McCaslin v. State

Tom Glaze, Justice, concurring. I certainly agree with the result reached by the majority, but the majority opinion confuses matters by citing and discussing cases from Mississippi, Arizona and United States Ninth Circuit Court of Appeals that are simply inapplicable. Arkansas law specifically provides that entrapment is an affirmative defense which the defendant must prove by a preponderance of the evidence. However, the defendant’s burden does not arise until the state has met its burden of proof as to the elements of the offense with which he is charged. Fairchild v. State, 284 Ark. 289 , 681 S.W.2d 380 (1984), cert. denied, 471 U.S. 1111 (1985); Spears v. State, 264 Ark. 83 , 568 S.W.2d 492 (1978).

Here, the state undisputedly met its burden of proof. In fact, the appellant admitted his complicity in the sale and delivery of the marijuana to police officer Powell. Since only the appellant’s testimony — that he had been entrapped — conflicted with the state’s proof that he willingly committed the crime, the appellant failed to meet his burden of proving his affirmative defense. Arkansas law is well settled that a jury is not bound to believe the appellant’s story. This court’s decision should end at this point. Since it does not, I remain hopeful that today’s decision in no way suggests this court is entertaining the idea that the respective burdens of proof of the state and defendant in cases where the defense of entrapment is raised should be reanalyzed or reshuffled along the views expressed in the cases from other jurisdictions discussed in the majority opinion. If such a suggestion is intended, I am unequivocally against such an idea.