State v. Battle

WOLFF, P. J.

Charles L. Battle was found guilty by a jury of aggravated trafficking and sentenced to two years confinement. He appeals, advancing the following assignment of error:

"THE TRIAL COURT ERRED IN ITS INSTRUCTION TO THE JURY ON ENTRAPMENT.

"A. The trial court gave disproportionate importance to the issue of predisposition resulting in prejudice to defendant-appellant.

"B. The trial court erroneously used a list of evidentiary considerations found in State vs. Doran (1983), 5 Ohio St. 3d 187, as a definition of predisposition."

The facts, as summarized in Battle's appellate brief are as follows:

"On July 17, 1987, at approximately 2:30 PM, Defendant-Appellant, Charles Battle, was standing with a few of his friends at the corner of Dearborn and McCabe Streets in Dayton, Ohio. At that time, a car pulled up to the curb. The driver of the car made eye contact with Mr. Battle and motioned for him to approach the car. Mr. Battle obliged.

"The driver of the car, unbeknownst to Mr. Battle, was undercover police officer, Ernest Letlow, Jr.

"When Mr. Battle approached the car, he asked the driver, through the open passenger window, 'What [do you] want?' The officer replied that he was 'looking for a quarter of cocaine' A 'quarter' being a quarter gram of 'crack' cocaine Mr. Battle directed the officer to McCabe Park. The officer responded that McCabe Park was deserted.

"Mr. Battle then indicated that he knew of someone by the name of Michael Thompson who could sell the officer a 'quarter.' The officer and Mr. Battle proceeded to try to locate Michael Thompson, however, they were unsuccessful.

"The officer returned Mr. Battle to the corner of McCabe and Dearborn.

"As they arrived at the corner, they noticed a group of men standing across the street. Mr. Battle stated to the undercover officer that, although he didn't know of the men personally, he did recognized them as area drug dealers. Mr. Battle was able to recognize some of the men as area drug dealers because he lived in the immediate area.

The officer pulled up to where the group of men were standing and Mr. Battle got out of the car. Mr. Battle approached the men and told them that the "guy", i.e., the undercover officer, wanted a "quarter." One of the men had a small piece of "crack" but not a quarter. The man offered the smaller piece of "crack" cocaine to the officer via Mr. Battle

"Mr. Battle did not encourage the officer to buy the smaller piece, but instead relayed to him the option that the man proposed, i.e., the officer could buy the small piece or come back later that day for a 'quarter.'

The officer decided to purchase the smaller piece of "crack" cocaine and leave.

"After the undercover officer left Mr. Battle, he was approached for a filed investigation by uniformed officers. (The uniformed officers had been surveilling the incident by way of radio.)"

Before the jury began its deliberations, the trial court instructed as to entrapment, per Battle's request, as follows:

"Now Charles Battle claims a defense that is known as entrapment. Entrapment occurs when a police officer plants in the mind of the defendant, Charles Battle, the original idea or purpose, thus the furnishing from the start the incentive or moving force to commit an offense that the defendant had not considered and which he would not have carried out except for that incentive or moving force. If the defendant did not himself conceive of committing the offense, and if it was suggested to him by the officer for the purpose of causing his arrest and prosecution, the defendant must be found not guilty. Briefly, the whole criminal idea and purpose originates with the police, not with the defendant.

"However, if the defendant commits an offense while carrying out, even in part, his own idea or purpose to violate the law, there is no entrapment. The officer may go so far as to suggest the offense and to provide the opportunity to commit it, and if the defendant is already disposed to commit the offense and actspursuant to a criminal idea or purpose of his own, then there is no entrapment, and the defendant may be found guilty.

"Entrapment is an affirmative defense and the defendant has the burden of proof to prove entrapment by a preponderance of the evidence. The defense of entrapment is established where the criminal design, plan, or idea originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit an alleged offense and induce its commission in order to prosecute

During the course of its deliberations, the jury requested "some..clarification on the issue of entrapment." The trial court repeated its earlier instruction, supra, and added the following additional instructions:

"Now, it is proper to consider the predisposition of an accused, here Charles Battle, to commit a crime And it suggests that the law enforcement should be free to use artificial strategies to apprehend those engaged in criminal activity.

"Now, in determining predisposition, I'm going to read a list to you. This is by no means an exhaustive list, but these matters should be relevant on the issue of predisposition of Charles Battle to commit a crime"

One, the accused's previous involvement in the criminal activity of the nature charged.

Two, the accused's ready acquiescence to the inducements offered by the police

Three, the accused's expert knowledge in the area of the criminal activity charged.

Four, the accused's ready access to contraband.

And five, the accused's willingness to involve himself in criminal activity.

That's all I'm going to tell you about it. It's in your hands. Go back and go to work.

These supplemental instructions were objected to by defense counsel:

"Your Honor, the way we read the Doran case, which contains that list, non-exhaustive list of the matters ~ the way we read that, it appears to us that the Supreme Court is giving the trial courts information on what kind of evidence the trial court should allow in as relates to the issue of disposition or predisposition.

"And we don't see the list as in any way relating to the definition of predisposition or that that information should have been at all presented to the jury.

"The way we read it, and I'll quote, 'While evidence relevant to predisposition should be freely admitted, judges should be hesitant to allow evidence of the accused's bad reputation, without more on the issue of predisposition. Rather, while by no means an exhaustive list, the following matters would certainly be relevant on the issue of predisposition...'

"And then the list follows that the court just read, so we don't see a list as something that should be submitted to the jury in the form of a jury instruction. And we object on that basis."

Subpart A of the assignment of error advances two contentions The first is that the trial court erroneously overemphasized the predisposition aspect of entrapment by even rereading the entrapment instruction. We reject this contention. There was no objection to the court's reinstructing on entrapment - Crim. R. 30(A) - and, more important, it was incumbent upon the trial court to address the jury's request for additional instruction on the entrapment issue. The second contention is that inclusion of the Doran factors in the second instruction on entrapment overemphasized the predisposition aspect of entrapment vis a vis the police conduct aspect. The additional instruction first repeated the original entrapment instruction, which had been requested by defendant, and which amply discussed the police conduct aspect of the entrapment defense. If it was appropriate to inform the jury of the Doran factors, the trial court's so doing, without more, did not prejudicially overemphasize the predisposition aspect at the expense of the police conduct aspect. Although not critical to our evaluation of this argument, we note that trial counsel's objection to inclusion of the Doran factors did not specify overemphasis as a ground for objection. Furthermore, assuming it was proper to instruct the jury as to the Doran factors, concerns with overemphasis of the predisposition aspect of entrapment are vitiated by the fact that in adopting the "subjective" test for entrapment, the Supreme Court intended that the feet finder's focus be on the predisposition of the defendant rather than on the conduct of the police. Id. 190-192. We thus reject this contention.

In Subpart B of the assignment of error, Battle contends, as he did in the trial court, supra, that it was error to instruct the jury in any way as to the Doran factors. We cannot agree. While the Supreme Court may well have articulated these factors to assist trial judges in making correct decisions as to the admissability of evidence, nothing in Doran suggests these factors are off-limits when it comes to jury instructions Indeed, these factors invest the concept of "predisposition" with some readily understandable meaning. Venturing beyond the pattern instructionscontained in Ohio Jury Instructions is often the essence of sound jury instruction, not a practice to be avoided.

The form in which the trial court instructed on the Doran factors was not objected to at trial, nor is it addressed by Battle in this court. Judge Fain's concurring opinion discussesthe potential for jury misapprehension in the trial court's Doran instruction, and suggests a preferable instruction for use in the future. Notwithstanding what we find to be a problem with the form of the Doran instruction in this case, we decline to find prejudicial error. This is because the evidence of entrapment was insufficient to entitle Battle to any instruction whatsoever on entrapment, and the instruction on entrapment, albeit flawed, was more than Battle deserved and thus could not have worked to his disadvantage.

The assignment of error is overruled.

Judgment affirmed.

FAIN, J. concurs and concurs separately. GRADY, J. dissents