2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 3 - Defenses to Criminal Prosecutions
Article 2 - Justification and Excuse
§ 16-3-25. Entrapment

A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.

(Code 1933, § 26-905, enacted by Ga. L. 1968, p. 1249, § 1.)

- For note, "Notice Requirements and the Entrapment Defense Under the Georgia Administrative Procedure Act" in light of Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68, 237 S.E.2d 510 (1977), see 30 Mercer L. Rev. 347 (1978).

ANALYSIS

• General Consideration
• What Constitutes Entrapment
• Conduct of State Agents
• Informants
• Burden of Proof
• Jury Charge
• Application

Function of law enforcement is prevention, not manufacture, of crime. Thornton v. State, 139 Ga. App. 483, 228 S.E.2d 919 (1976).

Entrapment occurs when criminal conduct is product of creative activity of law enforcement officials. Brown v. State, 132 Ga. App. 399, 208 S.E.2d 183 (1974).

Entrapment exists where idea and intention to commit act originate with police officer, who, by undue persuasion and deceitful means, induces defendant to violate the law. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).

Entrapment defense does not rest on constitutional grounds. State v. Royal, 247 Ga. 309, 275 S.E.2d 646 (1981).

- Entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent's undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. Keaton v. State, 253 Ga. 70, 316 S.E.2d 452 (1984); Hill v. State, 261 Ga. 377, 405 S.E.2d 258 (1991); Gilbert v. State, 212 Ga. App. 308, 441 S.E.2d 785 (1994).

- Under the majority view (which is followed in Georgia), the predisposition of the defendant toward crime is the key element of the defense of entrapment. Keaton v. State, 253 Ga. 70, 316 S.E.2d 452 (1984).

- Trial court did not abuse the court's discretion in ruling that whether the defendant would have committed the crime charged absent the inducement of law enforcement officers was a question for the jury without the assistance of expert opinion evidence because expert testimony that a defendant does not have the psychological characteristics of a person who is predisposed to having sexual contact with under-aged children invades the province of the jury as to the ultimate issue. Lopez v. State, 326 Ga. App. 770, 757 S.E.2d 436 (2014).

Focus of entrapment defense is intent or predisposition of defendant to commit crime. Johnson v. State, 147 Ga. App. 92, 248 S.E.2d 168 (1978); Bennett v. State, 158 Ga. App. 421, 280 S.E.2d 429 (1981).

Entrapment defense focuses on defendant's intent and predisposition as well as upon conduct of government's agents. Griffin v. State, 154 Ga. App. 261, 267 S.E.2d 867 (1980).

- To the extent that the defendant, who met with an undercover officer who wanted to buy marijuana, raised an entrapment defense, the state rebutted that defense; while the idea for the drug deal originated with state agents, the state's evidence rebutted any claims by the defendant that the defendant was induced by undue persuasion and that the defendant was not predisposed to commit the crime. Davis v. State, 285 Ga. App. 460, 646 S.E.2d 342 (2007).

- Entrapment does not exist where an accused who is ready to commit an offense is merely furnished an opportunity to do so. Pennyman v. State, 175 Ga. App. 405, 333 S.E.2d 659 (1985).

- Because the phrase "undue persuasion" is used in context with "incitement or deceitful means," it must mean something more than repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to the disposition of one's drugs. McQueen v. State, 185 Ga. App. 485, 364 S.E.2d 617 (1988); Gooch v. State, 188 Ga. App. 196, 372 S.E.2d 473 (1988); Wright v. State, 191 Ga. App. 392, 381 S.E.2d 601 (1989).

Entrapment is not a rationale for suppressing evidence but an affirmative defense to a criminal prosecution. State v. Baker, 216 Ga. App. 66, 453 S.E.2d 115 (1995).

Defense of entrapment necessarily assumes that act charged was committed. Gregoroff v. State, 248 Ga. 667, 285 S.E.2d 537 (1982).

In asserting defense of entrapment, defendant admits other elements of crime. Garrett v. State, 133 Ga. App. 564, 211 S.E.2d 584 (1974); Gregoroff v. State, 248 Ga. 667, 285 S.E.2d 537 (1982).

Normally a defendant must admit the commission of the crime in order to raise the defense of entrapment. Lawrence v. State, 174 Ga. App. 788, 331 S.E.2d 600 (1985).

- It is illogical and impermissible for defendant to deny that defendant committed acts constituting crime and to simultaneously complain that defendant has been entrapped by improper governmental conduct into committing the acts. Gregoroff v. State, 248 Ga. 667, 285 S.E.2d 537 (1982).

- Rule that defendant must admit commission of crime in order to raise defense of entrapment is viewed as an exception to general rule that accused is permitted to interpose inconsistent defenses in criminal case. Gregoroff v. State, 248 Ga. 667, 285 S.E.2d 537 (1982).

Exception to rule that accused must admit crime in order to rely on defense of entrapment has been recognized where state, rather than defendant, injects evidence of entrapment into case and defendant offers no evidence of entrapment which contradicts defendant's primary defense that defendant did not commit crime charged. Gregoroff v. State, 248 Ga. 667, 285 S.E.2d 537 (1982).

Use of defendant's common-law spouse as an informant was not "entrapment per se." White v. State, 244 Ga. App. 475, 536 S.E.2d 180 (2000).

Defense of entrapment requires that defendant admit elements of offense, but affirmatively plead legal justification. Cowart v. State, 136 Ga. App. 528, 221 S.E.2d 649 (1975), aff'd, 237 Ga. 282, 227 S.E.2d 248, overruled on other grounds, 137 Ga. App. 735, 224 S.E.2d 856 (1976).

In asserting an entrapment defense, accused admits commission of offense while denying that accused was inclined to commit offense before intervention of law enforcement agent. Garrett v. State, 133 Ga. App. 564, 211 S.E.2d 584 (1974); Brooks v. State, 141 Ga. App. 725, 234 S.E.2d 541 (1977).

In order to raise defense of entrapment, defendant must admit commission of crime, but that defendant did so because of unlawful solicitation or inducement of law enforcement agent. Griffin v. State, 154 Ga. App. 261, 267 S.E.2d 867 (1980).

Assertion of defense of entrapment requires party to admit commission of offense charged in indictment. McDonald v. State, 156 Ga. App. 143, 273 S.E.2d 881 (1980).

- Because concept of entrapment involves predisposition of accused, issue is generally for jury determination. State v. Royal, 247 Ga. 309, 275 S.E.2d 646 (1981).

Issue of entrapment cannot be presented to jury if accused denies guilt. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011); Griffin v. State, 154 Ga. App. 261, 267 S.E.2d 867 (1980).

- When the evidence included testimony of informant and agent as well as taped conversations between them and the defendant, and this evidence sufficiently indicated the defendant's predisposition to consummate the crime, the evidence raised the defense of entrapment, necessitating a jury charge on the matter, but it did not demand a finding of entrapment. Norley v. State, 170 Ga. App. 249, 316 S.E.2d 808 (1984).

Cited in Foskey v. State, 125 Ga. App. 672, 188 S.E.2d 825 (1972); Johnson v. State, 128 Ga. App. 69, 195 S.E.2d 676 (1973); Bennett v. State, 130 Ga. App. 510, 203 S.E.2d 755 (1973); Zinn v. State, 134 Ga. App. 51, 213 S.E.2d 156 (1975); Rucker v. State, 135 Ga. App. 468, 218 S.E.2d 146 (1975); Lentile v. State, 136 Ga. App. 611, 222 S.E.2d 86 (1975); Tolbert v. State, 138 Ga. App. 724, 227 S.E.2d 416 (1976); Philmore v. State, 142 Ga. App. 507, 236 S.E.2d 180 (1977); Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68, 237 S.E.2d 510 (1977); Smith v. State, 239 Ga. 477, 238 S.E.2d 116 (1977); Bowman v. State, 144 Ga. App. 681, 242 S.E.2d 480 (1978); Glover v. State, 145 Ga. App. 15, 243 S.E.2d 296 (1978); White v. State, 146 Ga. App. 810, 247 S.E.2d 536 (1978); Jones v. State, 154 Ga. App. 21, 267 S.E.2d 323 (1980); Causey v. State, 154 Ga. App. 76, 267 S.E.2d 475 (1980); Ray v. State, 157 Ga. App. 519, 277 S.E.2d 804 (1981); Campbell v. State, 160 Ga. App. 561, 287 S.E.2d 591 (1981); Spruell v. Jarvis, 654 F.2d 1090 (5th Cir. 1981); Thurmond v. State, 161 Ga. App. 602, 288 S.E.2d 780 (1982); Ellis v. State, 164 Ga. App. 366, 296 S.E.2d 726 (1982); Noles v. State, 164 Ga. App. 191, 296 S.E.2d 768 (1982); Palmer v. State, 250 Ga. 219, 297 S.E.2d 22 (1982); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Frazer v. State, 165 Ga. App. 331, 299 S.E.2d 104 (1983); Verble v. State, 172 Ga. App. 321, 323 S.E.2d 239 (1984); Tucker v. State, 182 Ga. App. 559, 356 S.E.2d 559 (1987); Lawson v. State, 184 Ga. App. 204, 361 S.E.2d 210 (1987); Pless v. State, 187 Ga. App. 772, 371 S.E.2d 406 (1988); Edmondson v. State, 201 Ga. App. 566, 411 S.E.2d 879 (1991); Wright v. State, 232 Ga. App. 104, 501 S.E.2d 543 (1998); Mitchell v. State, 249 Ga. App. 520, 548 S.E.2d 469 (2001); McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

What Constitutes Entrapment

When officer merely offers opportunity.

- There is no entrapment when officer merely offers opportunity to one ready to commit offense. Hill v. State, 225 Ga. 117, 166 S.E.2d 338 (1969); Thornton v. State, 139 Ga. App. 483, 228 S.E.2d 919 (1976); Daniels v. State, 154 Ga. App. 323, 268 S.E.2d 376 (1980); Johnson v. State, 246 Ga. 126, 269 S.E.2d 18 (1980); Paras v. State, 247 Ga. 75, 274 S.E.2d 451 (1981); Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981); Mason v. State, 194 Ga. App. 152, 390 S.E.2d 246 (1990).

- It does not constitute entrapment when a defendant approaches a police officer or agent-informer with an offer to commit a crime, if that officer then plays a role in order to provide defendant with an opportunity to commit the intended offense. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981); Smith v. State, 206 Ga. App. 138, 424 S.E.2d 371 (1992).

- Entrapment defense unavailable when evidence reveals marked disposition of the defendant to use and sell contraband. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011).

- Absent other circumstances, it is generally held that where officer simply makes request, as to purchase contraband, and there is ready compliance, defense of entrapment is unavailable. Thornton v. State, 139 Ga. App. 483, 228 S.E.2d 919 (1976); Griffin v. State, 154 Ga. App. 261, 267 S.E.2d 867 (1980).

- If at time of solicitation for sale of narcotics defendant was engaged in business of selling and possessing narcotics, it is no defense for defendant that defendant was merely induced by solicitation and misrepresentation to sell or possess such narcotics. Gibson v. State, 133 Ga. App. 68, 209 S.E.2d 731 (1974).

Repeated requests by officer or agent for contraband goods does not constitute undue persuasion. Johnson v. State, 147 Ga. App. 92, 248 S.E.2d 168 (1978); McDonald v. State, 156 Ga. App. 143, 273 S.E.2d 881 (1980).

- Phrase "undue persuasion," used in context with "deceitful means," means something more than requests to purchase. Smith v. State, 141 Ga. App. 529, 233 S.E.2d 841, aff'd in part and rev'd in part, 239 Ga. 477, 238 S.E.2d 116 (1977).

Because phrase "undue persuasion" is used in context with "incitement or deceitful means," it must mean something more than repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to disposition of one's drugs. Bennett v. State, 158 Ga. App. 421, 280 S.E.2d 429 (1981); Martin v. State, 175 Ga. App. 704, 334 S.E.2d 32 (1985).

Phrase "undue persuasion" is something more than repeated requests for contraband goods. Murrell v. State, 166 Ga. App. 526, 304 S.E.2d 408 (1983); Evans v. State, 209 Ga. App. 340, 433 S.E.2d 426 (1993).

Repeated requests and offers of money do not establish entrapment as a matter of law. Paras v. State, 247 Ga. 75, 274 S.E.2d 451 (1981).

Smile of police officer is insufficient to constitute lure, incitement, or persuasion to commit crime of kidnapping. Brown v. State, 132 Ga. App. 399, 208 S.E.2d 183 (1974).

- Unopposed testimony that government agent gave defendant drugs with instructions to sell them to two men who also were concealed agents under guise of helping former to trap criminals cannot support conviction. Thornton v. State, 139 Ga. App. 483, 228 S.E.2d 919 (1976).

- State's evidence showing only that agent offered defendant the opportunity to commit the offense could not reasonably be said to raise the issue of entrapment as a defense. Diana v. State, 164 Ga. App. 779, 298 S.E.2d 281 (1982).

In prosecution for escape from lawful confinement, when the defendant failed to present any evidence that inmate who was allegedly encouraged by prison employees to entice defendant to escape was a government officer or employee, or an agent thereof, the trial court did not err in refusing to charge on the defense of entrapment. Johns v. State, 164 Ga. App. 133, 296 S.E.2d 638 (1982).

That police agent met defendant through an informant, denied being a police officer and shared beer with defendant to engender defendant's trust were not circumstances which, either alone or in conjunction with the agent's request for drugs, were sufficient to give rise to an entrapment defense. Adams v. State, 207 Ga. App. 119, 427 S.E.2d 90 (1993).

After the defendant gave a statement to the police admitting that the defendant intended to purchase cocaine from an undercover detective, and the detective's testimony showed the defendant's predisposition to commit the crime and willing participation in the crime, the evidence did not demand a finding of entrapment. Cody v. State, 222 Ga. App. 468, 474 S.E.2d 669 (1996).

In a defendant's prosecution on drug charges, entrapment was not established under O.C.G.A. § 16-3-25 because while a confidential informant (CI) initiated contact with the defendant, there was no evidence that the CI used undue persuasion to induce the defendant to commit a crime that the defendant was not predisposed to commit; the CI was not aware of the defendant's financial problems, and the defendant initiated contact with the CI on at least one occasion and talked with the CI on several occasions. Robinson v. State, 296 Ga. App. 561, 675 S.E.2d 298 (2009).

Conduct of State Agents

Reasonable person standard applies.

- State agent's conduct is to be viewed objectively, and evaluated by the jury in light of the standard of conduct exercised by reasonable persons generally. Keaton v. State, 253 Ga. 70, 316 S.E.2d 452 (1984).

- While proof of a defendant's "innocent" state of mind (i.e., nonpredisposition) is essential to maintenance of a successful entrapment defense, the state agent's subjective state of mind is irrelevant to the determination of whether the crime was induced by "undue persuasion, incitement, or deceitful means." Keaton v. State, 253 Ga. 70, 316 S.E.2d 452 (1984).

Portion of instruction which read "If an officer acts in good faith in the honest belief that the defendant is engaged in unlawful conduct of which the offense charged is a part, and the purpose of the officer is not to induce an innocent man to commit a crime, but to secure evidence upon which a guilty man can be brought to justice, the defense of entrapment is without merit" was erroneous and required reversal of defendant's conviction. Keaton v. State, 253 Ga. 70, 316 S.E.2d 452 (1984).

Informer need not be a paid informer to fulfill agency role. Leonardi v. State, 154 Ga. App. 402, 268 S.E.2d 380 (1980).

- See State v. Royal, 247 Ga. 309, 275 S.E.2d 646 (1981).

- Defendant raising entrapment as a defense may not wait until case is over to make proper motion for disclosure of identity of informant in absence of some justification for delay. State v. Royal, 247 Ga. 309, 275 S.E.2d 646 (1981).

Officer's testimony denying entrapment is insufficient where alleged entrapment was by informer outside officer's presence. Hughes v. State, 152 Ga. App. 80, 262 S.E.2d 245 (1979).

- Defendant's motion to compel the state to produce the informant to testify at trial was improperly denied because the informant's testimony was material to the defendant's entrapment defense as the informant was the only source of evidence about it other than the defendant; the informant testified in camera, absent the defendant and defense counsel, that the informant brought up the subject of drug sales in the first place, and that the informant threatened to work the defendant for $5 a day if the sellers did not show up; and the defendant had no opportunity to question the informant about the informant's partiality as it might affect the informant's testimony about whether the informant coerced the defendant into setting up the deal. Hampton v. State, 338 Ga. App. 864, 792 S.E.2d 124 (2016).

- Rule that the state's failure to produce a confidential informant to rebut a defendant's entrapment testimony requires a directed verdict of acquittal did not apply where an undercover investigator testified that the informant had nothing to do with setting up the sale of the pound of cocaine, and in fact did not know it was going on. Armand v. State, 164 Ga. App. 350, 296 S.E.2d 734 (1982).

When the state produces rebuttal to testimony of party arguing entrapment, informer need not testify. Chambers v. State, 154 Ga. App. 620, 269 S.E.2d 42 (1980).

Burden of Proof

When evidence raises defense of entrapment, state must come forward with contrary proof.

- When evidence of defendant raises defense of entrapment and is uncontested or not rebutted by state, conviction cannot be upheld as state has duty to come forward with contrary proof. Hall v. State, 136 Ga. App. 622, 222 S.E.2d 140 (1975); Seabrooks v. State, 164 Ga. App. 747, 297 S.E.2d 745 (1982), aff'd, 251 Ga. 564, 308 S.E.2d 160 (1983).

When the defendant raised the defense of entrapment, contending that the defendant had been intimidated by the informant, who allegedly had a reputation for violent behavior, the trial court did not err in permitting the Georgia Bureau of Investigation agent to testify in rebuttal of the defendant's allegations regarding threats and intimidation. The state has the burden of presenting evidence in rebuttal of testimony offered in support of an affirmative defense. Meade v. State, 165 Ga. App. 556, 301 S.E.2d 912 (1983).

Defendants were entitled to a directed verdict of acquittal, where the state neither offered evidence to rebut defendants' testimony that they were entrapped, nor offered evidence showing their disposition to commit the drug possession charges with which they were charged. Emanuel v. State, 260 Ga. 425, 396 S.E.2d 225 (1990).

- Distinction must be made between evidence raising defense of entrapment and requiring that jury be charged as to law of entrapment and burden of proof thereon, and evidence which, would demand a finding of entrapment and, therefore, a directed verdict of acquittal. Childs v. State, 158 Ga. App. 376, 280 S.E.2d 401 (1981).

- When evidence in criminal case warrants charge on law of entrapment, failure of trial judge to charge in conjunction with its instruction on that subject that prosecution must carry burden to prove beyond reasonable doubt that such entrapment did not exist constitutes reversible error. Reed v. State, 130 Ga. App. 659, 204 S.E.2d 335 (1974).

After a defendant presents a prima facie case of entrapment, the burden is on the state to disprove entrapment beyond a reasonable doubt. Hill v. State, 261 Ga. 377, 405 S.E.2d 258 (1991).

- The state was not required to present rebuttal evidence demonstrating that defendant was not entrapped where sufficient evidence was presented by the state in its case-in-chief. Hudson v. State, 184 Ga. App. 245, 361 S.E.2d 240 (1987).

In prosecution for selling cocaine, even though defendant's testimony provided evidence of entrapment, the state was not required to call a particular witness in rebuttal since the evidence in the case did not demand a finding of entrapment and, therefore, a directed verdict of acquittal. Finley v. State, 214 Ga. App. 452, 448 S.E.2d 78 (1994).

- Defendant's presentation of only a theory of entrapment, without a factual showing that a government agent had induced action, did not necessitate that the state present rebuttal evidence to avoid a directed verdict of acquittal. Simmons v. State, 208 Ga. App. 721, 431 S.E.2d 721 (1993).

- After defendant presents a prima facie case that defendant was induced to commit an offense charged in the indictment, burden is upon government to prove beyond a reasonable doubt that accused was predisposed to commit the offense - i.e., that defendant was ready and willing without persuasion and awaiting a propitious opportunity to commit the crime. Griffin v. State, 154 Ga. App. 261, 267 S.E.2d 867 (1980).

Defendant's testimony, corroborated by a paid informant, established a prima facie case of entrapment. There was no evidence introduced that, prior to the defendant's entrapment, the defendant had a predisposition to deliver, sell, distribute, or knowingly possess cocaine as forbidden by O.C.G.A. § 16-13-30(b). As the state failed to introduce evidence to rebut the affirmative defense of entrapment, the defendant was entitled to a directed verdict of acquittal. Hill v. State, 261 Ga. 377, 405 S.E.2d 258 (1991).

Trial court did not err in refusing the defendant's request to disclose the identity of a confidential informant in order to support an entrapment defense, as the defendant was unable to present an arguably persuasive case regarding the lack of a predisposition to commit the crime, based specifically on: (1) a discussion with a detective about the impending drug sale; (2) the defendant's act of displaying a weapon considered to be protection against a robbery; and (3) the defendant's act of coordinating the movements of the numerous participants in the large-scale transaction the defendant was a part of. Griffiths v. State, 283 Ga. App. 176, 641 S.E.2d 169 (2006).

Jury Charge

Evidence raised entrapment defense and prompted jury charge.

- When the evidence included testimony of an informant and agent as well as taped conversations between them and the defendant, and this evidence sufficiently indicated the defendant's predisposition to consummate the crime, the evidence raised the defense of entrapment, necessitating a jury charge on the matter, but the evidence did not demand a finding of entrapment. Norley v. State, 170 Ga. App. 249, 316 S.E.2d 808 (1984).

- It is not error for the court to refuse to give instruction on entrapment where the uncontradicted testimony of the undercover officer shows that the officer did not induce or solicit appellant to commit the crime. Lester v. State, 174 Ga. App. 886, 332 S.E.2d 31 (1985).

In a prosecution for trafficking in cocaine, the trial court did not err in refusing to instruct the jury on the affirmative defense of entrapment, as: (1) sufficient evidence was presented that the defendant voluntarily committed the offense upon being given the opportunity to do so; and (2) no evidence was presented to show that the informant employed undue persuasion, incitement or deceit to induce the defendant into selling drugs; thus, the defendant's claim of ineffective assistance of counsel for failing to present evidence to support an entrapment defense was rejected and did not warrant a new trial. Campbell v. State, 281 Ga. App. 503, 636 S.E.2d 687 (2006).

State's uncontradicted evidence showed that the idea to sell cocaine to an informant originated with the defendant, and the defendant was predisposed to commit the crime without any undue persuasion, incitement, or deceit by the state, and therefore supported the trial court's refusal to charge the jury on the defense of entrapment. Lightsey v. State, 289 Ga. App. 181, 656 S.E.2d 852 (2008).

Trial court did not err in failing to charge the jury on entrapment because there was no evidence that a deputy's undue persuasion, incitement, or deceit induced the defendant to sell cocaine or that the defendant was not predisposed to commit the crime. Quarterman v. State, 305 Ga. App. 686, 700 S.E.2d 674 (2010).

- Charge on entrapment substantially in language of O.C.G.A. § 16-3-25 was not inadequate by reason of omission of words "or solicited" following "induced." Wallace v. State, 162 Ga. App. 367, 291 S.E.2d 437 (1982).

Trial court did not err in instructing the jury on the defense of entrapment as the charge given: (1) was part of the standard instructions on the element of knowledge; (2) sufficiently advised the jury that the state bore the burden of proving beyond a reasonable doubt that the defendant was not entrapped; and (3) was legally correct and did not mislead a jury. Griffiths v. State, 283 Ga. App. 176, 641 S.E.2d 169 (2006).

- Counsel's failure to object to the denial of counsel's request to instruct a jury on the definition of "incitement" in the context of an entrapment instruction was not ineffective assistance because "incitement," as used in O.C.G.A. § 16-3-25, was a term of common knowledge. Millsaps v. State, 310 Ga. App. 769, 714 S.E.2d 661 (2011).

- In prosecution for sale of controlled substances, where there was no evidence of any predisposition on part of defendant to deal in drugs, defendant testified that state's informant created criminal design by undue persuasion, incitement, and deceitful means, and entrapment was sole defense relied upon by defendant, trial court erred in failing to charge on entrapment. Johnson v. State, 147 Ga. App. 92, 248 S.E.2d 168 (1978).

Court's failure to charge on entrapment is not reversible error where the defendant rests without presenting any evidence, and the first criterion, that the state inject evidence of entrapment, has not been satisfied, since the uncontradicted testimony of the undercover officer showed that the officer did not induce or solicit defendant to commit the crime. Menefield v. State, 165 Ga. App. 545, 301 S.E.2d 902 (1983).

- Jury charge on entrapment which did not specifically direct that the state had to prove predisposition beyond a reasonable doubt was sufficient because it is not necessary to charge on the state's burden of proof individually with regard to every element of a disputed matter. Norley v. State, 170 Ga. App. 249, 316 S.E.2d 808 (1984).

Charge placing burden of proving entrapment upon defendant is erroneous. Thornton v. State, 139 Ga. App. 483, 228 S.E.2d 919 (1976).

- When trial court properly instructed jury as to substantive law of entrapment and then charged jury as to burden of proof generally in criminal prosecution, the charge was both insufficient and prejudicial to defendant, for while it may not shift burden of proof to defendant, it is capable of confusing the jury. Reed v. State, 130 Ga. App. 659, 204 S.E.2d 335 (1974).

- When charge of court includes instruction as to entrapment but places burden of proof as to each essential element of crime, including intent, upon state beyond a reasonable doubt, it is not error for court not to instruct the jury specifically, absent request, as to any burden of proof regarding entrapment. McDonald v. State, 156 Ga. App. 143, 273 S.E.2d 881 (1980).

Trial court's jury charge on entrapment, which included statements that repeated requests by an officer or agent for contraband goods did not constitute undue persuasion and that entrapment was seduction or improper inducement to commit a crime and was not merely testing by trap, trickiness, or deceit of one who was suspected, was proper. Manders v. State, 280 Ga. App. 742, 634 S.E.2d 773 (2006).

Pattern jury charge fully and accurately charged the jury on the state's burden when the defense of entrapment was raised and the trial court properly refused to give a requested charge that the state must prove that defendant "was disposed to commit the criminal act prior to first being approached by agents of the state." Haralson v. State, 223 Ga. App. 787, 479 S.E.2d 115 (1996).

Word "criminal" is inappropriate in an entrapment charge (i.e., it is not entrapment where the officers merely furnish an opportunity to a criminal who is ready and willing to commit an offense). However, the charge is not incorrect as a matter of law. Epps v. State, 168 Ga. App. 79, 308 S.E.2d 234 (1983).

Trial court properly declined to instruct the jury on entrapment under O.C.G.A. § 16-3-25 in defendant's trial for trafficking in cocaine because although defendant claimed to only be arranging for a meeting between a police informant and a supplier because defendant was interested in a relationship with the informant, and did not know the supplier would bring cocaine to the meeting, and the idea for the crime did originate with the state agent, there was no evidence presented by the state of the other two elements, undue persuasion, incitement or deceit, or that defendant was not predisposed to commit the crime. St. Jean v. State, 255 Ga. App. 129, 564 S.E.2d 534 (2002).

Suspected person may be tested by being offered opportunity to transgress in such manner as is usual therein, but may not be put under extraordinary temptation or inducement. Webb v. State, 136 Ga. App. 90, 220 S.E.2d 27 (1975).

- When officers suspect a person of being systematically guilty of a certain type of offense, such as selling illegal liquor, setting of a trap by proposing to such person that the person sell to a decoy is not generally considered entrapment in the sense that it may be used as a legal defense for the reason that part of the law enforcement process involves apprehension and removal of known criminals. A different situation is presented when a person is persuaded into committing a crime in the first instance. Brown v. State, 132 Ga. App. 399, 208 S.E.2d 183 (1974).

Discovery of crime and procurement of evidence by deception are not prohibited. Entrapment is seduction or improper inducement to commit crime and not testing by trap, trickiness, or deceit of one suspected. Thomas v. State, 134 Ga. App. 18, 213 S.E.2d 129 (1975).

- When it appears that entire plan and design of offense originates with government, and is effectuated by undue persuasion or deceitful means, there can be no conviction absent contradictory testimony. Thornton v. State, 139 Ga. App. 483, 228 S.E.2d 919 (1976).

In absence of some evidence by state directly contradicting testimony of defendant that defendant was induced by informer to make the sales on behalf of the state, defendant is entitled to judgment of acquittal. Hughes v. State, 152 Ga. App. 80, 262 S.E.2d 245 (1979).

- Trial court erred in admitting evidence of a prior conviction and the defendant's involvement in other drug deals as the defendant offered no evidence in support of an entrapment defense and the state had no basis on which to admit the character evidence; however, the denial of the defendant's motion for mistrial was not an abuse of discretion in light of the overwhelming evidence of the defendant's guilt and a detailed curative instruction advising the jury not to consider the improperly-admitted character evidence. Nettles v. State, 276 Ga. App. 259, 623 S.E.2d 140 (2005).

- Defendant's testimony that defendant was unduly persuaded by an informant to sell marijuana, along with evidence of defendant's predisposition to sell marijuana limited to defendant's possession of the drug at the time of the sale, was sufficient to raise an entrapment defense, although the evidence did not demand a finding that defendant was entrapped. Hattaway v. State, 185 Ga. App. 607, 365 S.E.2d 480 (1988).

When defendant admitted to using amphetamines and that defendant agreed to deliver a small amount to a female acquaintance after she importuned defendant 15 times in three days to obtain the drug for her, there was evidence that the police used but one female confidential informant in the investigation, and that she had spoken with defendant moments before defendant was arrested, these circumstances authorized the inference that the female acquaintance was the informant who telephoned defendant just before defendant was arrested and her actions were sufficient to make her the agent of the state for purposes of establishing a prima facie case of entrapment. State v. Jackson, 188 Ga. App. 259, 372 S.E.2d 823 (1988); Boatright v. State, 260 Ga. 534, 397 S.E.2d 689 (1990); Williams v. State, 205 Ga. App. 397, 422 S.E.2d 438 (1992); Gilbert v. State, 212 Ga. App. 308, 441 S.E.2d 785 (1994); Rutledge v. State, 218 Ga. App. 130, 460 S.E.2d 551 (1995).

In a prosecution for solicitation of sodomy and solicitation of sexual intercourse for money, defendant's solicitation of a police officer, by handing the officer a business card, precluded a claim that the crime originated with the police. Busener v. State, 188 Ga. App. 392, 373 S.E.2d 81 (1988).

Defendant's testimony that undercover agents approached defendant rather than vice versa did not establish an entrapment defense, where defendant effectively admitted that defendant was ready and willing to cooperate with the agents in order to obtain drugs for defendant's own use. Wyatt v. State, 194 Ga. App. 159, 390 S.E.2d 85 (1990).

Defendant was denied a meaningful opportunity to be heard and present an alibi defense where the court did not allow defendant to explore what the confidential informant said to persuade defendant to procure cocaine, defendant's relationship with the informant, or defendant's motive for participating in the transaction. Brooks v. State, 224 Ga. App. 829, 482 S.E.2d 725 (1997).

Defendant was entitled to an instruction on entrapment where evidence showed that the state, with knowledge that defendant was a cocaine addict who was trying to stay free of drugs, employed an informant who not only enticed defendant into procuring cocaine for an undercover agent but also into returning to the habit of use, and where entrapment was defendant's sole defense. Wagner v. State, 220 Ga. App. 71, 467 S.E.2d 385 (1996).

- Lack of conflict in evidence is only one criteria in O.C.G.A. § 17-9-1. Thus, defendant's testimony as to entrapment, even if unrebutted by any other witness to alleged misconduct, will not entitle defendant to directed verdict of acquittal unless unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands finding that entrapment occurred. State v. Royal, 247 Ga. 309, 275 S.E.2d 646 (1981); Houston v. State, 175 Ga. App. 881, 334 S.E.2d 907 (1985); Worley v. State, 185 Ga. App. 528, 364 S.E.2d 897 (1988); Rapier v. State, 245 Ga. App. 211, 535 S.E.2d 860 (2000).

- See State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975); Webb v. State, 136 Ga. App. 90, 220 S.E.2d 27 (1975).

- If police engage in illegal activity in concert with defendant beyond scope of their duties, remedy lies not in freeing equally culpable defendant, but in prosecuting police under applicable provisions of state or federal law. Griffin v. State, 154 Ga. App. 261, 267 S.E.2d 867 (1980).

When testimony shows only that agent asked defendant to procure cocaine for the agent, but there is no evidence that the agent induced or solicited defendant to commit the crime charged by undue persuasion, incitement, or deceitful means, defendant could not utilize an entrapment defense. Harold v. State, 185 Ga. App. 481, 364 S.E.2d 615 (1988).

- Although the idea for the commission of the crime unquestionably originated with the state actors, the police and a confidential informant did not use undue persuasion, coercion, or deceit, and the defendant was predisposed to commit the crime of trafficking in methamphetamine; therefore, no entrapment was shown. Graves v. State, 274 Ga. App. 855, 619 S.E.2d 356 (2005).

- Trial court did not err in convicting the defendant of the sale of cocaine and in denying the defendant's motion for a directed verdict of acquittal because the jury was authorized to find that the state's evidence rebutted the defendant's case of entrapment beyond a reasonable doubt since the uncontroverted testimony of the informant and the surveillance recording showed that the defendant had the previously established ability to purchase cocaine from the drug dealer and that the defendant willingly participated in the drug deal; there is no entrapment where the informant merely furnishes an opportunity to a defendant who is ready to commit the offense. Jackson v. State, 305 Ga. App. 591, 699 S.E.2d 884 (2010).

- Evidence did not authorize the granting of a directed verdict since, other than defendant's own uncorroborated testimony, defendant offered no evidence whatsoever in refutation of that presented by the prosecution and the entrapment defense which defendant attempted to raise was likewise unsupported by any evidence other than defendant's own testimony that the informant had a reputation for violence, that the informant had uttered a threat during appellant's negotiations with the Georgia Bureau of Investigation agent, and that defendant had assumed that a bulge allegedly observed beneath the agent's clothing was a gun; and the testimony of the agent, who was present during all stages of the transaction, was sufficient to rebut the defense of entrapment and to create an issue of fact for the jury. Meade v. State, 165 Ga. App. 556, 301 S.E.2d 912 (1983).

Defendant's testimony that informant begged defendant to find the informant some crack, and that defendant was led to believe that sex would be received, in addition to money, for providing the crack was insufficient to support defendant's defense of entrapment. Farrow v. State, 222 Ga. App. 689, 475 S.E.2d 706 (1996).

Evidence supported defendant's conviction for attempted prostitution when the record showed that defendant worked for "escort services" listed under "massage parlors" in the telephone directory and a witness testified "the lady put a condom on me and put her mouth on my penis" while charging the witness about $300 therefor. Renz v. State, 183 Ga. App. 108, 357 S.E.2d 843 (1987).

Evidence was sufficient to sustain defendant's conviction for criminal attempt to kidnap, since the victim was grabbed and restrained against the victim's will and there was evidence from which the jury could find that the defendant intended to take the victim away in the defendant's truck and was thwarted only by the victim's resistance. McGinnis v. State, 183 Ga. App. 17, 358 S.E.2d 269 (1987).

- Entrapment defense generally is not available in an attorney disciplinary proceeding; overruling Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68, 237 S.E.2d 510 (1977). In re Kennedy, 266 Ga. 249, 466 S.E.2d 1 (1996), overruled on other grounds, In re Henley, 271 Ga. 21, 518 S.E.2d 418 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Legislative intent.

- General Assembly intended former Code 1933, § 26-905 to be merely a codification of existing law regarding entrapment. 1969 Op. Att'y Gen. No. 69-430.

- Purchase of liquor by agent of Department of Revenue from one suspected of selling it illegally, where that purchase does not involve undue persuasion, does not constitute entrapment. 1969 Op. Att'y Gen. No. 69-430.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 197 et seq.

Entrapment to Commit Narcotics Offense, 12 POF2d 237.

- 22 C.J.S., Criminal Law: Substantive Principles, § 60 et seq.

- Entrapment to commit crime with view to prosecution therefor, 18 A.L.R. 146.

Entrapment to commit offense with respect to gambling or lotteries, 31 A.L.R.2d 1212.

Entrapment to commit offense with respect to narcotics law, 33 A.L.R.2d 883.

Entrapment to commit offense against laws regulating sales of liquor, 55 A.L.R.2d 1322.

Entrapment to commit bribery or offer to bribe, 69 A.L.R.2d 1397.

Entrapment with respect to violation of fish and game laws, 75 A.L.R.2d 709.

Entrapment to commit offense against obscenity laws, 77 A.L.R.2d 792.

Larceny: entrapment or consent, 10 A.L.R.3d 1121.

Defense of entrapment in contempt proceedings, 41 A.L.R.3d 418.

Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.

Admissibility of evidence of other offenses in rebuttal of defense of entrapment, 61 A.L.R.3d 293.

Entrapment as a defense in proceedings to revoke or suspend license to practice law or medicine, 61 A.L.R.3d 357.

Modern status of the law concerning entrapment to commit narcotics offense - state cases, 62 A.L.R.3d 110.

Availability in state court of defense of entrapment where accused denies committing acts which constitute offense charged, 5 A.L.R.4th 1128.

Adequacy of defense counsel's representation of criminal client regarding entrapment defense, 8 A.L.R.4th 1160.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Entrapment to commit traffic offense, 34 A.L.R.4th 1167.

Burden of proof as to entrapment defense - state cases, 52 A.L.R.4th 775.

Maintainability of burglary charge, where entry into building is made with consent, 58 A.L.R.4th 335.

Entrapment as defense to charge of selling or supplying narcotics where government agents supplied narcotics to defendant and purchased them from him, 9 A.L.R.5th 464.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped, 15 A.L.R.5th 39.

Entrapment to commit federal crimes of terrorism, 89 A.L.R. Fed. 2d 215.