Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Also see Duress.
Proof and trial
Outrageous police conduct
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.
Return to top of page
and trial issues
Dayton v. Clark, Montgomery App. No.
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
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.
(1996), 109 Ohio App. 3d 802 (Defendant said to have approached
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.
Return to top of page
Outrageous police conduct
State v. Cunningham, 156 Ohio App. 3d
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,
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; United
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
Return to top of page