DEFENSE OF ENTRAPMENT - REQUIREMENTS
Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers to commit a crime, he/she is entitled to the defense of entrapment, because the law as a matter of policy forbids a conviction in such a case.
On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that a police officer provides what appears to be a favorable opportunity is no defense.
If you should find from the evidence that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit a crime such as that charged in the information whenever opportunity was offered and the police merely offered the opportunity, the defendant is not entitled to the defense of entrapment.
If, on the other hand, you should find that the defendant had no previous intent or purpose to commit any offense of the character here charged, and did so only because he/she was induced or persuaded by some agent of the police, then the government has seduced an innocent person, and the defense of entrapment is a good defense.
This instruction is substantially similar to that approved by the Court of Criminal Appeals in Robinson v. State, 1973 OK CR 152, 507 P.2d 1296, overruled on other grounds, McInturff v. State, 1976 OK CR 226, ¶ 12, 554 P.2d 837, 841. Entrapment occurs when the planning and volitional conduct associated with an offense are entirely the products of an officer or a person acting under the direction of an officer, and the officer or his agent procures the commission of the offense by a person who, but for the artifice of the officer, would not have perpetrated it. Kiddie v. State, 1977 OK CR 301, 574 P.2d 1042; Dupree v. State, 1973 OK CR 53, 506 P.2d 974; McCart v. State, 1967 OK CR 222, 435 P.2d 419; Riddle v. State, 1962 OK CR 98, 374 P.2d 634; Crosbie v. State, 1958 OK CR 78, 330 P.2d 602; Savage v. State, 1956 OK CR 112, 304 P.2d 344; Bayouth v. State, 1956 OK CR 26, 294 P.2d 856; Lee v. State, 66 Okl. Cr. 399, 92 P.2d 621 (1939). See also Jacobson v. United States, 503 U.S. 540, 554 (prosecution was required to offer evidence of defendant's predisposition to violate the law independent of the government's acts and beyond a reasonable doubt). Merely furnishing the defendant with an opportunity to commit a crime is not entrapment. Hunnicutt v. State, 1988 OK CR 91, ¶ 3, 755 P.2d 105, 107-08. The defense of entrapment is not available unless the officer or the person acting under his direction first suggested perpetration of the criminal act, or lured or persuaded the defendant to partake of the criminal conduct. Stevens v. State, 51 Okl. Cr. 451, 2 P.2d 282 (1931); Warren v. State, 35 Okl. Cr. 430, 251 P. 101 (1926). The court has analyzed the availability of the entrapment defense as follows:
One who is instigated, induced, or lured by officer of law or other person, for purposes of prosecution, into commission of crime which he had otherwise no intention of committing may avail himself of the defense of entrapment. Principle of entrapment places no limitation on right of officers to obtain evidence of any crime originating in mind of another; and an officer may, when acting in good faith with view to detecting crime, make use of deception, trickery or artifice.
Robinson, supra, 1973 OK CR 152, ¶ 11, 507 P.2d at 1299 (citations omitted; emphasis in original), overruled on burden of proof, McInturff v. State, 1976 OK CR 226, ¶ 12, 554 P.2d 837, 841.
Where the evidence indicates that entrapment may have occurred, the issue concerning the existence of the requisite mental state to commit the crime charged is reserved to the jury. Slagel v. State, 1988 OK CR 284, ¶ 9, 766 P.2d 355, 357 ("A question of entrapment is generally one for the jury, rather than for the court."); Ryans v. State, 1966 OK CR 153, 420 P.2d 556.
The Court of Criminal Appeals discussed the defense of sentencing entrapment in Leech v. State, 2003 OK CR 4, 66 P.3d 987, and pointed out how OUJI-CR 8-25 should be modified if the defense of sentencing entrapment has been raised. It stated:
In a case where sufficient evidence is presented to raise the issue of sentence entrapment, this language must be modified to make it clear to the jury that the issue is whether or not the defendant, although intending to commit a lesser offense, has been entrapped into committing a greater offense. If the defendant had no previous intent to commit the greater crime or did not become ready and willing to commit a greater crime during the course of the transaction, even though predisposed to commit the lesser crime, then a finding that law enforcement agents committed sentencing entrapment would require that the defendant be found not guilty of the greater crime, and guilty of the lesser offense.
2003 OK CR 4, ¶ 10, 66 P.3d at 990.
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