Classic Entrapment Upheld in Texas

Appeals court unanimously affirms gay Texan’s conviction for indecent exposure

In a case that has all the earmarks of entrapment, the Forth Worth division of the Texas Court of Appeals rejected Vann Dean Elkin’s appeal of the jury verdict in an indecent exposure case involve a plainclothes police officer in a Tarrant County public park.

The unanimous ruling was issued on July 1.

Elkin and the plainclothes officer, Jerry Sillers, presented significantly different stories to the jury. It was undisputed, however, that Elkin “exposed his penis” to Sillers “in a public park,” according to the unsigned opinion by the court.

According to Elkin, he had completed a three-mile walk around Lake Benbrook when he was accosted by Sillers, who flattered him with sexual advances. Elkin, however, refused to have sex in the park. Instead, Elkin testified that he gave Sillers his card and invited him to come back to his house, then turned away to get into his truck parked nearby. According to Elkin, Sillers “continued to move closer, urging [Elkin] to show Sillers his ‘d—.’” At that point, Elkin “pulled out his penis, said, ‘Excuse me, but I’ve got to urinate,’ turned away from Sillers, and urinated,” according to the court decision. At the trial, Elkin testified that he was taking medication for impotence which requires frequent urination. When he exposed his penis, Sillers arrested Elkin for indecent exposure.

Sillers testified to a more detailed conversation during which Elkin showed interest in fooling around with him. According to Sillers, he asked Elkin if he were a cop, and Elkin replied, “Hell, no. I’ve been in trouble with the law before in a park just like this and it took about $3,000 to get me out of trouble. So I was arrested in Waco by a park ranger… Right when I went down on the guy, he busted me.”

Sillers testified that Elkin gave him a card and “insisted” that Sillers stop by Elkin’s house. Sillers testified that he then asked if Elkin would let him “see what I would be messing around with,” and that Elkin then unzipped his pants, pulled out a partially erect penis which he stroked fully erect, and said, “It will grow a little more, don’t worry.”

The jury apparently believed Sillers rather than Elkin on the motivation behind the unzipping, undoubtedly influenced by Elkin’s statement that he had been previously arrested for public sex. This was the main point Elkin argued on appeal, claiming it was unfairly prejudicial to allow the testimony about his prior offense, since the issue at hand was his motivation on this occasion, and the jury might have presumed without proof that his motivation on this occasion was the same as in the past incident.

But the court of appeals agreed with the state that the past offense was relevant to that key question of motivation, since it tended to reinforce Sillers’ testimony that Elkin pulled out his penis for the purpose of encouraging him to pay him an amorous visit at home, and not for the purpose of urination. The court also rejected Elkin’s contention that he had received ineffective legal representation and that the evidence presented at the trial was insufficient to support the jury’s verdict.

The opinion makes no mention of any argument about entrapment, even though both versions of what happened indicate that Sillers initiated contact with Elkin, effectively solicited him to have sex, and specifically suggested that Elkin pull out his penis for Sillers’ inspection. Sillers seems to have been following the standard operating procedure for entrapping gay men in public cruising situations.

The court’s opinion does not specify the penalty was imposed on Elkin.

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