COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73480 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION JANIE EDWARDS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : October 29, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-347477 : JUDGMENT : AFFIRMED AND REMANDED : FOR RESENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: ELEANORE HILOW, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 KATHLEEN W. WOOD, ESQ. County Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- JOHN T. PATTON, J.: Defendant-appellant Janie Edwards ( defendant ) appeals the trial court's decision finding her guilty of trafficking in cocaine a violation of R.C. 2925.03. Defendant argues the trial court illegally sentenced her as a major drug offender and the trial court erred in finding her guilty when she had established the affirmative defense of entrapment. The Euclid Police Department and Carribean Task Force launched an investigation into a drug trafficking operation believed to be servicing the Euclid and Cleveland areas. A confidential informant working for the investigation was an old friend of defendant and asked her where she was getting her drugs. Defendant told the informant she was getting the drugs from her boyfriend, Jesse Armstrong. The informant asked defendant if she could obtain large quantities of drugs from Armstrong. Defendant stated she did not know but would check with Armstrong. Over the course of two months, defendant would run into the informant and he would always ask defendant if she had talked to Armstrong. Eventually defendant, the informant, and a detective, posing as the money man, began having phone conversations about the sale of drugs. Most of these phone calls were taped by the police. The informant and defendant set up a deal for early November. On November 8, 1996, defendant called the informant and stated she was getting out of work at 5:00 p.m. and would pick up the drugs at that time. Defendant and the informant decided to meet at a gas station. In a subsequent conversation, defendant -3- told the informant the cocaine was not ready because it was being cooked. The detective then had a phone conversation with defendant and agreed to have one kilo rocked up and one kilo in powder. Defendant told the detective to meet her and her people at a local bar. Defendant and Armstrong met the informant and detective at the bar. The price of the cocaine and delivery were discussed. However, the deal was called off because defendant and Armstrong were suspicious. A few weeks later, defendant had another phone call with the detective and the detective asked if the store was still open. Defendant replied yes. At this time, the detective and defendant set a price of $24,000 per kilo. On November 25, 1996, Armstrong delivered to the detective a test sample of what proved to be cocaine. Later that day, Armstrong and the detective met to make the deal at which time Armstrong was arrested while having one kilo of cocaine in his possession. Subsequently, defendant was arrested. Defendant waived her right to a jury trial and the case proceeded to a bench trial. Armstrong stated he was testifying in exchange for receiving a lesser sentence. He testified the meeting at the bar was set up by defendant and the only purpose of the meeting was to sell drugs. He also testified on a prior occasion he gave a one-half kilo of cocaine to defendant to sell to another person. The detective then testified that defendant participated in the meeting at the bar where the price and delivery were discussed. The detective stated he discussed the form of the -4- cocaine with defendant and that he would receive one kilo in hard crack form and one soft. He then stated the arrangements to buy the cocaine were made with defendant. Defendant testified on her own behalf and stated she was having the phone conversations on behalf of Armstrong who would tell her what to say. She said she never sells drugs and had never seen more than $40 worth of cocaine. Defendant stated she never discussed the price of the cocaine and did not participate in the discussions at the bar meeting. Defendant admitted she used cocaine, but denied ever selling a one-half kilo as stated by Armstrong. On cross-examination, defendant stated she asked Armstrong to sell drugs to the confidential informant because she knew Armstrong was a supplier. Defendant testified she discussed the price of $22,000 per kilo and talked about delivery. Defendant conceded she knew the bar meeting and the phone calls were for the purpose of selling drugs. The trial court found defendant guilty of drug trafficking and sentenced her to eleven years in jail. Defendant timely filed her notice of appeal and presents two assignments of error. In her first assignment of error defendant states as follows: THE COURT IMPOSED AN ILLEGAL SENTENCE WHEN IT SENTENCED JANIE EDWARDS AS A MAJOR DRUG OFFENDER FOR SHE WAS NOT INDICTED AS A MAJOR DRUG OFFENDER IN A FORMAL SPECIFICATION. Defendant argues the trial court erred in sentencing her as a major drug offender when the indictment did not contain a -5- specification to that effect in contravention of R.C. 2941.1410. Defendant maintains trial courts are not allowed to disregard statutory requirements when imposing sentences; thus she was given a longer prison sentence than required. The state counter-argues defendant was advised by the trial court prior to the trial that if she was convicted she would be sentenced as a major drug offender. Thus, defendant acquiesced to the sentencing. R.C. 2941.1410 states as follows: (A) The determination by a court that an offender is a major drug offender is precluded unless the indictment, count in the indictment, or information charging the offender specifies that the offender is a major drug offender. The specification shall be stated at the end of the body of the indictment, count, or information * * *. A review of the indictment does not reveal language indicating defendant was charged as a major drug offender. In addition, there is nothing in the record indicating a colloquy took place where defendant acquiesced to being sentenced as a major drug offender. Therefore, we remand this case back to the trial court and order defendant be re-sentenced without the major drug offender specification. Accordingly, defendant's first assignment of error is sustained. Defendant's second assignment of error states as follows: THE TRIAL COURT ERRED IN FINDING JANIE EDWARDS GUILTY OF OFFERING TO SELL COCAINE WHEN SHE HAD ESTABLISHED THE AFFIRMATIVE DEFENSE OF ENTRAPMENT. -6- Defendant argues the trial court erred in not finding that she established the affirmative defense of entrapment. Defendant claims she offered evidence which satisfies the elements of entrapment. First, she contends the idea for the drug deal originated with the confidential informant and a detective. Defendant claims this is substantiated by the relentless hounding of her by the informant as evidenced by the numerous phone calls and run-ins she had with him both prior to and after cancellation of the first deal. Second, she claims she lacked the predisposition to engage in criminal conduct. In support of this element, defendant argues she did not know whether Armstrong could obtain large quantities, she was a user of cocaine and not a dealer, the informant intended to catch Armstrong as a dealer and not her, and that she did not initiate the contact with the informant or call the informant, rather he called her. In addition, defendant maintains she had no knowledge of drug sales and had to consult Armstrong during the phone calls. Plus, she claims her role was simply to make introductions and not to supply cocaine. The state argues defendant did not prove the affirmative defense of entrapment. It claims there is no evidence anyone induced defendant to commit this crime, and her complicity was shown by her willingness to negotiate the price, quantity, delivery, and meetings with the informant and detective for Armstrong. Moreover, the state maintains defendant held herself out to the informant and detective as a conduit to the drug trade -7- which is evidenced by her discussion of price and whether the cocaine will be rocked up or in powder form. Also, she arranged the meeting where the informant and detective met Armstrong. Plus, Armstrong testified but for defendant insisting the informant was an all right person he would have never met the informant. Lastly, defendant herself stated the purpose of the bar meeting was to sell drugs and she knew all the phone calls were for the purpose of selling drugs. 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. State v. Doran (1983), 5 Ohio St.3d 187, paragraph one of the syllabus. `[E]ntrapment is not established when government officials merely afford opportunities or facilities for the commission of the offense' and it is shown that the accused was predisposed to commit the offense. State v. Smith (1993), 92 Ohio App.3d 172, 176, quoting Sherman v. United States (1958), 356 U.S. 369, 372. The accused has the burden of going forward as well as the burden of proving the defense by a preponderance of the evidence. R.C. 2901.05(A). Armstrong testified he gave defendant / kilo on a prior occasion for a friend of hers and that she made money on the sale. The detective testified he called defendant and discussed price with her and that she was present at the bar meeting where price and delivery of the cocaine was discussed. Moreover, the testimony -8- of Armstrong and detective indicates defendant held herself out as a conduit to the drug trade. She acted as the contact for Armstrong, who was a supplier. This is substantiated by the fact that defendant had numerous phone calls with the informant which she acknowledged at trial were for consummating a drug deal. She set up the bar meeting which she also knew was for the purpose of selling drugs. Plus, both defendant and Armstrong stated defendant always talked on the phone when the conversation concerned the drug deal. Defendant also testified at trial that she knew Armstrong, her boyfriend, was a drug supplier and that she needed Armstrong's help to obtain drugs. Lastly, defendant had many opportunities to extricate herself from this drug deal. She stated she was leery of the informant because she heard he was a police informant. Defendant testified she was relieved the deal did not take place in early November because of this fact. Yet, when she was contacted a few weeks later about the deal, she said the store is open. Defendant had three weeks to tell the informant there was going to be no deal, but she never did. A reviewing court will not reverse a trier of fact's verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Smith (1991), 61 Ohio St.3d 284, 289. The record demonstrates there is substantial evidence to support the trial court's verdict. Defendant's admitted association with Armstrong, who she knew was a drug supplier, and -9- numerous phone calls discussing the price, delivery, and form of cocaine is substantial evidence in support of the verdict. Moreover, this evidence was supported by the testimony of the detective and the informant, as well as the taped recorded phone conversations. Accordingly, the judgment of the trial court finding defendant guilty of one count of trafficking in cocaine is affirmed. Judgment affirmed and remanded for resentencing. -10- 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 Court of Common Pleas 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. DIANE KARPINSKI, P.J. JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .