Appellant Thomas Keaton, Jr., was indicted for two counts of selling marijuana in violation of the Georgia Controlled Substances Act. OCGA § 16-13-30. He was tried before a jury, convicted, and sentenced to six years’ imprisonment for each count, these sеntences to be served concurrently. On direct appeal the Court of Appeals affirmed.
Keaton v. State,
The evidence intrоduced at trial showed that on the night of October 14, 1982, Keaton, age seventeen, and friends had congregated at Arly’s, a combination video arcade, pool hall and bar in Carrollton. Keaton was approached by Shirley Dawson, аn undercover narcotics agent employed by the Georgia Bureau of Investigation, who inquired if he had any marijuana to sell. Keaton replied that he had no marijuana, but would speak with friends vyho might be able to supply some. Later that evening, Keaton approached Agent Dawson and offered the name of an acquaintance who had marijuanа to sell. Dawson asked Keaton to act as a middleman in the purchase, and he agreed. Dawson gave Keatоn $25 and drove him to a nearby residence where he went inside and returned with a bag of marijuana, which he handed to Dawson. One week later, on October 21, a similar transaction involving a second seller occurred.
At trial Keaton admitted being invоlved in the drug purchases, *71 but defended on the ground that, on each occasion, he had agreed to assist Agent Dawson in hеr drug purchases only after persistent requests by her and after consuming a considerable quantity of beer, allegedly purchased by Dawson. Keaton also said that he did not profit from the sales, maintaining that his only involvement in each transaction was to act as a go-between for Dawson and the seller. Two other defense witnesses, also minors and regular pаtrons of Arly’s, testified that Dawson had bought beer for them on various occasions. One of these witnesses said that Keaton appeared to be intoxicated when he arranged the October 14 purchase for Agent Dawson. Dawson denied purchasing any beer for minors during the undercover operation.
The only question for decision is the correctness of the trial court’s charge on entrapment. In addition to the standard entrapment charge based on the language of OCGA § 16-3-25, thе court instructed the jury as follows: “[I]t is no entrapment to commit a crime where the officers merely furnish an opportunity tо a criminal who is ready and willing to commit an offense. If an officer of the law had reason to believe that the law is bеing violated he or she may proceed to ascertain whether those who are thought to be doing so are actually committing a criminal offense. If an officer acts in good faith in the honest belief that the defendant is engaged in unlawful сonduct 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 еntrapment is without merit.” (Emphasis supplied.)
Keaton argues that the italicized portion of the charge erroneously caused the jury to focus on the subjective state of mind of the police officer, in effect creating a “good faith” exception to the entrapment defense. This argument is well taken. 1
The language of the challenged charge was derived, almost verbatim, from the Court of Appeals’ decision in
Sutton v. State,
In Georgia, the entrapment defense consists of three distinct ele
*72
ments: (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. OCGA § 16-3-25 (enacted in 1968). See
Schaffer v. State Board of Veterinary Medicine,
Thus it can readily be seen that, while proof of a defendant’s “innocent” state of mind (i.e., non-predisposition) 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 inducеd by “undue persuasion, incitement, or deceitful means.” The 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. See LaFave and Scott, Criminаl Law, § 48, at p. 371 (1972). A contrary view would be inconsistent with the theory of the entrapment defense, which is to deter government cоnduct that entices innocent persons to break the law. See
Jones v. State,
Judgment reversed.
Notes
Keaton does not object to the non-italicized portion of the quoted charge, and we find it to be a correct statement of the applicable law.