say” that he was the one “driving the
bus” in the conversation and that he “could have quit that
conversation at any point.” In fact, he agreed that there were
“maybe a half dozen or more places where the officer” gave him
an “out.”

¶9 Following this cross-examination, Counsel withdrew the
request for an entrapment instruction, stating that Slater’s
testimony on “cross-examination [had] answered any of the
questions” regarding entrapment. In closing argument, Counsel
asserted that Slater “never believed that [Jenny] was a child,”
“knew that it was law enforcement,” and was merely “curious”
about the sting operation and how it was conducted. Accordingly,
Counsel argued that the State had failed to prove an element of
the crime because the evidence showed that Slater believed he
was messaging an adult. The jury convicted Slater as charged.

ISSUE AND STANDARD OF REVIEW

¶10 Slater argues that he received constitutionally ineffective
assistance when Counsel withdrew the request for a jury
instruction on entrapment. A claim of ineffective assistance raised
for the first time on appeal presents a question of law that we
decide in the first instance. State v. Chase, 2025 UT App 158, ¶ 31,
580 P.3d 421, cert. denied, 581 P.3d 560 (Utah 2025).

ANALYSIS

¶11 Slater argues that Counsel was constitutionally ineffective
for not pursuing an entrapment instruction. To prevail on a claim

20221006-CA 5 2026 UT App 60
State v. Slater

of ineffective assistance of counsel, a defendant must satisfy the
two-part test established in Strickland v. Washington,
demonstrating both that (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced the defense. 466 U.S.
668, 687 (1984). Because we resolve this appeal on the first
Strickland prong, we need not analyze prejudice. See, e.g., State v.
Cruz, 2020 UT App 157, ¶ 17, 478 P.3d 631 (“A defendant’s
inability to establish either element defeats a claim for ineffective
assistance of counsel.” (cleaned up)).

¶12 Establishing deficient performance “requires showing that
counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. “[T]he proper standard
for attorney performance is that of reasonably effective
assistance.” Id. This means that “the defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. “Moreover, deficient performance is
not determined in a vacuum; rather, it involves asking whether
the strategy counsel employed was that of a reasonable,
competent lawyer in the real-time context of the proceeding.”
State v. Rosen, 2021 UT App 32, ¶ 9, 484 P.3d 1225 (cleaned up).

¶13 Counsel’s decision to abandon the entrapment defense was
an objectively reasonable, tactical calculation driven by two
compelling and related factors. First, Slater’s own testimony
established the absence of the legal elements of entrapment.
Second, there was an inherent contradiction between an
entrapment defense and Slater’s factual innocence defense.

¶14 First, an objectively reasonable attorney would have
concluded that Slater’s sworn testimony entirely disproved
entrapment. In other words, Slater all but stated he wasn’t
entrapped, so there was no basis to advance entrapment as a
defense in a jury instruction. Under Utah law, “[e]ntrapment
occurs when a peace officer . . . induces the commission of an

20221006-CA 6 2026 UT App 60
State v. Slater

offense in order to obtain evidence of the commission for
prosecution by methods creating a substantial risk that the offense
would be committed by one not otherwise ready to commit it.
Conduct merely affording a person an opportunity to commit an
offense does not constitute entrapment.” Utah Code § 76-2-303(1).
Utah courts have consistently held that entrapment is limited to
two types of cases. “The first type of case involves improper police
conduct in which the government agent applied persistent
pressure or persistently pursued the defendant to commit the
crime. The second type of case involves appeals based on
sympathy, pity, or close personal friendships, or offers of
inordinate sums of money.” State v. Dickerson, 2022 UT App 56,
¶ 37, 511 P.3d 1191 (cleaned up).

¶15 During his cross-examination, Slater explicitly denied
experiencing either type of tactic. He testified that the officer did
not pressure him, goad him, badger him, appeal to his
sympathies, or offer him money. Moreover, Slater admitted he
directed the conversation, had numerous opportunities or “outs”
to leave the chat, and initiated both the sexual discussions and the
meeting with Jenny. Because Slater’s own testimony thoroughly
refuted the presence of any factors necessary to establish
entrapment, it provided an unassailable basis for Counsel to
withdraw the requested instruction.

¶16 Second, Counsel reasonably decided to abandon the
entrapment defense to focus instead on a more viable defense. At
trial, Slater maintained that he never believed Jenny was a child,
thereby attacking the mens rea element of the enticement charge.
Instead of entrapment, Slater advanced a defense that he engaged
in some type of covert operation to prove to himself that Jenny
was actually an alias created by law enforcement or a to-catch-a-
predator group and that he participated in the conversation out of
curiosity. If the jury believed this defense, Slater would have been
acquitted based on a lack of the requisite mental state. In contrast,
an entrapment defense would have presupposed that Slater

20221006-CA 7 2026 UT App 60
State v. Slater

actually committed the charged crime—which includes
possessing the necessary criminal intent—but was improperly
induced into doing so by police. To simultaneously advance both
theories, Counsel would have had to argue that Slater knew he
was communicating with an adult and being entrapped to solicit
sexual acts from someone he believed was a minor. “A defense
attorney’s wide latitude to make tactical decisions surely includes
the ability to protect the integrity of his preferred theory of the
case by not simultaneously advancing a contradictory one.” State
v. Draper, 2024 UT App 152, ¶ 88, 560 P.3d 122 (cleaned up); see
also State v. Pascual, 804 P.2d 553, 556 (Utah Ct. App. 1991) (“We
believe any election between inconsistent defenses was a
legitimate exercise of trial strategy rather than ineffective
assistance of counsel.”). Put another way, Counsel was under no
obligation to push for an entrapment instruction when doing so
would have undermined Slater’s insistence that he knew full well
that Jenny was not a child. Moreover, insisting on the entrapment
instruction was likely to have significantly compromised any
credibility that Slater otherwise would have had with the jury. As
it stood with the mens rea approach, there was at least some hope
of acquittal.

¶17 Given that Counsel reasonably recognized that Slater’s
testimony had precluded the entrapment argument, he did not
perform deficiently by making the strategic decision to abandon
the entrapment instruction in favor of focusing on the theory that
Slater lacked the necessary mental state to commit the crime.

CONCLUSION

¶18 Slater’s testimony gave Counsel every reason to abandon
the entrapment instruction and embrace the mens rea defense.
Thus, Counsel did not perform deficiently, and Slater’s ineffective
assistance claim fails.

¶19 Affirmed.

20221006-CA 8 2026 UT App 60