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Wiggins v. State

In reviewing the defendant's motion for new trial, the trial court erred in failing to exercise its discretion and weigh the evidence in addition to determining its legal sufficiency.

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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.

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