MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Atkins was convicted on charges of aggravated child
molestation and child molestation. She appeals from the
denial of her motion for a new trial arguing that the
evidence was insufficient to support her convictions and that
the trial court applied the wrong standard of review to her
motion. While we find the that evidence in this case was
sufficient to support Atkins' convictions, we otherwise
agree with Atkins that the trial court failed to apply the
correct standard of review in considering her motion for a
new trial. We therefore vacate the trial court's denial
of Atkins' motion and remand the case to the trial court
for proper consideration of that motion.
In resolving [Atkins'] challenge to the sufficiency of
the evidence, we view the evidence in a light favorable to
the jury's verdict. Weighing the evidence and determining
witness credibility are beyond the purview of this court. We
simply assess whether the evidence was sufficient to find
[Atkins] guilty beyond a reasonable doubt.
Smith v. State, 320 Ga.App. 408, 409 (1) (740 S.E.2d
174) (2013) (citation and punctuation omitted).
evidence shows that after learning she was
pregnant, A. O., who was thirteen years old at the time,
called Atkins and told her she was pregnant by Atkins'
husband. Atkins' husband denied both paternity and sexual
contact with A. O. A. O.'s mother reported the incident
her initial interview with law enforcement, A. O. claimed
that in August 2010 while sleeping on the floor of
Atkins' apartment, she awoke to find Atkins' husband
on top of her having sex with her. Nine days later during her
forensic interview, A. O. alleged for the first time that a
prior incident occurred in June or July of 2010 in which she
engaged in sexual acts with Atkins and her husband at their
previous residence. Atkins was indicted on charges of
aggravated child molestation and child
time of trial, A. O. was sixteen years old. She testified
that Atkins only used her hands to touch her thighs and
breasts during the alleged incident. However, the recording
of A. O.'s forensic interview was played for the jury,
and in it, A. O. specifically claimed that Atkins touched A.
O.'s breasts, undressed her, and that Atkins placed her
mouth on A. O.'s vagina.
maintained her innocence and testified that she never
performed oral sex on A. O. or touched A. O.'s breasts or
thighs. A jury found Atkins guilty on both counts. Following
the verdict, Atkins moved for a new trial, and the trial
court denied her motion. This appeal followed.
While Atkins acknowledges that A. O.'s testimony did not
require corroboration and was generally sufficient to
establish a fact, Atkins contends that A. O.'s in-court
testimony was legally insufficient to convict her. We
Georgia law, a person commits the offense of child
molestation when she "[d]oes any immoral or indecent act
to or in the presence of or with any child under the age of
16 years with the intent to arouse or satisfy the sexual
desires of either the child or the person[.]" OCGA
§ 16-6-4 (a) (1). "A person commits the offense of
aggravated child molestation when such person commits an
offense of child molestation which act physically injures the
child or involves an act of sodomy." OCGA § 16-6-4
(c). Count three of the indictment charged that Atkins did
"an immoral and indecent act to, in the presence of and
with A. O., a child under the age of sixteen years, by
placing [Atkins'] mouth on [A. O.'s] female sex
organ, with the intent to arouse and satisfy [Atkins']
sexual desires; said act involving an act of sodomy[.]"
In its charge to the jury, the trial court defined an act of
sodomy as "performing or submitting to a sexual act
involving the sex organs of one and the mouth or anus of
A. O. testified at trial that Atkins only used her hands to
touch A. O.'s thighs and breast during the alleged
incident, the State presented A. O.'s prior statement
from her forensic interview in which A. O. described with
specificity that Atkins performed oral sex, an act of sodomy,
on her. Atkins' assertion of inconsistencies
between A. O.'s trial testimony and the statements A. O.
made during her forensic interview goes to the weight of A.
O.'s testimony and her credibility as a witness, not to
the sufficiency of the evidence persented. It is for a jury,
not this Court, to resolve conflicts in the testimony, weigh
the evidence, and draw reasonable inferences from the
evidence. Rudisail v. State, 265 Ga.App. 293, 294
(2) (593 S.E.2d 747) (2004). "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." Id.
(citation omitted). Thus, the evidence adduced was legally
sufficient to support Atkins' convictions.
Notwithstanding our holding in Division 1, we agree with
Atkins that the trial court applied the wrong standard when
reviewing her motion for new trial based on general grounds.
OCGA § 5-5-20 authorizes the trial court to grant a new
trial in any case when the verdict of a jury is found
contrary to evidence and the principles of justice and
equity, and OCGA § 5-5-21 empowers the trial court to
grant a new trial where the verdict may be decidedly and
strongly against the weight of the evidence even though there
may appear to be some slight evidence in favor of the
finding. Read together, the statutes provide the trial court
broad discretion to sit as a thirteenth juror and weigh the
evidence on a motion for new trial alleging the foregoing
general grounds. Our sovereign, the law, has in effect ...