Millsaps v. the State.

310 Ga.App. 769

714 S.E.2d 661

11 FCDR 2467

MILLSAPS

v.The STATE.

No. A11A0038.

Court of Appeals of Georgia.

July 13, 2011.

Garland, Samuel & Loeb, Donald Franklin Samuel, Atlanta, William Charles Lea, McNeill Stokes, for appellant.Kermit Neal McManus, District Attorney, Mark Patrick Higgins Jr., Assistant District Attorney, for appellee.DOYLE, Judge.

After a jury trial, Travis R. Millsaps was convicted of one count of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007 by utilizing the internet to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit an illegal sex act; ¹ attempted aggravated child molestation; ² and attempted child molestation.³ Millsaps appeals, arguing that the trial court erred by (1) denying his motion to exclude custodial statements based on improper hope of benefit in violation of OCGA § 24–3–50; (2) denying his request to instruct the jury on the definition of incitement in the context of entrapment; and (3) denying his motion for a directed verdict of acquittal based on entrapment. Millsaps also argues that he received ineffective assistance of counsel because (4) he requested that the jury be instructed to consider a witness' intelligence when determining credibility; and (5) he failed to object to the trial court's instruction on excluding statements based on an illegal detention. We affirm for the reasons that follow.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant ... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.⁴ Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld. ⁵

So viewed, the evidence presented at trial established that on July 31, 2008, an officer with the Internet Crimes Against Children Task Force operating in north Georgia posted an advertisement in the “Casual Encounters” section of craigslist.org, a website that functions similarly to a newspaper classified advertisement section. The advertisement appeared to be from an 18–year–old female, “Hannah,” looking for a man with whom to “end ... Summer Vacation with a Bang.” On August 5, 2008, Millsaps e-mailed a response to the ad. The officer posing as “Hannah” responded to Millsaps's e-mail, telling him “like [I] said[, I'm] very mature an[d] interested. [J]ust wanted to let you know up front [I'm] not quite 18” and sending pictures of a 13–year–old female from an FBI database. The two began corresponding via instant messenger, where “Hannah” explained that she was actually 14 years old. Although Millsaps expressed hesitation at “Hannah's” young age, they continued to communicate, discussed meeting in person, and discussed having sexual intercourse and oral sex.

On August 8, Millsaps had a telephone conversation with another task force agent, with whom he discussed plans to meet in person.

Upon arriving at the location, Millsaps was apprehended and interviewed by officers, to whom he admitted he had intended to meet with “Hannah,” had brought condoms with him, and might have had sex with her, as they had previously discussed.

The jury returned a guilty verdict against Millsaps, and he thereafter filed a motion for new trial, which the court denied. Millsaps now appeals.

1. First, Millsaps argues that the trial court erred by denying his motion to exclude custodial statements based on an improper hope of benefit in violation of OCGA § 24–3–50, which Millsaps contends was the officers' promises to avoid reporting his arrest to his wife. We disagree.

At a Jackson–Denno⁶ hearing, the trial court examines the totality of the circumstances to determine whether a preponderance of the evidence shows that the confession was voluntary. Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.⁷

“The promise of a hope or benefit that will render a confession involuntary under OCGA § 24–3–50 must relate to the charge or sentence facing the suspect.” ⁸

Here, the trial court's determination that Millsaps's statement to officers was not predicated on a hope of benefit is not clearly erroneous. The trial court correctly concluded that the officer did not make a promise or offer of a special benefit or a lighter sentence in exchange for Millsaps's testimony, but rather addressed Millsaps's concerns that the officers would contact his wife. “[T]he phrase ‘hope of benefit’ generally means the reward of a lighter sentence. Thus, confessions made under a promise of collateral benefit are not for that reason excludable.” ⁹ Protecting Millsaps's relationship with his wife was a collateral benefit. “Furthermore, [Millsaps] signed a form which acknowledged that he had not been promised anything” in exchange for his cooperation with law enforcement.¹⁰ Accordingly, this claim is without merit.

2. Millsaps also contends that the trial court erred by denying his request to instruct the jury on the definition of “incitement” in the context of entrapment. We disagree.

Millsaps did not object to the trial court's decision not to charge the jury on his requested definition of incitement; however, Millsaps also enumerates this error under the auspice of ineffective assistance of counsel, and we review the contention under that standard. After a hearing on Millsaps's motion for new trial, the court denied this claim of ineffective assistance of counsel.

“To show ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. More specifically, a defendant must show that trial counsel's deficient performance created a reasonable probability of a different outcome.” ¹¹

OCGA § 16–3–25 states in pertinent part that “[e]ntrapment exists where ... a government officer or employee, ... 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.” ¹² The trial court's charge to the jury included the language of the statute.

The rule is that when the charge embraces a section of the Code which contains technical words or expressions, the meaning of which is probably not understood by a person unlearned in the law, the court should so define them as to convey to the jury a correct idea of their meaning, but it is unnecessary for the court, even upon request, to explain words and expressions which are of ordinary understanding and self-explanatory.¹³

The term “incitement” as used in the statute to define entrapment is a term of common knowledge, and therefore, the trial court's determination that trial counsel did not provide ineffective assistance by failing to object to the trial court's denial of Millsaps's request to charge the jury as to the definition of “incitement” was not clearly erroneous.¹⁴

3. Millsaps also contends that the trial court erred by denying his motion for a directed verdict of acquittal based on entrapment. We disagree.

Entrapment is an affirmative defense that is established by showing that (1) the idea for the crime originated with the State agent; (2) the defendant was induced by the agent's undue persuasion, incitement, or deceit; and (3) the defendant was not predisposed to commit the crime.¹⁵

As a general rule, in order to raise the defense of entrapment, the defendant must first admit the commission of the crime and then show that he did so because of the unlawful solicitation or inducement of a law enforcement officer. The rationale for this rule is that it is thought to be factually inconsistent and confusing for a defendant to deny that he committed a criminal act and simultaneously to complain that he was entrapped into its commission. But, if a reasonable inference of entrapment may be drawn by a rational jury from the State's evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.¹⁶

“If the defendant establishes a prima facie case of entrapment, the burden is then upon the [S]tate to disprove entrapment beyond a reasonable doubt. The determination of whether the defendant was entrapped is for the jury unless the uncontroverted evidence demands a finding of entrapment.” ¹⁷

Here, as testified to by a task force officer, Millsaps's statement to the officers after his arrest was that he intended to have sex with “Hannah” even though he was aware that she purported to be 14 years old. Even without such admission, however, the trial court charged the jury on entrapment (correctly as we determined in Division 2), and the jury's conclusion that entrapment did not occur is supported by the record evidence, including the facts that (1) Millsaps continued communicating with “Hannah,” including having sexually explicit conversations with her in which he stated he wanted “a lot of oral,” after he learned that she was 14 years old; (2) Millsaps discussed with “Hannah” how she could meet him if she could not drive, inquired whether she had ever snuck away from home before, and stated that he believed the union would be legal if he was 16 years old, instead of his actual age; (3) Millsaps left his home of Tennessee to meet a purportedly 14–year–old girl in order to have sex with her, which he admitted in his statements to officers; and (4) Millsaps brought condoms with him, which he stated...