                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 38405
STATE OF IDAHO,                                     )
                                                    )
     Plaintiff-Respondent,                          )
                                                            Boise, January 2013 Term
                                                    )
v.                                                  )
                                                            2013 Opinion No. 32
                                                    )
ROBERT LYLE BARTON, JR.,                            )
                                                            Filed: March 8, 2013
                                                    )
     Defendant-Appellant.                           )
                                                            Stephen W. Kenyon, Clerk
                                                    )
                                                    )
                                                    )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge

       District court decision on entrapment defense, affirmed.

       Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Erik
       Lehtinen, Chief Deputy State Appellate Public Defender argued.

       Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K.
       Jorgensen, Deputy Attorney General argued.

                             __________________________________
BURDICK, Chief Justice
       This case comes before this Court on appeal from Robert Lyle Barton, Jr. (Barton), who
was found guilty of solicitation of perjury by a Twin Falls County jury. Barton, the victim of
aggravated battery, was charged with solicitation and conspiracy to commit perjury in
connection to his testimony in the battery case. On appeal, Barton argues that the jury should
have been instructed on his defense of entrapment, and that such a defense is consistent with his
plea of innocence. The State disagrees, arguing that no reasonable view of the evidence would
support an instruction for entrapment and that such a defense is incompatible with his plea of
innocence. We affirm the decision of the district court.
                   I. FACTUAL AND PROCEDURAL BACKGROUND
       On August, 18, 2009, Robert Barton was charged with one count of solicitation of perjury
under I.C. § 18-2004, and one count of conspiracy to commit perjury, a felony under I.C. §§ 18-

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5409, 18-1701. Barton was previously the victim of an alleged aggravated battery by three men,
including Chris Taylor (Taylor). According to the Information, Barton solicited $15,000 from
Taylor’s defense attorney, M. Lynn Dunlap (Dunlap), in exchange for changing his testimony.
        Although Dunlap and Barton present different versions of events some facts are agreed
upon. Dunlap contacted the Attorney General’s office for advice after he became aware of the
potential pay-for-perjury. Dunlap was put in contact with the Twin Falls Police Department,
who placed a video recording device in Dunlap’s office and provided another device to record
phone conversations. On August 11, 2009, at the direction of the police, Dunlap placed a call to
Barton to discuss the matter further. This lead to an in-person meeting where the two discussed
the terms of Barton’s potential perjury, which was predicated on bringing another witness,
Kimberly Souza 1 (Souza) into the arrangement. The following day, Barton returned to Dunlap’s
office with Souza. After a conversation regarding the payment amount in exchange for perjury,
Dunlap gave Barton $200 in bills provided by the police as “earnest money.” At a third and final
meeting, Dunlap gave Barton an additional $1,000 in marked bills. Barton was arrested by
police as he exited Dunlap’s office.
        On August 31, 2009, Barton entered a plea of not guilty to both charges and a three day
jury trial began on August 25, 2010. At several points in the proceeding Barton’s counsel
attempted to raise the defense of entrapment and also requested a related jury instruction. The
district judge denied the requested instruction, finding that there was insufficient evidence in the
record to support such an instruction. Additionally, Barton testified that he had no intention of
soliciting or committing perjury and intended to tell the police about his arrangement with
Dunlap. Barton also produced witnesses to corroborate his story.
        At the conclusion of evidence, the jury found Barton guilty of solicitation of perjury and
not guilty of conspiracy to commit perjury. On November 1, 2010, Barton was sentenced to a
prison term of 60 months including 6 months fixed, and a fine of $2,500. A Judgment of
Conviction was entered by the district court on the same day. Barton timely filed a notice of
appeal with this Court on December 10, 2010.
                                     II. STANDARD OF REVIEW
               Whether jury instructions fairly and adequately present the issues and state
        the applicable law is a question of law over which this Court exercises free

1
  Kimberly Souza is often referred to as “Kimberly Souza-Pena” or “Kimberly Pena-Souza” in the record. We use
the version used by Ms. Souza during her testimony at trial.

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       review. Therefore, the correctness of a jury instruction depends on whether there
       is evidence at trial to support the instruction. We look at the jury instructions as a
       whole, not individually, to determine whether the jury was properly and
       adequately instructed.
State v. Shackelford, 150 Idaho 355, 373–74, 247 P.3d 582, 600–01 (2010) (internal citations and
quotations omitted).
                                         III. ANALYSIS
       In the sole issue on appeal, Barton argues that the district court erred when it refused to
instruct the jury on the defense of entrapment. Barton’s argument is two-pronged. First, he
argues that a reasonable view of the evidence supports a theory of entrapment as a defense and
therefore the trial court must instruct on the issue. Second, Barton argues that his assertion of
innocence should not be a barrier to the presentation of an entrapment defense. In response, the
State argues that no reasonable view of the evidence supports giving a jury instruction on the
affirmative defense of entrapment, and that due to Barton’s assertions of innocence he was
properly precluded from claiming a defense of entrapment. We hold that the district court did
not err in refusing Barton’s requested jury instruction on the entrapment defense.
       A defendant who enters a plea of not guilty may generally raise affirmative defenses. To
hold otherwise would eliminate the ability for defendants to utilize such defenses.             Idaho
Criminal Rule 11(a)(1) states that “[a] defendant may plead guilty or not guilty.” And as this
Court has stated, “it is well established that a valid plea of guilty, voluntarily and
understandingly given, waives all non-jurisdictional defects and defenses, whether constitutional
or statutory, in prior proceedings.” State v. Clements, 148 Idaho 82, 86, 218 P.3d 1143, 1147
(2009). The question in this case, then, is whether the specific affirmative defense of entrapment
is inconsistent with Barton’s claim of innocence.
       This Court has previously defined the elements of the entrapment defense. “Entrapment
occurs when ‘an otherwise innocent person, not inclined to commit a criminal offense, is induced
to do so by a State agent who, desiring grounds for prosecution, originates the criminal design
and implants in the mind of the innocent person the disposition to commit the alleged offense.’”
State v. Koller, 122 Idaho 409, 411, 835 P.2d 644, 646 (1992) (quoting State v. Hansen, 105
Idaho 816, 817 n.1, 673 P.2d 416, 417 n.1 (1983)).          In this case, the applicability of the
entrapment defense is a threshold question for whether the jury should have been instructed on
the defense of entrapment. The State argues that because Barton did not admit the offense, and


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that admission is a prerequisite to the assertion of an affirmative defense, he is precluded from
bringing the affirmative defense of entrapment. Under precedential case law the State is correct.
       In Suits v. Idaho Board of Professional Discipline, a medical doctor sought judicial
review of discipline imposed by the Board of Medicine. 138 Idaho 397, 400, 64 P.3d 323, 326
(2003). Suits was charged with multiple ethical violations, including the writing of illicit drug
prescriptions. Id. at 399, 64 P.3d at 325. Under a cooperation agreement with the Cassia County
Sheriff’s office, a patient of Suits recorded numerous transactions with the doctor. Id. At trial,
Suits attempted to raise the defense of entrapment. Id. at 400, 64 P.3d at 326. This Court held
that the entrapment defense did not apply:
       Dr. Suits attempts to raise the entrapment defense as a shield in his disciplinary
       proceeding. We need not reach this issue, however, because Dr. Suits has never
       admitted that he committed any of the underlying offenses. His defense that the
       criminal offense did not happen is inconsistent with his claim on appeal that he
       was entrapped into committing the crime. Therefore, he is not in a position to
       assert the entrapment defense.
Id. This Court also noted that Suits was able to present evidence at the criminal jury trial in
support of his entrapment claim, but that the jury rejected the defense and the hearing officer in
the Board of Medicine proceeding found no evidence to support same. Id., 138 Idaho at 400 n.2,
64 P.3d at 326 n.2.
       In response, Barton cites to State v. Garde, and argues that this Court implicitly
recognized that the entrapment defense may be utilized where the defendant asserts his
innocence. 69 Idaho 209, 205 P.2d 504 (1949). In Garde, the defendant was charged with, and
found guilty of, the unlawful sale of alcohol. Id. at 211, 205 P.2d at 504–05. At trial, Garde
requested a jury instruction on the defense of entrapment, but the district court refused the
request. Id. This Court found that under the facts in the case, “[t]here was no entrapment and
the requested instructions were properly refused.” Id. However, this Court did not expressly
comment on whether a jury instruction on the defense of entrapment would be consistent with
Garde’s innocence defense. In addition, Suits was issued over 50 years after Garde and provided
clarity on the presentation of inconsistent defenses.
       The precedent in Idaho is clear. Contrary to Barton’s argument, his claim that he had no
intent to solicit or commit perjury, just an intent to expose Dunlap, in incompatible with the
defense of entrapment. Barton notes that the subjective analysis for entrapment focuses on intent
and that an entrapped individual would not have the requisite criminal intent to commit the

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crime. However, there is a subtle yet real distinction between a defendant testifying that he had
no intent, and a defendant testifying that he had no intent because the state induced his criminal
actions. In the case of state inducement, there is an express acknowledgment that the defendant
committed the criminal acts but did so only as a result of state action that induced the criminal
behavior. In order to be entrapped, one must have the intent to commit the offense, but that
intent must arise from state action inducing a person not otherwise predisposed to commit the
offense to do so. As an affirmative defense, the entrapment defense in not available to a
defendant that has never admitted to committing any of the underlying offenses. Suits, 138
Idaho at 400, 64 P.3d at 326. Affirmative defenses are generally categorized as excuse or
justification for the crime, so that even if every element of the crime is proven, the accused may
avoid conviction. On this point the present case is analogous to Suits, and as we stated in Suits,
Barton’s defense that he was entrapped into committing the crime is inconsistent with his claim
that the criminal offense did not happen. Therefore, we hold that the entrapment defense is
unavailable to Barton and the request for a jury instruction on the defense of entrapment was
properly denied by the district court.
                                         IV. CONCLUSION
       We hold that the district court did not err when it refused to instruct the jury on the
affirmative defense of entrapment.
       Justices J. JONES, and W. JONES, CONCUR.
       Justice EISMANN, concurring in the result.
       “It is uniformly held that the power to define crime and fix punishment therefor rests with
the legislature, and that the legislature has great latitude in the exercise of that power.” Malloroy
v. State, 91 Idaho 914, 915, 435 P.2d 254, 255 (1967).           As our Constitution states, “The
legislative power of the state shall be vested in a senate and house of representatives.” Idaho
Const. art. III, § 1. Likewise, the Constitution expressly provides that the judiciary shall not
exercise power properly belonging to the legislature. Id., art. II, § 1. Inherent in the power to
define crime is the power to define defenses to that crime. State v. Stiffler, 117 Idaho 405, 410,
788 P.2d 220, 225 (1990) (in statutory rape prosecution, mistake as to age is not a defense
because the legislature did not so provide); State v. Searcy, 118 Idaho 632, 635-37, 798 P.2d 914,
917-19 (1990) (the legislature, which created the insanity defense, has the power to eliminate it).



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       The legislature has specified the persons who are not capable of committing crimes in
Idaho Code section 18-201, which is as follows:
                Persons capable of committing crimes. All persons are capable of
       committing crimes, except those belonging to the following classes:
                1. Persons who committed the act or made the omission charged, under an
       ignorance or mistake of fact which disproves any criminal intent.
                2. Persons who committed the act charged without being conscious
       thereof.
                3. Persons who committed the act or made the omission charged, through
       misfortune or by accident, when it appears that there was not evil design,
       intention or culpable negligence.
                4. Persons (unless the crime be punishable with death) who committed the
       act or made the omission charged, under threats or menaces sufficient to show
       that they had reasonable cause to and did believe their lives would be endangered
       if they refused.

       Persons who have been entrapped into committing a crime have not been excluded by the
legislature from being those capable of committing crimes, nor has the legislature adopted a
specific statute creating the defense of entrapment.      It likewise has not declared crimes
committed by those entrapped to be justifiable, as it has with respect to homicides committed
under defined circumstances. I.C. § 18-4009. By what power can this Court create the defense
of entrapment? Even if we had the power to create the defense, I would not do so because it is
based upon a fallacy regarding human nature.
       The entrapment defense only applies to someone who intentionally commits a crime. As
such, the defense is based upon a false understanding of human nature. In State v. Koller, 122
Idaho 409, 835 P.2d 644 (1992), this Court defined the defense of entrapment as follows,
“Entrapment occurs when ‘an otherwise innocent person, not inclined to commit a criminal
offense, is induced to do so by a State agent who, desiring grounds for prosecution, originates
the criminal design and implants in the mind of the innocent person the disposition to commit the
alleged offense.’ ” Id. at 411, 835 P.2d at 646.
       The person who seeks to raise the entrapment defense was not forced to commit the
crime, but did so because he or she chose to do so. Nobody commits a crime requiring a specific
intent without forming the intent required to commit that crime. Nobody can “implant” the
intent to commit a crime in the mind of another.        Others may suggest or encourage the
commission of the crime, but to commit the crime the defendant must voluntarily form the intent
to do so and then act on that intent.

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       The defense applies to someone “not inclined to commit a criminal offense.” If the
defendant was not already inclined to commit a criminal offense, he or she would not have
committed the crime charged. The defendant’s actions reveal his or her inclinations. The
commission of the crime establishes what the defendant was inclined to do when given the
opportunity. The entrapment defense simply attempts to blame others for what the defendant
willingly did. A defendant who seeks to raise the entrapment defense is no more innocent than is
the defendant who seeks to shift the blame for committing a crime to his or her peers or to the
circumstances that provided the opportunity to commit the crime.
       A defendant can always contend that he or she did not have the intent to commit the
crime charged. That is an issue for the jury to decide. In this case, Barton contended that he was
simply attempting to “burn” Dunlap, whom he believed to be a corrupt defense lawyer, and that
he never intended to commit perjury. He, in essence, presented evidence that he was not
“inclined” to commit the crime, and the jury obviously did not believe him. Any mitigating
circumstances regarding the defendant’s decision to commit the crime are more appropriately
considered by the court at sentencing.
       For the above reasons, I would affirm the judgment and overrule our prior decisions
adopting the entrapment defense.
       Justice HORTON, concurring.
       Although the views expressed in Justice Eismann’s concurring opinion warrant serious
consideration, I am unable to join him at this time because we do not have the benefit of briefing
from the parties to this appeal and abrogation of the entrapment defense is not necessary to the
resolution of this appeal.
       This Court first recognized the entrapment defense almost a century ago in State v.
Mantis, 32 Idaho 724, 187 P. 268 (1920). Recognition of the defense is nearly universal in this
country. State v. Mata, 106 Idaho 184, 186, 677 P.2d 497, 499 (Ct. App. 1984).
Although it is generally recognized that the defense is not predicated upon constitutional rights,
id., this Court has suggested otherwise. In State v. Valdez-Molina, a unanimous decision of this
Court declared: “In the entrapment context, however, direct targets of the government’s activity
should have standing to contest their convictions on the grounds that the government’s conduct
toward third parties was so outrageous that it violated their due process rights because they are
direct targets of the government’s conduct.” 127 Idaho 102, 104-05, 897 P.2d 993, 995-96

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(1995). The Court further stated that the “objective theory of entrapment predicated on due
process presents questions of law for the court, and is ordinarily not an issue for the jury.” Id. at
104, 897 P.2d at 995. I find Valdez-Molina to be noteworthy for the complete absence of citation
to authority for these pronouncements.
       I am inclined to the views that Valdez-Molina does not represent an accurate statement of
the law and that judicial action that contravenes the legislative power to define criminal conduct
is inconsistent with our Constitution. That being said, we do not need to decide whether to
continue to recognize the entrapment defense in order to decide this appeal. Without input from
the interested parties, I am unwilling to break ranks with every other jurisdiction in this nation
and overrule long-standing precedent which this Court has indicated is, at least in part, grounded
in constitutional protections.




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