NO. 81-535 

IN THE 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 4 1983 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant appeals a conviction of burglary entered on October 

3, 1980, in the Fourth Judicial District in and for the County of 

Missoula. The nature of this appeal concerns the defense of 

entrapment. 

The defendant is asking us to find that entrapment 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, we must a£ £ irm the conviction. 

On March 27, 1980, the defendant and his friend, Merritt 

Brown, met with Terry Padernos 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 

in Frenchtown. Padernos purchased the guitar and because he was 

suspicious, contacted Missoula County detective Chuck McCall and 

informed him that he thought a burglary had occurred. The defendant disputes this version of the March 27 meeting. The defendant testified that Brown did sell a guitar to Padernos but there 

was no conversation about other items for sale nor conversations 

about a trailer in Frenchtown. 

Padernos also testified that on March 28 he again met with 

McClure and Brown. This time, two rifles were offered for sale. 

It was suggested that Brown would bring the rifles for inspect ion. Prior to seeing the rifles , Padernos contacted detect ive 

McCall and it was arranged that McCall would witness the transaction from a distance. Brown produced the rifles. Padernos 

took the rifles and had them in his possession for about an hour. 

During this time, Padernos showed the rifles to McCall who marked 
them. Padernos returned the rifles to Brown. No purchase was 

made. Concerning this transaction, McClure tes ti£ ied that he was 

not present, but was out of town. Later during the same day, 

March 28, Padernos testified that McClure 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 

still there. 

The next contact, according to the testimony of Padernos was 

on the afternoon of April 1. At that time Padernos and McClure 

had a telephone conversation. McClure asked Padernos if he was 

still interested in purchasing 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 to Frenchtown 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 this meeting Padernos told them 

where to get the motorcycle and how to steal it. 

Meanwhile, detectives had learned of a trailerhouse in 

Frenchtown that had recently been 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 

plan was set to conclude 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- 
vant or his agent 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 criminal purpose which such person has originated." 

We have stated that entrapment is an af firmative defense, as 

such, the burden of proof is on the defendant. State v. Kamrud 

(1980) I -- Mont . -.- , 611 P.2d 188, 37 St.Rep. 933. Although 

entrapment may exist as 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. State v. Frates (1972), 160 Mont. 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-ci ted statute. In our 

review of 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, '[tlhe jury 

is the fact-finding body and its decision is 

controlling . . . Given the required legal 

minimum of evidence, we will not substitute 

our determination of the facts for that of the 

jury . . . If substantial evidence is found to 

support the verdict, it will stand . . .' 

(citations omitted.)" State v. Rumley (1981), 

I . - Mont . , 634 P.2d 446, 449, 38 

St.Rep. 1351~~ -1351-E. 

We find more than substantial evidence to support the conviction. Padernos tes ti£ 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 or not the motorcycle was still at French town. 

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. 
The defendant's conviction is affirmed. 

We concur: