DEFENSE OF ENTRAPMENT - BURDEN OF PROOF
It is the burden of the State to prove beyond a reasonable doubt that no entrapment occurred. If you find that the State has failed to sustain that burden, then the defendant must be found not guilty.
Since entrapment is an affirmative defense, the obligation to produce evidence sufficient to raise the defense remains with the defendant, unless the evidence adduced by the prosecution has raised the issue. If the defendant fails to present any evidence that tends to prove that entrapment occurred, or if the defendant's evidence is insufficient as a matter of law, the issue of entrapment is not presented and no instruction should be given. If the defendant presents sufficient evidence to raise the defense of entrapment, or if the defense is raised by the prosecution, an instruction must be given in order to apprise the jurors of the defendant's theory of the case.
Once the defense of entrapment is properly raised, the burden of proving the nonexistence of the defense and the predisposition of the defendant rests on the State, and the jury must be so instructed. McInturff v. State, 554 P.2d 837 (Okl. Cr. 1976); Striplin v. State, 499 P.2d 446 (Okl. Cr. 1972). Note that Watson v. State, 382 P.2d 449 (Okl. Cr. 1962) and Robinson v. State, 507 P.2d 1296 (Okl. Cr. 1973), were specifically overruled on the issue of burden of proof by McInturff, supra.
No instructions concerning the defendant's burden to come forward with evidence, or the question of whether the defendant has presented sufficient evidence to warrant an instruction, are included because these matters pertain to questions of law and of trial procedure, both of which are beyond the legitimate concern of the jurors.