Id. at 65, 108 S.Ct. 883, quoting United States v. Russell , 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). ¶ 11 Our Court rejected the Mathews approach in State v. Soule , 168 Ariz. 134, 137, 811 P.2d 1071, 1073 (1991). In reaffirming Nilsen by a 3–2 vote, this Court noted that “allow[ing] a defendant to testify as to two defenses that cannot both be true is equivalent to sanctioning a defendant's perjury,” and “allowing inconsistent defenses may confuse the jury.”
Nevertheless, the Mathews decision did not rest on constitutional grounds and is not binding on the states. State v. Soule, 168 Ariz. 134, 811 P.2d 1071, 1072 (1991); Buendia, 912 P.2d at 288. Courts have commented that it is both factually and legally inconsistent for a defendant to deny committing the offense and then to assert as a defense that he or she committed the offense, but only because of incitement or inducement by authorities. See St. Jean v. State, 255 Ga.App. 129, 564 S.E.2d 534, 536 (2002); People v. Arndt, 351 Ill.App.3d 505, 286 Ill.Dec. 754, 814 N.E.2d 980, 990 (2004).
First, to assert an entrapment defense, the defendant must admit all elements of the offense charged. A.R.S. § 13-206(A) ; State v. Soule , 168 Ariz. 134, 135, 811 P.2d 1071, 1072 (1991) (citing State v. Nilsen , 134 Ariz. 431, 657 P.2d 419 (1983) ). Once admitted, a defendant may not then negate any of the elements of the offense by advancing the inconsistent theory of having committed some lesser offense instead.
Second, Bueno contends that the trial court violated his right to due process by following state law requiring him to admit all of the elements of each offense before it would instruct the jury on an entrapment defense. See State v. Soule, 168 Ariz. 134, 135, 811 P.2d 1071, 1072 (1991), cert. denied, ___ U.S. ___, 112 S.Ct. 888, 116 L.Ed.2d 791 (1992). This contention lacks merit.
Moreover, an admission must be complete because “[r]equiring a trial court to entertain an entrapment defense when the defendant has not admitted all elements of the crime does not serve the cause of criminal justice.” State v. Soule, 168 Ariz. 134, 137, 811 P.2d 1071, 1074 (1991). None of Gray's statements suggests a complete admission.
Jacobson did not announce a rule of constitutional dimension, Rivera v. State, 846 P.2d 1, 4 n. 2 (Wyo. 1993), and federal entrapment law has not been controlling in Arizona. State v. Soule, 168 Ariz. 134, 135, 811 P.2d 1071, 1072 (1991), cert. denied, 502 U.S. 1038, 112 S.Ct. 888, 116 L.Ed.2d 791 (1992). We conclude that the trial court's entrapment instruction correctly stated Arizona law.
See Dugan, 125 Ariz. at 196, 608 P.2d at 773; State v. Jackson, 121 Ariz. 277, 589 P.2d 1309 (1979). We are also aware of the recent opinion of our supreme court in State v. Soule, 168 Ariz. 134, 811 P.2d 1071 (1991), which held that a defendant must admit the elements of an offense before he can plead entrapment. The court reasoned that to "allow a defendant to testify as to two defenses that cannot both be true is equivalent to sanctioning a defendant's perjury."
However, since the filing of the briefs in this case, the Arizona Supreme Court has determined that the Mathews decision is not binding upon the states and is contrary to this state's body of law regarding entrapment inconsistency. See State v. Soule, 168 Ariz. 134, 135-137, 811 P.2d 1071, 1072-1074 (1991). Based upon this principle that the Mathews rule encourages perjury and jury confusion, our supreme court held that:
The high courts of several states construing Mathews have held that Mathews was not decided on constitutional grounds and accordingly had no impact on state common and statutory law governing the defense of entrapment. See Young v. State, 308 Ark. 647, 651-52, 826 S.W.2d 814, 816 (1992); State v. Soule, 168 Ariz. 134, 135-36, 811 P.2d 1071, 1072-73 (1991) (en banc), cert. denied, ___ U.S. ___, 112 S.Ct. 888, 116 L.Ed.2d 791 (1992); People v. Gillespie, 136 Ill.2d 496, 501-03, 145 Ill. Dec. 915, 917-18, 557 N.E.2d 894, 896-98 (1990). In those states, the defense of entrapment required the admission of the commission of the crimes for which the accused was tried.
Other jurisdictions have rejected the United States Supreme Court's reasoning in Mathews and continue to refuse a jury instruction on the entrapment defense when the defendant denies commission of the crime. See, e.g., State v. Soule, 168 Ariz. 134, 137, 811 P.2d 1071 (1991); People v. Gillespie, 136 Ill.2d 496, 501-503, 557 N.E.2d 894 (1990). Significantly, as the majority aptly notes, the United States Supreme Court, as a matter of federal criminal law, has recently and specifically held that the traditional rule applies, even when the defendant's own testimony contradicts one of his theories of defense.