State v. PackState v. Pack
Richard H. Hedges, Athens, Ohio, for appellant.
C. David Warren, ATHENS COUNTY PROSECUTOR, and George J. Reitmeier, ATHENS COUNTY ASSISTANT PROSECUTOR, Athens, Ohio, for appellee.
Harsha, J.
{¶1} Following a bench trial, the court found Gia Pack guilty of trafficking in cocaine and aggravated trafficking in drugs. Pack admitted to committing both offenses, but she argues that the trial court’s verdict was against the manifest weight of the evidence because she proved the affirmative defense of entrapment. However, Pack failed to present any evidence that the criminal design for these offenses originated with a government agent or that a government agent implanted in her mind the disposition to commit the offenses. Thus the trial court properly concluded that Pack failed to establish the affirmative defense by a preponderance of the evidence.
I. Facts
{¶2} The Athens County Grand Jury indicted Mrs. Pack on one count of trafficking cocaine and one count of aggravated trafficking in drugs, i.e.
{¶3} A confidential informant (“CI”) for the Major Crimes Task Force in Athens County made two controlled buys of drugs from Mrs. Pack, one of his neighbors in an apartment complex. The CI negotiated both buys with Justin Pack, the defendant’s husband and a person the task force had purchased drugs from in the past. The first buy occurred on the evening of June 2, 2008. Because Mr. Pack was working, he called Mrs. Pack approximately two minutes before the CI arrived at their apartment and instructed her to sell the CI the cocaine. When the CI arrived, Mrs. Pack asked him if he knew where the cocaine was in the apartment. The CI asked her if it was in the “usual spot,” and Mrs. Pack immediately went to the kitchen and retrieved the cocaine and her husband’s scales from a tin. After one of them weighed the cocaine, the CI gave Mrs. Pack $600 in exchange for 14 grams of the drug. The Packs’ two-year old son was present during the transaction.
{¶4} The second buy occurred on the evening of August 8, 2008. Again, Mr. Pack had to work and called Mrs. Pack prior to the CI’s arrival. Mr. Pack told her to sell the CI ecstasy located in the pocket of one of Mr. Pack’s pairs of pants. When the CI arrived, Mrs. Pack invited him into the bedroom while she retrieved the ecstasy. She counted the tablets and gave the CI ten tablets in exchange for $200. The Packs’ son
{¶5} Mrs. Pack testified that she did not feel intimidated by the CI during these transactions. When asked why she followed Mr. Pack’s instructions, Mrs. Pack responded, “‘Cause I knew that [Mr. Pack] wanted the money and if I didn’t he’d be mad when he got home and I’d have to deal with him. I didn’t know if we’d get into a fight or if he’d hit me or you know.” Mrs. Pack testified that in the past, Mr. Pack had thrown chairs at her, hit her, choked her, and threatened her with a knife. Kylee Hart, one of Mrs. Pack’s friends, testified that she had seen Mrs. Pack with bruises and a split lip.
{¶6} The trial court rejected Mrs. Pack’s entrapment defense and found her guilty on both counts of trafficking. After sentencing, Mrs. Pack filed this appeal.
II. Assignment of Error and Standard of Review
{¶7} Mrs. Pack assigns the following error for our review:
The Court erroneously denied the affirmative defense of entrapment despite the weight of the evidence provided by Appellant in support of the affirmative defense and the State failed to prove that the defendant had a predisposition towards the criminal offense, an indispensible element needed to negate this affirmative defense.
{¶8} In her sole assignment of error, Mrs. Pack contends that her convictions were against the manifest weight of the evidence because she established the affirmative defense of entrapment by a preponderance of the evidence. “We will not reverse a trial court’s decision as being against the manifest weight of the evidence if some competent, credible evidence supports it.” In re Jordan, Pike App. No. 08CA773, 2008-Ohio-4385, at ¶9, citing C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at syllabus. “In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire
III. Entrapment
{¶9} By raising an entrapment defense, the defendant admits that she committed the offense but seeks to avoid criminal liability for her conduct. State v. Doran (1983), 5 Ohio St.3d 187, 193, 449 N.E.2d 1295. The Supreme Court of Ohio defines entrapment under a subjective test that focuses on the defendant’s predisposition to commit an offense. Id. at 191. “[E]ntrapment 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.” Id. at paragraph one of the syllabus. The defense is available “when the government acts, under a prearranged agreement, through an ‘active government informer,’ whether paid or not.” State v. Klapka, Lake App. No. 2003-L-044, 2004-Ohio-2921, at ¶29, citing Sherman v. United States (1958), 356 U.S. 369, 373-374, 78 S.Ct. 819, 2 L.Ed.2d 848. “However, entrapment is not established
{¶10} Contrary to Mrs. Pack’s assertion in her brief, the government does not have the burden to establish the defendant’s predisposition to commit the offense. Because entrapment is an affirmative defense under former
The accused, as a participant in the commission of the crime, will be aware of the circumstances surrounding the crime, and is at no disadvantage in relaying to the fact-finder his version of the crime as well as the reasons he was not predisposed to commit the crime. Moreover, the accused will certainly be aware of his previous involvement in crimes of a similar nature which may tend to refute the accused’s claim that he was not predisposed to commit the offense. In summary, none of the evidence which is likely to be produced on the issue of predisposition would be beyond the knowledge of the accused or his ability to produce such evidence.
{¶11} The record confirms that Mrs. Pack failed to carry her burden to establish the entrapment defense. First, Mrs. Pack failed to adduce any evidence that the criminal design in this case originated with a government agent. The task force purchased drugs from Mr. Pack in the past, and it is unclear from the trial testimony whether the CI or Mr. Pack initiated negotiations for the drug buys in this case.
{¶12} Mrs. Pack presented no evidence that the criminal design for the trafficking offenses originated with the government or that a government agent implanted in her mind the disposition to commit these offenses. Thus, the trial court’s finding that she failed in her burden to prove entrapment was not against the manifest weight of the evidence. Accordingly, we overrule Mrs. Pack’s sole assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: __________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.