2003 Ohio 6748 | Ohio Ct. App. | 2003
{¶ 2} The following facts are relevant to this appeal. On September 24, 2001, appellant was indicted on two counts: one count of trafficking in drugs in violation of R.C.
{¶ 3} Appellant sets forth the following three assignments of error:
{¶ 4} "ASSIGNMENT OF ERROR NO. 1:
{¶ 5} "The Trial Court committed reversible error in finding the Defendant/Appellant Guilty of the Offenses as charged in the Indictment, as such finding was against the manifest weight of the evidence. There was sufficient evidence presented at Trial to establish the defense of Legal Entrapment. There was a failure on the Trial Court's part to make specific findings on those relevant factors that must be considered in such defense, which are necessary to support a finding and order of Guilt.
{¶ 6} "ASSIGNMENT OF ERROR NO. 2:
{¶ 7} "The Trial Court committed reversible error in improperly assuming that the State had authority under Section
{¶ 8} "ASSIGNMENT OF ERROR NO. 3:
{¶ 9} "Appellant received ineffective assistance of Counsel during the Course of the Trial Court proceedings in violation of his
{¶ 10} In his first assignment of error, appellant argues that the trial court committed reversible error in finding appellant guilty of the offenses charged as such findings were against the manifest weight of the evidence. Appellant specifically argues that there was sufficient evidence to establish the defense of legal entrapment. This court finds no merit in this assignment of error.
{¶ 11} In State v. Thompkins (1997),
{¶ 12} "In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law." Id.
{¶ 13} In contrast to sufficiency, the court stated the following in regard to weight of the evidence:
{¶ 14} "* * * Weight of the evidence concerns `the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find thegreater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.'" (Citation omitted.) (Emphasis added by Court.) Id. at 387.
{¶ 15} When a conviction is challenged on appeal as being against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact "`clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" Id. A judgment should be reversed as being against the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." State v.Martin (1983),
{¶ 16} In regard to appellant's argument that the finding of guilt was against the manifest weight of the evidence because he established the defense of entrapment, the court in State v. Doran (1983),
{¶ 17} "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." Entrapment is an affirmative defense under R.C.
{¶ 18} Ohio courts use a subjective test to determine whether a defendant was predisposed to commit a crime. To assist in determining predisposition, the Doran court advanced a nonexclusive list of relevant factors: "(1) the accused's previous involvement in criminal activity of the nature charged, (2) the accused's ready acquiescence to the inducements offered by the police, (3) the accused's expert knowledge in the area of the criminal activity charged, (4) the accused's ready access to contraband, and (5) the accused's willingness to involve himself in criminal activity." Doran,
{¶ 19} Although appellant argues that he had no previous involvement in criminal activity of the nature charged, that is only one of the nonexclusive Doran factors. According to the testimony of the informant, appellant approached the informant asking about a drug deal months before the informant began cooperating with the police. Thus, it was not the police who implanted the idea of a drug deal in appellant's mind. Although appellant's testimony conflicted with the informant's as to who initiated the discussion of dealing drugs, when conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the trier of fact believes the prosecution testimony. State v. Warren (1995),
{¶ 20} Appellant's predisposition to commit the crimes for which he was convicted was not implanted by law enforcement merely by having the informant agree to sell cocaine to appellant. It is clear from the recorded phone conversations that appellant willingly involved himself in the criminal activity. Nothing in the record would persuade this court that the events which transpired between the informant and appellant were anything but voluntary. There was nothing in the recorded telephone conversations between the informant and appellant to indicate that appellant was coerced, bribed or threatened into purchasing the drugs.
{¶ 21} Accordingly, "`where there exists credible evidence that one has the "predisposition and criminal design" to commit the acts for which he claims entrapment and he was merely provided the opportunity to commit the act for which he was "apt and willing" the defense of entrapment has not been established.'" State v. Jones (Mar. 17, 1995), 11th Dist. No. 94-L-060. Thus, the evidence introduced was more than sufficient for the trial court to conclude that appellant was predisposed to commit the crimes of which he was convicted and, thus, was not entrapped by the police.
{¶ 22} After a careful review of the record, we cannot conclude that the trier of fact lost its way and created a manifest miscarriage of justice when it found appellant had not established by a preponderance of the evidence the affirmative defense of entrapment and convicted appellant of trafficking in and possession of drugs. The evidence in this case indicates that appellant was predisposed to buy cocaine. Consequently, and consistently with State v. Doran, supra, we conclude that the trial court correctly determined that appellant failed to establish the defense of entrapment, because he failed to establish any reasonable likelihood that the criminal design in this case originated with an official of the government and was implanted in the mind of an innocent person not otherwise disposed to commit the offense.
{¶ 23} Accordingly, appellant's first assignment of error is found not well-taken.
{¶ 24} In his second assignment of error, appellant argues that the trial committed reversible error in assuming that the state had authority under R.C.
{¶ 25} Appellant's second assignment of error is found not well-taken on the authority of State v. Manning (July 28, 2000), 6th Dist. No. L-99-1344 (the "reverse buy" statute does not provide a remedy for a defendant due to alleged non-compliance with the statute by the police.).
{¶ 26} In his third assignment of error, appellant argues that he received ineffective assistance of counsel during the trial court proceedings. This court finds no merit in this assignment of error.
{¶ 27} The standard for determining whether a trial attorney was ineffective requires appellant to show: (1) that the trial attorney made errors so egregious that the trial attorney was not functioning as the "counsel" guaranteed appellant under the
{¶ 28} Furthermore, a court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" in reviewing a claim of ineffective assistance of counsel. Id. at 689. A properly licensed attorney in Ohio is presumed to execute his duties in an ethical and competent manner. State v. Hamblin (1988),
{¶ 29} It is well established that the Constitution does not guarantee a perfect trial or even the best available defense. The
{¶ 30} Appellant contends that counsel was ineffective in the following ways: (1) in failing to file pretrial motions attacking R.C.
{¶ 31} Appellant's first contention is that trial counsel was ineffective in failing to file pretrial motions attacking R.C.
{¶ 32} Appellant's second contention is that his trial counsel was ineffective in only making one objection during trial. The decision not to object is one of trial strategy. State v. Hunt (1984),
{¶ 33} Appellant's third contention is that his trial counsel was ineffective in cross-examining all of the state's witnesses. Generally, whether to cross-examine witnesses and the extent of that cross-examination is a tactical matter committed by the discretion of trial counsel and cannot form the basis for an ineffective assistance of counsel claim. State v. Flors (1987),
{¶ 34} Accordingly, appellant's third assignment of error is found not well-taken.
{¶ 35} On consideration whereof, the court finds that the defendant was not prejudiced or prevented from having a fair trial, and the judgment of the Lucas County Court of Common Pleas is affirmed. It is ordered that appellant pay court costs for this appeal.
Judgment affirmed.
Peter M. Handwork, P.J., Mark L. Pietrykowski, J., and Judith Ann Lanzinger, J., concur.
