Court rules that solicitation of sex was not an ‘overt act’ to commit the crime
By Randy Arrington
ARLINGTON, Aug. 12 — Earlier this month, a three-judge panel of the Virginia Court of Appeals in Arlington overturned a jury’s October 2023 conviction in Page County Circuit Court that found Ray Allen Atkins of Luray guilty of attempted incest with his “own child or grandchild.”
On July 5, 2023, a Page County grand jury indicted Atkins on two Class 5 felonies for sodomy of a family member and two Class 6 felonies for incest with his “own child or grandchild.”
When Atkins appeared in circuit court for a hearing on July 31, 2023, one felony sodomy charge was nolle prosequi (not prosecuted), and one felony charge of incest was dismissed. A jury trial was set for the two remaining felony charges on Oct. 23, 2023. Following the trial in Page County, the jury acquitted Atkins on the charge of sodomy of a family member, but found him guilty of attempted incest with his “own child or grandchild.”
Two key pieces of evidence presented by the Commonwealth during the trial were two video recordings made by the adult victim on her cellphone — recorded on the same day in September of 2022 (4:57 and 32 seconds in length) — during conversations with Atkins, who “offered his adult granddaughter…some soda if she would come over to his house to help him.,” according to court records.
“All you gotta do is close your eyes and say ahh.”
“I ain’t doing that.”
“I thought you were gonna give it to me.”
“I can’t do that pawpaw.”
“If you can’t do it, you can’t do it, but I can’t give you no more money.”
The appellate opinion states (during background) that, “During both conversations, Atkins was seated in a chair at a table outside of his house. During one of the conversations, Atkins asked [the victim] for a ‘blow job’ and to have sex with him. Atkins told [the victim] to ‘give [him] some p—-.’ Though [the victim] responded with ‘I can’t do that pawpaw’.”
The appellate opinion goes on to state in the “Background” section that, “Atkins then attempted to persuade [the victim] by: (1) saying ‘I bet I’ll nut before I even get it in you’ and ‘I want some so badly,’ (2) telling [the victim] he would not give her any more money and reminding her that he recently had given her some money, and (3) asking [the victim] if she wanted to ‘let [him] plug that thing for sixty’ and then offering her a fifty-dollar bill and a ten-dollar roll of quarters. [The victim] repeatedly told him that she would not do it. During one of her denials, Atkins interjected and said ‘well if you don’t want to do it, you don’t have to. If you don’t want to do it, you don’t have to. I’m not giving you any money, though. I ain’t buying no sodas, neither.’ As he said this, Atkins began counting coins. Atkins stated, ‘You give me some p—-, I’ll take care of you.'”
The appellate opinion continues to report in the “Background” section that, “In the second recorded conversation, Atkins said to [the victim], ‘let me put it in you. Let me put it in you.’ [The victim] replied, ‘I can’t do that pawpaw.’ Atkins responded with ‘it’s only gonna take ten to twelve minutes and you earn sixty dollars.’ When [the victim] denied him again, he told her, ‘Okay, well I can’t give you more money if you won’t give me no p—-.'”
When later shown the recordings by Detective Smoot of the Luray Police Department, Atkins agreed he was the person in the video.
On Aug. 12, Virginia Court of Appeals Judges Raphael, Lorish and Frucci overturned Atkins’ October 2023 felony conviction in Page County Circuit Court. He was acquitted, according to the court’s published opinion, due to the lack of an “overt act” toward the commission of a crime, rather than simple solicitation.
“Trial court erred finding appellant guilty of attempted incest with child or grandchild; no showing of overt act in commission of incest, that appellant’s direct actions proceeded beyond preparing to commit incest; conviction reversed and indictment dismissed,” reads a summary of the ruling on the Virginia Court of Appeals website.
The six-page opinion written earlier this month by Judge Steven C. Frucci states, “Thus, in the case at hand, the Commonwealth was required to prove that Atkins intended to engage in sexual intercourse with [the victim], his granddaughter, and that he committed an action that began the execution of sexual intercourse with his granddaughter.”
“While the evidence certainly supports a finding that Atkins intended to engage in sexual intercourse with his granddaughter, it does not support that he committed an action that went beyond mere preparation and that started the execution of the crime,” the ruling states. “The evidence showed that Atkins invited [the victim] over to his residence where Atkins then asked [the victim] to ‘[g]ive him some p—-.’ After she said no, Atkins attempted to persuade [the victim] numerous times to have sex with him by offering [the victim] money and threatening to no longer provide her any further financial support and to withhold previously promised goods if she denied him. While doing so, Atkins did not move closer to [the victim], touch [the victim], remove any clothing, or make any other kind of movement or act to initiate sexual intercourse.”
“Even viewed in the light most favorable to the Commonwealth, the evidence here does not support a finding that Atkins’ direct actions proceeded beyond merely preparing to commit incest,” the ruling concludes. “As the evidence is insufficient to find Atkins committed an overt act, it is insufficient to support his conviction for attempted incest. Accordingly, we reverse Atkins’s attempted incest conviction and dismiss the indictment.”
Over nine pages following the ruling penned by Judge Frucci, concurring Judge Raphael went to great lengths and cited an abundance of case law to justify the court’s opinion.
“I join the Court’s opinion in full. I write separately to explain why I find this case to be difficult and why I conclude, nevertheless, that the Court properly reverses the conviction,” Frucci writes. “First the difficulty. The evidence, viewed in the light most favorable to the Commonwealth, leaves no doubt that Ray Allen Atkins intended to commit incest with his adult granddaughter if she agreed to have sex with him. The proof is so clear that the evidence fails to suggest any reasonable hypothesis of innocence… So why should the Court set aside his conviction for attempted incest?…The answer stems from the constraints that our caselaw has imposed on the overt-act requirement for attempt crimes.”
“Criminal incest by a grandparent with the grandchild requires ‘sexual intercourse.’ Code § 18.2-366(B). Although Atkins’s words showed that he intended to have sex with his granddaughter, Atkins did not commence the consummation of sexual intercourse, such as by removing his clothes, exposing himself, or touching her.”
“While Atkins surely solicited his granddaughter for sex, our caselaw makes clear that solicitation alone will not satisfy the overt-act requirement for criminal attempt.”
Frucci’s statement goes on to mention that in other states, Atkins solicitations could meet the “overt act” requirement for an attempted cime, but not in Virginia.
In Atkins’ defense, Caleb J. Routhier of Helm Law argued for the appellant that the evidence was insufficient to support his conviction and that the circuit court erred in allowing the victim to testify, in denying and in granting various jury instructions, in permitting the Commonwealth to make certain statements during closing argument, and in denying his motion to quash the indictment.
Justin M. Brewster, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), argued for the appellee, or Commonwealth.
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Nolle prosequi means “not prosecuted” rather than not processed and my firm is now Helm Law, not Miller Earle and Shanks. Otherwise the article is accurate, and thank you for publishing it.
I’m happy to discuss the case with you more in depth if you want. It is a pretty icky fact pattern, but there is more to tell.