                             SECOND DIVISION
                               BARNES, P. J.,
                           BOGGS and RICKMAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   October 13, 2016




In the Court of Appeals of Georgia
 A16A1270. HAMPTON v. THE STATE.

      BARNES, Presiding Judge.

      A jury convicted Justin Kyle Hampton of trafficking in methamphetamine, and

the trial court sentenced him to serve 20 years in prison, followed by 10 years on

probation. He appeals, arguing that the trial court erred in denying his Sixth

Amendment right to confront witnesses against him by refusing to let him call the

State’s informant as a witness to testify regarding Hampton’s defense of entrapment,

on which the trial court charged the jury. Hampton also argues that the trial court

erred in refusing to allow him to see the transcript of the court’s in-camera hearing

with the informant, that his counsel was ineffective, and that the evidence was

insufficient. While we find the evidence sufficient to sustain the judgment of

conviction, for the reasons that follow, the trial court erred in refusing to allow
Hampton to call the known informant as a witness. Because Hampton has shown

harm as well as error, we reverse.

      1. On appeal, we review the evidence in the light most favorable to the jury’s

verdict to determine whether the State presented sufficient evidence for a rational trier

of fact to find the defendant guilty of the crimes for which he was convicted. Jackson

v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Hardin v. State, 277

Ga. 242 (1) (587 SE2d 634) (2003). The jury resolves conflicts in the testimony and

weighs and draws reasonable inferences from the evidence, and we will uphold the

verdict if some competent evidence is presented that supports each fact necessary to

make out the State’s case. Lomax v. State, 319 Ga. App. 693 (738 SE2d 152) (2013).

      So viewed, the evidence showed that Hampton’s employer asked him to put

together a drug deal for a friend to buy 28 grams of methamphetamine for $1,400.

Hampton’s employer was actually an informant and the informant’s “friend” was an

undercover agent with a local drug task force. Hampton called an acquaintance,

David Thompson, who contacted Dwayne Eddie Collett and reported back to

Hampton that he and Collett could meet him that afternoon in Fayette County to

complete the sale.



                                           2
      The case agent who oversaw the informant was not ready that afternoon to

organize a $1,400 “buy-bust” of 28 grams of methamphetamine, and the informant

asked Hampton to reset the sale for the following afternoon. Hampton and his contact

Thompson agreed to meet at a Fayette County convenience store the next day at 2:00

pm. The informant and undercover agent met with the case agent at the sheriff’s

office, and the undercover agent then drove the informant to the store, where they met

Hampton. The three men waited for the sellers in the undercover agent’s truck for

almost three hours before the agent finally decided to call the deal off. The State

secretly recorded the conversation while they waited, and most of that recording was

played for the jury.

      About 30 minutes after the undercover agent called off the deal, Hampton

received a phone call from the sellers, who were at the convenience store ready to

make the sale. Hampton called the informant, who contacted the case agent, who

decided there was not enough time to set up a buy-bust and that therefore the

informant did not need to be present. Instead, the case agent decided he had enough

evidence to arrest “the subjects that are involved in this situation.”

      While the officers were en route to the convenience store, they passed Hampton

walking back and decided to watch and see if he made contact with the sellers,

                                           3
Thompson and Collett. Thompson got out of his vehicle and met Hampton at the front

door of the convenience store, then returned to the driver’s seat while Hampton went

inside. The officers moved in with lights and sirens and Thompson fled on foot, but

was caught a short distance away. In the area where he was caught, the officers found

a bag containing 26.26 grams of methamphetamine.

      Collett did not run, and the officers found another bag containing almost 12

grams of methamphetamine in the car, and several small bags of methamphetamine

as well as several alprazolam pills in Collett’s pockets. The officers recovered 5 bags

of methamphetamine at the arrest scene that contained a total of 40.54 grams, the

largest bag being the one found near Thompson. Hampton left the store by the back

door and was arrested a week later.

      Collett, Thompson, and Hampton were charged with trafficking in

methamphetamine for possessing more than 28 grams of a mixture containing the

controlled substance. Collett was also charged with possession of alprazolam, and

Thompson was charged with obstruction and hindering law enforcement by refusing

an officer’s lawful commands. As of Hampton’s trial, Collett and Thompson had pled

guilty and were sentenced respectively to 15 years to serve and 15 years to serve 10

in custody. Neither testified at Hampton’s trial.

                                          4
      The statute in effect in November 2011, when the crime occurred, former

OCGA § 16-13-31 (e), provided that “[a]ny person who knowingly sells, delivers, or

brings into this state or has possession of 28 grams or more of methamphetamine . .

. as described in Schedule II, in violation of this article commits the felony offense

of trafficking.” The State concedes that Hampton never had actual possession of the

drugs, and Hampton concedes the evidence is sufficient to show he had constructive

possession of the 26.26 grams of methamphetamine discovered near the area where

Thompson was apprehended. Hampton argues that the evidence was not sufficient to

establish he also had constructive possession of the methamphetamine found in

Collett’s car or on his person, and therefore he did not knowingly possess the 28

grams required for a trafficking conviction.

      The plain language of the version of former OCGA§ 16-13-31 [e]1 at
      issue dictates the conclusion that knowledge of the quantity of the drug
      was an element of the crime. It contains express scienter requirements,
      that is, knowledge of the nature and amount of the drug and of being in
      possession of it. And, certainly where “knowledge” is made part of an



      1
       The version of the statute applicable to Hampton was effective July 1, 2003
to June 30, 2012. Ga. L. 2003, p. 177, § 4 The statute was amended, effective July 1,
2012 to June 30, 2013, and its present version became effective July 1, 2013. Ga. L.
2012, p. 899, § 3-8/HB 1176; Ga. L. 2013, p. 222, § 4/HB 349.

                                          5
      offense, the State has the burden to prove the defendant’s guilty
      knowledge.


Scott v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014).

      The evidence as outlined above showed that Hampton made phone calls to

Thompson to arrange for the informant to buy 28 grams of methamphetamine.

Thompson and Collett came to the pre-arranged meeting location with more than 28

grams in their possession. While Hampton argues that only 26.26 grams was

delivered to support the sale in which he was involved, the evidence did not demand

such a finding. The jury could also infer that Thompson and Collett brought some of

the additional methamphetamine in case the buyer insisted on delivery of the full

weight for which he had bargained. The evidence as outlined was sufficient for a

rational trier of fact to find Hampton in constructive possession of at least 28 grams

of methamphetamine and therefore guilty of trafficking. Hardin, 277 Ga. at 242 (1).

      2. Hampton argues that the trial court denied him his Sixth Amendment right

to confront witnesses against him by not allowing him to call the informant, his

employer, as a witness. His defense was entrapment, and he filed motions before trial

both to reveal the identity of the informant and to compel the State to produce the

informant as a witness. The State represented to the trial court that Hampton’s motion

                                          6
to compel production was encompassed completely by his motion to disclose the

informant’s identity. While the State responds on appeal that the trial court properly

denied Hampton’s motion to compel disclosure of the identity of its “confidential

informant,” Hampton knew the identity of the informant. It was the man who

employed him, who had to be removed from the courtroom twice before the parties

argued Hampton’s motions, and who appeared in an almost-three-hour video

introduced by the State in its case-in chief. The issue is whether Hampton should

have been allowed to call the informant and question him related to Hampton’s

entrapment defense.

             The function of law enforcement is the prevention of crime
             and the apprehension of criminals. Manifestly, that
             function does not include the manufacturing of crime.
             Criminal activity is such that stealth and strategy are
             necessary weapons in the arsenal of the police officer.
             However, a different question is presented when the
             criminal design originates with the officials of the
             Government, and they implant in the mind of an innocent
             person the disposition to commit the alleged offense and
             induce its commission in order that they may prosecute.


Sherman v. United States, 356 U.S. 369, 372 (78 SCt 819; 2 LE2d 848) (1958)

(citations and punctuation omitted).

                                          7
      “[T]he 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. OCGA § 16-3-25[.]” Keaton

v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984). If a defendant raises the

affirmative defense of entrapment, he must generally admit that the act charged was

committed, unless it is the State that injects evidence of entrapment and the defendant

insists he did not commit the crime charged. Gregoroff v. State, 248 Ga. 667 (285

SE2d 537) (1982) (physician denied having prescribed controlled substances without

a legitimate medical purpose).

      Even if a defendant knows or suspects who the informant is, “the public and

the informant have a clear interest which can . . . be protected even when the

informant’s identity has been disclosed or discovered.” State v. Mason, 181 Ga. App.

806, 809 (3) (353 SE2d 915) (1987), overruled in part on other grounds, Watts v.

State, 274 Ga. 373, 375 (1) (552 SE2d 823) (2001). The purpose behind the

government’s privilege to prevent the informant from testifying “is the furtherance

and protection of the public interest in effective law enforcement” by allowing

citizens to remain anonymous and thus encourage them to fulfill their obligation “to

                                          8
communicate their knowledge of the commission of crimes to law-enforcement

officials. . . . But [t]he scope of the privilege is limited by its underlying purpose.”

Roviaro v. United States, 353 U.S. 53, 59-60 (77 SCt 623, 1 LE2d 639) (1957).

      Our Supreme Court analyzed the confidential informant disclosure issue under

both Brady v. Maryland, 373 U.S. 83 (83 SCt 1194; 10 LE2d 215) (1963) (disclosure

of evidence favorable to defendant required if material to guilt or punishment) and

Roviaro, 353 U.S. 53 (balancing government interests against defendant’s rights and

concluding that, under facts presented, government was required to disclose

informant’s name at trial). Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977).

The Court observed that

      the basis of both Brady and Roviaro is fundamental fairness to the
      accused. Therefore, they must be read together where, as here, the
      question is disclosure of the identity of the state’s informer-witness or
      informer-participant if material to the defense on the issue of guilt or
      punishment. When such an informer’s identity is required under the
      standards set forth in Brady, the trial court must go further and weigh
      the materiality of the informer’s identity to the defense against the
      state’s privilege not to disclose his name under Roviaro.


Thornton, 238 Ga. at 164-165 (2). “Where a defendant charges that a confidential

informant has entrapped him outside the presence of any other witnesses, Roviaro

                                           9
would ordinarily require disclosure of the informant’s identity, since the defense of

entrapment would rest upon allegations which only the informant could confirm or

deny.” (Footnote omitted.) State v. Royal, 247 Ga. 309, 312 (2) (275 SE2d 646)

(1981); Griffiths v. State, 283 Ga. App. 176, 177-178 (1) (641 SE2d 169) (2006).

      When this case was called for trial, Hampton noted that he had a pending

motion to reveal the identity of the “confidential informant,” his defense being that

the informant had threatened his job unless he found a local methamphetamine

connection. The State responded that Hampton had the burden of proving both the

materiality and the necessity of the witness’s testimony for his entrapment defense,

and to rebut that argument, the State introduced a video of the informant, the

undercover agent, and Hampton that was recorded while they waited in the agent’s

truck for almost three hours for the sellers to show up. The State then called the

informant’s case agent, who testified about his participation in the setup and

confirmed that he had not been privy to conversations between the informant and

Hampton and had no personal knowledge about whether the informant made threats

to or coerced the informant into setting up the deal.

      The parties argued at length about Hampton’s entrapment defense. Hampton

proffered that the conversations he had with the informant were conducted outside

                                         10
the privy of the State, that the informant originated the idea of the crime, and that but

for the informant’s undue influence and duress, Hampton would never have

committed the act. He further proffered that Hampton had a tenth grade education,

that he had difficulty finding employment, and that the informant had threatened to

withhold work from Hampton unless he found a local methamphetamine connection

for the informant.

       The trial court conducted an in-camera hearing with the informant and the

State, absent the defendant and his counsel, to determine whether to grant Hampton’s

request to reveal the informant’s name at trial and compel the State to produce the

informant as a witness. The trial court conducted most of the examination during the

in camera hearing, and in response to the trial court’s direct questions, the informant

denied planting the idea to commit the crime in Hampton’s mind. He admitted that

Hampton came to him looking for work and that he had given him a few days of

work. He also testified that he had known Hampton for about eight years, and added,

“But I went the wrong way and started doing time. And then he started doing a lot of

pills and stuff.”

       The informant further testified that, in his capacity as an informant, he had

previously told Hampton to let him know if Hampton knew where he could “get

                                           11
anything at,” and that Hampton “kept saying I got somebody, I can bring it.” The

informant admitted that, while waiting for the sellers to show up with the drugs, he

told Hampton, “man, if these people don’t show up — because he’s going to make

me look bad in front of them — then I said I’m going to work you an extra day for 5

dollars or something like that. I was just playing with him.”

      The trial court asked the informant if he was testifying that it was not his idea

to procure the methamphetamine, and he responded,

      I wasn’t on him like that. I mentioned it to him, you know where can we
      get some of that good stuff, and — some ice or something, because I do
      work for [the case agent] and them. And he said I can get some; I can get
      some of it. And then I just — I said well, okay, let’s finish this job. Went
      to the next job; and he said I made that call, I can get it. I was like, man,
      I ain’t talking about no nickel and dime stuff. And then he kept pursuing
      it from there.


      The State asked the informant if he had ever arranged a deal with Hampton

before or known of him to deal drugs, and the informant replied that he had bought

pills from Hampton before, who had acted as a go-between or broker. The informant

denied thinking that he would personally benefit from having Hampton set up the

deal, because he thought that his latest Fayette County offense — having pawned a

neighbor’s lawn equipment without permission — had been resolved by then. He also

                                           12
testified that his name was “crap” in the county because people knew he was an

informant, and that had been severely beaten a year before the trial by eight or nine

men, including the nephew of a man the informant had set up.

       When the parties returned to court the next morning, the trial court ruled from

the bench, noting first that once Hampton presented evidence of entrapment, the

burden shifted to the State to prove there was no entrapment. The court found that,

based on the informant’s in camera testimony, evidence from him would be

inculpatory, not exculpatory, and further noted that the jury would be able to see the

informant, Hampton, and the undercover agent interact during the video recording.

       The State then presented its case in chief to the jury, which consisted of the

testimony of the case agent, the video recording of Hampton, the informant, and the

undercover agent waiting in the agent’s truck, the testimony of a deputy sheriff about

chain of custody, and the testimony of a forensic chemist about the weight and

composition of the methamphetamine placed in evidence. After the State rested and

the trial court denied Hampton’s motion for a directed verdict of acquittal, Hampton

testified.

       Hampton testified that he had never sold or taken methamphetamine before, but

set up this methamphetamine deal because his employer, the informant, told him that

                                         13
if he did not do so, the informant would not employ him any more, and Hampton

needed the job so he could feed himself. Hampton, who was 22 when the incident

took place, said he began working part-time for the informant in October 2011. He

explained that his father died when he was 2, his mother died when he was 10, and

the aunt he had gone to live with kicked him out of her house when he was 17. He

slept in couches and friend’s cars, quit school, and began working full-time. He

described his economic difficulties, and said that in fall 2011, when his usual work

cutting grass was unavailable, he began working for the informant a couple of days

a week for $60 to $100 cash until he could join the Army the following summer. He

testified that the informant initially asked him if he knew where to get “pills and

stuff,” and that he replied he did not “mess with” anything like that any more. He

admitted that he used to smoke marijuana and take pills, and that he had sold some

of his personal stash to friends at cost, but denied ever making a profit selling drugs.

He also denied selling, using, or even seeing methamphetamine before the trial, and

testified he had not expected to make any money on the deal he set up for the

informant.

      Hampton testified that the first time the informant asked him if he knew where

to find some methamphetamine was the day before the drug bust took place. In

                                          14
response, Hampton said he asked the informant if he was using drugs, because the

informant used to be a crack addict and Hampton did not want to ride around with

him if he was carrying drugs. The informant said he was looking for a friend who

wanted to find a local connection for methamphetamine by the ounce. Hampton

testified that he asked why the informant would be talking to someone who wanted

to find that drug and said he should tell his friend to “get lost.”

      Hampton further testified that the informant responded that it was important

for him to help his friend make a connection, and when Hampton again said he did

not know anyone, the informant “started to get frustrated.” According to Hampton,

the informant finally said, “Justin, I’m helping you with a job. If you don’t help me

find my friend a new connection, then I’m not going to work you. You’re no good to

me.” Hampton testified that he believed that the informant would not give him any

work if he did not find someone to sell the informant’s friend an ounce of

methamphetamine, and that he needed the job to feed himself because no one else was

going to take care of him. He called a friend who knew someone who sold pills and

asked if the friend knew anyone who could find methamphetamine for his boss’s

friend. Hampton’s friend gave him the phone number of a girl named Chris, whose

boyfriend was David Thompson. Thompson said he thought his guy “Eddie” could

                                           15
get an ounce of methamphetamine. Thompson checked and called Hampton back to

set up a time and place for the sale.

      Hampton admitted that while he waited with the informant and undercover

agent for the sellers to show, he tried to impress both men by saying he used to sell

drugs. He also testified that after the undercover agent called off the deal, the

informant cussed at him on the phone for wasting his friend’s time and hung up on

him, although his attitude was different when Hampton called back to say the sellers

had finally arrived at the agreed-upon meeting place. The informant told Hampton to

return to the store and introduce the informant’s friend to the seller. After Hampton

returned to the store, he identified Thompson’s truck over the phone to the

informant’s friend and briefly met with Thompson at the door to the store. Hampton

then went inside, bought a drink, and left through the back door, he said, never having

seen the cops who arrived then to arrest Thompson and Eddie Collett.

      After Hampton rested, his trial counsel asked the trial court for a copy of the

court’s written order denying his motion to reveal the informant so he could address

the trial court’s findings when he argued his renewed motion, but the order had not

been finalized. The court added that the video recording had been a key factor in its

decision to deny Hampton motion, finding that the video weighed against the need

                                          16
for the informant’s testimony.2 Hampton argued that the entrapment occurred before

the recording and that no evidence rebutted his testimony about his job being

threatened. The State responded that Hampton admitted having previously exchanged

drugs for money, which was sufficient to establish his predisposition to sell drugs,

and that his statements on the video were inconsistent with his entrapment defense.

The trial court denied the renewed motion. In its instructions, the court charged the

jury on Hampton’s affirmative defense of entrapment, including the proposition that

the State had the burden of proving beyond a reasonable doubt that Hampton had not

been entrapped.

      After deliberating for almost an hour, the jury asked the court to recharge them

on the definition of parties to a crime and entrapment. After the trial court did so, the

jury deliberated for another 15 minutes and returned a verdict of guilty.

      The issue in this case is not whether the trial court erred in declining to require

the State to identify the informant. Hampton knew who the informant was. The

informant’s identity was also known to the jury, who watched the informant onscreen

during the lengthy video recording of him sitting with Hampton and the undercover

agent. In fact, the informant had come into the courtroom twice and had to be

      2
          The record does not contain a written order.

                                           17
removed. The issue is whether the trial court erred in finding that the State’s interest

in preventing the informant from testifying outweighed Hampton’s right to compel

the attendance of the only witness besides Hampton who had evidence related to

Hampton’s entrapment defense.

      The informant’s testimony was material to Hampton’s entrapment defense, as

it was the only source of evidence about it other than Hampton himself. Further, the

informant was not a “mere tipster” — “one who provides information about criminal

activity” and whose relevant testimony would be inadmissible hearsay, but a “‘decoy’

— a person used to obtain evidence (the informer-participant) or to establish facts

(the informer-witness) upon which to base a prosecution.” Thornton, 238 Ga. at 163.

See also Wingfield v. State, 159 Ga. App. 69, 71 (282 SE2d 713) (1981) (defendant

had right to compel attendance of informant who was not a mere tipster, “whose cover

had been blown,” whose picture was in evidence, and whose testimony was highly

material to defendant’s only defense of misidentification). The informant here

testified in camera that he brought up the subject of drug sales in the first place, that

he told Hampton not to set up “no nickel and dime stuff,” and that he threatened to

work Hampton for $5 a day if the sellers did not show up. The informant was not

even sure if he had been in trouble with the county when he orchestrated this deal.

                                           18
Neither the trial court nor the State questioned the informant during the in camera

hearing about any quid pro quo he received for his facilitation of the drug deal.

             The Sixth Amendment to the U. S. Constitution guarantees the
      right of an accused in a criminal prosecution to be confronted with the
      witnesses against him. The main and essential purpose of the right of
      confrontation is to secure for the opponent the opportunity of
      cross-examination. The partiality of a witness is subject to exploration
      at trial, and is always relevant as discrediting the witness and affecting
      the weight of his testimony. This principle is particularly important with
      witnesses who have substantial incentives to cooperate with the
      government. . . . Accordingly, defense counsel is entitled to a reasonable
      cross-examination on the relevant issue of whether a witness entertained
      any belief of personal benefit from testifying favorably for the
      prosecution.


Manley v. State, 287 Ga. 338, 340 (2) (698 SE2d 301) (2010) (citation and

punctuation omitted). While the trial court retains wide latitude to impose reasonable

limits on such an examination, id., in this case the defendant had no opportunity to

question the informant about his partiality as it might affect his testimony about

whether he coerced Hampton into setting up the deal. Hampton’s conduct and

statements during the video may be relevant to his credibility, but it is not the only

proof of whether he set up the deal under duress.


                                         19
      Further, post-trial counsel moved the court for both a copy of the in-camera

transcript and to compel the attendance of the informant at the new trial hearing to

establish what kind of benefits he might have obtained from the police while working

as an informant, but the trial court denied both motions.

      Hampton must show harm as well as error to obtain a new trial. Moore v. State,

187 Ga. App. 387, 392 (2) (370 SE2d 511) (1988).

      In Roviaro, the Supreme Court, after applying the balancing test, held
      that it was prejudicial error not to reveal the informant’s identity where
      the informant was the sole participant, other than the accused, in the
      transaction and, thus, “was the only witness in a position to amplify or
      contradict the testimony of government witnesses.” (Emphasis
      supplied.) Id. at 64. Further, although the defendant in Roviaro was not
      in a position to interview the unidentified informant (decoy) and thereby
      ascertain the anticipated scope and content of his testimony, the
      Supreme Court concluded that “[t]he circumstances of this case
      demonstrate that [the informant’s] possible testimony was highly
      relevant and might have been helpful to the defense.” (Emphasis
      supplied.) Id. at 63-64.


Id. at 388-389 (2).

      Here, the informant himself testified in camera that his identity as an informant

for the police was well-known in Fayette County and that he had been severely beaten


                                         20
a year before because of his informant activities. Thus, the government no longer has

an overriding interest in maintaining the informant’s anonymity to continue securing

the flow of information from him. See Roviaro, 353 U.S. at 60 (“The scope of the

privilege is limited by its underlying purpose. Thus, ... once the identity of the

informer has been disclosed to those who would have cause to resent the

communication, the privilege is no longer applicable.”)

      Although the informant denied during the in camera hearing that the idea for

committing the crime originated with him and denied that he used undue persuasion

or incitement to induce Hampton to set up the methamphetamine sale, Hampton

testified otherwise. As the Georgia Supreme Court observed, “if the confidential

informant acts as the entrapper, and if the defendant can show that he has an arguably

persuasive defense of entrapment — the [S]tate might have a duty to produce such

a witness.” Boatright v. State, 260 Ga. 534, 536 (397 SE2d 689) (1990). Hampton

obviously made an arguably persuasive case of entrapment, as the trial court charged

the jury on the defense. Further, the trial court’s conclusion that the informant’s

testimony was inculpatory, not exculpatory, is not dispositive. Regardless of whether

the informant disputes or corroborates Hampton’s testimony, Hampton is entitled



                                         21
under Roviaro to confront the informant and let a jury determine the relative

credibility of both men.

      Accordingly, because the trial court erred in not granting Hampton’s motion

to compel the State to produce the informant to testify at trial, we must reverse the

conviction and remand for a new trial.

      3. Hampton’ remaining enumerations of error are without merit or unlikely to

arise upon retrial.

      Judgment reversed. Boggs and Rickman, JJ., concur.




                                         22
