Wiggins v. the State

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, 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/

November 18, 2014

In the Court of Appeals of Georgia
A14A0785. WIGGINS v. THE STATE.

BARNES, Presiding Judge.

A jury convicted Rebecca Wiggins of sexual exploitation of children,

aggravated sodomy, child molestation, and cruelty to children in the first degree, and

after merging the last two offenses with the sodomy offense, she was sentenced to life

in prison on the aggravated sodomy count and to twenty years consecutively on the

exploitation count. On appeal, she enumerates seven errors, contending among other

things that the evidence was insufficient and that the trial court erred in failing to

exercise its discretion under OCGA §§ 5-5-20 and 5-5-21. Although the evidence was

sufficient, the trial court did not exercise its discretion and weigh the evidence under

the general grounds. Accordingly, we must vacate the denial of Wiggins’ motion for

new trial and remand for further proceedings that are consistent with this opinion.
 Wiggins was indicted on four counts: (1) sexual exploitation of children

between November 17, 2001 and November 16, 2003 for using and enticing a minor,

N.G., to lewdly exhibit her genitals for the purpose of producing a photograph; (2)

for aggravated sodomy between February 25, 2004, and September 30, 2004; by

aiding and encouraging David Ray to perform an act of sodomy with N.G., who was

younger than ten; (3) for child molestation during the same time period as counts 2

and 3 by taking N.G. to Ray’s home and holding her while Ray sodomized the child;

and (4) for cruelty to children in the first degree during that time period by causing

N.G. excessive mental pain by taking her to Ray’s home and holding her hand while

Ray sodomized the child.

When determining whether the State presented sufficient evidence to support

a criminal conviction,

[w]e view the evidence in the light most favorable to the jury’s verdict,
and the defendant no longer enjoys the presumption of innocence. We
do not weigh the evidence or determine witness credibility, but only
determine if the evidence was sufficient for a rational trier of fact to find
the essential elements of the crime beyond a reasonable doubt.

Valentine v. Smith, 301 Ga. App. 630, 630-631 (689 SE2d 76) (2009).

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 So viewed, the evidence at trial established that N.G. and her younger sisters

T.W. and M.W. first came to the attention of authorities in Savannah when the police

responded to a “domestic violence with an injury” call. The children’s mother had a

red mark on her face, as if someone had hit her, and the children recounted that the

mother’s boyfriend, Cesar Moran, had been hitting the mother. After Moran was

arrested and placed in the patrol car, T.W. and N.G. approached an officer and

reported that Moran had been molesting them. Because under police department rules

only a Special Victims’ Unit (SVU) officer could take out a warrant against Moran

for molestation, Moran was charged only with misdemeanor battery and was allowed

to bond out of jail before additional charges were brought against him.

A Savannah SVU detective assigned to the case interviewed the two older girls,

N.G. and T.W., two days later. T.W., who was eight then, made reference to several

men involved in their lives: David Wiggins, David Ray, and Moran. Specifically, T.

W. disclosed that Ray was her mother’s “sugar daddy” and had bought her new

clothes for school, then described the physical altercation with Moran that led to the

police being called. She further disclosed that three men had molested her, beginning

when she was five with David Wiggins, who is the defendant Rebecca Wiggins’

brother and had previously lived with the children and their mother but was in jail

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when the girls were being interviewed. T.W. then talked about having to spend the

night with Ray at his house in Marietta, and Ray having taken pictures of her private

area.

The detective then interviewed N.G., who was eleven then. N.G. said Moran

had not molested her, only hit her, but that David Wiggins had anally sodomized her

for “[q]uite a few years,” beginning when she was seven. When the detective asked

about Ray, N.G. sat quietly for a time, then went back to talking about David

Wiggins.

The detective obtained an arrest warrant for Moran for child molestation, and

eventually U.S. Marshals tracked him to a country outside the United States. The

warrant was outstanding as of the trial in August 2011. In December 2008, N.G. told

her therapist that she was excited about the defendant, her “Aunt Becka,” coming to

visit, and named her aunt as someone on her “safe place list.” Then in January 2009,

the therapist referred to the girls’ intake notes and asked N.G. to tell her about Ray.

N.G. went white and asked how the therapist knew about him. After the therapist

responded that N.G.’s sister had made some disclosures about Ray, N.G. for the first

time disclosed that the defendant used to obtain money from Ray in exchange for

N.G. performing sexual acts with him.

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 The therapist testified that N.G. said her mother also obtained money from Ray

and described a weekend when Ray took N.G. and T.W. shopping for new school

things in exchange for her and T.W. staying overnight at Ray’s house while her

mother and youngest sister stayed at a motel. N.G. said she locked the girls’ bedroom

door but Ray got inside the room anyway. At the next therapy session, N.G. disclosed

that Ray had anally sodomized T.W. that night, and said, “I didn’t know how to help

her or what to do.”

N.G. told the therapist that she and her sisters lived with the defendant for

about two years while her mother was incarcerated. She said the defendant would tell

her they “were going to get two hundred to three hundred to four hundred dollars, and

all I had to do was give [Ray] blow jobs,” although at the time she was only seven

and did not know what that meant. N.G. reported that the defendant took naked

pictures of her and gave them to Ray. The therapist testified that N.G. said that the

defendant told her about being molested by her drunken father and other abuse she

had suffered as a child. Finally in a session in mid-February 2009, N.G. told her

therapist that she had been to Ray’s house six or eight times and described one

incident during which the defendant bathed her in Ray’s tub and placed her on Ray’s

bed, where he tried unsuccessfully to penetrate her anally. N.G. told her therapist that

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the defendant held her hand and told her it would be okay, and then Ray placed his

mouth on N.G.’s vagina. N.G. described other sexual acts she performed on Ray, and

described his house in great detail, details later confirmed by other witnesses.

The girls were interviewed a second time by another specialist in February

2009 because of their continued disclosures during therapy. In a subsequent session

N.G. said that the defendant told her not to tell what was going on with Ray because

the defendant would go to jail, the girls would go into county custody, and they

would never see their mother again. The defendant told N.G. that if she did not

perform sexual acts with Ray, the family would have no food and would lose their

house.

Ray’s wife testified that in March 2009, she was out of town when Ray called

to tell her he was going to be accused of child molestation. When she returned home,

he told her he had been “involved” with a family composed of a mother, an aunt, a

boyfriend, and two girls who were accusing him of molestation. He also told his wife

that he had let them come to the house and then gave them money to get an apartment

because the mother was a drug addict and the children were going to be taken from

her. Shortly after this disclosure, the police executed a search warrant at Ray’s house,

and on April 4, 2009, Ray killed himself in his back yard with a shotgun.

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 A records custodian from Western Union authenticated documents showing

that Ray had transferred money to both the defendant and the children’s mother. A

detective reviewed the Western Union data and determined that Ray sent the mother

a total of $54,568 beginning in June 2005, and sent the defendant a total of $9,085

beginning in March 2004 and ending in December 2008.

The State played portions of N.G.’s two forensic interviews during the direct

examination of the interviewers, and Wiggins played the entire first interview.1 N.G.

testified, confirming what she said in the interviews and to her therapist. For example,

she testified that when she was six or seven, her aunt took photographs of her naked

with her legs spread and gave them to Ray. In 2004, N.G.’s mother went to jail and

the girls lived with the defendant, who took N.G. to Ray’s house eight to ten times,

where he would touch her vagina and try to insert his private part in her butt while the

defendant was present. The defendant bathed N.G. beforehand, told her that it would

not hurt, and held her hand while Ray sodomized her. The defendant moved to

Savannah with the three girls, where David Wiggins lived with them for a time and

molested N.G. until he went to jail in 2008 and N.G. went into foster care. (Wiggins

1
While the recorded interviews were not transcribed when they were played
during the trial, this Court has reviewed the recordings themselves.

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was the father of N.G.’s youngest sister, M.W.) N.G. initially did not tell her therapist

about Ray because she had promised the defendant that she would not do so.

After the Savannah detective interviewed David Wiggins in July 2009, she

administratively closed her investigation of him by referring the case to the district

attorney’s office and requesting that he be arrested, but that office did not want her

to take out a warrant. An arrest warrant for the children’s mother was outstanding as

of trial, as was the warrant against Moran. This defendant is thus the only party

involved in these crimes who had been prosecuted as of her trial in August 2011.

(a) In arguing that the evidence was insufficient to sustain the convictions,

Wiggins first notes that the State never introduced any photographs to support the

charge of sexual exploitation of children by enticing N.G. to engage in a lewd

exhibition of her genitals to produce a photograph. N.G. testified that Wiggins used

a Polaroid camera to take photographs of her with her legs spread and then sent the

pictures to Ray, and that evidence is sufficient to sustain that conviction.

(b) As to the counts of aggravated sodomy, child molestation, and cruelty to

children, which were merged for sentencing, Wiggins argues that the indictment

accused David Ray of performing the actual act of sodomy, and therefore Wiggins’

convictions were “presumably based upon her being a party to the crime.” While N.G.

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testified that the acts took place at Ray’s home, Wiggins argued that N.G. could have

become familiar with the house when her mother took her there and her sister was

molested, and that coupled with the evidence that Wiggins was molested as a child

and had sex with Ray for money, “you have more prejudicial facts than probative

ones, not to mention the lapse of time from the events to trial and the intervening

molestations by two other men.”

“Resolving evidentiary conflicts and inconsistencies and assessing witness

credibility are the province of the fact finder, not the appellate court.” Browner v.

State, ___ Ga. ___ (Case No. S14A1689, decided Nov. 3, 2014). The

above-summarized evidence was sufficient to authorize a rational trier of fact to find

appellant guilty beyond a reasonable doubt of the offenses charged as a party to the

crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(c) Wiggins also argues that the trial court’s standard of review was erroneous

on her challenge to the verdict on the general grounds. Wiggins asserted in her initial

motion for new trial the general grounds that the verdict was “decidedly and strongly

against the weight of the evidence” and that it was “contrary to the law and principles

of justice and equity.” She also argued that the evidence against her was insufficient

to sustain the convictions. In its order denying Wiggins’ motion for a new trial, the

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trial court applied only the Jackson v. Virginia standard in rejecting her assertions as

follows:

The evidence was sufficient to support the verdict. . . . Jackson v.
Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); OCGA §
5-5-20; OCGA § 5-5-21. See also Valentine v. State, 301 Ga. App. 630
[689 SE2d 76] (2009) (mother of victims properly convicted of child
molestation and aggravated child molestation for aiding and abetting
housemate in sexual abuse of children.)

When considering a motion for new trial, the trial court must apply different

standards of review for claims that the evidence was insufficient and claims made

under “the general grounds.” These standards “address two distinct legal issues,

illustrated by the fact that the double jeopardy clause applies when a court finds the

evidence insufficient, but not when a court holds that the verdict was against the

weight of the evidence.” Manuel v. State, 289 Ga. 383, 386-387 (2) (711 SE2d 676)

(2011).

Even when the evidence is legally sufficient to sustain a conviction, a
trial judge may grant a new trial if the verdict of the jury is “contrary to
… the principles of justice and equity,” OCGA § 5-5-20, or if the verdict
is “decidedly and strongly against the weight of the evidence.” OCGA
§ 5-5-21. When properly raised in a timely motion, these grounds for a
new trial — commonly known as the “general grounds” — require the

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 trial judge to exercise a broad discretion to sit as a “thirteenth juror.” In
exercising that discretion, the trial judge must consider some of the
things that she cannot when assessing the legal sufficiency of the
evidence, including any conflicts in the evidence, the credibility of
witnesses, and the weight of the evidence. Although the discretion of a
trial judge to award a new trial on the general grounds is not boundless
— it is, after all, a discretion that should be exercised with caution and
invoked only in exceptional cases in which the evidence preponderates
heavily against the verdict, — it nevertheless is, generally speaking, a
substantial discretion.

(Citations and punctuation omitted.) White v. State, 293 Ga. 523, 524 (2) (753 SE2d

115) (2013); see also Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013);

Alvelo v. State, 288 Ga. 437, 439 (1) (704 SE2d 787) (2011) (“Only the trial court is

authorized by law to conduct . . . an assessment” of the witnesses’ credibility in

reviewing a motion for new trial brought pursuant to OCGA § 5-5-21.)

The trial itself was conducted by the Honorable G. Grant Brantley and a

different judge reviewed Wiggins’ motion for new trial. But while the discretion of

the second judge in weighing the evidence is “narrower in scope” than the presiding

judge’s would be, State v. Harris, 292 Ga. 92, 95 (734 SE2d 357) (2012), “after a

thorough review of the case, even a successor judge may exercise a significant

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discretion to grant a new trial on the general grounds.” White, 293 Ga. at 525 (2), n.

4.

Here, there is no evidence that the successor judge exercised discretion,

weighed the evidence, and determined as the “thirteenth juror” whether the verdict

was against the great weight of the evidence or offended the principles of justice and

equity. The order denying Wiggins’ motion for new trial shows that the trial court

made only the legal determination that the evidence was sufficient under the

standards of Jackson v. Virginia.

Accordingly, we vacate the judgment and remand this case to the trial court for

consideration of the motion for new trial under the appropriate discretionary standard.

Due to this holding, it is unnecessary for us to address the remaining enumerations

of error at this time.

Judgment vacated and remanded with direction. Boggs and Branch, JJ.,

concur.

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