dissenting
I agree with Judge Fain that the supplemental instruction reciting from the text of State v. Doran, supra, was erroneous. In the form given the instruction suggests that each factor was proven, which was not the case, and should be considered adversely to Appellant.
The Supreme Court's purpose in Doran was not to state a principle of law in a form sufficiently neutral for use as a jury instruction. Concerned that prosecutors might seek to prove predisposition with a prejudicial 'laundry list' of bad conduct, the Court set out five matters of prior conduct as illustrative of proof of predisposition. Whether any factor is relevant at all depends on the record of the casa The Court was not dealing with weight and made no effort in its text to balance or neutralize its statement. In its recited form the passage from Doran is not appropriate for jury instruction^ and in giving the factors cited in that form the trial court erred.
I do not agree that the error created by the supplementary instruction was harmless, either because an entrapment instruction was 'more than Battle deserved', as Judge Wolff concludes, or because no reasonable jury could have found entrapment, as concluded by Judge Fain. The trial court found that an entrapment instruction was warranted. The trial court saw and heard the witnesses personally and directly, and is in a far better position than is this court, judging from a dry record, to draw such conclusions The evidence warranting the instruction may be thin, but it is in the record, and I am not prepared to say that the trial court erred in its judgment.
However, when the trial court concludes that an instruction is warranted it must be given in such a way that error is not created. Entrapment is an affirmative defense and any defendant who pleads it must prove it by a preponderance of the evidence. Predisposition weighs against entrapment. The form of instruction given presumed predisposition for the jury and negated Apellant's entrapment defense. Appellant was prejudiced thereby.
It is indeed ironic that the efforts of the Supreme Court in Doran to avoid error have in *38this case been converted to that result. Though that was obviously not the trial court's intent or purpose, the judgment of the trial court should be reversed and the cause remanded for retrial.