concurring
In my opinion, the supplemental instructions as given were erroneous. However, I conclude that the error in the giving of the supplemental instructions in this case was harmless because the evidence in this case was not sufficient to support a defense of entrapment, so that Battle was not entitled to an entrapment instruction in the first place. If Battle was not entitled to any entrapment instruction, any error in the giving of instructions on entrapment was necessarily harmless, since, from Battle's point of view, any entrapment instruction, even an erroneous one, was better than none.
I
The Supreme Court, in State v. Doran (1983), 5 Ohio St. 3d 187, laid out "matters" that "would certainly be relevant" to the issue of predisposition in the context of an entrapment defensa That is equivalent, in my view, to identifying factors that a jury might consider in determining the issue of predisposition.
I see nothing wrong with advising a jury that it may consider the Doran factors in determining the predisposition issue, especially when the jury has indicated, during its deliberations, that it wants clarification of the instructions on the entrapment defense.
The problem I have with the supplemental instructionsactually given in this case (by which I mean the instructions given in response to the jury's question during its deliberations) is that they were worded in such a way as to suggest that each of the listed factors should have been considered adversely to Battle. I would have no quarrel with the supplemental instructions had they been worded in such a fashion that the jury could have considered each of the listed factors either adversely to Battle, or in Battle's favor, depending upon the state of the evidence with respect to that factor.
Here is that portion of the supplemental instructionsconcernedwith the Doran factors, as actually given by the trial judge:
Now, in determining predisposition, I'm going to read a list to you. This is by no means an exhaustive list, but these matters should be relevant on the issue of predisposition of Charles Battle to commit a crime
One, the accused's previous involvement in the criminal activity of the nature charged.
Two, the accused'sready acquiescence to the inducements offered by the police
Three, the accused's expert knowledge in the area of the criminal activity charged.
Four, the accused's ready access to contraband.
And five, the accused's willingness to involve himself in criminal activity.
With respect of each of the foregoing five factors, the instructions as given suggested:
(i) that the facts of this case established the factor to the detriment of the accused; and
(ii) that the factor could only have operated adversely to the accused, and could not have operated in his favor based on the evidence. For example, the third factor enumerated in the instruction^ as given, suggested that the accused, Battle, had "expert knowledge in the area of the criminal activity charge." It also suggested that this factor could only have operated to the accused's detriment, assuming that the jury were to agree that he had such "expert knowledge," and that this factor could not have been considered affrimatively in the accused's favor if the jury were to have concluded that Battle was without any expertise in the illicit drug market.
I would have no quarrel with the following revised version of the supplemental instructions given by the court:
Now, in determining predisposition, I'm going to read a list to you. This is by no means an exhaustive list, but these matters would be relevant on the issue of the predisposition of Charles Battle to commit the crime charged:
"One, the extent of the accused's previous involvement, if any, in the criminal activity of the nature charged.
"Two, whether the accused readily acquiesced to the inducements offered by the police.
"Three, the extent of the accused's expert knowledge, if any, in the area of the criminal activity charged.
"Four, whether the accused had ready access to contraband.
"And five, the extent to which the accused was willing to involve himself in criminal activity."
As recast, the instructions avoid suggesting that the evidence supports a finding adverse to the accused with respect to each factor, and they also imply that findings favorable to the accused *37with respect to one or more of the factors should be considered affirmatively in the accused'sfavor in determining whether he had a predisposition to commit the offense with which he was charged, for purposes of the entrapment defensa
In summary, it is not the fact that the trial judge covered the Doran factors in his supplemental instructions to the jury that I find to have been erroneous-I agree with Judge Wolff that the trial judge is to be commended for having covered those factors in his supplemental instructions; it is the way in which those instructions were worded that I find to have been erroneous.
II
Although I find that the supplemental instructions as actually given by the trial court were erroneous, I conclude that the error was harmless. I come to this conclusionbecause I find that the evidence in this record would not have warranted any reasonable jury in having found that the police entrapped Battle. Therefore, Battle was not entitled to an instruction on entrapment, and the giving of any entrapment instruction,even a defective one, could only have worked to Battle's advantage since it gave him the possibility of an entrapment verdict, to which he was not entitled. According to Battle's brief, the evidence in this case is that he approached the arresting officer, not the other way around; that when the officer responded to Battle's inquiry by saying that the officer was "looking for a quarter of cocaine," Battle expressed no reluctance to assist the officer, nor did he demonstrate any unfamiliarity with the term "quarter" (meaning, evidently, a quarter of a gram); that when Battle's first suggestion that the officer should look for cocaine at McCabe Park was met with the response that McCabe Park was deserted, Battle then suggested that he knew of a man named Michael Thompson who could sell the officer a "quarter"; and that when the officer was returning Battle to the place of their original encounter after efforts to locate Michael Thompson had failed, Battle told the officer that he recognized some of the men standing there as drug dealers, and Battle then proceeded, without any prompting from the officer, to negotiate a drug deal as the officer's intermediary.
I am unable to find anything in the evidence in this case to suggest that Battle had the slightest reluctance to deal in cocaine This is simply not a case where law enforcement officers browbeat, cajoled or seduced an otherwise law-abiding citizen into violating the law; it is not a case for entrapment, and, in my opinion, no entrapment instruction should have been given.
Ill
Because I find the error in this case to have been harmless, I concur in the judgment of affirmance.