Atkins v. State

• Decision Date: 20 August 2018
• Docket Number: S17G1996
• Citation: 818 S.E.2d 567,304 Ga. 240
• Parties: ATKINS v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 240

818 S.E.2d 567

ATKINS

v.The STATE.

S17G1996

Supreme Court of Georgia.

Decided: August 20, 2018

Christina Rupp Cribbs, GEORGIA PUBLIC DEFENDER COUNCIL—APPELLATE DIVISION, 104 Marietta Street NW Suite 600, Atlanta, Georgia 30303, for Appellant.

Paul L. Howard, Lyndsey Hurst Rudder, Arthur C. Walton, FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W. 4th Floor, Atlanta, Georgia 30303, for Appellee.

MELTON, Presiding Justice.

In Atkins v. State, 342 Ga. App. 422, 803 S.E.2d 122 (2017), the Court of Appeals affirmed Jerome Atkins’s convictions for statutory rape and aggravated child molestation. Thereafter, we granted certiorari and posed the following two questions: (1) whether a victim’s prior statements can constitute sufficient corroboration under OCGA § 16-6-3 ; and (2) whether the defendant was properly prohibited under OCGA § 24-4-412 from seeking testimony regarding the sexual activity that was at issue in the trial. For the reasons set forth below, we find that a victim’s prior statements cannot constitute sufficient corroboration under OCGA § 16-6-3, and we reach the second question in a manner limited to the specific facts of this case, as more fully set forth below.

1. As set forth by the Court of Appeals, the facts of this case are as follows:

[I]n 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 to inform him about the pregnancy. [FN 1: Leon Surles is not A. O.’s biological father but maintains a father-daughter relationship with A. O.] 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 conversationwith Surles. [FN 2: Surles testified that in his conversation with Atkins, Atkins stated that A. O. had asked Atkins to have sexual intercourse with her and had asked his wife to perform oral sex on her, but that they had refused A. O.’s requests.] 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. [FN 3: During her initial interview with police on November 20, 2010, A. O. claimed that on August 15, 2010, while sleeping on the floor of Atkins’ apartment, she awoke to find Atkins on top of her having sex with her. During her later forensic interview, A. O. alleged for the first time that a prior incident occurred in June or July 2010, with both Atkins and his wife at their previous residence.] 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. [FN4: At the time of the abortion, the fetus was approximately eleven weeks into gestation, making the time of conception on or around September 11, 2010.]

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. ... Following the verdict, Atkins moved for a new trial, which the trial court denied.

(Footnote omitted.) Atkins, supra, 342 Ga. App. at 422-424, 803 S.E.2d 122.

2. We first consider whether a victim’s prior statements can constitute sufficient corroboration under OCGA § 16-6-3. We find that they cannot.

OCGA § 16-6-3 (a) provides: "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 ." (Emphasis supplied.) In other words, there must be some evidence that corroborates the victim’s testimony that the defendant committed the statutory rape. The purpose of the corroboration requirement is to "furnish[ ] the jury [with] a criterion for ascertaining the degree of credit which should be given to the testimony of the injured female." (Citation omitted.) Strickland v. State, 207 Ga. 284, 287 (5), 61 S.E.2d 118 (1950).

Corroborating evidence may be slight.

The quantum of corroboration needed in a statutory rape case is not that which is in itself sufficient to convict the accused, 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.

(Citation and punctuation omitted; emphasis supplied.) Williamson v. State, 315 Ga. App. 421, 424 (1) (b), 727 S.E.2d 211 (2012).

Despite recognizing the requirement for independent evidence, the Court of Appeals has repeated the proposition in a series of cases that "a child-victim’s prior consistent statements, as recounted by third parties to whom such statements were made, can constitute sufficient substantive evidence of corroboration in a statutory rape case." (Citation and punctuation omitted.) Brown v. State, 318 Ga. App. 334, 336 (1), 733 S.E.2d 863 (2012). See also, Byrd v. State, 258 Ga. App. 572, 573, 574 S.E.2d 655 (2002) ; Patterson v. State, 233 Ga. App. 776, 778 (1), 505 S.E.2d 518 (1998) ; Turner v. State, 223 Ga. App. 448, 450 (2), 477 S.E.2d 847 (1996) ; Long v. State, 189 Ga. App. 131 (2), 375 S.E.2d 274 (1988). These cases appear to trace back to Runion v. State, 180 Ga. App. 440, 349 S.E.2d 288 (1986). There, in response to a contention that there was insufficient corroboration of a statutory rape accusation, the Court of Appeals held:

" ‘Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury. If there is any corroborating evidence, we will not go behind the jury and pass on its probative value.’ [Cits.]" Tucker v. State, 173 Ga. App. 742 (1), 327 S.E.2d 852 (1985). The testimony of the victim was supported by that of the nurse who ... testified to the victim’s previous statements inculpatory of appellant. The victim’s testimony was also supported by appellant’s confession of other acts which would constitute child molestation of the victim. See Hill v. State, 159 Ga. App. 489 (1), 283 S.E.2d 703 (1981) (evidence that the defendant had slept with the victim on several occasions was sufficient to corroborate the victim’s testimony.) The victim’s testimony in the instant case was sufficiently corroborated, and the evidence did not demand a verdict of acquittal.

Runion, supra, 180 Ga. App. at 440 (1), 349 S.E.2d 288. The statement that the victim’s initial outcry to the nurse was corroborating evidence became the basis for the Court of Appeals’ subsequent rulings. Runion, however, should not have been interpreted to mean that a victim’s prior consistent statement, standing alone , serves as a proper basis to support a conviction for statutory rape. As Runion makes clear, there was independent corroborating evidence available in that case to support the statutory rape conviction, namely the defendant’s confession of other sexual acts with the victim. This independent evidence satisfied the corroboration requirement.

The Court of Appeals has conflated the purpose and value of prior consistent statements, such as the initial outcry of the victim, with that of corroborating evidence providing independent details that support the victim’s accusations. We have previously explained the manner in which an initial outcry may be admitted as a prior consistent statement and its purpose once it is in evidence.

In Cuzzort [v. State, 254 Ga. 745, 334 S.E.2d 661 (1985) ], we held a prior consistent statement [such as an initial outcry by a statutory rape victim] was admissible where the veracity of the declarant was in issue, the declarant was available for trial under oath, and the declarant was subject to cross-examination. Additionally, in Cowart v. State, 294 Ga. 333 (4) (a), 751 S.E.2d 399 (2013), we re-emphasized that for a witness’s veracity to be in issue, the prior consistent statement must predate any allegation of recent fabrication by the witness.

Cobb v. Hart, 295 Ga. 89, 91 (2), 757 S.E.2d 840 (2014).

Corroborating evidence, however, is in a different category. Corroborating evidence is "[e]vidence that differs from but strengthens or confirms what other evidence shows (esp. that which needs support)." (Emphasis supplied.) Black’s Law Dictionary (10^th ed. 2014). The value of a prior consistent statement is that it does not differ from a subsequent statement. The consistency of a prior statement of the statutory rape victim makes a subsequent statement that...