State v. Doran

• Decision Date: 22 June 1983
• Docket Number: No. 82-1193,82-1193
• Citation: 5 OBR 404,449 N.E.2d 1295,5 Ohio St.3d 187
• Parties: , 5 O.B.R. 404 The STATE of Ohio, Appellee, v. DORAN, Appellant.
• Court: Ohio Supreme Court

Page 187

5 Ohio St.3d 187

449 N.E.2d 1295, 5 O.B.R. 404

The STATE of Ohio, Appellee, v. DORAN, Appellant.

No. 82-1193.

Supreme Court of Ohio.

June 22, 1983.

Syllabus by the Court

1. The defense of entrapment is established where the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute.

2. Entrapment is an affirmative defense under R.C. 2901.05(C)(2).

3. A jury instruction which fails to allocate any burden of proof on the affirmative defense of entrapment is inherently misleading and confusing and is prejudicial error.

As a result of a series of drug transactions, appellant, William S. Doran, was indicted on six counts of aggravated trafficking under R.C. 2925.03(A)(1) and (5) and one count of permitting drug abuse under R.C. 2925.13(A). The particular circumstances of these transactions are as follows.

In October 1980, appellant picked up a hitchhiker named Nona F. Wilson. Appellant did not know Wilson prior to this occasion. Unknown to appellant, Wilson was an agent of Medway Enforcement Group, a multi-county undercover drug enforcement group. Wilson was not a law enforcement officer, but was paid by Medway to introduce undercover police agents to prospective drug dealers. Medway paid Wilson $50 for arranging a drug buy with a first offender and $100 for arranging a buy with a repeat offender.

While appellant drove Wilson home, the two struck up a conversation and became friendly. During their conversation, Wilson asked appellant if he dealt in drugs. Appellant responded that he did not. Over the next several weeks appellant frequently spoke with Wilson over the telephone and occasionally saw her in person. Invariably Wilson relayed to appellant her desperate need for money. Wilson explained to appellant that her ex-husband had custody of her children and that she needed money to hire a lawyer to regain her children's custody. Wilson repeatedly suggested to appellant that if he could obtain drugs for her to sell, she could make the money she needed. Appellant declined and counselled Wilson to find a job.

Approximately two weeks after appellant and Wilson met, she requested that appellant meet her at a Wadsworth bar. There, Wilson introduced appellant to David High. High was introduced simply as a friend of Wilson, but was in reality an undercover narcotics agent with Medway.

In the days that followed, Wilson continued to press appellant into obtaining drugs for her to sell. Wilson's pleas became increasingly emotional and she would often break down and cry. Wilson even confessed to appellant that she was contemplating kidnapping her children in order to regain their custody. Appellant continuously resisted Wilson's pleas until finally he gave in and agreed to attempt to locate a supplier of drugs.

On November 18, 1980, appellant informed Wilson that he may have found a supplier. On that date appellant met with Wilson and High. Wilson explained to appellant that High was assisting her with the purchase of the drugs. Appellant received $200 from High, and Wilson and High then left. Shortly thereafter, Wilson and High saw appellant, at which time appellant delivered two tinfoil packets to them which contained phencyclidine (PCP).

Some time later, Wilson told appellant that she had found an apartment but needed money for a deposit in order to move in. On November 21, 1980, under circumstances similar to the earlier sale, another drug transaction was completed between appellant and High, in Wilson's presence.

A third sale took place on November 25, 1980 after Wilson told appellant that she was despondent over her inability to adequately clothe her children. This sale took place in the same manner as the earlier two sales with appellant delivering the drugs to High in Wilson's presence.

Over the next three to four months, three additional sales were completed. These last three sales were arranged and carried out between appellant and High alone. None of the latter sales involved the physical presence of Wilson, even though she continued to contact appellant and maintain that these drug transactions were necessary to satisfy a considerable gambling debt, the payment of which would prevent her from turning to prostitution. Prior to the final sale, High told appellant that only one more sale would be necessary in order for Wilson and High to get married and finance a new beginning for themselves. After the sixth sale, appellant was arrested and indicted.

Appellant was tried before a jury and raised the defense of entrapment. Wilson testified as a defense witness. The trial court instructed the jury on the elements of the offenses and the requirement that the state had the burden to prove those elements beyond a reasonable doubt. With regard to entrapment, the trial court instructed the jury that entrapment is not an affirmative defense. Appellant requested an instruction to the effect that a criminal defendant would have no burden of proof on entrapment. Appellant also proposed an instruction defining inducement. The trial court refused to give either of appellant's proposed instructions. The trial court's definition of the defense of entrapment was, as set forth in his instruction:

"The defendant denies that he formed a purpose to commit a crime. He claims that he is excused because he was unlawfully entrapped by the undercover agent.

"Unlawful entrapment occurs when a police officer, informant or agent plants in the mind of the defendant the original idea and purpose inducing the defendant to commit a crime that he had not considered and which otherwise he had no intention of committing or would not have committed but for the inducement of the police officer, undercover agent or informant.

"If the defendant did not, himself, conceive the idea of committing a crime and it was suggested to him by the officer for the purpose of causing his arrest, the defendant must be found not guilty. However, if the defendant commits a crime while acting even in part in carrying out his own purpose or plan to violate the law, an entrapment is not unlawful and is not a defense even if the officer suggested the crime and provided the opportunity or facility or aided or encouraged its commission. A person is not entrapped when officers for the purpose of detecting crime merely present a defendant with an opportunity to commit an offense. Under such circumstances, craft and pretense may be used by law officers or agents to accomplish such purpose.

"If you find by credible evidence that the defendant had the predisposition and criminal design to commit the act into which he claims he was entrapped and that he was merely provided with opportunity to commit those acts for which he was both apt and willing, then he has not been unlawfully entrapped."

Twice the jury interrupted their deliberations to ask the trial judge to clarify his instruction on entrapment. The first time the trial judge repeated the original instruction. The second time the jury was ordered to return to their deliberations without any further instructions.

Appellant was acquitted of the aggravated trafficking charges which related to the first three buys and of the charge of permitting drug abuse. Appellant was found guilty of the remaining three counts of aggravated trafficking which arose from the buys conducted solely between appellant and High, without the physical presence of Wilson.

The court of appeals affirmed appellant's convictions and held that, even though the trial court erred in failing to refer to entrapment as an affirmative defense, the resulting error was not prejudicial.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Keith A. Shearer, Pros. Atty., and Martin Frantz, Stow, for appellee.

J. Dean Carro, Akron, and Appellate Review Office, School of Law, University of Akron, for appellant.

FRANK D. CELEBREZZE, Chief Justice.

This appeal poses several previously unanswered questions significant to the administration of criminal justice in this state. First, we are asked to define the defense of entrapment. Second, we must decide whether entrapment is an affirmative defense. The final issue presented is whether a trial court commits prejudicial error by failing to allocate any burden of proof on the entrapment defense.

I

We must initially choose between defining entrapment under the "subjective" or "objective" test. Succinctly stated, the subjective test of entrapment focuses upon the predisposition of the accused to commit an offense whereas the objective or "hypothetical-person" test focuses upon the degree of inducement utilized by law enforcement officials and whether an ordinary law-abiding citizen would have been induced to commit an offense.

The United States Supreme Court adopted the subjective test of entrapment for federal prosecutions in Sorrells v. United States (1932), 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. That test has withstood several challenges to its continued viability. See Sherman v. United States (1958), 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 and United States v. Russell (1973), 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. However, the objective test has won favor with a minority of United States Supreme Court justices and has been adopted by several states. ¹

This court has not yet defined which test is applicable in this state. Since defining the entrapment defense under either of the above standards does not implicate federal constitutional principles, we are not bound by Sorrells and its progeny and are free to adopt either standard.

Appellant advocates adoption of the objective test. The approach advanced by appellant would examine the conduct of the police officer or agent and require a determination of whether the police conduct would induce an ordinary law-abiding citizen to commit...