[Cite as State v. Graham,
2019-Ohio-2033.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28019
:
v. : Trial Court Case No. 2017-CR-2991/8
:
VANESSA GRAHAM : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 24th day of May, 2019.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 W. Second Street, Suite 1717, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
-2-
{¶ 1} Vanessa Graham appeals from a judgment of the Montgomery County Court
of Common Pleas, which convicted her of one count of aggravated trafficking in drugs
and two counts of illegal sexual activity in a sexually oriented business. Specifically,
Graham challenges the trial court’s pre-trial ruling barring her from presenting an
entrapment defense during voir dire or opening statements. We conclude that she
demonstrated no prejudice from the ruling, so we affirm.
I. Facts and Procedural History
{¶ 2} In September 2017, Graham was indicted on one count of aggravated
trafficking in drugs (schedule I or II), under R.C. 2925.03(A)(1) and (C)(1)(a), and two
counts of illegal sexually oriented activity in a sexually oriented business (touching a
specified anatomical area), under R.C. 2907.40(C)(2) and (E). The State filed a motion in
limine asking the trial court to prohibit Graham from raising the affirmative defense of
entrapment in voir dire, opening statements, or cross-examination.
{¶ 3} On the first day of trial, the court partially granted the State’s request. The
court told Graham that she could not present entrapment in voir dire or opening
statements and, further, not to mention entrapment until evidence was proffered or
presented that would “allow the Court a reasonable degree of certainty that the
entrapment defense will be a viable one” (Tr. 5) or that “establish[es] a good faith basis”
to bring up entrapment (id. at 6). After the close of all evidence, the trial court concluded
that Graham had failed to present sufficient evidence of entrapment and declined to
instruct the jury on the defense.
{¶ 4} The jury found Graham guilty on all three counts, and the court sentenced
her to community control.
-3-
{¶ 5} Graham appeals.
II. Analysis
{¶ 6} Graham presents two assignments of error for our review. In the first
assignment of error she alleges that the trial court erred by granting the State’s motion in
limine as to entrapment. In the second assignment, Graham argues that defense counsel
was ineffective for not proffering entrapment evidence.
A. Prohibiting presentation of an entrapment defense
{¶ 7} The first assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR IN GRANTING PRE-TRIAL MOTIONS, WHICH
IMPROPERLY IMPEDED APPELLANT’S CONSTITUTIONAL RIGHT TO
TESTIFY ON HER OWN BEHALF AND CONSEQUENTLY HAVE
EVIDENCE PRESENTED AT TRIAL TO PERMIT AN ENTRAPMENT
DEFENSE.
{¶ 8} “ ‘A motion in limine is a motion directed to the inherent discretion of the trial
court judge to prevent the injection of prejudicial, irrelevant, inadmissible matters into
trial.’ ” Lingo v. Leeper, 2d Dist. Montgomery No. 18865, 2002 WL 360661, *1 (Mar. 8,
2002), quoting Mason v. Swartz,
76 Ohio App.3d 43, 55,
600 N.E.2d 1121 (6th Dist.1991).
“[D]ecisions granting or denying a motion in limine are reviewed under an abuse-of-
discretion standard of review.” (Citation omitted.) Estate of Johnson v. Randall Smith,
Inc.,
135 Ohio St.3d 440,
2013-Ohio-1507,
989 N.E.2d 35, ¶ 22.
{¶ 9} Entrapment occurs when “the criminal design originates with the officials of
the government, and they implant in the mind of an innocent person the disposition to
-4-
commit the alleged offense and induce its commission in order to prosecute.” State v.
Doran, 5 Ohio St.3d 187, 192,
449 N.E.2d 1295 (1983). It is an affirmative defense under
R.C. 2901.05, which the defendant must prove by a preponderance of the evidence.
Id.
at 193. “The ultimate issue is whether a preponderance of the evidence establishes that
the accused lacked the predisposition to commit the offense with which he is charged.”
State v. Seebeck-Horstman,
67 Ohio App.3d 443, 446,
587 N.E.2d 359 (2d Dist.1990).
{¶ 10} “The question of entrapment is generally one for the jury, rather than for the
court.” Mathews v. United States, 485 U.S. 58, 63,
108 S.Ct. 883,
99 L.Ed.2d 54 (1988).
But the issue may be decided as a matter of law in clear cases. See Sherman v. United
States,
356 U.S. 369, 377,
78 S.Ct. 819,
2 L.Ed.2d 848 (1958) (saying that “unless it can
be decided as a matter of law, the issue of whether a defendant has been entrapped is
for the jury as part of its function of determining the guilt or innocence of the accused”);
Jacobson v. United States,
503 U.S. 540, 549,
112 S.Ct. 1535,
118 L.Ed.2d 174 (1992)
(concluding that “the prosecution failed, as a matter of law, to adduce evidence to support
the jury verdict that petitioner was predisposed … to violate the law”). As such, if
insufficient evidence of entrapment has been presented at trial, the defense will not be
submitted to the jury. See State v. Kimbro,
109 Ohio App.3d 802,
673 N.E.2d 192 (9th
Dist.1996) (holding that the trial court did not err by declining to instruct the jury on
entrapment, because “the evidence does not support an entrapment instruction”).
{¶ 11} Here, before the trial began, the trial court ruled from the bench on the
State’s motion in limine seeking to bar presentation of an entrapment defense:
THE COURT: All right. We’re outside the presence of the jury …
for the purposes of officially ruling on certain motions, particularly the State’s
-5-
motion in limine regarding the entrapment defense and the limine instruction
request that the entrapment defense not be brought up during any
statements of voir dire or in opening statements. Is that an accurate
recitation of that portion of the motion?
[PROSECUTOR]: Yes, Your Honor. The State had more fully
developed the reasoning for that, which there’s no reason to go into here
today, but as it relates to, I think, what the Court is going to rule, as it relates
to voir dire and opening statements, that’s correct.
THE COURT: All right. Insofar as that, the Court has earlier indicated
on the telephone to both parties that the Court is granting the State’s motion
in limine to that effect, as evidence has not been proffered, at this point,
sufficient to allow the Court a reasonable degree of certainty that the
entrapment defense will be a viable one, and at this time, is going to limit
the Defense from mentioning any statements regarding entrapment or the
facts around it in voir dire and in opening statements, and is going to limit
that until such evidence has been provided sufficient to satisfy the requisite
burden.
[Defense Counsel], it’s my understanding you wish to object to that?
[DEFENSE COUNSEL]: Yes, Your Honor. For the record, we are
objecting. We do believe that we have the right to a fair and impartial jury
and bringing up our defense to see whether they would even entertain it, I
think, is very relevant. And as I said, we are looking for a fair and impartial
jury. Also, with opening statements being limited to not talking about the
-6-
entrapment, we do—opening statements aren’t for us to say what we
believe the evidence will show. I don’t think that we have to show the Court,
at this time, that the entrapment defense will—that we will meet the burden,
but we will—we want to be able to speak about entrapment in opening
statements.
We believe that the evidence will show entrapment, and the State
can absolutely on their closing statements bring up if I did not meet the
burden, can say I brought it up in opening statements. I didn’t meet my
burden. But I do believe that the Court is limiting our defense and [it] is a
reversible error. Thank you.
THE COURT: All right. Thank you very much. That said, having no
additional grounds to bring that, no evidence put forward yet to establish a
good faith basis in bringing in the entrapment defense, this Court will stand
by its ruling. …
(Tr. 4-6).
{¶ 12} The trial court did not make a pre-trial determination as to whether an
entrapment defense was available to Graham. Rather, the court merely prevented
Graham from presenting the defense to the jury until sufficient evidence had been
introduced showing that entrapment was a viable defense. The court reserved a final
ruling until all the evidence had been presented at trial. Indeed, after all the evidence had
been presented and jury instructions were being discussed, the court concluded that there
was insufficient evidence to instruct the jury on entrapment.
{¶ 13} Graham claims that the court’s pre-trial ruling hindered her ability to testify
-7-
completely and thoroughly and severely limited her ability to defend herself. She says
that the ruling prevented her from presenting evidence that might reasonably have led a
juror to find her not guilty of drug trafficking. If she had been permitted to present the
evidence precluded by the court’s ruling, Graham says, the jury could have been
instructed on an entrapment defense and the jury reasonably could have found her not
guilty of the charges.
{¶ 14} But we see little evidence in the record supporting these claims. The trial
court’s ruling applied only to voir dire and opening statements—neither of which is
evidence. Graham does not cite anywhere in the record where the trial court stopped her
from presenting entrapment evidence at trial. On the contrary, the record shows that
Graham did in fact present evidence that she argued supported her claim of entrapment—
the testimony of a defense witness. (Tr. 292-329, 335). Ultimately, Graham presented
little evidence that she was not already predisposed to trafficking in drugs.
{¶ 15} What the trial court did here appears to be somewhat of a common practice
in the federal district courts of the Seventh Circuit. In one case, the government filed a
motion in limine asking the district court to preclude the defendants from presenting an
entrapment defense unless they could first show some evidence of entrapment. United
States v. Finley, 708 F.Supp. 906 (N.D.Ill.1989). The defendants responded only that they
would be able to present such evidence. The district court noted that “the government
seeks not a pretrial determination of whether an entrapment defense is available, but only
an assurance that defense counsel will not argue entrapment to the jury unless and until
sufficient evidence has been presented to create a jury question as to entrapment.”
Id. at
914. The court said that the government’s position accorded with the law and ordered
-8-
that “[a]rgument concerning entrapment is thus not to be included in any opening
statements which are made before the government puts on its case.” Id.
{¶ 16} In another case, the government filed a motion in limine to bar the defendant
from presenting an entrapment defense at trial, arguing that the defendant could not set
forth sufficient prima facie evidence to demonstrate a viable entrapment issue. United
States v. Blassingame, 197 F.3d 271 (7th Cir.1999). The defendant did not proffer any
entrapment evidence. The district court did not bar the defense but ruled that entrapment
could not be argued to the jury until and unless the defense proffered or showed sufficient
evidence. The Seventh Circuit Court of Appeals held that this ruling was proper and that
the district court did not abuse its discretion, saying that “there exists substantial legal
authority to support the court’s decision to require a sufficient proffer or showing of
entrapment evidence before such defense may be presented to the jury.”
Id. at 280.
{¶ 17} In a final case, the government filed a pre-trial motion to preclude the
defendants from asserting an entrapment defense at trial, arguing that the defendants
would not be able to set forth sufficient prima facie evidence to demonstrate a viable
entrapment defense. United States v. Lewis, N.D.Ill. No. 07 CR 07, 2008 WL 5083131
(Nov. 25, 2008). The district court said that, “where a defendant fails to proffer entrapment
evidence, the court can appropriately find that his response to a government’s motion to
preclude an entrapment defense is ‘insufficient as a matter of law’ and ‘issue a pretrial
ruling precluding the presentation of the defense at trial.’ ” Id. at *3, quoting
Blassingame
at 279. One defendant in the case submitted a pre-trial proffer of evidence supporting an
entrapment defense; the other did not. The court granted the government’s motion as to
the latter defendant. As to the one who submitted evidence, the district court concluded
-9-
that the proffer was sufficient and reserved a final ruling on the government’s motion until
it had considered all the evidence presented at trial. Still, the court ruled that “[c]omments
concerning entrapment are therefore not to be included in any opening statements which
are made before the government puts on its case.” Id.
{¶ 18} Despite what appears to be a practice in the Seventh Circuit, we believe the
better practice would be for the trial court to have informed the defense that discussion of
entrapment would be permitted in voir dire and opening statements, but that if the defense
failed to present sufficient evidence at trial to submit the matter to the jury, the court would
specifically instruct the jury to entirely disregard the issue of entrapment and counsel’s
references to it. Ultimately, though, in this case, no evidence was presented or proffered
that Graham had been entrapped and, as such, we cannot conclude that the trial court’s
prohibition of references to entrapment during voir dire and opening statements prejudice
Graham.
{¶ 19} The first assignment of error is overruled.
B. Claim of ineffective assistance of counsel
{¶ 20} The second assignment of error states:
APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN TRIAL COUNSEL FAILED TO PROFFER TESTIMONY
OR EVIDENCE ON THE RECORD CONCERNING AN ENTRAPMENT
DEFENSE.
Graham contends that defense counsel was ineffective because counsel failed to proffer
evidence supporting an entrapment defense.
{¶ 21} “To reverse a judgment based on ineffective assistance, the record must
-10-
support a finding that defense counsel’s performance was deficient, and that a reasonable
probability exists that, but for counsel’s omissions, the outcome would have been
different.” State v. Jackson, 2015-Ohio-5490,
63 N.E.3d 410, ¶ 27 (2d Dist.), citing State
v. Jones, 1st Dist. Hamilton No. C-130359,
2014-Ohio-3110, ¶ 27, citing Strickland v.
Washington,
466 U.S. 668, 687, 694,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v.
Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus.
{¶ 22} Graham has not alleged or supported a claim that any entrapment evidence
was available to proffer. Like the State points out, it is entirely possible that the reason
counsel did not proffer evidence of entrapment is that no real evidence existed. “Defense
counsel cannot be found to be ineffective by failing to present or proffer evidence that
does not exist.” Jackson at ¶ 30.
{¶ 23} The second assignment of error is overruled.
III. Conclusion
{¶ 24} We have overruled both assignments of error presented. The trial court’s
judgment is affirmed.
.............
TUCKER, J., concurs.
DONOVAN, J., dissents:
{¶ 25} A pre-trial motion in limine should not be used to test the adequacy of the
entire defense case/strategy. The substantive effect of the trial court’s ruling was to
exclude evidence of a potential defense to the charges. A motion in limine is a powerful
-11-
tool designed to exclude inadmissible evidence and should not be used to preclude an
accused from offering admissible evidence of an affirmative defense at trial.
{¶ 26} Significantly, the trial court did more than exclude entrapment discussion
from voir dire and opening. The trial court ruled “to limit [any statements regarding
entrapment] until such evidence has been provided sufficient to satisfy the requisite
burden.” Graham had a right to present the defense for the fact-finder’s determination of
whether or not the burden had been met.
{¶ 27} Whether a defense is “viable” is a jury question and the trial court “rarely
rules on a defense as a matter of law.” United States v. Contento-Pachon, 723 F. 2d 691,
639 (9th Cir.1984). Entrapment is a defense which is inextricably “intertwined with the
issue of intent and is often based on credibility determinations, which are traditionally
reserved for jury resolution.” United States v. Santiago-Godinez,
12 F.3d 722, 727 (7th
Cir.1993).
{¶ 28} By requiring Graham to respond on the merits to the State’s motion in limine
before trial began, the court’s action effectively compromised Graham’s rights to be free
from self-incrimination, to remain silent, and to the presumption of innocence.
{¶ 29} It is talismanic that both the accused and the prosecution have the right to
present their theory of the case and their version of the facts, so that a jury can decide
wherein the truth lies. Washington v. Texas, 388 U.S. 14, 19,
87 S.Ct. 1920, 1923,
18
L.Ed.2d 1019, 1023 (1967). Motions in limine, therefore, should be used with caution,
and this is particularly so in criminal cases.
{¶ 30} It is one thing to grant a motion in limine the effect of which was to prohibit
Graham from producing evidence in support of an affirmative defense. It is quite another
-12-
to allow the evidence to be presented, but to rule at the close of a defendant’s case that
the evidence was insufficient to make the defense as a matter of law. In this first scenario,
the court chokes off the right of a defendant to attempt to prove the defense. In the latter,
the court allows the defense to proceed, but rules the evidence insufficient to make a jury
question. I must note that defense counsel may not fully appreciate the significance of
evidence until it has been presented in the context of the actual trial. Under these
circumstances, I believe it was error to enter an order in limine that prevented Graham
from presenting evidence in an attempt to establish an affirmative defense; it is irrelevant
whether the trial court, or this court, would have later found that she had not introduced
sufficient evidence to create a jury question.
{¶ 31} Furthermore, I would find the Graham’s attorney’s performance deficient,
as she failed to appreciate and respond appropriately to the trial court’s order which
eviscerated Graham’s right to defend against the charges. Graham’s counsel failed to
recognize that the trial court’s ruling effectively granted summary judgment to the State
on the issue of entrapment and operated to diminish the State’s burden of proof.
{¶ 32} A notice of alibi must be filed in a criminal case before trial, but notices of
defenses such as self-defense, entrapment, and necessity are not required to be
disclosed before trial, much less established before the very first witness is ever
questioned. I would reverse.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Adam J. Arnold
Hon. Gerald Parker
