COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69130 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION DANNY L. BARB, : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 13, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-318289 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Anthony J. Bondra Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Valerie R. Arbie Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Danny Barb, is appealing his conviction for drug abuse, R.C. 2925.11, with two violence specifications for prior convictions. For the following reasons, we affirm. Detective Eric Flynt of the Cleveland Police Department testified that he was posing as a drug dealer as part of a reverse sting operation. Appellant approached him and said, "I need a twenty piece", meaning a $20 rock of crack cocaine. Flynt asked appellant to show his money, and appellant produced a twenty dollar bill. Flynt gave a signal to other officers, who arrested appellant for soliciting drugs, Cleveland Codified Ordinance 607.20. Detective Bernard Norman searched appellant's pockets as a search incident to the arrest. Norman found a glass tube commonly used to smoke crack in the pocket of appellant's jeans. The tube had not been used. Norman discovered a very small piece of crack in the watch pocket of appellant's jeans. Eugenia Johnson-Whitt of the Scientific Investigation Unit testified that the piece of crack weighed less than .01 grams, and tested positive for cocaine. Appellant testified that he knew he was in the drug area, but was not there to buy drugs. Detective Flynt approached him and said, "You straight? . . . what do you need?". Appellant replied, "What you got?". Then appellant started walking away, and Flynt said, "Wait a minute. I got some rocks." Appellant replied, "Any good?". -3- Flynt went to a nearby vacant lot and retrieved a bag of crack. Flynt let appellant taste the crack. Appellant believed it was not crack because it did not numb his tongue. He walked away and then some officers arrested him. Appellant believed the crack found in his pocket came off his fingernail from the sample given to him by Flynt. Flynt testified that he did not have any drugs. He did not take appellant to the vacant lot. The jury submitted a question to the judge as to whether they could consider evidence of police entrapment. The judge replied that the jury had not been instructed on entrapment. Appellant contends his counsel was ineffective for failing to request a jury instruction on entrapment. Barb also asserts there was insufficient evidence to support the conviction. I. Appellant's first assignment of error states: DANNY L. BARB WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN HIS TRIAL COUNSEL FAILED TO REQUEST A JURY INSTRUCTION ON ENTRAPMENT WHEN THAT WAS THE SOLE DEFENSE PRESENTED TO THE JURY. To establish ineffective assistance of counsel, appellant must show his counsel substantially violated an essential duty and appellant was prejudiced as a result. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, State v. Bradley (1989), 42 Ohio St.3d 136. Counsel did not violate an -4- essential duty, nor was appellant prejudiced by the failure to request an instruction on entrapment. The evidence cannot support a finding that appellant was entrapped. To establish the affirmative defense of entrapment, appellant must show by a preponderance of the evidence that he was not predisposed to commit the offense, and he would not have committed the offense but for the inducement of the police officer. State v. Doran (1983), 5 Ohio St.3d 187. The court should consider the accused's ready acquiescence to the inducements offered by the police, and the accused's expert knowledge in the area of criminal activity charged. Id. In this case, appellant argues he was entrapped because the crack found on his person came from the sample given to him by the police officer. He argues appellant would not have possessed the crack but for the officer inducing him to solicit drugs. The evidence indicates appellant was predisposed to solicit drugs. By the accused's own testimony, he expressed interest to the undercover officer who was offering him drugs. The accused used drug terminology in his testimony. A tube commonly used to smoke crack was found on his person. A reasonable trier of fact could not find that appellant was not predisposed to commit the offense of soliciting drugs or drug abuse. Appellant's counsel was not ineffective for failing to request a jury instruction on entrapment. Accordingly, this assignment of error is overruled. -5- II. Appellant's second assignment of error states: APPELLANT'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND SHE WAS IMPROPERLY DENIED A CRIM. R. 29 ACQUITTAL WHEN THE CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. The essential elements of drug abuse are that appellant knowingly obtained, possessed or used a controlled substance. R.C. 2925.11. In this case, the police discovered a small piece of crack in the watch pocket of appellant's jeans. This evidence is sufficient to show that appellant knowingly possessed the cocaine. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -6- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .