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Atkins v. State

Court of Appeals of Georgia

June 30, 2017


          Bethel, Judge.

         Jerome Atkins appeals the denial of his motion for a directed verdict on a statutory rape charge, arguing the trial court erred when it found sufficient corroborating evidence. Atkins further argues that the trial court erred in denying his motion for a new trial because the trial court wrongly applied the Rape Shield Statute. We disagree and affirm the denial of his motions for a directed verdict and for a new trial.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are 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, we must uphold the jury's verdict.

Traylor v. State, 332 Ga.App. 441, 442 (773 S.E.2d 403) (2015) (citation omitted).

         So viewed, the evidence shows that in November 2010, A. O.'s mother learned that A. O. was pregnant after taking her to a gynecologist. Following the appointment, A. O.'s mother discussed the pregnancy with A. O., who was thirteen years old at the time. A. O. was asked who fathered the child, and she told her mother that the father was a "boy in the neighborhood." A. O.'s mother called Leon Surles[1] to inform him about the pregnancy. Surles did not believe A. O.'s explanation and, at some point, threatened to give her a lie detector test.

         After returning home from school, A. O. called Atkins and his wife and told them she was pregnant by Atkins. Following this conversation, Atkins called Surles and told him that A. O. had called and that she planned to tell Surles she was pregnant with Atkins' child so that she could have an abortion. Atkins denied both paternity and sexual contact with A. O. in his conversation with Surles.[2] Surles told A. O.'s mother about the call with Atkins.

         Surles then spoke with A. O. and threatened to "beat her" and "take her to the police" if she did not tell the truth about the paternity of her child. A. O.'s mother told A. O. that she knew Atkins had fathered the child, and A. O. said that was true. A. O.'s mother then reported the incident to police.

         A. O. was interviewed by law enforcement personnel and reported two alleged incidents with Atkins in which he engaged in sexual acts with her.[3] A. O. stated that Atkins was the only possible father of her child because she had not been sexually active immediately prior to or after the August 2010 incident with Atkins.

         A. O. had an abortion on November 27, 2010, and a search warrant for the DNA of the fetus was executed. Results of the DNA test showed that Atkins was not the father of A. O.'s child.[4]

         Nevertheless, Atkins was indicted on charges of statutory rape and aggravated child molestation. At trial, Atkins maintained his innocence and argued that A. O. identified him as the father to conceal the child's true paternity. Atkins sought to question A. O. about the identity of the true father for the purpose of demonstrating A. O.'s motive to falsely accuse Atkins. The trial court, relying on the Rape Shield Statute, did not allow that line of questioning. A jury found Atkins guilty on both counts.[5] Following the verdict, Atkins moved for a new trial, which the trial court denied. This appeal followed.

         1. The trial court found there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that Atkins was guilty of statutory rape. However, Atkins contends the trial court erred in denying his motion for directed verdict on the charge of statutory rape because the evidence was insufficient to corroborate A. O.'s allegations.[6] We disagree.

         OCGA § 16-6-3 (a) provides that "[a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim."

         "On appeal, our review is restricted to the legal sufficiency of the evidence not the weight of the evidence." Carson v. State, 171 Ga.App. 527, 528 (320 S.E.2d 382) (1984). "If there is any corroborating evidence, we will not go behind the jury and pass upon its probative value." McClendon v. State, 187 Ga.App. 666, 668 (371 S.E.2d 139) (1988) (citation omitted).

This Court has held that the quantum of corroboration needed in a statutory rape case is not that which is, itself, sufficient to convict, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration and ultimately the question of corroboration is one for the jury. In that regard, a victim's prior consistent statements, in the form of her outcry to others as testified to by them, may constitute sufficient corroboration in a case of statutory rape.

Byrd v. State, 258 Ga.App. 572, 573 (574 S.E.2d 655) (2002) (footnotes and punctuation omitted).

         In response to Atkins' motion for directed verdict, the State argued the allegations against Atkins were corroborated by the fact that (1) Atkins called Surles to tell him that A. O. was going to say Atkins was the baby's father; and (2) A. O. called Atkins and told him she was pregnant with his baby. We are unpersuaded that either statement provides sufficient corroboration.

         Here, the evidence shows that, some time after learning she was pregnant, A. O. called Atkins and his wife and told them she was pregnant with Atkins' child. That statement-which was proven to be false- cannot be used to corroborate her testimony.[7]

         This Court is equally unpersuaded by the argument that Atkins' call to Surles corroborated A. O.'s allegations because Atkins never admitted guilt. Surles testified that Atkins called him and said, "A. O. was going to tell [Surles] she was pregnant by [Atkins] so she can get an abortion." Surles also testified that, during that same conversation, Atkins denied A. O.'s allegations. The State's assertion that by calling Surles and denying the allegations, Atkins implicated himself and corroborated A. O.'s testimony, is nonsensical. The record before this Court is devoid of any evidence wherein Atkins admits to having sexual or intimate contact with A. O. that would meet the corroboration threshold.[8]

         In its brief, the State also asserts that A. O.'s trial testimony was consistent with her initial report to police and statements she ...

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