NO. 81-535 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

STATE OF MONTANA, Plaintiff and Respondent,

VS. HAROLD MCCLURE, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Patterson, Marsillo, Tornabene & Schuyler, Missoula,

Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Robert L. Deschamps 111, County Attorney, Missoula,

Montana

Submitted on briefs: January 20, 1983 Decided: February 24, 1983 Filed: 

### FEB

## 2

## 41983

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.
Defendant appealsa convictionof burglaryentered onOctober 3, 1980, intheFourthJudicialDistrict inand forthe County of Missoula. The nature of this appeal concerns the defense of entrapment. The defendant 

### is asking us to find thatentrapment existed as
a 

### matter of 

### law. This 

### we cannot do. Whether or not defendant
was lured or induced into committing the offense was a factual question for the jury, evidence being presented on either side. In such a situation 

### we will not overturn a jury verdict. Consequently, 

### wemust a££

### irmthe conviction. On March 27, 1980, the defendant and his friend, Merritt Brown, 

### metwith TerryPadernos in a Missoula bar. Padernos had been casually acquainted with McClure and Brown. At this meeting, Padernos 

### was asked if he wanted to buy an electric guitar. Padernos testified that various other 

### items were also offered for sale, including a motorcycle. He testified that he learned that the guitar and other items had come from a trailer inFrenchtown. Padernos purchased the guitar and because he was suspicious, contacted Missoula County detective Chuck McCall and informed him thathe thought aburglaryhad occurred. The defendant disputes this version of the March 27 meeting. The defendanttestified thatBrown did sella guitartoPadernos but there
was no conversation about other items for sale nor conversations about a trailer inFrenchtown. Padernos also testified that on March 28 he again met with McClure and Brown. This time, two rifleswere offered for sale. It was suggested that Brown would bring the rifles for inspection. Prior to seeing the rifles

## , Padernos contacted detective McCall and it was arranged that McCall would witness the transaction from a distance. Brown produced the rifles. Padernos took the riflesand had them in hispossession forabout an hour. During this

### time, Padernos showed the riflesto McCall who markedthem. Padernos returned the rifles 

### to Brown. No purchase was made. Concerning thistransaction, McClure testi£ ied thathe 

### was not present, but 

### was out of town. Later during the 

### same day, March 28, Padernos testified thatMcClure and Brown again offered to sell him a motorcycle. He further testified that the two discussed going back to Frenchtown to see if the motorcycle 

### was stillthere. The next contact, according 

### to the testimonyof Padernos 

### was
on the afternoon of April 1. At that timePadernos and McClure had a telephone conversation. McClure asked Padernos if he was still interested inpurchasing the motorcycle. Padernos said he was, if the price and size 

### were right. Detective McCal1 had instructed Padernos to indicate interest if an offer 

### was made. McClure stated that he would get in contact with Brown and they would go toFrenchtown to see if the motorcycle was still there and to see what size it was. Within a short time Brown and McClure went to see Padernos in person. The parties discussed purchase price; Padernos offered $600, if the size 

### was right. The defendant testified that at thismeeting Padernos told them where togetthemotorcycle and how to steal it. Meanwhile, detectives had learned of a trailerhouse in Frenchtown thathad recentlybeen burglarized. Many of the items taken from this trailer

### were later recovered from Brown's house. The detectives had noted that 

### a motorcycle 

### was still parked in the attached garage. Through information received from Padernos, it 

### was believed that McClure and Brown would come 

### to steal the motorcycle. A stakeout was set up on the evening of April 1. Officers witnessed the crime and followed the defendant and his accomplice back to Missoula. The two contacted Padernos and a planwas set toconclude the sale. Thereafter,Brown and McClure
were arrested

# . The entrapment defense is provided for in section 45-2-213, MCAt "A person 

### is not guilty of an offense if his conduct is incited 

### or induced by a public 

### ser-vantorhisagent for the purpose of obtaining evidence for the prosecution of such person. However, this section 

### is inapplicable if a public servant or his agent merely affords 

### to such person the opportunity 

### or facility for committing an offense in furtherance of criminalpurpose which suchperson has originated." We have stated thatentrapment is an affirmative defense, as such, the burden of proof is on the defendant. Statev. Kamrud (1980)I -- Mont

# . -.- 

### , 611P.2d 188, 37 St.Rep. 933. Although entrapment may existas a matter of 

### law, Kamrud, -- supra, and State
v. Grenfell (1977)r 172 Mont. 345, 564 P.2d 171, where conflicting evidence is presented, as in this case, the issue is one for the jury. Statev. Frates (1972), 160Mont. 431, 503 P.2d 47. It is evident that the jury did not accept defendant's entrapment theory. A review of the record shows that they were properly instructed. Jury instruction number twelve contains language virtually identical to the above-cited statute. In our reviewof jury verdicts

### we have said: "It is the prerogative of the jury to decide the facts, and this Court must uphold such findings when they are supported by substantial evidence. As we stated in State v. Kirkaldie (1978), 179 Mont. 283, 587 P.2d 1298, 1305, 35 St.Rep. 1532, 1539, '[tlhejury is the fact-finding body and its decision is controlling

# . .

# . Given the required legal minimum of evidence, 

### we will not substitute ourdetermination of the facts forthatof the jury

# . . .If substantialevidence is found to support the verdict, it 

### will stand 

# . . .' (citationsomitted.)" Statev. Rumley (1981),
I

.- Mont

# . , 634 P.2d 446, 449, 38 St.Rep. 1351~~ -1351-E. Wefindmore than substantialevidence to support the conviction. Padernos testi£ ied that Brown and McClure repeatedly offered items for sale. On several occasions a motorcycle was offered. Padernos further testified that Brown and McClure stated they had several items that came from a trailer in Frenchtown. In the presence of Padernos, Brown and McClure discussed whether ornot the motorcycle was still at Frenchtown. These facts and others, which 

### were obviously believed by the jury, 

### are contrary to defendant's entrapment theory. The evidence presented supports the jury's verdict.

### Thedefendant's conviction is affirmed.

We concur: