WILLIAM E. ALBAUGH,
    Appellant (Defendant below),

    v.

STATE OF INDIANA,
    Appellee (Plaintiff below).

)
)    Supreme Court No.
)    24S05-9812-CR-00777
)
)    Court of Appeals No.
)    24A05-9803-CR-169
)
)
)

driving while intoxicated. We reverse Albaugh's conviction, holding that the State failed to meet its burden of proving that the officer did not cause Albaugh to drive his truck while intoxicated.

    Soon after his arrival, Albaugh and Gray began to make amends. The two began drinking whiskey while discussing what to do about the truck. They also discussed the possibility of using their diesel tractor to tow the truck, but with the weather rapidly deteriorating, they decided to wait until the next morning.

    At approximately 12:50 a.m., Deputy Sheriff Dale Maxie, accompanied by Jailer Barry Bischoff, received a call about a “suspicious” truck parked on the side of a road with

its hazard lights flashing. Deputy Maxie and Bischoff located the truck at approximately 1:19 a.m., and Bischoff tried unsuccessfully to start the truck. Deputy Maxie ran a license plate check and discovered that the owner of the truck was William Albaugh, who lived just down the road. The two then proceeded to drive to Albaugh's home.
    
    Upon their arrival, Deputy Maxie and Bischoff approached Albaugh's front door and were able to see him through a front window talking on the phone. They knocked, and Albaugh motioned them into the house eventually hanging up the phone. Deputy Maxie asked Albaugh about his truck, and Albaugh responded that he thought the transmission “froze up.” Labeling the truck a potential hazard, Deputy Maxie told Albaugh that the truck had to be removed from the roadway. There was also some discussion about Albaugh and Gray moving the truck with a diesel tractor. Neither Albaugh nor Gray told their two visitors that they had been drinking.

    Deputy Maxie and Bischoff left the house and returned to the stalled vehicle to make sure that it would be moved. After waiting a few minutes, Albaugh arrived and walked to the truck. The lights from Maxie's police car illuminated the scene. Albaugh managed to start the truck. After scraping a small hole in the frosted windshield, Albaugh drove off. Deputy Maxie followed and observed a confused Albaugh drive the truck into a cornfield. Albaugh exited the truck, walked toward Deputy Maxie's car and stated that he had been drinking. Deputy Maxie could detect the presence of alcohol on Albaugh's breath. Maxie

placed handcuffs on Albaugh and drove him home to inform Gray that he was taking Albaugh to Batesville for a breath test.

    Upon arriving in Batesville, Police Officer Steve Yorn, who administered a blood alcohol content test, noticed that Albaugh was “obviously intoxicated.” Albaugh's BAC was .19%.

    On August 19, 1996, the State charged Albaugh with Operating a Vehicle While Intoxicated,See footnote 1 a Class C misdemeanor. One week before trial, the State amended the charging information and added Count II, Operating a Vehicle While Intoxicated,See footnote 2 a Class A misdemeanor. Albaugh moved for judgment on the evidence pursuant to Ind. Trial Rule 50 at (1) the conclusion of the State's case-in-chief, (2) after he presented evidence, and (3) again after the jury returned its guilty verdicts, each time claiming the State had failed to present sufficient evidence to rebut his claim of entrapment. The trial court denied each motion.

    Without entering a final judgment, the court sentenced Albaugh to one year with all but 60 days suspended, which the court ordered him to serve on work release. After sentencing, Albaugh filed a motion to stay the execution of his sentence pending his appeal.

The trial court denied his motion,See footnote 3 and Albaugh served his 60-day sentence.

     Albaugh appealed claiming that the State had presented insufficient evidence to rebut his defense of entrapment. The Court of Appeals disagreed, affirming Albaugh's conviction. Albaugh v. State, No. 24A05-9803-CR-169, 705 N.E.2d 584 (Ind. Ct. App. Oct. 20, 1998) (unpublished table decision).

    We will recite additional facts as necessary.

    In Indiana, the entrapment defense is defined by our legislature as follows:

(a) It is 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.
    (b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.See footnote 4
        
     Over the years, this Court rendered inconsistent opinions as to whether the State must disprove both elements (a)(1) and (a)(2) beyond a reasonable doubt,See footnote 5 or disprove only one of the two elements.See footnote 6 Finally, in McGowan v. State, 674 N.E.2d 174 (Ind. 1996), reh'g denied, we recognized this inconsistency and adopted the latter approach: the State may prove either that the “defendant's prohibited conduct was not the product of the police efforts or that the defendant was predisposed to engage in such conduct.” Id. at 175 (emphasis added). We held that because “'the defense is established by demonstrating the existence of two elements, then it is logical that the defense is rebutted by demonstrating the nonexistence of one of those two elements.'” Id. (quoting McGowan v. State, 671 N.E.2d 872, 880 (Ind. Ct. App. 1996)) .

    The use of the entrapment defense in this case is highly unusual in two respects. First, we have never before been called upon to analyze the defense of entrapment in a situation where the conduct of the law enforcement officials was not for the express purpose of obtaining evidence for the commission of a crime. In the typical situation where a defendant invokes the “entrapment” defense, police officers, working under cover, are accused of enticing an otherwise law-abiding person into violating the law.

     Second, the typical entrapment case requires the State to prove beyond a reasonable doubt that a defendant has committed a “specific intent” crime such as dealing in a controlled substance, robbery, or receiving stolen property. The mens rea element of the typical offense serves both as a basis to consider the “predisposition” element of the entrapment defense and to establish whether the level of police activity persuasively affected the defendant's free will.See footnote 7

    We have previously considered the entrapment defense in the context of the strict liability crime of furnishing an alcoholic beverage to a minor. Baird v. State, 446 N.E.2d 342 (Ind. 1983). In Baird we found that

[t] he state presented absolutely no evidence of defendant's predisposition to commit the crime. The proscribed activity in this case was entirely initiated by the police, and their agent . . . was recruited specifically for the purpose of purchasing an alcoholic beverage from defendant. From all of these facts, it is apparent that the state failed to rebut defendant's defense of entrapment.
                        
Id. at 344. Although we were following the pre-McGowan rule that the State must disprove both elements of the entrapment defense, we found persuasive the fact that “[t]he police

testified that they had no complaints that defendant had been selling alcoholic beverages to minors . . . [and the d]efendant had no prior criminal record,” id. at 343, in reversing the judgment of the trial court and remanding with instructions to enter a judgment of not guilty.

     It is beyond contention that Defendant was not predisposed that evening to drive his vehicle while intoxicated. In the words of the Court of Appeals, “Albaugh argues convincingly, and the evidence suggests, that Albaugh and his girlfriend had settled in for the evening and had decided not to move the truck until the following morning.” Albaugh, Slip Op. at 6 n.4. Because the predisposition element of the entrapment defense is not at issue, the outcome of this case turns on whether the State presented sufficient evidence to rebut the product-of-police-efforts element. In that respect, the State had the burden of proving beyond a reasonable doubt that Albaugh's conduct in driving while intoxicated was not the product of Deputy Maxie using persuasion or other means likely to cause Albaugh to engage in the conduct. The Court of Appeals determined that “it was reasonable for a trier of fact to conclude that Deputy Maxie's conduct did not cause Albaugh to drive his truck while intoxicated.” Id. at 6. We disagree.

    In this case, the evidence suggests that a t around 1:30 a.m., Deputy Maxie and

Bischoff approached the front door to Albaugh's home. With flashlight in hand, Deputy Maxie pounded on the door, explaining later that “we were trained to knock hard to get people's attention.” (R. at 125.) Deputy Maxie could see Albaugh through a front window talking on the phone. Albaugh motioned the two men inside the house and they shut the door behind them. The house was dimly lit. Jennifer Gray was seated at a table in another room with a blanket draped over her, wearing her moccasins. (R. at 187.)

    Deputy Maxie asked, “[I]s your name William Albaugh?” (R. at 224.) Albaugh responded, “Yes,” and Deputy Maxie followed up with, “Do you own a red pickup that's parked down the road?” Id. Albaugh again answered affirmatively. Id.

    Deputy Maxie then began questioning Albaugh about the truck. Albaugh responded that he thought the transmission “froze up.” (R. at 85.) Deputy Maxie testified, “I told him it had to be removed. The vehicle had to be removed out [of] the roadway before it was a hazard.” (R. at 131.) Bischoff also testified, “We told him that it had to be moved.” (R. at 101.) In response to defense counsel's question, “You said tonight though?,” Bischoff responded, “Yeah, exactly, it's in the middle of the road on a country road. You can't park a truck in the middle of the road.” Id.

    Deputy Maxie testified that Albaugh quickly offered that he and his girlfriend would “be up with the tractor to pull it out of the roadway.” (R. at 129.) Gray testified: “Bill said,

well, I really can't move it now because our diesel tractor won't work in this cold, and we're going to have to wait until the morning. And Officer Maxie said, well, you've got to move it and you've got to move now.” (R. at 191.)

    Albaugh testified, “I wasn't going to be belligerent. I had no reason to be, but I was trying to explain to the Officer that we were going to move it in the morning. And it was just, you know, that was unacceptable, and it had to be moved.” (R. at 228.) Eventually, Albaugh said “ok” to moving the truck. (R. at 228.) He continued explaining,

I wanted them out of my house at this point because I didn't want to challenge their authority, which I was kind of doing by saying we'd get it tomorrow. Well, that's unacceptable, and back and forth . . . . So, I said, ok, I want them out, and I said, we'll go do it. I even said Jenny and I would be down to do it.

(R. at 228-29.)

    Deputy Maxie and Bischoff returned to the location of Albaugh's broken down truck. After waiting a few minutes, a green car pulled into a driveway near the truck. Despite the fact that just minutes prior they had not been able to start the vehicle, neither one offered Albaugh their help in moving or starting the vehicle in difficult conditions that Deputy Maxie himself described a