Summary
The Supreme Court of Nebraska affirmed Gary E. Heitman's conviction for criminal conspiracy to commit first degree sexual assault on a child. The court held that sufficient evidence supported an agreement and overt act despite the alleged coconspirator being a police officer posing as a minor. It also upheld the district court's rejection of Heitman's entrapment defense based on his predisposition to commit the offense.
Topics
Practice areas
Questions Presented
- Whether the evidence was sufficient to support Heitman's conviction for conspiracy to commit first degree sexual assault on a child.
- Whether Heitman was entrapped when a police officer, posing as a 14-year-old girl, encouraged and facilitated the planned sexual encounter.
- Whether the district court imposed an excessive sentence by sentencing Heitman to 8 to 12 years' imprisonment.
- Whether the appeal should be dismissed for failure to comply with the in forma pauperis affidavit requirements.
Holdings
- The evidence was sufficient to support Heitman's conviction for conspiracy to commit first degree sexual assault on a child. Nebraska's unilateral conspiracy approach permits conviction where only the defendant agrees to the criminal objective, even if the other party is feigning agreement as a government agent, and the record showed both an agreement involving sexual penetration and an overt act in furtherance of the conspiracy.
- Heitman was induced by the State, but he was not entrapped because the State proved beyond a reasonable doubt that he was predisposed to commit the criminal act before government involvement.
- The district court did not abuse its discretion by imposing an 8-to-12-year sentence for the Class II felony.
- The appeal was not subject to dismissal for the alleged deficiency in Heitman's in forma pauperis affidavit.
Key quotations
“Under the unilateral approach, only the defendant need agree with another person; the second party can feign agreement.” (at 553)
“An overt act, however, need not have the capacity to accomplish the conspiratorial objective and does not have to be a criminal act.” (at 554)
“Where the government has induced an individual to break the law, the government must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents.” (at 556)
Factual background
Heitman, age 53, gave a 14-year-old restaurant employee an envelope containing a sexually suggestive letter, $100, three condoms, and his email address. After police began communicating with him while posing as the girl, Heitman continued sexually explicit correspondence, discussed sexual encounters, agreed to meet at a motel, and arrived with Viagra, condoms, clothing, and other sexual items. Police arrested him at the motel, and the district court found that his preexisting conduct demonstrated predisposition to commit the charged offense.
Procedural history
Heitman initiated contact with a 14-year-old girl and later exchanged sexually explicit communications with a police officer posing as the girl. He was arrested at a motel arranged for a sexual encounter, convicted after a bench trial, and sentenced to 8 to 12 years' imprisonment. The Nebraska Supreme Court rejected the State's jurisdictional dismissal argument, affirmed the conviction, rejected the entrapment defense, upheld the sentence, and affirmed the judgment.