883 S.E.2d 674
Va. Ct. App.2023Background
- Appellant Akeem Calokoh was convicted of rape (Code § 18.2-61) and sexual penetration with an animate object (Code § 18.2-67.2) after an incident in Fairfax County where the victim reported use of force, physical injuries, and DNA evidence linking the defendant.
- At trial Calokoh admitted intercourse but asserted the encounter was consensual; the Commonwealth presented physical injuries, swabs with sperm/DNA, and post-incident texts from Calokoh.
- Calokoh’s mother and a forensic psychologist testified that he has an intellectual disability and special-education history; the defense sought admission of school records (psychological evaluations/IEPs) used by the expert.
- The trial court allowed Dr. Hendricks to testify about the defendant’s intellectual disability and how it might affect his perception of social cues, but excluded the bulk of the school records and limited the documents admitted as bases for the expert’s opinion.
- The defense requested jury instructions treating Code § 19.2-271.6 as creating an affirmative defense requiring proof that the defendant “knowingly and intentionally” committed every element (including lack of consent); the court refused those instructions, gave alternative instructions, and answered a jury question that the jury may not consider intellectual disability with respect to the consent element.
- On appeal the Court of Appeals affirmed, addressing (1) the scope/effect of Code § 19.2-271.6 and (2) admissibility of the school records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Code § 19.2-271.6 creates an affirmative defense or otherwise allows a jury to consider a defendant’s intellectual disability as to all elements of rape/penetration (including consent) | Commonwealth: § 19.2-271.6 is an evidentiary rule that makes mental-condition evidence admissible to challenge the intent required for the offense; it does not create an affirmative defense or change offense elements | Calokoh: § 19.2-271.6 creates a new affirmative defense or statutory change requiring proof that he "knowingly and intentionally" committed each element, so disability may negate consent as well | Held: § 19.2-271.6 is an evidentiary rule abrogating the common-law bar to diminished-capacity evidence; it is not an affirmative defense and does not alter the elements of rape. Intellectual disability may be considered as to the defendant’s intent (the act) but not to negate the victim’s consent element |
| Whether the trial court abused its discretion by excluding Calokoh’s school records relied upon by the defense expert | Commonwealth: records contained irrelevant information and hearsay; much of the records were not probative of the statutory issues | Calokoh: records were necessary to prove an intellectual disability existing before age 18 and were proper bases for the expert under Va. R. Evid. 2:703 | Held: No abuse of discretion. The expert was permitted to testify about the materials he relied on and the disability; reliance alone does not automatically render underlying records admissible, and the court reasonably excluded irrelevant portions |
Key Cases Cited
- Commonwealth v. Minor, 267 Va. 166 (2004) (distinguishes defendant’s intent to commit acts from victim’s consent; intent to have intercourse without consent is not a separate specific intent requirement)
- Gonzales v. Commonwealth, 45 Va. App. 375 (2005) (rape requires general intent manifested by committing the act; lack of consent pertains to victim’s state)
- Stamper v. Commonwealth, 228 Va. 707 (1985) (common-law rule precluding evidence of diminished capacity absent insanity)
- Simpson v. Commonwealth, 227 Va. 557 (1984) (expert testimony in criminal cases must be based on facts in evidence; but reliance by an expert does not automatically admit underlying documents)
- Schmul v. Commonwealth, 69 Va. App. 281 (2018) (discusses the prior common-law exclusion of mental-state evidence short of an insanity defense)
- Williams v. Commonwealth, 57 Va. App. 341 (2010) (burden remains on Commonwealth to prove every element beyond a reasonable doubt)