concurring in part and dissenting in part.
While I agree with the majority in its adoption of the Mathews rule, the facts of this case are such that the circuit court’s refusal to give an entrapment instruction was harmless error. For that reason, I would affirm the decision of the circuit court.
Although the court will presume prejudice from an erroneous instruction, the error may be rendered harmless by other factors in the case. Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003). While the majority states no opinion on the issue, I am of the opinion that insufficient evidence of entrapment exists in this case to support a finding of reversible error. The State’s entire contact with Smoak prior to arrest is contained within the internet chat logs offered into evidence at trial. The evidence presented in the chat logs does not constitute sufficient evidence from which a reasonable jury could find entrapment. As shown in the internet chat logs, Smoak was the first person to bring up sex in his conversation with the person he thought was a 15-year-old girl. He also initiated the topic of meeting at the girl’s home. Under Arkansas Code Annotated section 5-2-209(b), Detective Eversole’s actions in speaking with Smoak online simply afforded Smoak an opportunity to commit an offense; to the contrary, none of Detective Eversole’s conduct would induce or persuade a normally law-abiding person to attempt to have sex with an underage girl. See Ark. Code |1sAnn. § 5-2-209(b).
I agree that the circuit court’s refusal to provide an entrapment instruction to the jury was an error of law. However, because a reasonable jury could not have found that the actions of Detective Ever-sole as an agent of the State were entrapment, this error was harmless.
I would affirm.
GUNTER, J., joins.