David Newbern, Justice.
At the trial in which the appellant, Dennis McCaslin, was convicted of delivery of marijuana, the defense was entrapment. The entrapment issue was submitted to and rejected by the jury. McCaslin’s contention on appeal is that a verdict should have been directed in his favor because the court should have found he was entrapped as a matter of law. The issue is whether entrapment must be found as a matter of law when the testimony of the accused, showing entrapment, is not rebutted by evidence presented by the state. We hold the court was correct in refusing to direct a verdict because, despite the failure of the state to produce evidence bearing directly on the issue of entrapment, the question of the credibility of McCaslin’s testimony remained for the jury to decide. The conviction is affirmed.
Ronnie Fleetwood testified he was at a bar in Morrilton when Norman Bryant asked Fleetwood to take him to Russellville. Fleetwood said he refused but suggested his nephew McCaslin could do it. McCaslin and Theresa Shepherd testified they were sitting together in the bar and that Bryant approached them and asked McCaslin to take him to Russellville. When McCaslin asked “What for?”, Bryant replied “Fifty dollars.”
McCaslin testified he borrowed Fleetwood’s truck, and when he and Bryant left for Russellville, Bryant obtained some marijuana from a place behind the bar. McCaslin testified that Bryant asked McCaslin to sell the marijuana to Kimberly Powell and tell her it belonged to Fleetwood because he, Bryant, owed Powell $200, and she would try to deduct it from the price if she knew it belonged to Bryant. McCaslin testified he agreed to make the sale after being asked several times.
Powell was an undercover Russellville police officer. Bryant was also being paid “expenses,” including apartment rent and money for drinks and entertainment, by the state police to work with them in apprehending drug offenders. Bryant was also being paid a fee for each “transaction” he consummated for the police. In addition, Bryant was in trouble with the law over charges that he had shot a man in the same bar where he, McCaslin, Theresa, and Fleetwood testified this episode began.
The jury was shown a video tape of the meeting of Bryant, McCaslin, and Powell, at Powell’s Russellville apartment, in which McCaslin sold Powell a quarter of a pound of marijuana for $650. She tried to get him to take less, but he said Fleetwood told him he had to have $650. At one point after the transaction, while Bryant was out of the room, the video showed McCaslin discussing marijuana prices with Powell. Although the audio portion of the recording is difficult to understand, it is clear enough that one can hear McCaslin explaining to Powell that someone had been buying from the same source as Fleetwood for less than Fleetwood was paying. At one point McCaslin stated Fleetwood kept his own books and he paid the source $24,000 last year. McCaslin then said, “He’s trying to tell us he’s giving $2800 a pound for it. I can figure maybe eighteen.”
Bryant was subpoenaed as a witness by both the state and McCaslin. The state’s subpoena was served, and Bryant was at the courthouse on the day of trial. However, when the prosecutor called him as a witness, he had fled and was unavailable to testify. McCaslin did not seek a continuance for the purpose of obtaining Bryant’s testimony, thus the only evidence bearing on what happened between McCaslin and Bryant as they drove from Morrilton to Russellville came from McCaslin’s testimony.
In Arkansas, entrapment is an affirmative defense, Ark. Code Ann. § 5-2-209(a) (1987), upon which the defendant bears the burden of proof by a preponderance of the evidence. Ark. Code Ann. §5-1-111 (d) (1987). See Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978). McCaslin has cited no case decided in this jurisdiction in which it was held that entrapment, or any affirmative defense, was established as a matter of law solely on the basis of the unrebutted testimony of the party asserting it. There is no requirement that his testimony be believed. In civil cases we hold that a party who bears the burden of proof is not entitled to a directed verdict because the jury need not necessarily believe his evidence. James v. Bill C. Harris Construction Co., 297 Ark. 435, 763 S.W.2d 640 (1989). Also in civil cases, we have held that a directed verdict in favor of a party bearing the burden of proof may be proper, but only if the facts he must establish have been admitted by the other (adversary) party, leaving no question for a jury to decide. Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986). Absent evidence from the state confirming his entrapment story, McCaslin’s credibility was for the jury to decide.
McCaslin has cited and quoted extensively from Sorrells v. United States, 287 U.S. 435 (1932), a landmark case on entrapment in which the Supreme Court discussed the nature of the defense and held that the petitioner had presented an issue of entrapment for the jury to decide. Also cited is Sherman v. United States, 356 U.S. 369 (1958), in which the Supreme Court concluded the petitioner had established entrapment as a matter of law on the basis of the testimony of the prosecution witnesses.
McCaslin also cites Roundtree v. State, 271 So. 2d 160 (Fla. App. 1973), and State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (1972), as cases in which it was held there was entrapment as a matter of law. In the Roundtree case there was testimony by an undercover deputy sheriff showing that the deputy induced the drug sale with which Roundtree was charged. In the Sainz case the court recited facts without attribution to testimony, so we cannot tell how the entrapment was shown.
Two Mississippi cases in which it was held that entrapment had been established as a matter of law are, on their facts, remarkably similar to the case before us now. In Jones v. State, 285 So. 2d 152 (Miss. 1973), the defendant testified an informant asked him to make the sale of marijuana because the informant owed the buyer money and thus would expect to get the marijuana as repayment of the debt. The Mississipi Supreme Court noted that entrapment is an affirmative defense but concluded it was established, apparently solely on the defendant’s unrebutted testimony. The decision was followed by Sylar v. State, 340 So. 2d 10 (Miss. 1976), where the court noted that the exchange of government marijuana for government money is not even a sale. In Torrence v. State, 380 So. 2d 248 (Miss. 1980), the other case factually similar to the one before us now, the defendant testified that the informant told him she needed to sell marijuana but could not make the sale personally because she owed the buyer money.
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David Newbern, Justice.
At the trial in which the appellant, Dennis McCaslin, was convicted of delivery of marijuana, the defense was entrapment. The entrapment issue was submitted to and rejected by the jury. McCaslin’s contention on appeal is that a verdict should have been directed in his favor because the court should have found he was entrapped as a matter of law. The issue is whether entrapment must be found as a matter of law when the testimony of the accused, showing entrapment, is not rebutted by evidence presented by the state. We hold the court was correct in refusing to direct a verdict because, despite the failure of the state to produce evidence bearing directly on the issue of entrapment, the question of the credibility of McCaslin’s testimony remained for the jury to decide. The conviction is affirmed.
Ronnie Fleetwood testified he was at a bar in Morrilton when Norman Bryant asked Fleetwood to take him to Russellville. Fleetwood said he refused but suggested his nephew McCaslin could do it. McCaslin and Theresa Shepherd testified they were sitting together in the bar and that Bryant approached them and asked McCaslin to take him to Russellville. When McCaslin asked “What for?”, Bryant replied “Fifty dollars.”
McCaslin testified he borrowed Fleetwood’s truck, and when he and Bryant left for Russellville, Bryant obtained some marijuana from a place behind the bar. McCaslin testified that Bryant asked McCaslin to sell the marijuana to Kimberly Powell and tell her it belonged to Fleetwood because he, Bryant, owed Powell $200, and she would try to deduct it from the price if she knew it belonged to Bryant. McCaslin testified he agreed to make the sale after being asked several times.
Powell was an undercover Russellville police officer. Bryant was also being paid “expenses,” including apartment rent and money for drinks and entertainment, by the state police to work with them in apprehending drug offenders. Bryant was also being paid a fee for each “transaction” he consummated for the police. In addition, Bryant was in trouble with the law over charges that he had shot a man in the same bar where he, McCaslin, Theresa, and Fleetwood testified this episode began.
The jury was shown a video tape of the meeting of Bryant, McCaslin, and Powell, at Powell’s Russellville apartment, in which McCaslin sold Powell a quarter of a pound of marijuana for $650. She tried to get him to take less, but he said Fleetwood told him he had to have $650. At one point after the transaction, while Bryant was out of the room, the video showed McCaslin discussing marijuana prices with Powell. Although the audio portion of the recording is difficult to understand, it is clear enough that one can hear McCaslin explaining to Powell that someone had been buying from the same source as Fleetwood for less than Fleetwood was paying. At one point McCaslin stated Fleetwood kept his own books and he paid the source $24,000 last year. McCaslin then said, “He’s trying to tell us he’s giving $2800 a pound for it. I can figure maybe eighteen.”
Bryant was subpoenaed as a witness by both the state and McCaslin. The state’s subpoena was served, and Bryant was at the courthouse on the day of trial. However, when the prosecutor called him as a witness, he had fled and was unavailable to testify. McCaslin did not seek a continuance for the purpose of obtaining Bryant’s testimony, thus the only evidence bearing on what happened between McCaslin and Bryant as they drove from Morrilton to Russellville came from McCaslin’s testimony.
In Arkansas, entrapment is an affirmative defense, Ark. Code Ann. § 5-2-209(a) (1987), upon which the defendant bears the burden of proof by a preponderance of the evidence. Ark. Code Ann. §5-1-111 (d) (1987). See Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978). McCaslin has cited no case decided in this jurisdiction in which it was held that entrapment, or any affirmative defense, was established as a matter of law solely on the basis of the unrebutted testimony of the party asserting it. There is no requirement that his testimony be believed. In civil cases we hold that a party who bears the burden of proof is not entitled to a directed verdict because the jury need not necessarily believe his evidence. James v. Bill C. Harris Construction Co., 297 Ark. 435, 763 S.W.2d 640 (1989). Also in civil cases, we have held that a directed verdict in favor of a party bearing the burden of proof may be proper, but only if the facts he must establish have been admitted by the other (adversary) party, leaving no question for a jury to decide. Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986). Absent evidence from the state confirming his entrapment story, McCaslin’s credibility was for the jury to decide.
McCaslin has cited and quoted extensively from Sorrells v. United States, 287 U.S. 435 (1932), a landmark case on entrapment in which the Supreme Court discussed the nature of the defense and held that the petitioner had presented an issue of entrapment for the jury to decide. Also cited is Sherman v. United States, 356 U.S. 369 (1958), in which the Supreme Court concluded the petitioner had established entrapment as a matter of law on the basis of the testimony of the prosecution witnesses.
McCaslin also cites Roundtree v. State, 271 So. 2d 160 (Fla. App. 1973), and State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (1972), as cases in which it was held there was entrapment as a matter of law. In the Roundtree case there was testimony by an undercover deputy sheriff showing that the deputy induced the drug sale with which Roundtree was charged. In the Sainz case the court recited facts without attribution to testimony, so we cannot tell how the entrapment was shown.
Two Mississippi cases in which it was held that entrapment had been established as a matter of law are, on their facts, remarkably similar to the case before us now. In Jones v. State, 285 So. 2d 152 (Miss. 1973), the defendant testified an informant asked him to make the sale of marijuana because the informant owed the buyer money and thus would expect to get the marijuana as repayment of the debt. The Mississipi Supreme Court noted that entrapment is an affirmative defense but concluded it was established, apparently solely on the defendant’s unrebutted testimony. The decision was followed by Sylar v. State, 340 So. 2d 10 (Miss. 1976), where the court noted that the exchange of government marijuana for government money is not even a sale. In Torrence v. State, 380 So. 2d 248 (Miss. 1980), the other case factually similar to the one before us now, the defendant testified that the informant told him she needed to sell marijuana but could not make the sale personally because she owed the buyer money. Absent government rebuttal testimony it was again held that entrapment was established.
These Mississippi cases offer no discussion of the burden of proof issue and do not explain why the credibility of the defendant was not an issue for the jury. An explanation of a similar Arizona ruling is offered in State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972). There, a defendant testified to facts showing entrapment. The state offered no rebuttal. The defendant had sought from the state the name of the informant who, he said, had set him up, and the court denied his motion seeking the information. The court also denied the defendant’s motion for a continuance to obtain the presence of the informant at the trial. The Arizona Supreme Court pointed out that a defendant is in a weak position to establish entrapment. While it is an affirmative defense, once the defendant has raised it, the burden of proof shifts to the state, the court held.
The authority cited by the Arizona court for the shifting of the burden of proof is from federal court cases, primarily United States v. Brown, 421 F.2d 1283 (9th Cir. 1970). There the court of appeals affirmed the conviction but stated the federal standard according to which the government must prove lack of entrapment beyond a reasonable doubt if the defense has been raised. The Brown decision was based on Notaro v. United States, 363 F.2d 169 (9th Cir. 1966), in which it was noted that the Supreme Court in the Sorrells and Sherman cases had not established the nature of the burden of proof for federal entrapment cases and had not determined by which party it was to be borne.
Wherever the burden may lie in federal cases, as we noted at the outset of this opinion, it has been placed on the defendant by statute in Arkansas. Even if the matter had been discussed in the Sorrells and Sherman cases, those were not decisions on constitutional law. They only dealt with federal law and thus would not be binding on the states. See Sylar v. State, supra. We have no quarrel with the proposition that Bryant should have been present to testify about his role in the selling of the marijuana to Powell. McCaslin does not argue that here, and properly so, as he did not pursue it with the trial court. The only issue before us is whether McCaslin’s testimony established entrapment as a matter of law. We hold it did not, and it was thus proper for the question to be submitted to the jury.
Affirmed.
Purtle, J., dissents from this opinion. Hickman and Glaze, JJ., concur with this opinion.