State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1972

State of Minnesota,
Respondent,

vs.

Daniel John Mallet,
Appellant.

Filed January 19, 2021
Affirmed
Gaïtas, Judge

Ramsey County District Court
File No. 62-CR-18-5477

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant Coun ty Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Pres iding Judge; Connolly, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Daniel John Mallet challenges his convictions of engaging in electronic
communication relating to or describing sexual conduct with someone believed to be a
child and solicitation of someone believed to be a child to engage in sexual conduct,

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arguing that the evidence was insufficient to support the jury’s guilty verdicts. Specifically,
he argues that the trial evidence did not supp ort the jury’s rejection of his entrapment
defense. Additionally, in a pro se supplementa l brief, Mallet alleges that his convictions
should be reversed because the investigating agent did not fully comply with law
enforcement standards in selecting a profile photo for the phony online account used in the
investigation and because the photos appeared to be of adults. We conclude that sufficient
evidence supports the jury ’s verdicts and that Mallet has not shown plain error affecting
his substantial rights. We affirm.
FACTS
In January 2018, in the days leading up to the Super Bowl in Minneapolis, the
Minnesota Human Trafficking Investigator’s Task Force led an undercover operation to
detect individuals soliciting minors for sexual encounters. A team of Minnesota Bureau of
Criminal Apprehension (BCA ) agents posed as minors on various websites and social
media platforms. Using accepted law enforcem ent standards for such operations, agents
tried to passively converse with potential so licitors, allowing solic itors to propose in-
person meetings for sexual encounters.
One agent created a profile on “Grindr,” a location-based application used by men
seeking relations with other men. The profile was titled “New to this” and included a stock
photograph of a person riding a bike in protective gear a nd a helmet that concealed the
person’s face. The profile description create d by the agent stated: “Super discreet and
normally don’t start conversations. visiti ng from North Dakota”; “Height 5’8”; “Weight
155 lbs”; “Body Type Slim.” No age was provi ded for this fictional person. The posting

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attracted Mallet’s attention, and he initiated an online conversation. Mallet and the agent
continued to communicate regularly for the next nine days.
The agent identified himself to Mallet as “Seth.” On the first day of their
conversation, Mallet stated that he was looking for a “f--k buddy or a friend with benefits
situation” and asked about Seth’s intentions . Seth—the agent—responded that he was a
15-year-old from North Dakota, stating, “I ’m younger and not experienced and leave
tomorrow.” Mallet, who was act ually age 44, told Seth that he was 35 years old. He
inquired about Seth’s sexual orientation and preferences while discussing his own. Seth
replied, “Well I haven’t done much. I will be 16 in August so I am not out in school.” He
also told Mallet that other users were offended that he was using the Grind’r application at
his young age. Mallet was not discouraged, however, and continued the conversation. He
described for Seth, in explicit detail, the specific sexual acts he preferred and chatted about
his sexual history. Mallet and Seth also discussed commonplace topics like weightlifting,
work, and school. At the end of their first day of online communication, Mallet told Seth
that they “should keep in touch . . . in case you want or need someone to talk to,” suggesting
that Seth add him as a “favorite” contact on Grindr.
The next day, the agent, still purporting to be Seth, messaged Mallet, “Morning.”
Then, the conversation picked up from the day before. Mallet again described his sexual
preferences to Seth, including specific positions, in graphic detail. Mallet told Seth that it
would be “hot to be your first.” He said that Seth could come visit “once your 16, hopefully
all the time.” Mallet continued to discuss things he wanted to do with Seth and other
sexually charged topics before asking, “When do you turn 16?” Seth replied, “August.”

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“Nice, wishing it was February though,” Mallet responded. As the conversation
progressed, Mallet stated, “I’ll show you everything you need . . .” while discussing sexual
acts he wished to perform with Seth. Seth told Mallet, “I’m 15 and haven’t done anything
before. Need you to help me out.”
Mallet and Seth eventually discussed me eting in person. Mallet asked Seth how
much time they would have together before raising the suspicions of Seth’s aunt, who was
hosting Seth, and discussed logistics of meeting up. During the course of this discussion,
Mallet expressed hesitation about Seth’s age. The agent, playing the role of Seth,
responded, “I am not worried about it.” Mallet inquired, “Sure your not 16?” Seth replied,
“I am 15 but I’m good if u are.” Mallet expl ained his reservations and eventually told
“Seth” they could not meet up because that wo uld be illegal. Mallet said that he hoped
“August will come fast.”
But after a short break in the conversation, Mallet re-initiated the contact. Mallet
messaged about the sexual acts he wanted to perform with Seth, be fore again discussing
the idea of meeting in person. Mallet did not follow through with the idea of meeting in
person and ultimately the conversation trailed off that evening.
Two days later, the agent messaged Mallet pr etending to be Seth, and stating that
he was back in town. This led to another sexually explicit conversation, directed by Mallet.
Mallet eventually said that he would have a car from a ridesh are service pick Seth up at
7:00 p.m. Seth suggested having a neighbor give him a ride to meet Mallet, but ultimately
they did not follow through.

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The agent greeted Mallet the next day, sta ting, “Morning,” which led only to a brief
conversation. The next day, the agent wrote Mallet again, asking, “Are u not interested[?]”
Mallet said that he had been busy with work and the two di scussed weekend plans. One
day later, Mallet contacted Seth. The conversa tion quickly turned to how and when they
could meet one another in person. Mallet asked, “Will you have time, without raising any
suspicions?” He added, “I cant promise sex but [at] least we can meet up and chill.” But
then Mallet described the sexual acts he wished to perform with Seth in explicit detail.
The profile that the agent had created for Seth was shut down the next day. He
believed that another user had reported the account because the user was only 15 years old,
and the application requires users to be age 18 or older. The agent created a new profile
and messaged Mallet, “Hey its Seth. Got booted.” The agent also stated, “Yeah apparently
being 15 years old and on here is bad.” Mallet responded, “Lol , well it is bad,” and
suggested that Seth say that he was older than he was to avoid being reported again. Mallet
soon steered the conversation toward sexual act s before raising the idea of meeting in
person. He asked for a photograph of Seth’s face, sent a picture of his own, and then sent
photographs of male models in their underwear. Mallet suggested meeting at a gas station
near his house. Seth agreed, and said he would get a ride from a neighbor. They planned
to wear specific clothing and meet at the gas station that evening.
Mallet proceeded to the gas station. He was arrested on his way there.
The state charged Mallet with electroni c communication about sexual conduct with
someone believed to be a child in violation of Minn. Stat. § 609.352, subd. 2a(2) (2016)
(count one), and solicitation of someone believed to be a child to engage in sexual conduct

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in violation of Minn. Stat. § 609.352, subd. 2 (2016) (count two). Mallet pleaded not guilty
and had a jury trial.
In a pretrial motion, Mallet claimed th at he was entrapped by the agent and
requested a jury instruction on entrapment. The district court reserved ruling on the request
until the end of the trial. During the trial, the state called two BCA agents as witnesses,
including the agent who played the role of Seth, and offered exhibits containing screenshots
of Seth’s profile and the communications between Mallet and the agent. After the
presentation of evidence, the district court granted Mallet’s request for an entrapment
instruction, and included the instruction with the court’s final charge to the jury. Mallet’s
attorney argued in closing that the agent’s persistent contacts were evidence of entrapment
and that the jury should find that Mallet was entrapped by the state.
The jury returned gu ilty verdicts on both counts. At sentencing, the district court
stayed execution of a 15-month prison senten ce, placing Mallet on supervised probation
for three years and ordering him to serve 60 days in jail as a condition of probation.
Mallet appeals.
DECISION
I. The evidence at trial was suffici ent to support Mallet’s convictions
notwithstanding his entrapment defense.

Mallet argues that the evid ence does not support the jury’s rejection of his
entrapment defense, and in turn, his conv ictions. “To determine whether sufficient
evidence exists to support a jury verdict, [appe llate courts] view the evidence in a light
most favorable to the verdict and assume the fact-finder disbel ieved any testimony
conflicting with that verdict.” State v. Balandin , 944 N.W.2d 204, 213 (Minn. 2020)

7
(quotation omitted). A verdict will not be overturned “if, giving due regard to the
presumption of innocence and to the prosec ution’s burden of proving guilt beyond a
reasonable doubt, the jury could reasonably have found the defendant guilty of the charged
offense.” Id. (quotation omitted); see State v. Bauer, 776 N.W.2d 462, 469 (Minn. App.
2009) (applying sufficiency-of-evidence sta ndard in reviewing jury’s rejection of
entrapment defense), aff’d on other grounds, 792 N.W.2d 825 (Minn. 2011).
To guide our analysis on th e sufficiency of the evidence, we first consider the law
of entrapment. Minnesota courts have recognized the entrapment defense for many years.
“It is well settled that decoys may be used to entrap criminals, and to present opportunity
to one intending or willing to commit crime. But decoys are not permissible to ensnare the
innocent and law-abiding into the commission of crime.” State v. Poague, 72 N.W.2d 620,
625 (Minn. 1955) (emphasis omitted) (quoting Newman v. United States, 299 F. 128, 131
(4th Cir. 1924)). Thus, “[w]hen the criminal design originates, not with the accused, but
is conceived in the mind of the government officers, and the accused is by persuasion,
deceitful representation, or inducement lured into the commission of a criminal act, the
government is estopped by sound public policy from prosecution therefor.” Id.
This state, like most others, applies a subjective test when examining the propriety
of an entrapment defense. State v. Grilli, 230 N.W.2d 445, 452-53 (Minn. 1975). This test
consists of two elements: (1) induceme nt and (2) criminal predisposition. Id. at 455-56
(citing Sherman v. United States , 356 U.S. 369, 373, 78 S. Ct. 819, 821 (1958)). On the
first element, the defendant bears the burden of production: “the defendant must raise the
defense by showing by a fair preponderance of the evid ence—either through cross-

8
examination of the state’s witnesses or th rough defense testimony—that the government
induced the commission of the crime.” State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985);
State v. Charlton , 338 N.W.2d 26, 29 (M inn. 1983). If the defense makes a threshold
showing of inducement, the burden shifts to the state on the s econd element to prove that
the defendant was predisposed to commit the crime charged beyond a reasonable doubt.
Grilli, 230 N.W.2d at 456.
A. Inducement

As to the element of inducement, “the evidence must show that the state did
something more than merely solicit the commission of a cr ime”—conduct more akin to
“persuasion, badgering, or pressure” must occur. State v. Olkon , 299 N.W.2d 89, 107
(Minn. 1980).1 Merely supplying a defendant with the opportunity to commit a crime is
not enough to establish that the government actor induced the crime. Vaughn, 361 N.W.2d
at 57.
Mallet argues that the agen t “clearly induced [him] to commit offenses he would
not otherwise have committed by improper pressure[,] badg ering and persuasion.” He
claims that the agent’s “actions in continually reaching out to [him] and re-initiating contact
over a period of days exerted improper pressure . . . to co mmit the charged offenses.”
Mallet likens his case to State v. Johnson, arguing that his burden of production is satisfied
by the state’s own evidence, which shows that he was “eventually overcome by the

1 As we have noted in the past, “[t]hat the district court instructed the jury on [appellant]’s
entrapment theory does not esta blish that the evidence is of sufficient weight to meet
[appellant]’s burden of proof on the inducement element. Rather, it merely indicates that
some evidence exists in support of inducement.” Bauer, 776 N.W.2d at 470.

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[agent]’s persuasion” after initially declining to meet Seth in person. 511 N.W.2d 753,
755-56 (Minn. App. 1994) (concluding that trial court erred by refusing to instruct the jury
on entrapment because evidence showed in ducement and the state failed to prove
defendant’s predisposition for drug transactions), review denied (Minn. Apr. 19, 1994).
The state counters that the evidence on the nature and extent of Mallet’s
conversation with Seth shows that Mallet was not induced. The state maintains that the
agent merely “provided an oppo rtunity for [Mallet] to comm it his crimes,” which, under
the caselaw, cannot establish a threshold showing of inducement.
After thorough review, we conclude that Mallet failed to make a threshold showing
of inducement. We recognize that the jury received evidence of the agent’s attempts to re-
engage Mallet during lapses in the conversation throughout the nine-day period. And we
accept that Mallet may have viewed certain messages from Seth as provocative. For
example, the agent would send re sponses to Mallet such as “I really like u”; “You really
got me all excited”; “That sounds hot”; “Are u not interested?”
2 But this evidence alone
does not show inducement. Rather than showing improper inducement, we determine that
the agent’s conduct afforded Mallet the opportunity to engage in crime.
The district court gave an instruction on the entrapment defense that conforms to
the standard jury instruction. 10 Minnesota Practice, CRIMJIG 7.02 (2018). As part of

2 The prosecutor even drew attention to the nature of the agent’s messaging during trial by
asking the agent on direct exam ination, “Now as you’re enga ging in this chat with the
defendant, and, you, know, some of the respons es that you provide could be considered a
bit flirtatious. Is that allo wed under [Internet Crimes Against Children] standards?” The
agent testified that such responses are allo wed because agents “nee d to pretend to be
interested for the conversation to continue in the way that the adult is driving it to continue”
and the agent’s responses might suggest a lack of interest.

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that instruction, the district court advised the jury that “the fact that the government agent
has provided what appears to be a favorable opportunity is not a defense.” See Kind Heart
Daycare, Inc. v. Comm’r of Human Servs. , 905 N.W.2d 1, 12 n.5 (Minn. 2017) (“[T]he
fact that government agents merely afford opportunities or facilities for the commission of
the offense does not constitute entrapment.” (quotation omitted)); see Vaughn, 361 N.W.2d
at 57. The jury received a full copy of th e messages between Mallet and Seth and heard
testimony from the agent about his rationale for sending specific messages. From this
evidence, the jury reasonably could have found that, although the agent gave Mallet various
opportunities to solicit a 15-y ear-old, Mallet was not badgered, persuaded, or pressured
into planning an in-person meeting to engage in sexual conduct. To the contrary, the agent
repeatedly reminded Mallet that Seth was underage, which did not deter Mallet from
pursuing highly sexualized conversations and, ultimately, setting up a meeting.
We also reject Malle t’s invitation to apply Johnson as controlling authority in this
case. See Johnson, 511 N.W.2d at 753. Unlike the defendant’s acquiescence in Johnson,
there was plenty of evidence here showing that Mallet consistently initiated sexual
conversations with Seth, and that Mallet was the one who pushed an in-person meeting and
planned it. See id. at 755-56 (reasoning that defendant’s own testimony showed he had no
desire to purchase drugs from informant during “reverse-sting” operation).
Because the agent’s conduct did not rise to the level of “persuasion, badgering, or
pressure”—even though some messages may have been prov ocative or flirtatious in
nature—we conclude that the jury had a sufficient basis to find that Mallet was not induced
to commit the offenses. Olkon, 299 N.W.2d at 107.

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B. Criminal Predisposition

Even if Mallet satisfied his burden of showing inducement, th e state’s evidence,
which established his predispo sition to commit the offenses beyond a reasonable doubt,
was sufficient to overcome the entrapment defense. Predisposition may be shown through
(1) the defendant’s active solicitation to commit the crime, (2) prior criminal convictions,
(3) prior criminal conduct not resulting in conviction, (4) crim inal reputation, or (5) any
other adequate means. Grilli, 230 N.W.2d at 452; Olkon, 299 N.W.2d at 107-08. Mallet’s
criminal past is not at issue. Rather, his predisposition hinges on “evidence that [he] readily
responded to the solicitation of the co mmission of a crime by the state.” Olkon, 299
N.W.2d at 108 (explaining that the state ma y prove predisposition w ith evidence of the
defendant’s ready response to the state’s initial solicitation); see In re Welfare of G.D., 473
N.W.2d 878, 883-84 (Minn. App. 1991).
We conclude that Mallet’s ready participa tion in the conversation and the consistent,
sexualized nature of his messages to a pers on he believed to be 15-year-old boy, is
sufficient proof that Mallet was predisposed to engage in sexualized communications with,
and solicitation of, a child.
3 The evidence reveals that Ma llet initiated contact with Seth,

3 Both parties argue that the sufficiency of the evidence should be reviewed under the
traditional standard of review; neither sugg ests that the circum stantial-evidence test
applies. And caselaw shows that sufficien cy-of-the-evidence appeals that focus on
entrapment defenses may be reviewed under the traditional standard. Bauer, 776 N.W.2d
at 469. Still, when a conviction rests on mi xed evidence, meaning some elements proven
by direct evidence and other elements proven by circumstantial evidence alone, appellate
courts apply the circumst antial-evidence test. State v. Horst, 880 N.W.2d 24, 40 (Minn.
2016); State v. Porte, 832 N.W.2d 303, 309-10 (Minn. App. 2013), review denied (Minn.
June 16, 2015). Under that test, appellate courts review the circumstances proved by the
state at trial and consider wh ether any rational hypothesis inconsistent with guilt could
reasonably co-exist. Porte, 832 N.W.2d at 310. Becaus e the evidence of Mallet’s

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continued communicating with Seth despite his young age, insistently discussed his sexual
preferences in graphic detail, usually singleh andedly steering the discussion toward sex;
and consistently expressed a desire to meet in person.
In sum, the evidence reasonably permitted th e jury to reject Mallet’s entrapment
defense. There was sufficient evidence from which the jury could find that Mallet was not
induced and that he was pred isposed to commit the crimes charged beyond a reasonable
doubt.
II. The claims raised in Mallet’s pro se s upplemental brief do not require reversal
of his convictions.

Mallet also filed a pro se supplemental brief on appeal. In his brief, he alleges that
portions of testimony from the BCA agent are inconsistent. Specifically, he points out that
the BCA agents testified that photographs used to create decoy profiles “have to come from
an employee of law enforcement,” yet the BCA agent who posed as Seth testified that he
used a “stock photo” found online as a profile picture. Thus, Mallet asserts that the agent

predisposition is arguably purely circumstan tial, the circumstantial-evidence test may
apply. See Bernhardt v. State , 684 N.W.2d 465, 477 n.11 (Minn. 2004) (defining
circumstantial evidence). But even if applied here, our decision is unaffected. Having
considered the circumstances proved, and af ter giving proper deference to the jury’s
verdicts and its rejection of evidence inconsistent with the verdicts, all rational inferences
consistently point to Mallet’s guilt and remain inconsistent with any rational hypothesis to
the contrary. The evidence of Mallet’s ready, consistent, and vehement participation in the
nine-day conversation with Seth establishes his criminal disposition for sexualized
electronic communications with, and solicitati on of, a 15-year-old. Thus, all rational
inferences from the evidence establish Mallet was still pr edisposed to commit the crimes
charged. Because the evidence leaves no room for any other r easonable conclusion,
applying the circumstantial-evidence test here leads to the same result: sufficient evidence
supports the jury’s finding that Mallet was not entrapped.

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did not “follow proper protocol as he was trained in and ther efore was never able to give
the believable impression of being an underage individual on an adult’s only application.”
To the extent that Mallet’s argument is ra ising a trial error, Mallet did not object to
any such error during the trial and does not articulate a legal basis for that error in his
supplemental brief. In reviewing errors that were not preserved by an objection, we apply
the plain-error standard of review. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Here, Mallet does not specify any legal ground s for a claim of error or cite any legal
authority supporting his position. See Adams v. Harpstead, 947 N.W.2d 838, 847 (Minn.
App. 2020) (“It is axiomatic that an assignment of error on mere assertion, unsupported by
argument or authority, is forfeited and need not be considered unless prejudicial error is
obvious on mere inspec tion.” (quotation omitted)), review denied (Minn. Oct. 1, 2020).
Thus, we find that no plain error occurred.
Mallet’s pro se supplemental brief might al so be interpreted as adding support for
his sufficiency-of-the-evidence challenge. We note, however, that the jury had an
opportunity to review the evidence highlighted by Mallet and ultimately found him guilty.
Again, when reviewing the suffi ciency of the eviden ce, we must “view the evidence in a
light most favorable to the verdict and assume the fact-finder disbelieved any testimony
conflicting with that verdict.” Balandin, 944 N.W.2d at 213 (emphasis added). In doing
so, we conclude that sufficien t evidence supports the jury’s verdicts, and we therefore
affirm Mallet’s convictions.
Affirmed.