348 Ga. App. 643
Ga. Ct. App.2019Background
- Victim met Wilbert Smith weeks before incident; Smith repeatedly asked to be "more than friends."
- On Jan. 21–22, 2016 Smith rented the victim a hotel room, later returned early morning with a gun and a box-cutter–style knife, forced the victim to remove clothing, put fingers inside her vagina, and removed his own pants before police interrupted.
- Police observed a naked woman behind Smith and heard the victim mouth "help me"; officers recovered a box-cutter–style knife, a gun holster, condoms, lubrication, and male enhancement pills; no gun was recovered.
- Grand jury indicted Smith on two counts of aggravated assault (with a gun and with a box cutter), criminal attempt to commit rape, false imprisonment, and simple battery.
- Jury acquitted Smith of both aggravated-assault counts but convicted him of criminal attempt to commit rape, false imprisonment, and simple battery; Smith received a 40-year sentence (10 on probation).
- Smith appealed, arguing (1) the guilty attempt-to-rape verdict is repugnant/inconsistent with acquittals on aggravated assault counts, and (2) trial counsel was ineffective for failing to challenge the verdict on that ground.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the guilty verdict for criminal attempt to commit rape is repugnant/inconsistent with acquittals on aggravated-assault counts | Smith: Acquittal on aggravated assault (use of gun/box cutter) cannot logically coexist with conviction for attempt to rape based on same facts; verdict is repugnant/inconsistent | State: Inconsistent-verdict rule has been abolished; repugnant-verdict doctrine (as formerly applied) is overruled; aggravated assault and attempt-to-rape are distinct offenses with different elements | Court: Rejects repugnant/inconsistent challenge — inconsistent-verdict rule abolished (Milam); Wiley overruling via Blevins controls; offenses are distinct and jury may convict/acquit differently without reversal |
| Whether trial counsel was ineffective for not moving to set aside verdict as repugnant | Smith: Counsel deficient for failing to move to set aside convict for attempt to rape on repugnancy grounds; prejudiced by failure | State: Any motion would be meritless; failing to pursue meritless motion is not ineffective assistance | Court: Rejects ineffective-assistance claim — no deficiency or prejudice because repugnancy challenge lacks merit (Strickland standard not met) |
Key Cases Cited
- Milam v. State, 255 Ga. 560 (abolishing inconsistent-verdict rule in criminal cases)
- Carter v. State, 298 Ga. 867 (explaining reasons courts should not inquire into jury deliberations for inconsistent verdicts)
- Blevins v. State, 343 Ga. App. 539 (en banc) (overruling Wiley and applying Milam reasoning to repugnant-verdict claims)
- Strickland v. Washington, 466 U.S. 668 (establishing ineffective-assistance two-prong test)
- Wiley v. State, 124 Ga. App. 654 (earlier definition of repugnant verdict, later overruled)
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- Sanders v. State, 245 Ga. App. 561 (noting consistency in verdicts is not required)
- Brewster v. State, 261 Ga. App. 795 (elements of criminal attempt)