State v. Latina

Decision Date30 January 1984
Citation468 N.E.2d 1139,13 Ohio App.3d 182,13 OBR 229
Parties, 13 O.B.R. 229 The STATE of Ohio, Appellee, v. LATINA, Appellant.
CourtOhio Court of Appeals

Syllabus by the Court

1. When a defendant claims that he was induced into committing a crime by the promises of sex, drugs, money, and protection of a police officer, he may raise the affirmative defense of entrapment. If the evidence discloses that no reasonable person could find that the defendant was not entrapped, the trial court must dismiss the indictment on the ground of entrapment as a matter of law. There is no independent criminal defense for "outrageous government conduct."

2. Where there is evidence that the defendant told an undercover agent that he knew a supplier of cocaine, suggested a price, and offered to go forward with the transaction even after the agent proposed that the defendant should back out of the deal, this constitutes sufficient evidence of the defendant's predisposition to sell cocaine to submit the issue of defendant's guilt to the jury.

3. A person who offers to provide narcotics as a link in the chain of supply is guilty of "offering to sell" narcotics within the meaning of R.C. 2925.03. It is immaterial whether the person intended to act as the agent of the purchaser or the agent of the seller.

John T. Corrigan, Pros. Atty., for appellee.

Robert J. Rotatori and Susan L. Gragel, Cleveland, for appellant.

JACKSON, Judge.

Appellant was indicted for and convicted of a five count indictment for violation of the drug law. He appeals, assigning seven errors for review.

Detective Thomas Neelon of the Cleveland Police Department, responding to anonymous citizen complaints, conducted an undercover investigation directed against the appellant. Neelon adopted the pseudonym Thomas Goodman and effected the lifestyle of a high-rolling underworld figure to determine whether appellant was trafficking in cocaine.

Appellant was an employee of Rush Limousine. In a recorded conversation Jon Cornell, owner of the Rush Limousine, stated that appellant was his "head chauffeur"; appellant described himself as the "main driver." Detective Neelon arranged with Cornell for appellant to pick him up at Public Square on December 3, 1982, at 1:00 p.m.

Between December 3 and December 7, 1982, Detective Neelon recorded eight conversations with appellant, by means of a wiretap upon a telephone at police headquarters, and a "body bug" hidden on Detective Neelon's person. Detective Neelon gave the unmistakable impression that he was a pimp. In their first meeting, Detective Neelon was accompanied by "Pam," a civilian cooperating with Detective Neelon in this investigation, who played the role of a prostitute working for him. Also during that first visit, Detective Neelon introduced appellant to "Gloria," an undercover policewoman.

During their meetings, Detective Neelon made numerous overtures to appellant to gain his confidence and to induce him to sell him cocaine. He offered appellant sex with "Glorida," "Pam," and other women. He offered appellant drugs. He promised to bring appellant backstage during rock concerts. Finally he told Jon Cornell and appellant he was throwing a party at his Bratenahl mansion, that he wanted to rent five limousines for the event, and that they were both invited to the party.

Appellant displayed a familiarity with drugs before Detective Neelon offered to purchase cocaine. The evidence discloses that appellant volunteered that he liked cocaine, and that he purchased marijuana.

When Detective Neelon indicated he wished to purchase cocaine, appellant stated that he could provide it, and quoted Detective Neelon a price. Later Detective Neelon again offered to purchase cocaine from appellant, and appellant offered to sell some to him.

Three days later, on December 6, 1982, while riding in the limousine, appellant gave Detective Neelon a small bag of marijuana and loaned him a pipe to smoke it with. Later on December 6, during a telephone conversation, Cornell asked Detective Neelon his business address and the name of his company, and stated that he could not find Detective Neelon's assumed name (Goodman) in the phone book. In a subsequent conversation appellant told Detective Neelon, "I didn't get anything together on that yet." The next day, appellant told Detective Neelon that he "didn't get a chance" to "get it together," and that "this guy's kind of hard to get ahold of all the time."

During this time Cornell called a friend at the police department, Officer Joseph Kocab, to trace the license number on Detective Neelon's automobile. Patrolman Kocab testified that he was unable to acquire this information for Mr. Cornell, and that he thereafter received a telephone call from Detective Neelon.

On December 7, 1982, Detective Neelon and appellant met. Appellant offered to sell Detective Neelon a pound of cocaine for $28,800 ($1,800 per ounce).

Appellant expressed distrust of Detective Neelon, even asking to see his driver's license. The evidence shows that Detective Neelon gave appellant two opportunities to back out of the sale.

Detective Neelon also, however, promised appellant that he would protect appellant if he were arrested. Specifically, he said he would bribe a judge with $30,000, if appellant were prosecuted. Detective Neelon also promised that if appellant would sell him the cocaine, they could meet "Pam" and "party" with her.

Detective Neelon persuaded appellant to take a chance on him, and appellant relented, agreeing to procure cocaine for Detective Neelon:

"C [Carl Latina]: I have a job tonight. I'll see if I can get ahold of these persons.

"T [Thomas Neelon]: I'm in no hurry, even if you want to make it tomorrow. You know, don't go out of your way.

"C: Okay. I guess we'll see what happens. Taken a number of chances before.

"T: Well, like I say, if you don't that's okay. I don't wanna, you know, I understand, you know.

"C: (inaudible)

"T: Sure, sure.

"C: (inaudible) we're talking about $30,000. (inaudible) That might not be alot.

"T: I wouldn't want to start off with that. First of all, I just wanted to see what I'm getting into, you know.

"C: Right. That's what I want you to do. Next time I see him, I'll get it myself. That way I'll have it and that way when I hook up with you whenever, maybe I can have it."

Over the phone later the same day, appellant stated he was going home and would call Neelon back. On December 9, Detective Neelon called appellant at home and appellant told him, "I'm not gonna get it together," "It's too rich for my blood," and "I'm just not gonna get involved in it. I don't have anything to do with that anyhow, so no use in jumpin' in it right now."

The defense called five witnesses (Robin Sacco, Richard Mills, Kathleen Zitzman, Julie Lachanski, and Janet Hutchins) to testify that they had ridden in a Rush Limousine, driven by appellant in late 1982, and that he had not offered to sell them drugs. Appellant's mother testified that her son was hospitalized in September and October 1982, and that he worked as a limousine driver only three to five times until he moved out in mid-November 1982. (This testimony was introduced to counter evidence adduced by the prosecution that appellant had offered anonymous persons drugs while driving the limousine during this period.)

A hospital record was also offered in evidence, showing appellant was hospitalized in 1982 from August 30 to September 8, and September 28 to October 16, with "disseminated herpes simplex" and "thrombocytopenic purpura." The discharge summary for the second hospitalization states, "The patient also denied history of drug abuse except for using chronically marijuana." Appellant did not testify.

The five count indictment against appellant included the following charges:

(1) That on December 3, appellant offered to sell cocaine, in an amount equal to or exceeding the bulk amount but less than three times the bulk amount (R.C. 2925.03);

(2) That on December 7, appellant offered to sell cocaine in an amount equal to or exceeding three times the bulk amount (R.C. 2925.03);

(3) That on December 6, appellant sold or offered to sell marijuana in an amount less than the bulk amount (R.C. 2925.03);

(4) & (5) That in December, appellant knowingly permitted an automobile to be used for the commission of a felony drug offense, to-wit, sale of cocaine (two counts) (R.C. 2925.13).

The relevant statutory provisions are set forth below.

R.C. 2925.03 states in relevant part:

"(A) No person shall knowingly do any of the following:

"(1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount as defined in section 2925.01 of the Revised Code;

" * * *

"(5) Sell or offer to sell a controlled substance in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount;

" * * *

"(7) Sell or offer to sell a controlled substance in an amount equal to or exceeding three times the bulk amount;

" * * * "

R.C. 2925.13(A) provides:

"No person, being the owner, operator, or person in charge of a locomotive, watercraft, aircraft, or other vehicles as defined in division (A) of section 4501.01 of the Revised Code, shall knowingly permit such vehicle to be used for commission of a felony drug abuse offense."

I

Appellant contends in his first assignment of error that "the trial court erroneously rejected appellant's assertion, made in a pretrial motion to dismiss and in motions for judgment of acquittal, that the term 'offer to sell,' in R.C. 2925.03, was unconstitutionally vague on its face and as applied in the instant case."

Appellant contends that the term "offer to sell" contained in R.C. 2925.03 is unconstitutionally vague on its face and as applied.

The statute was held to be constitutional on its face in State v. Scott (1982), 69 Ohio St.2d 439, 441, 432 N.E.2d 798 , wherein the Ohio Supreme Court he...

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