concurring in part and dissenting in part.
While I agree with the majority’s conclusion that there was sufficient evidence supporting Appellant’s conviction, I disagree with the majority’s decision to reverse and remand this case because Appellant failed to properly preserve the entrapment issue for our review.
It is a well-settled principle of appellate jurisprudence that this court will not review an allegation that a circuit court erred in failing to give an instruction where the appellant failed to proffer such instruction. E.g., Davis v. State, 2009 Ark. 478, 348 S.W.3d 553; Robertson v. State, 2009 Ark. 430, 347 S.W.3d 460; Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996); Pearson v. State, 307 Ark. 360, 819 S.W.2d 284 (1991); Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990). Moreover, it is Appellant’s burden to proffer the instruction to the trial court and then to include the proffered instruction in the record and abstract. Davis, 2009 Ark. 478, 348 S.W.3d 553.
Appellant, in his reply brief, seems to suggest that the importance of this issue, i.e., whether this court should adopt the holding in Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), somehow vitiates the requirement that he produce a sufficient record on appeal. We simply should not ignore a defect such as this one because Appellant asserts that the issue before us is an important one. Every issue that comes before this court is important.
I am sympathetic to Appellant’s counsel. After voir dire, but prior to the presentation of evidence, counsel attempted to assert the argument that Appellant should be allowed to pursue a defense of innocence and have the jury instructed on the defense of entrapment. The circuit court very brusquely cut counsel off and told her that if she did not stop arguing the issue, he was going to hold her in contempt. Nevertheless, counsel continued to try to make her argument and finally the circuit court announced:
You’re making argument with me again. Do you understand that?
I’m holding at this time that you have to make an election; that you either go one of two ways. If you want an instruction as you — basically I believe that’s what you want — you’ve said all along in voir dire. The offense — I mean, the fact that it happened has to be admitted. I mean, you can’t argue it both ways.
Again, the circuit court told counsel to stop arguing with him and to note her exception for the record. The court then stated as follows:
112What I am saying to you is, that will be my ruling is that I will make a determination as to whether or not you’re entitled to have an entrapment instruction. If you go forward with saying, he didn’t do it; okay? I won’t give the instruction on entrapment; okay? Because you need to know that.
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And all I’m doing is telling you at this time that whether or not I give your entrapment instruction or not will depend on how this case flows.
Thereafter, in discussing jury instructions, the State asked that the jury be instructed that it could not consider the defense of entrapment because Appellant had pursued the defense of innocence. The circuit court agreed, over Appellant’s objection, and explained to the jury as follows:
On certain instances during this trial, you have heard the word entrapment. And you have heard that you will get an instruction on that.
To — the Court has removed that instruction, and you’re not to consider entrapment in this matter. I do — am stating to you that you are to consider what is in the instructions. And I’m merely stating that because it had been brought up before. And you might have questions about that as to why it’s not in there. It has been removed to no prejudice of anyone as far as this matter is concerned. It’s the Court that made that determination.
During the discussion between the court and counsel, Appellant’s counsel objected to the court instructing the jury that they could no longer consider an entrapment defense. At no time, however, did counsel attempt to proffer an entrapment instruction. Yes, the circuit court was brusque, even threatening counsel with contempt earlier in the trial. But, ultimately, the circuit court gave Appellant the choice to proceed with an entrapment defense if he so desired. Appellant had an opportunity to proffer an instruction on entrapment but simply failed to do so. The majority’s decision to overlook this fatal error baffles me. The | ^majority cannot say that the circuit court prevented Appellant from proffering an entrapment instruction, as the record simply does not support such a conclusion. In fact, the record reveals that the circuit court was following the applicable law at the time, which was that a party could not proceed with an entrapment defense if he denied committing the offense. Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).
To my knowledge, we have never made an exception to the requirement that a party must proffer a jury instruction on the basis that the circuit court would not allow a party to proceed with inconsistent theories. In fact, in Thomas v. State, 62 Ark.App. 168, 973 S.W.2d 1 (1998), the court of appeals refused to consider the appellant’s argument that the circuit court erred in failing to instruct the jury on self-defense where the prosecutor forced the appellant to choose between the defenses of accident and self-defense. The court of appeals held that it was the appellant’s burden to proffer the instruction on self-defense, regardless of the fact that he was not allowed to pursue both theories. Similarly, in an unpublished opinion, the court of appeals held that in a case where the circuit court stated that it would not instruct the jury on both justification and certain lesser-included offenses, the appellant was nonetheless required to proffer an instruction on justification, even after electing to forgo the defense, in order to preserve the issue on appeal. Sanders v. State, CACR 91-310, 1992 WL 146606 (Ark.App. June 24, 1992) (unpublished).
Here, Appellant had the opportunity to proffer an instruction on entrapment but failed to do so. The majority’s decision to completely ignore this fatal mistake goes against our well-established precedent that a party must proffer an instruction in order to preserve the |14issue for appeal. Accordingly, I respectfully dissent to this court’s reversal and remand of this case.
Concurring in part; dissenting in part.
GUNTER, J., joins.