(concurring) — I concur reluctantly. I am reluctant because I do not believe an entrapment instruction is warranted at all unless there is evidence that a law enforcement agent acted for the purpose of obtaining evidence of a crime. But this issue cannot be dispositive in the present case because neither party has raised it.1 I write separately to explain why the result in this case should not necessarily compel future trial courts to give an entrapment instruction if similar facts should ever arise again.
Where the evidence is insufficient, no entrapment instruction should be given.2 As our Supreme Court recognized in State v. Berry, the basic idea of the entrapment doctrine “is that the acts done by officers of the law to induce its violation must be done for the purpose of arrest and the prosecution of the violator. ”3
Here, while Stone may have induced O’Neill to offer a bribe, clearly it was not for the purpose of arresting and prosecuting O’Neill for bribery. As Judge Coleman’s primary opinion states, “Stone was not seeking to advance any proper law enforcement objective.” His conduct was a “private act to extort money.”4
The Washington bribery statute5 makes no distinction in *995culpability between a public servant and a citizen, or between the person who first suggests the transaction and the person who goes along with it. Stone and defendant O’Neill were equally culpable in the present case. Both were principals and accomplices to the crime of bribery. As in Berry, it is immaterial to the availability of the entrapment defense that it may have been Stone, the police officer, who first suggested the crime.
According to State v. Smith,6 the defendant “must demonstrate that he was tricked or induced into committing the crime by acts of trickery by law enforcement agents.” O’Neill has not shown an act of trickery on the part of Stone. The officer in Smith pretended to be dying until the defendant provided him with marijuana. The dying man then miraculously transformed himself into a policeman “as the frog became a prince.”7 Stone underwent no such transformation. He was in reality exactly what he appeared to be—a corrupt policeman.8
Our majority opinion holds that O’Neill is equally guilty of committing the crime “unless he prevails on his entrapment defense.”9 I submit that O’Neill does not really have an entrapment defense to prevail on. That we permit him *996to try again for an acquittal with the benefit of a modified entrapment instruction is, in my opinion, the result of the State’s waiver of an appropriate objection. It should not be viewed as a substantive development of the law.
RAP 12.1(a).
See State v. Gray, 69 Wn.2d 432, 435, 418 P.2d 725 (1966); State v. Waggoner, 80 Wn.2d 7, 10-11, 490 P.2d 1308 (1971).
State v. Berry, 200 Wash. 495, 517-18, 93 P.2d 782 (1939) (emphasis added). See also Charles E. Torcia, Wharton’s Criminal Law § 53, at 349 (15th ed. 1993), (defense of entrapment made out when officer or agent induces a normally law-abiding person to commit a crime “so that evidence may be obtained for prosecution.”).
Majority at 991.
RCW 9A.68.010, the Washington statute defining “bribery,” provides:
(1) A person is guilty of bribery if: (a) With the intent to secure a particular result in a particular matter involving the exercise of the public servant’s *995vote, opinion, judgment, exercise of discretion, or other action in his official capacity, he offers, confers, or agrees to confer any pecuniary benefit upon such public servant; or (b) Being a public servant, he requests, accepts, or agrees to accept any pecuniary benefit pursuant to an agreement or understanding that his vote, opinion, judgment, exercise of discretion, or other action as a public servant will be used to secure or attempt to secure a particular result in a particular matter.
(2) It is no defense to a prosecution under this section that the public servant sought to be influenced was not qualified to act in the desired way, whether because he had not yet assumed office, lacked jurisdiction, or for any other reason.
State v. Smith, 101 Wn.2d 36, 43, 677 P.2d 100 (1984).
Id. at 45 (Utter, J., dissenting).
See Wayne R. LaFave & Austin W. Scott, Handbook on Criminal Law § 5.2, 420-21 (2d ed. 1986) (defense of entrapment arose in response to legitimate concerns about police practices that “simulate reality” in order to present the suspect with an opportunity to commit the crime.).
Majority at 991.