Spivey v. State

The evidence supported the defendant's conviction as a party to forcible rape since she carried her young daughter into the bedroom she shared with the child's father and watched as the father lay on top of the child and raped her, while squeezing the child's stomach so that she could not cry out.

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An Atkinson County jury convicted Geraldine Spivey of one count of rape OCGA § 16-6-1 a 1, two counts of incest OCGA § 16-6-22, and eight counts of child molestation OCGA § 16-6-4 a.1 She appeals from the denial of her motion for new trial, challenging the sufficiency of the evidence on the rape count and alleging error with respect to the admission of child hearsay evidence and the denial of her ineffective assistance of counsel claim. For the reasons that follow, we affirm in part and remand for a hearing on Spivey’s ineffective assistance of counsel claim. “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” Citation omitted. Dean v. State , 252 Ga. App. 204 555 SE2d 868 2001. In this regard, we neither weigh the evidence nor assess witness credibility; rather, we determine whether “any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Citation omitted. Reece v. State , 241 Ga. App. 809 527 SE2d 642 2000.

So construed, the evidence shows that in August 1996, school officials became concerned that Spivey’s four year old daughter, D., displayed sexually inappropriate and suggestive behavior during nap time at her pre-kindergarten class. The behavior was noted, but no further action was taken at that time. In October, Spivey and her husband, co-defendant John McDonald, attended a school conference at which time they were informed by a school resource coordinator that in order to continue school, D. needed a health check or physical and shots. McDonald refused the coordinator’s offer to take D. for the physical and stated that Spivey and he would take D. themselves.

Spivey v. State

The evidence supported the defendant's conviction as a party to forcible rape since she carried her young daughter into the bedroom she shared with the child's father and watched as the father lay on top of the child and raped her, while squeezing the child's stomach so that she could not cry out.

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