Whipkey v. State

• Decision Date: 06 March 2023
• Docket Number: A22A1722
• Parties: WHIPKEY v. THE STATE.
• Court: Georgia Court of Appeals

1

WHIPKEY v. THE STATE.

No. A22A1722

Court of Appeals of Georgia, First Division

March 6, 2023

BARNES, P. J., BROWN and HODGES, JJ.

HODGES, Judge.

In 2014, a jury found Robert Ray "Bobby" Whipkey guilty of multiple crimes perpetrated against two 14-year-old girls, E. G. and A. D.: rape (OCGA § 16-6-1) (E. G.) two counts of enticing a child for indecent purposes (OCGA § 16-6-5) (E. G., A. D.); two counts of aggravated child molestation (OCGA § 16-6-4 (c)) (E. G., A. D.); and one count each of rape (OCGA § 16-6-1) (E. G.) and aggravated sexual battery (OCGA § 16-6-22.2) (A D.).^[1] Whipkey appeals from the denial of his motion and amended motions for new trial.^[2] He argues that the trial court erred in (1) charging the jury; (2) admitting evidence of bad character under OCGA § 24-2-414; (3) admitting character evidence of untruthfulness; (4) denying his Sixth Amendment right to effective assistance of counsel; and (5) denying his motion for a continuance to seek new counsel. Whipkey does not challenge the sufficiency of the evidence underlying his convictions. For the reasons that follow, we affirm.

We review the evidence in the light most favorable to the prosecution, under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). We do not judge witness credibility or weigh the evidence, nor do we resolve evidentiary conflicts, as those matters are for the jury. Whitehead v. State, 304 Ga.App. 213, 214 (1) (695 S.E.2d 729) (2010).

So viewed, the abundant record evidence shows that Whipkey met both victims when they were 14 years old, after E. G. befriended and began dating Whipkey's 16-year-old son. About a month after they began dating, in August 2013, the son noticed that E. G. and his father were becoming close, with E. G. treating him as a father figure.

E. G. and A. D.: E. G. testified that she at first "looked at [Whipkey] kind of like a dad." However, Whipkey "shocked [her] a little bit" when he asked for a pair of her underwear. Whipkey "didn't want them clean. He never did.... It was just the scent." A. D. recalled Whipkey taking and smelling E. G.'s underwear. He also asked A. D. for her underwear, promising to give them back washed with a new pair "for free." Once, he gave E. G. more than $20 in exchange for her panties.

Whipkey bought whippets^[3] for both girls. E. G. testified that she first used whippets with Whipkey: "We started using them more and more and more and more and more and more and more . . . they're fun, so then they just got bigger and bigger from the quantities." A. D. testified that the trio did methamphetamine together, and that Whipkey brought them a vibrator, whippets, and panties. Whipkey gave E. G. gifts: a painting, a necklace, a lighter, a phone, cigarettes, methamphetamine, and a vibrator.

Whipkey began telling E. G. "sexual jokes" and on 25 or 30 occasions, showed her "sexual pictures" which she described as "pornography." He showed her photographs of his adult girlfriend in partial states of undress. A. D. testified that he showed her a "sex game" and a photo album of young girls "in their underwear[,]" and talked about her and E. G.'s bodies in ways "that aren't normal for an adult to be saying or acting that way." Whipkey sent E. G. social media messages, writing, "Tell me you're not on your period. I want to have you for breakfast, dessert.... I have your old panties for you" and "Hope you[r] dad doesn't come home early. I would be pounding you so hard. Sorry, just kidding. . . You are so hot, sexy, damn."

Bombay Nights: E. G. testified that she, A. D., Whipkey's son, and other teens on 15 or 16 occasions attended "Bombay Night" parties at a friend's house. The teens drank a lot of alcohol - particularly Bombay Sapphire gin - and played games. Whipkey was usually the only adult present. At a Bombay Night in October 2013, Whipkey showed up, and everyone was drinking heavily. Both girls testified that they left the party with Whipkey. He drove them to buy cigarettes.

Instead of going back to the party, Whipkey took E. G. and A. D. to the basement of his mother's house and gave them whippets. E. G. was very drunk. The girls sat on opposite sides of a yellow sofa, with Whipkey crouched between them.

E. D. did not recall how many whippets she had done because "it was pretty much, just, like constant ...." E. G. testified that she "looked over and [A. D.] didn't have her pants on and Bobby was doing whatever he was doing to her.... And then I looked back and my pants were off and he was, like, doing stuff to both of us." Whipkey had his "fingers in" both her and A. D. Then A. D. got sick and began vomiting. Whipkey gave E. G. another whippet and she was "out of it." Whipkey then put his penis into E. G.'s vagina. She testified, "I looked at the clock and it was 3:33 [a.m.], and then I just closed my eyes and, like, waited for it to be over[,]" adding that this was "[t]he last thing I ever wanted to happen" and "it scared me."

A. D. also testified about the party. She drank "around 12" shots of Bombay Sapphire that evening. A. D. remembered "falling down the driveway" of Whipkey's mother's house and being "confused" because she believed they were going somewhere else. She was "not sober at all" and Whipkey gave her whippets although she did not ask for them. She described whippets as "fun[,]" but testified that the drug "makes you pass out.... I remember passing out but I don't know how long." At Whipkey's mother's house, A. D. recalled sitting on a sofa with E. G. while Whipkey put his fingers inside her vagina and also performed oral sex on her. Whipkey did not stop until A. D. "had to vomit, and [she] was grossed out and confused." She recalled thinking, "this is not right" and feeling "[u]ncomfortable, violated." She did not ask Whipkey to perform sex acts on her. After she vomited, she saw him perform oral sex on and then have intercourse with E. G. When A. D. talked with Whipkey after that night, she testified that he told her, "everything that happened that night was greater than any fantasy or dream that he's ever had."

Whipkey's son:

Whipkey's son, who went to the October Bombay Night, testified that E. G. eventually told him what his father had done. He called his father and said "I know what happened. I'm coming . . . to talk to you about it." But when the son and E. G. got to the father's house 20 minutes later, Whipkey was "laying on the ground on his stomach, . . . sobbing." Whipkey told him he had fallen downstairs and broken his ribs. The son called an ambulance, and Whipkey was taken to the hospital. The son went to Whipkey's hospital room, where a nurse was giving him medicine and checking his vitals. Thinking that "if something bad happens you always need to have proof[,]" the son confronted Whipkey while recording the conversation on his phone. At first Whipkey "denied everything." The son testified that he asked, "Dad, you know, [E. G.] is saying . . . you raped her[,]" and Whipkey responded, "I raped her." The son then asked, "Did you have sex with her[?]" and Whipkey said, "[N]o.... I went down on her." Whipkey also said he "went down" on A. D. The son e-mailed the recording to E. G.'s father, and eventually spoke to police about it. The full recording was admitted into evidence without objection and played for the jury.

Bobby Whipkey:

Whipkey testified in his own defense. He was 52 years old at the time of trial. He admitted doing whippets with the teens, "to show the kids that I was kind of cool[,]" but denied providing A. D. and E. G. with whippets or other drugs. Asked if he used sexually explicit language with A. D. and E. G., he acknowledged telling "jokes and stuff" but asserted that the girls and his son also told sexually explicit jokes. He acknowledged showing photos of women to E. G., but denied that the women were unclothed, saying they might have been in swimsuits. He did not recall showing E. G. a vibrator, though he recalled that he twice "found" her panties on the floor of his bedroom. He admitted asking E. G., his son's girlfriend, for her panties while his son was present, but testified that he was "joking[,]" and that he was also "joking" when he sent E. G. the message saying he wanted to "have her for breakfast[,] dessert."

Whipkey testified that he attended the Bombay Night where many of the crimes at issue took place: "Like you heard, all these kids are doing every drug possible. That's why I was there, to make sure my son didn't do it." He testified that his son was "like my best friend," whom he loved "more than anything in the whole world except for God."

Whipkey testified that at the party, E. G. told him she had done "15 shots," and A. D. had done 12 or 15 shots. Whipkey denied giving them alcohol, but said his son had done so. He knew both girls were 14 years old. Whipkey testified that his son was vomiting from all the alcohol he had drunk, but that E. G. wanted cigarettes, so Whipkey took her and A. D. buy them. He did not let them smoke in the car because it belonged to his mother. He testified that E. G. and A. D. were making out in the back seat of the car, with their pants down and shirts almost off, having oral sex and doing whippets while he "looked back over a couple times." Whipkey noted that he had seen the girls engage in this behavior before, "Five different times I saw." He testified that they were out for 45 minutes to an hour before returning to the party. As for E. G. and A. D.'s testimony about his sexual actions with them, Whipkey testified, "I didn't do that. I did not touch them girls."

Outcry:

Some time after the Bombay Night party, E. G. broke up with Whipkey's son because "I just didn't want to be around it...