Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

ENTRAPMENT (ME076)

Also see Duress.

Basics

Proof and trial issues

Outrageous police conduct

Basics

State v. Doran (1983), 5 Ohio St. 3d 187 -- Syllabus: "(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."

State v. Smith (1993), 92 Ohio App. 3d 177 -- Discussing State v. Doran (1983), 5 Ohio App. 3d 187, the sufficiency of proof on an entrapment claim is broken down into the following issues: (1) previous involvement, (2) ready acquiescence, (3) expert knowledge, (4) ready access and (5) willing involvement.

Matthews v. United States (1988), 485 U.S. 58 -- The defendant in a federal criminal case may raise the defense of entrapment even though at the same time contesting proof of some of the elements of the offense charged. Though the rules of criminal procedure do not specifically authorize inconsistent pleading as do the civil rules, the intention was not to restrict criminal defendants as the plea of not guilty is sufficient to put the prosecution to it proof as to all elements and to raise the defense of entrapment.

State v. Good (1960), 110 Ohio App. 415, 430-431 -- The defense of entrapment is in the nature of a confession and avoidance and is unavailable to one who denies committing the acts charged. Also see State v. Hsie (1973), 36 Ohio App. 2d 99. Impliedly overruled by Matthews v. United States (1988), 485 U.S. 58.

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Proof and trial issues

Dayton v. Clark, Montgomery App. No. 19672, 2004-Ohio-162 -- Undercover officer approached the defendant who was in his car, on a cell phone, with the windows up. Ultimately the defendant said he would go home and return with the stated fee for oral sex, but instead went to another location where he was arrested. Majority finds the judge at a bench trial could reject the defendant's claims of entrapment and that he was only joking. Dissenting judge notes entrapment as an affirmative defense only had to be proven by a preponderance of the evidence, and would reverse.

State v. Butler (1984), 9 Ohio St. 3d 156 -- Whether or not the identity of an informant must be disclosed to a defendant asserting an entrapment defense turns on the merits of the case. The defendant must make a showing as to what specifically transpired between the informant and the defendant that might constitute entrapment. Compare State v. Williams (1983), 4 Ohio St. 3d 74; State v. Phillips (1971), 27 Ohio St. 2d 294.

State v. Feltner (1993), 87 Ohio App. 3d 279 -- Identity of informant was properly disclosed where defendant claimed entrapment based on inducement by an informant who was actively involved at all stages of the transaction and was present at its consummation.

State v. Savage (1980), 1 Ohio App. 3d 13 -- Though evidence of other criminal acts is generally inadmissible to show predisposition, when the defense of entrapment has been raised the prosecution in rebuttal may introduce evidence of other acts to show predisposition. Also see Columbus v. Corne (1982), 7 Ohio App. 3d 344.

State v. Burkitt (1993), 89 Ohio App. 3d 214, 220-221 -- Court rejects entrapment claim where the defendant was concededly predisposed to make individual drug sales but was not predisposed to the pattern of sales at issue in a racketeering prosecution.

State v. Metcalf (1977), 60 Ohio App. 2d 212 -- Large (6'2", 275 pound), armed (.357) undercover narcotics agent threatened harm to defendant's cousin leading defendant to hand over a brick of marijuana to make up for earlier bad drug deal cousin was involved in. Police conduct characterized as "entrapment by duress" or "aggravated entrapment." In such circumstances, there is no need to determine whether or not the defendant was predisposed to commit the illegal acts charged.

State v. Mehozonek (1983), 8 Ohio App. 3d 271 -- When employer has set up a sting operation to test the honesty of employees by staging a series of mock thefts, the employer has consented to the removal of property, thus negating an essential element of theft. Thus the issue of entrapment is not reached.

State v. Thompson (1993), 87 Ohio App. 3d 570, 581 -- Defendant found not to be entitled to instruction on entrapment when he claimed to have been present but not actively involved in drug transactions. Also see State v. Kimbro (1996), 109 Ohio App. 3d 802 (Defendant said to have approached police agent.)

United States v. Sherman (1958), 358 U.S. 359 -- It is error to refuse to define "police officer" so as to include unpaid agents and informants when the evidence raises the issue. Also see State v. McDonald (1972), 32 Ohio App. 2d 231.

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Outrageous police conduct

State v. Cunningham, 156 Ohio App. 3d 714, 2004-Ohio-1935 -- Court declines extending the outrageous police conduct defense to charges arising from an officer posing as a 14-year old girl on the Internet. At ¶31 (quoting from the trial court opinion): "The photograph may have been sufficient in the Defendant's mind to warrant driving an Infinity Q-45 five hours from Tennessee, but it is not so overwhelming to launch a thousand ships. The Helen of Troy Defense is not applicable here." Actually the defendant did not make it to Miami County as he was arrested enroute after stopping to meet another cop in Greene County. Nor does the importuning by soliciting sexual relations on the Internet statute violate the Commerce Clause. Also see State v. Bolden, Montgomery App. No. 19943, 2004-Ohio-2315.

State v. Jackson, 157 Ohio App. 3d 574, 2004-Ohio-3446 -- It was not outrageous government conduct for the state to orchestrate the sale of methamphetamine to him because he is addicted to the drug. The Americans with Disabilities Act does not protect those currently engaging in the use of illegal drugs. Nor was it outrageous government conduct to exclude the defendant from attending a deposition at a prison because he did not have photo ID. The error was invited by his attorney who did not advise him of that requirement.

Hampton v. United States (1976), 425 U.S. 484 -- Plurality of two justices concurring in the result and three dissenting justices accept the defense of outrageous police conduct based on due process principles, even where a defendant may not be able to claim entrapment because of predisposition. Also see United States v. Russell (1973), 411 U.S. 423, 431-432.

United States v. McQuinn (9th Cir. 1980), 612 F. 2d 1193, 1196 --While the government may employ undercover tactics to infiltrate criminal ranks, there are limits to what an informant or undercover agent may do. Even though a defendant may be predisposed to commit a crime, his conviction may be reversed where the governmental involvement in the scheme reaches such an outrageous level as to violate due process. For other cases involving the "outrageous government conduct" defense see United States v. Gonzales-Benitez (9th Cir. 1976), 537 F. 2d 1051, 1055; United States v. Wylie (9th Cir. 1980), 625 F. 2d 1371, 1377-1378; United States v. McQuinn (9th Cir. 1980), 612 F. 2d 1193, 1196; Green v. United States (9th Cir. 1971), 454 F. 2d 783; Unites States v. Lentz (5th Cir. 1980), 624 F. 2d 1280; United States v. Twigg (3rd Cir. 1978), 588 F. 2d 373; United States v. Leja (6th Cir. 1977), 563 F. 2d 244; United States v. Jannotti (3rd Cir. 1982), 673 F. 2d 578, 607-610 (ABSCAM case).

United States v. Simpson (9th Cir. 1987), 813 F. 2d 1462 -- A court may consider dismissal of an indictment when the conduct of law enforcement is so grossly shocking to the universal sense of justice that there has been a denial of due process. However, the due process channel kept open by United States v. Russell (1973), 411 U.S. 423 is a narrow one. Also see United States v. Barrera-Moreno (9th Cir. 1991), 951 F. 2d 1089; United States v. Simpson (9th Cir 1991), 927 F. 2d 1088, 1090; United States v. Restrepo (9th Cir. 1991), 930 F. 2d 705; United States v. Smith (9th Cir. 1991), 924 F. 2d 889; United States v. Kelly (C.A.D.C. 1983), 717 F. 2d 1460 (ABSCAM case).

State v. Latina (1984), 13 Ohio App. 3d 182 -- Cuyahoga County Court of Appeals holds defendant's claim of outrageous government conduct had to be litigated within the context of the entrapment defense and not through a motion to dismiss. Also see State v. Jurek (1989), 52 Ohio App. 3d 30.

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