Criminal: Attempted incest of grandchild conviction is reversed

Where the evidence showed the defendant intended to engage in sexual intercourse with his granddaughter, but he did not commit an action that went beyond mere preparation, his conviction for attempted incest was reversed.

Background

Following a jury trial, the circuit court convicted Ray Allen Atkins of attempted incest with his “own child or grandchild.”

Analysis

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. “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.”

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.

Reversed.

Concurring opinion

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. 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 Atkins surely solicited his granddaughter for sex, our caselaw makes clear that solicitation alone will not satisfy the overt-act requirement for criminal attempt.

            Atkins v. Commonwealth, Record No. 0684-24-4, Aug. 12, 2025. CAV (Frucci). From the Circuit Court of Page County (Ritchie).  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. VLW 025-7-214. 15 pp.