COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
RUDOLPH NATHANIEL WHITE
OPINION
v. Record No. 2427-95-1 BY JUDGE JOSEPH E. BAKER
DECEMBER 17, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
Samuel T. Powell, III, Judge
Mary Pettitt St. Jean for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Rudolph Nathaniel White (appellant) appeals from his bench
trial conviction by the Circuit Court of York County (trial
court) for rape of a fourteen and one-half-year-old female
(complainant). Appellant admitted having sexual intercourse with
complainant at the time charged in the indictment but contended
that it was consensual. Because the trial court found that the
sexual act did not occur by force, the sole issue on appeal is
whether it occurred "through the use of [complainant's] mental
incapacity" in violation of Code § 18.2-61. For the reasons that
follow, we reverse.
Code § 18.2-61 provides in relevant part:
Rape.--A. If any person has sexual
intercourse with a complaining witness who
is not his or her spouse or causes a
complaining witness, whether or not his or
her spouse, to engage in sexual intercourse
with any other person and such act is
accomplished (i) against the complaining
witness's will, by force, threat or
intimidation of or against the complaining
witness or another person, or (ii) through
the use of the complaining witness's mental
incapacity or physical helplessness, or
(iii) with a child under age thirteen as the
victim, he or she shall be guilty of rape.
(Emphasis added.) The General Assembly has defined "mental
incapacity" as follows:
"Mental incapacity" means that condition of
the complaining witness existing at the time
of an offense under this article which
prevents the complaining witness from
understanding the nature or consequences of
the sexual act involved in such offense and
about which the accused knew or should have
known.
Code § 18.2-67.10(3). Thus, to sustain the conviction in this
case, the Commonwealth was required to prove beyond a reasonable
doubt: (1) that the complainant was mentally incapacitated at the
time of the offense; (2) that her condition prevented the
complainant from understanding the nature and consequences of the
sexual act; and (3) that at the time of the offense appellant
knew or should have known of complainant's condition.
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
However, it is not sufficient that the facts and circumstances
proved be consistent with appellant's guilt; to sustain his
conviction, they must be inconsistent with every reasonable
hypothesis of his innocence. McCall v. Commonwealth, 192 Va.
422, 427, 65 S.E.2d 540, 542 (1951).
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Complainant testified that before the alleged rape, she had
never been to appellant's house nor had she ever talked to him.
She said that on this occasion, in a soft voice, appellant
invited her into his house, told her to sit on the bed, to "take
them off," and to lie on the bed. She further said that he told
her "it would not take long." In response to these requests by
appellant, leaving her shirt on, complainant took off the lower
part of her clothing, enabling appellant to place his "penis"
into her "vagina," after which he cautioned her "not to tell."
She further testified that she became pregnant but did not
realize that fact until eight months later, and then only when
she was told by her cousin. Complainant gave her age as fourteen
and one-half years at the time the sexual act occurred and
testified that she was in middle school. At trial, she said she
was sixteen years old and had advanced to high school. 1
When complainant returned home on the night of the alleged
rape, she saw her mother and grandmother but told neither about
her sexual encounter with appellant. Thereafter, on at least
twelve occasions, she visited appellant's house and engaged in
sexual intercourse with him. On another occasion, she went to
appellant's house to obtain cigarettes for her uncle.
Although the trial judge observed complainant at trial two
years after the sexual act occurred and listed his observation of
1
There is no evidence that she ever failed to progress from one
grade to the next higher grade.
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complainant as a reason to support his finding that, at the time
of the offense, complainant was "mentally incapacitated[]" as
required by Code § 18.2-67.10(3), the trial judge's observations
are not sufficient to prove beyond a reasonable doubt that
appellant was guilty of rape.
The indictment charged that in July 1993 appellant raped
complainant against her will "through the use of her mental
incapacity." The Commonwealth was required to prove beyond a
reasonable doubt that "at the time of the offense" complainant
was mentally incapacitated as defined in Code § 18.2-67.10(3).
The Commonwealth's evidence regarding complainant's mental status
two years after the offense is not evidence of complainant's
mental status "on or about July 1993."
A school psychologist testified that in October 1991, two
years prior to the offense, complainant was attending elementary
school. At that time, complainant was rated "at the upper end of
the educable mentally retarded range." The psychologist
attempted to state complainant's "achievement scores"; however,
he was prevented from giving that evidence by the prosecutor who
interrupted his testimony saying, "I think that's enough at this
point." The Commonwealth did not thereafter present any evidence
as to complainant's achievement scores either at the time of the
psychologist's evaluation or at the time of the alleged offense.
The record does show that in 1991 "relative to [complainant's]
chronological peers she was slightly below average," but
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"compared to other children her age [twelve when she was tested],
her scores in communication, daily living skills and
socialization domains were all well above the mentally retarded
range, with a strength in socialization skills, achievement,
overall adaptive behavior falling well within the low average
range." The record further shows that during the two-year period
after the act, complainant advanced with her peers from middle
school to high school.
The fact finder cannot infer from proof of
general mental incapacity or retardation or
an IQ range or mental age that a victim is
prevented or unable to understand the nature
and consequences of a sexual act, unless the
evidence proves that the victim lacks the
ability to comprehend or appreciate either
the distinguishing characteristics or
physical qualities of the sexual act or the
future natural behavioral or societal results
or effects which may flow from the sexual
act. The Commonwealth has the burden to
prove every element of the offense in order
to prove guilt beyond a reasonable doubt.
Adkins v. Commonwealth, 20 Va. App. 332, 346, 457 S.E.2d 382, 389
(1995).
We hold that this record fails to show beyond a reasonable
doubt that, at the time of the alleged rape, complainant suffered
from a mental incapacity that prevented her "from understanding
the nature or consequences of the sexual act involved in such
offense and about which [appellant] knew or should have known."
Code § 18.2-67.10(3).
Accordingly, for the reasons stated, we reverse the judgment
of the trial court and dismiss appellant from further prosecution
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thereon.
Reversed and dismissed.
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