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;
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.
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.
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."
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."
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."
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.
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.
"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."
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
4. Millsaps claims that trial counsel was ineffective for requesting inclusion of the pattern jury charge on witness credibility, which stated that a juror could consider, among other factors, a witness' intelligence when making a credibility determination.
Analyzing the recitation of this charge under both the reversible and plain error standards of review, the Supreme Court of Georgia has held that "even assuming that the better practice is to omit intelligence as one of the factors in the credibility charge, its inclusion is not reversible error."
5. Finally, Millsaps argues that he received ineffective assistance of counsel because his trial counsel requested that the trial court include a pattern jury instruction concerning the voluntariness of a statement made during an illegal detention because it amounted to improper comment on the evidence by the trial court. Specifically, the portion of the charge at issue states that "under the law in order for a statement to be excluded because of illegal detention, it must be shown that the statement was, in fact, induced by such illegal detention."
The remainder of the trial court's instruction states, "[t]he second question that you must answer is whether the Defendant's statement was clearly voluntary, that is freely and willingly given" and "[i]f you fail to find any one of the conditions that I have just described, you must disregard the statement entirely and give it no consideration in reaching your verdict." The instructions taken as a whole unambiguously describe to the jury its role in determining whether any statements made by Millsaps were voluntarily given.
Judgment affirmed.
ELLINGTON, C.J., and MILLER, P.J., concur.