COURT OF APPEALS OF VIRGINIA PUBLISHED

Present: Judges Raphael, Lorish and Frucci Argued at Arlington, Virginia

RAY ALLEN ATKINS OPINION BY v. Record No. 0684-24-4 JUDGE STEVEN C. FRUCCI AUGUST 12, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PAGE COUNTY Clark A. Ritchie, Judge

Caleb J. Routhier (Miller, Earle & Shanks, PLLC; Helm Law PLLC, on brief), for appellant.

Justin M. Brewster, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Following a jury trial, the Circuit Court of Page County convicted Ray Allen Atkins of attempted incest with his “own child or grandchild.”1 Atkins asserts 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. For the following reasons, we reverse the conviction for attempted incest.

Atkins was also charged with solicitation to commit incest, solicitation to commit sodomy of a family member, and attempted sodomy “upon or by” a family member. However, the solicitation to commit incest charge was nolle prosed and the solicitation to commit sodomy of a family member charge was dismissed prior to the jury trial. The jury found Atkins not guilty of attempted sodomy “upon or by” a family member.

BACKGROUND2

In September 2022, Atkins offered his adult granddaughter, G.A.,3 some soda if she would come over to his house to help him. While there, G.A. used her cellphone to record two conversations she had with Atkins that day.^[4] During both conversations, Atkins was seated in a chair at a table outside of his house. During one of the conversations, Atkins asked G.A. for a

“blow job” and to have sex with him.^[5] Atkins told G.A. to “give [him] some pussy.” Though

G.A. responded with “I can’t do that pawpaw,” Atkins continued telling G.A. that “all [she] gotta do is close [her] eyes and say ahh.” Again, G.A. responded, “I ain’t doing that.” Atkins then said, “I thought you were gonna give it to me.” G.A. replied, “I can’t do that pawpaw.” To which Atkins responded with, “If you can’t do it, you can’t do it, but I can’t give you no more money.”

Atkins then attempted to persuade G.A. by: (1) saying “I bet I’ll nut before I even get it in you” and “I want some so badly,” (2) telling G.A. he would not give her any more money and reminding her that he recently had given her some money, and (3) asking G.A. 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. G.A. 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 pussy, I’ll take care of you.”

In the second recorded conversation, Atkins said to G.A., “let me put it in you. Let me put it in you.” G.A. 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 G.A. denied him again, he told her, “Okay, well I can’t give you more money if you won’t give me no pussy.”

Later, Atkins was charged with attempted sodomy of a family member and attempted incest of a child or grandchild. After the Commonwealth’s case-in-chief at trial, Atkins moved the circuit court to strike the evidence as insufficient. He argued, in part, that the evidence was

insufficient for the jury to find: (1) that the offense occurred during the date range set forth in the indictment; and (2) that he committed a direct act in furtherance of the attempt. The circuit court denied his motion to strike. Following, the jury returned verdicts of guilty of attempted incest

with child or grandchild and not guilty of attempted sodomy of a family member. After the circuit court entered a judgment in accordance with the verdict, Atkins moved the circuit court to

set aside the verdict due to jury instruction issues, statements made during closing arguments, and insufficient evidence. The circuit court denied the motion. Atkins appeals.

ANALYSIS

Atkins contends, in part, that the evidence was insufficient to sustain his conviction because it did not show that he committed an overt act in the commission of incest. “In such cases [as this], ‘[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Secret v. Commonwealth, 296 Va. 204, 228 (2018)

(second alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016)

(quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its

opinion might differ from the conclusions reached by the finder of fact at the trial.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).

“An attempt to commit a crime is composed of two elements: (1) The intent to commit it; and (2) a direct, ineffectual act done towards its commission.” Fletcher v. Commonwealth, 72

Va. App. 493, 506 (2020) (quoting Haywood v. Commonwealth, 20 Va. App. 562, 565 (1995)).

“The direct but ineffectual act is commonly referred to as an ‘overt act.’” Jones v. Commonwealth, 70 Va. App. 307, 318 (2019) (en banc) (quoting Jay v. Commonwealth, 275 Va.

510, 525 (2008)). “The overt act requirement distinguishes an attempt to commit a crime from

‘mere preparation’ to do so, which is not a criminal offense.” Id. “[T]he ‘overt act’ must be an action that begins (commences) the execution (consummation) of one or more elements of a crime but does not complete all of them.” Id. at 319. While there must be “direct overt acts well calculated to accomplish the result intended,” the action need not be the last proximate act

necessary to complete the crime of incest. Jay, 275 Va. at 526 (quoting Granberry v. Commonwealth, 184 Va. 674, 678 (1946)). However, the act “must approach sufficiently near to

[the crime] to stand either as the first or some subsequent step in a direct movement towards the commission of the offence after the preparations are made.” Id. (quoting Hicks v. Commonwealth, 86 Va. 223, 227 (1889)). “[P]reparation ends and attempt begins once an overt act commencing an element of the intended crime is initiated with the requisite intent.” Jones, 70 Va. App. at 327. Under Code § 18.2-366(B), “[a]ny person who engages in sexual intercourse with his . . . granddaughter . . . is guilty of a Class 5 felony.” Thus, in the case at hand, the Commonwealth was required to prove that Atkins intended to engage in sexual

intercourse with G.A., 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 evidence showed that

Atkins invited G.A. over to his residence where Atkins then asked G.A. to “[g]ive him some pussy.” After she said no, Atkins attempted to persuade G.A. numerous times to have sex with him by offering G.A. 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 G.A., touch G.A., remove any clothing, or make any other kind of movement or act to initiate sexual intercourse.^[6] “The difference between preparation and attempt

lies between an act in preparation of a crime—one yet to take place or commence—and an act in the commission of a crime.” Jones, 70 Va. App. at 329. “Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it

will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature.” Lewis v. Commonwealth, 15 Va. App.

337, 340 (1992) (quoting People v. Buffum, P.2d 317, 321 (Cal. 1953)). Even viewed in the light most favorable to the Commonwealth, the evidence here does not support a finding that Atkins’s direct actions proceeded beyond merely preparing to commit incest. As the evidence is insufficient to find Atkins committed an overt act, it is insufficient to support his conviction for attempted incest.^[7]

CONCLUSION

Accordingly, we reverse Atkins’s attempted incest conviction and dismiss the indictment.

Reversed.

Raphael, J., concurring.

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.

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. We have previously held that “the victim’s refusal to cooperate . . . does not . . . absolve a defendant of attempting to commit a crime.”

Rogers v. Commonwealth, 55 Va. App. 20, 29 (2009). 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. While Virginia has codified the punishment for attempts to commit felonies, see Code §§ 18.2-25 to -28, “what constitutes an attempt must be ascertained from the common law.” Johnson v. Commonwealth, 209 Va. 291, 293 (1968). After thoroughly

canvasing Virginia common law surrounding the overt-act requirement, we said in 2019 that the evidence must “objectively demonstrate[] ‘the commencement of the consummation’ or, stated

another way, the beginning of the commission of the intended crime itself.” Jones v. Commonwealth, 70 Va. App. 307, 325 (2019) (en banc) (quoting Jay v. Commonwealth, 275 Va.

510, 526 (2008)). And while “an act constituting an attempt can be ‘slight,’ . . . an overt act constituting an attempted crime must have linkage to an element of the offense, rather than merely the overall criminal intent.” Id. at 324-25.

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.

That fact distinguishes this case from Rainey v. Commonwealth, 169 Va. 892 (1937), where the Court found the evidence sufficient to convict Rainey for attempted-statutory rape of a

14-year-old girl despite that she, like the victim here, declined sex.^[8] Rainey testified that

“without her consent he would not have had intercourse with her.” Id. at 894. Still, the Court found “overt acts” that “amounted to the ‘commencement of the consummation’ of statutory rape.” Id. at 895. The victim testified that Rainey’s “privates were exposed. I was lying down.

We had not done anything. He was just starting.” Id. at 894. In this case, by contrast, Atkins did not engage in similar physical acts to commence intercourse with his granddaughter.

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. In Hicks v. Commonwealth, 86 Va. 223 (1889), the Court held that the defendant could not be convicted of attempted poisoning despite that he delivered strychnine to an intermediary and offered a reward if she spiked the victim’s coffee. Id. at 224, 230. The intermediary “testified that she never agreed to administer the poison, and never intended to do so.” Id. at 225. The Court found that the solicitation of the intermediary did not qualify as an overt act “because it is not such an act as

is likely, in the natural course of events, to bring about the result desired.” Id. at 230. “On the contrary, the presumption in such a case is the other way, since a criminal intent on the part of the person to whom the poison is delivered, is not to be presumed.”9 Id.; see also Kilpatrick v.

Commonwealth, 73 Va. App. 172, 195 n.10 (2021) (“The act of solicitation is not an ‘attempt’ in the legal sense of the word.” (citing Hicks, 86 Va. at 229)). Likewise, Atkins’s soliciting his granddaughter for sex was not an overt act under Hicks because she declined his invitation, and it could not be presumed that she would do otherwise.^[10]

Importantly, when we speak here of the “common law” of criminal attempt, it is not the “common law of England” that became the law of Virginia upon our founding and that remains

the law today unless changed by the General Assembly. Code § 1-200. The correct date for the reception of English common law is “either 1776 or 1792, based on either the original [common- law-reception] ordinance or its reenactment 16 years later.” Dodson v. Kleffman, 84 Va. App.

174, 196-97 & nn.17-18 (2025) (Raphael, J., concurring). Although our appellate courts have not yet decided which date is correct, id., the choice does not matter here.

English cases before 1792 simply did not address whether solicitation could qualify as an

overt act for criminal attempt. English courts did not address that question until 1801, when the Court of King’s Bench upheld a defendant’s conviction for attempted theft based on the defendant’s having solicited a servant to steal “twist” from his master. Rex v. Higgins, 2 East 5, 102 Eng. Rep. 269 (K.B. 1801). The defendant argued that “[a] bare solicitation or incitement of another to commit an offence is not indictable, unless it be accompanied by some overt act towards carrying the intent into execution.” Id. at 6, 102 Eng. Rep. at 270. The Crown responded that “the incitement or solicitation is an act; it is an attempt to procure the commission of a felony by the agency of another person.” Id. at 11, 102 Eng. Rep. at 272. The court sided

with the Crown. Lord Kenyon wrote, “is there not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act.” Id. at 17, 102 Eng. Rep. at 274 (Kenyon, C.J.). Similarly, Justice Grose said that “in soliciting [the servant] to commit the felony, the defendant did an act towards carrying his intent into execution.

It is an endeavour or attempt to commit a crime.” Id. at 21, 102 Eng. Rep. at 275. Justice

Le Blanc agreed: “this is a charge of an act done; namely, an actual solicitation of a servant to rob his master.” Id. at 22-23, 102 Eng. Rep. at 276.

Since the common law of England before 1792 did not dictate that Virginia follow the English rule adopted in Higgins, our Supreme Court in 1889 was free to go its own way in Hicks.

Still, it is notable that Hicks adopted a position that, by that time, divided the States.

American courts before 1864 had decided criminal-attempt cases consistently with

Higgins, holding that solicitation could qualify as an act to support a criminal-attempt conviction.^[11] In the earliest case in that sequence, the Connecticut Supreme Court explained that

the “solicitation is an act.” State v. Avery, 7 Conn. 266, 270-71 (1828). In 1864, however, the Pennsylvania Supreme Court went the other way, holding that solicitation to commit adultery is not a criminal attempt; some further act was required. Smith v. Commonwealth, 54 Pa. 209, 214

(1864). Smith interpreted Higgins to be a case about only criminal solicitation, not criminal attempt. Id. at 211.