Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. G. Richard Bevan, District Judge
The opinion of the court was delivered by: Burdick, Chief Justice
District court decision on entrapment defense, affirmed.
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- 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*fn1 (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.
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 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 ...