Adkins v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Barrow * , Coleman and Senior Judge Hodges
Argued at Salem, Virginia

ROBERT VINCENT ADKINS

v. Record No. 1862-93-3 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA MAY 16, 1995

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Lawrence D. Gott (Office of the Public Defender,
on brief), for appellant.

Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.

Robert Adkins was convicted, in a bench trial, of rape for

having had sexual intercourse with a person, not his spouse,

through the use of her mental incapacity in violation of

Code § 18.2-61(A)(ii). The trial judge sentenced Adkins to

twenty years in the penitentiary.

On appeal, Adkins contends that the trial judge erred by

admitting evidence of a doctor's "opinion" as to the victim's IQ.

He argues that the doctor should not have been permitted to give

an opinion because it was not based on IQ test results that had

been admitted into evidence or upon tests administered by him.

Adkins further contends that the evidence is insufficient to

support a conviction for rape under Code § 18.2-61(A)(ii). We
*
Judge Bernard G. Barrow participated in the hearing and
decision of this case and joined in the opinion prior to his
death.
hold that the trial court did not err by permitting the doctor to

testify concerning the complaining witness's IQ. However,

because the Commonwealth's evidence failed to prove that the

defendant had sexual intercourse with the victim "through the use

of [her] mental incapacity," we reverse the conviction.

We will refer to the victim as Teresa. At the time of the

charged offense, Teresa was sixteen years old and lived with her

parents in Danville. She was in the eighth grade in the Danville

public school system. Doctors at the Medical College of Virginia

had diagnosed Teresa, at age three, as being mentally retarded.

Over the ensuing years, her IQ test scores had ranged between

fifty-eight and seventy.
Prior to the date of the charged offense, Teresa had met

Adkins at a local mall. When they met, Teresa exchanged

telephone numbers with him. She recorded his telephone number in

an address book that she kept.

At the time of the charged offense, Adkins was twenty-seven

years old and lived in an apartment with his father. According

to the testimony of Adkins' sister, she received his social

security check because he is not capable of handling his own

money.

One day before the charged offense, Teresa's mother heard

Teresa talking with Adkins on the telephone. The mother took the

telephone from Teresa and told Adkins, "Teresa is mentally

retarded. Leave her alone."

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 On the day of the charged offense, Teresa's mother went

shopping, leaving Teresa at home. Teresa knew that her mother

did not want her to talk with or to see Adkins. Nevertheless,

Teresa called Adkins and asked him to pick her up at a mini-

market near her home. She left a note telling her mother that

she had gone to the mini-market. Adkins met Teresa, and they

went to the apartment where he and his father lived. At the

apartment, they watched television, had sexual intercourse, ate

dinner, had intercourse a second time, and then fell asleep.
When Teresa's mother returned and could not locate Teresa,

she notified the Danville police. Based upon information from

Teresa's parents, the Danville police found Teresa and Adkins

late that evening, hiding in his apartment. Teresa said she was

hiding because she did not want to go home. Later, Adkins signed

a written statement admitting that he had had sexual intercourse

with Teresa.

At trial, Teresa's mother testified that Teresa is mentally

retarded, but that she knows how to take care of herself, how to

call 911, and how to go shopping. The mother testified that she

had explained to Teresa the consequences of having sexual

intercourse and that Teresa at least partially understood these

discussions.

Teresa testified that when she first met Adkins at the mall,

she did so on her own initiative, at which time she gave him her

telephone number. She testified that she knew her mother did not

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want her to see Adkins, but she did so anyway. She testified

that on the day of the charged offense, she called Adkins with

the idea of having sex with him, and she asked him to meet her.

Teresa testified that while at Adkins' apartment, she "made

love" with him twice. She said it was "mostly" her idea to have

sex, and she told Adkins that she was eighteen. When asked about

the consequences of having sexual intercourse, she testified,

"you could catch AIDS" and "you get pregnant."
James Pickens Culbert, PhD, a licensed clinical

psychologist, was qualified as an expert witness. He testified

that he had treated Teresa since she was seven years old, during

which time he had tested her mental capacity and intellectual

development. Based on IQ tests that had been administered to

Teresa by Dr. Culbert's assistants, he testified that Teresa's IQ

was fifty-nine, that her mental age was 10.4 years, and that her

IQ range was determined to be between fifty-eight and seventy.

Adkins objected to Dr. Culbert's testimony on the ground that he

was giving an expert opinion that was not based on facts or test

results admitted in evidence or that were personally known to

Dr. Culbert. Adkins did not testify.

I. EXPERT OPINION EVIDENCE

For this opinion, we accept the parties' contention that

Dr. Culbert's testimony as to Teresa's IQ is an expert's opinion.

Because Dr. Culbert's opinion as to Teresa's IQ was based upon

his personal knowledge of Teresa as her long-time treating

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psychologist and because his knowledge of the test results was

based upon tests administered by persons directly under his

supervision and control, we hold that Dr. Culbert's opinion as to

Teresa's IQ was admissible.

The Commonwealth bore the burden of proving beyond a

reasonable doubt that Adkins had sexual intercourse with Teresa

"through the use of [her] mental incapacity."

Code § 18.2-61(A)(ii). In an effort to prove that Teresa was

mentally incapacitated, the Commonwealth introduced the testimony

of Dr. Culbert, who had treated and tested Teresa since childhood

concerning her mental and intellectual functioning.
Code § 8.01-401.1 provides:
In any civil action any expert witness may
give testimony and render an opinion or draw
inferences from facts, circumstances or data
made known to or perceived by such witness at
or before the hearing or trial during which
he is called upon to testify. The facts,
circumstances or data relied upon by such
witness in forming an opinion or drawing
inferences, if of a type normally relied upon
by others in the particular field of
expertise in forming opinions and drawing
inferences, need not be admissible in
evidence.

Cf. Fed. R. Evid. 703 and 705. In criminal cases, however, the

Supreme Court has expressly refused to adopt such a broad rule of

admissibility for expert testimony. See Simpson v. Commonwealth,

227 Va. 557, 566, 318 S.E.2d 386, 391-92 (1984).

The Court said in Simpson:
The General Assembly, in 1982, enacted
Code § 8.01-401.1 which essentially adopts
the foregoing provisions [Rules 703 and 705]

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 of the Federal Rules of Evidence. That
statute's application is expressly limited to
"any civil action." We regard this
limitation as a clear expression of
legislative intent to retain the historic
restrictions upon expert testimony in
criminal cases in Virginia.

Simpson, 227 Va. at 566, 318 S.E.2d at 391 (citation omitted).

The traditional rule for admissibility of opinion evidence, which

continues to apply in criminal cases, is that "[a]n expert may

give an opinion based upon his own knowledge of facts disclosed

in his testimony or he may give an opinion based upon facts in

evidence assumed in a hypothetical question." Walrod v.

Matthews, 210 Va. 382, 388, 171 S.E.2d 180, 185 (1969).

Adkins contends that, by applying the foregoing standard to

Dr. Culbert's opinion as to Teresa's IQ, the opinion was

inadmissible. Adkins posits that the underlying tests

administered to Teresa which provided Dr. Culbert with the

results to formulate his opinion were not personally administered

by the doctor and, therefore, were not "based upon his own

knowledge of facts," and the test results had not been admitted

into evidence. We disagree with the defendant's contentions as

to what is required in order for facts to be within the personal

knowledge of an expert witness.

Dr. Culbert testified that Teresa had been his patient since

she was seven years old. He had examined her on five occasions—

at ages seven, ten, eleven, thirteen, and fifteen. The purpose

of the examinations was to determine Teresa's intellectual

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functioning. Dr. Culbert testified that on those occasions, his

assistants administered intellectual functioning tests to Teresa,

and they provided him with the results and test scores. He then

conducted an independent examination of Teresa, including a

personal interview with her and her parents. Thereafter, Dr.

Culbert applied to the test results and the facts personally

known to him about Teresa accepted and established procedures and

standards in the field for determining Teresa's intellectual

functioning. Based upon those standards, Dr. Culbert gave his

opinion as to Teresa's IQ and relative mental age. His opinion

was based upon his personal knowledge of the test results and

upon facts that he knew personally about Teresa.
Unlike the situations in Toro v. City of Norfolk, 14 Va.

App. 244, 416 S.E.2d 29 (1992), and Mead v. Belcher, 212 Va. 796,

188 S.E.2d 211 (1972), relied upon by Adkins, where test results

and procedures were neither in evidence nor personally known to

the witness, the tests administered to Teresa were under

Dr. Culbert's direct supervision and control. He had personal

knowledge of or access to the specific testing procedures that

had been used, and he knew how the results were determined and

how he had used them to formulate his opinion. From this

knowledge, Adkins could have effectively cross-examined

Dr. Culbert and could have required him to explain how he formed

an opinion as to Teresa's IQ and mental age.

The admissibility of expert witness evidence is within the

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sound discretion of the trial court, and the decision will not be

disturbed on appeal unless the trial court has clearly abused its

discretion. Thorpe v. Commonwealth, 223 Va. 609, 614, 292 S.E.2d

323, 326 (1982). The trial judge did not abuse his discretion by

admitting Dr. Culbert's opinion as to Teresa's IQ and mental age;

therefore, we affirm the trial court's ruling.

II. SUFFICIENCY OF EVIDENCE

When the sufficiency of the evidence is challenged on

appeal, "it is our duty to consider [the evidence] in the light

most favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom." Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The

trial court's judgment will not be reversed unless it is plainly

wrong or without evidence to support it. Code § 8.01-680;

Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520,

524 (1993).

Code § 18.2-61(A) provides that "[i]f any person has sexual

intercourse with a complaining witness who is not his or her

spouse . . . and such act is accomplished . . . (ii) through the
use of the complaining witness's mental incapacity . . . he or

she shall be guilty of rape." (emphasis added). "Mental

incapacity" is defined as "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

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and about which the accused knew or should have known."

Code § 18.2-67.10 (emphasis added).

The elements necessary to constitute a crime are generally

to be gathered from the definition of the crime. Commonwealth v.

Callaghan, 4 Va. (2 Va. Cas.) 460, 462 (1825). The Commonwealth

has the burden of proving beyond a reasonable doubt each and

every element of the charged crime. Powers v. Commonwealth, 211

Va. 386, 388, 177 S.E.2d 628, 629 (1970).
Adkins concedes that the evidence proved beyond a reasonable

doubt that he had sexual intercourse with Teresa, who was not his

spouse. However, the critical question is whether the evidence

proved that he "accomplished" the act of sexual intercourse with

her "through the use of" her "mental incapacity." His argument

is twofold: first, he contends that "mental incapacity," for

purposes of Code § 18.2-61(A)(ii), has a more particularized

meaning than diminished mental capacity in general, requiring the

Commonwealth to prove specifically that the victim did not

understand the nature and consequences of sexual intercourse;

second, he contends that the Commonwealth must prove that he in
some way used or took advantage of Teresa's mental incapacity in

order to "accomplish" the act of sexual intercourse with her.

The legislative purpose of Code § 18.2-61(A)(ii) is to

protect persons who are mentally impaired or retarded from being

sexually exploited due to their mental incapacity. See State v.
Ortega-Martinez, 881 P.2d 231, 236 (Wash. 1994) (explaining the

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legislative purpose of a similar statute). However, such

statutes must not be interpreted and applied in a manner that

creates an unintended rule that would prohibit all mentally

impaired or retarded persons from engaging in consensual sexual

intercourse without having their partners commit a felony. 1 See

State v. Olivio, 589 A.2d 597, 604 (N.J. 1991) (expressing

concern about "unenlightened attitudes toward mental impairment

and about the importance of according the mentally handicapped

their fundamental rights"). By specifically defining mental

incapacity, the legislature has chosen to protect those mentally

deficient persons whose mental condition prevents them from

"understanding the nature and consequences of the sexual act

involved." Code § 18.2-67.10(3).
Thus, in order to convict a person of violating

Code § 18.2-61(A)(ii), the Commonwealth must prove that the

victim was "mentally incapacitated" as defined in

Code § 18.2-67.10(3), which means that the person does not

understand "the nature and consequences of the sexual act

involved."

Some jurisdictions have interpreted and applied similar

statutory requirements narrowly by requiring the state to prove

that the victim was incapable of comprehending the "distinctively
1
Although not a felony, consensual sexual intercourse
between adults who do not have a "mental incapacity" as defined
by Code § 18.2-67.10(3) is fornication, a Class 4 misdemeanor,
Code § 18.2-344, a conviction for which is punishable by a fine
of not more than $250.

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sexual nature of the conduct." See Olivio, 589 A.2d at 599. See

also K.H. Carson, Rape or Similar Offense Based on Intercourse

With Woman Who Is Allegedly Mentally Deficient, 31 A.L.R. 3d 1227

(1970) (discussing the treatment of mental incapacity in similar

rape statutes). Other jurisdictions have interpreted similar

statutes more broadly, requiring the state to prove only that the

victim did not understand the physiological, social, and moral

ramifications of his or her actions. See People v. Easley, 364

N.E.2d 1328, 1332 (N.Y. 1977) (stating that being able to

"appraise" the nature of conduct means an "appreciation of how it

will be regarded in the framework of the societal environment and

taboos to which a person will be exposed"). See also People v.

McMullen, 414 N.E.2d 214, 217 (Ill. App. Ct. 4th 1980) (stating

that the victim was unable to understand how "illicit sexual

activity is regarded by other people").

While the interpretations that other jurisdictions have

given similar statutes are instructive, they are not controlling.

Code § 18.2-61(A)(ii) does not leave solely to judicial

interpretation the defined class of persons protected by the

statute. To the extent that we must interpret the meaning of the

statutory language—"understanding the nature and consequences of

the sexual act"—we construe it strictly against the Commonwealth,

because the statute is penal in nature, and limit its application

to cases falling clearly within its ambit. Turner v.
Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).

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 A person suffers from a "mental incapacity" within the

meaning of the statute if he or she has a mental "condition" that

"prevents" the person from being able to "understand" either the

"nature" or "consequences" of engaging in sexual intercourse. To

"understand" is "to grasp the meaning of[; to] comprehend,"

Webster's Third New International Dictionary 2490 (1986) or "to

know; to apprehend the meaning; to appreciate." Black's Law

Dictionary 1526 (6th ed. 1990). See State v. Johnson, 745 P.2d

81 (Ariz. 1987) (en banc) (discussing the meaning of "to

understand"). "Nature" is defined as the "normal and

characteristic quality . . . of something," "the distinguishing

qualities or properties of something." Webster's Third New

International Dictionary 1507 (1986). "Consequence" is defined

as "something that is produced by a cause or follows from a form

of necessary connection or from a set of conditions: a natural or

necessary result." Id. at 482.

To "know, apprehend, or appreciate" the "nature and

consequences" of sexual intercourse can range from a simple

understanding of how the act of coitus is physically accomplished

together with an understanding that a sensation of pleasure may

accompany the act, to a thorough and comprehensive understanding

of the complex psychological and physiological "nature" of "the

sexual act involved" and that, aside from immediate

gratification, the act may have dire familial, social, medical,

physical, economic, or spiritual consequences.

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 Manifestly, the legislature did not intend to include as

part of the protected class of people under Code § 18.2-61(A)(ii)

those whose mental impairment or handicap may prevent them from

comprehending the more complex aspects of the nature or

consequences of sexual intercourse, but who, nevertheless, have

the mental capacity to have a basic understanding of the

elementary and rudimentary nature and consequences of sexual

intercourse. Not all persons who are mentally retarded or

handicapped need the special protection of Code § 18.2-61(A)(ii).

The range of intellectual functioning among the mentally

impaired and mentally retarded varies widely. The statute was

not designed to unfairly punish the sexual partners of those

mentally impaired or mentally retarded persons who have a basic

understanding of the act and consequences of sexual intercourse

and are capable of making a volitional choice to engage or not

engage in such conduct.
The commentary of the Supreme Court of New Jersey

interpreting a similar statute is noteworthy:
The statutory concept of ["mental
incapacity"] implicates both the intellectual
or cognitive capacity and the volitional or
consensual capacity of the individual with
respect to personal sexual activity. The
consensual capacity involves knowing that
one's body is private and is not subject to
the physical invasions of another, and that
one has the right and ability to refuse to
engage in sexual activity. The cognitive
capacity, which is also implicit in the
notion of consensual capacity, involves the
knowledge that the conduct is distinctively
sexual.

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Olivio, 589 A.2d at 604-05.

When a mentally impaired or mentally retarded person has

sufficient cognitive and intellectual capacity to comprehend or

appreciate that he or she is engaging in intimate or personal

sexual behavior which later may have some effect or residual

impact upon the person, upon the person's partner, or upon

others, then the person does not have a "mental incapacity"

within the meaning of the statute. If a person is mentally

incapacitated but, nevertheless, has the capacity to understand

the nature and consequences of the sexual act, which

understanding includes the capacity to make a volitional choice

to engage or not engage in such act, then that person's sexual

partner has not violated the rape statute merely because a

mentally impaired person has made an unwise decision or has

chosen to be sexually active.
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.

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 In this case, the Commonwealth presented testimony of

Dr. Culbert, an expert witness; the victim's mother; and the

victim. Dr. Culbert testified that the victim had an IQ of

fifty-nine and a mental age of 10.4 years. He did not relate her

IQ or her mental age to her capacity to understand the nature or

consequences of sexual intercourse, particularly her capacity to

make a volitional choice. On cross-examination, Dr. Culbert

stated that although he measured her IQ and general intellectual

capacity, he did not know whether Teresa understood or could use

words like "penis" and "vagina," because he does not test such

knowledge. Teresa's mother testified that Teresa is "severe[ly]

mentally retarded."
When Teresa testified, she stated, on cross-examination,

that she "made love" to the appellant, that she knew that she

could get pregnant from "making love" and could catch AIDS, that

she had had sex education classes in school, and she used the

words "penis" and "vagina" when describing the act of sexual

intercourse. The Commonwealth did not explore the extent to

which she knew or understood the significance of these words or

engaging in sexual intercourse. No attempt was made to prove

that Teresa may have been superficially mouthing these words to

describe what had happened to her or to explain that she did not

understood the nature and consequences of her actions. In fact,

her testimony shows that she was the person who conceived the

notion of having sexual intercourse with Adkins and initiated the

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sexual liaison between them.

We recognize that a person may passively or suggestively

take advantage of a mentally retarded or incapacitated

individual; however, the fact that a victim may have diminished

mental capacity does not relieve the Commonwealth of its burden

of proving that the "mental incapacity" is that defined by

Code § 18.2-67.10(3). We, therefore, find that the Commonwealth

failed to meet its burden.
Adkins also contends that the evidence failed to prove an

additional element of the offense—that he "accomplished" having

sexual intercourse with Teresa "through the use of" her mental

incapacity. He argues that the evidence failed to show that he

knowingly used or took advantage of her incapacity in order to

accomplish the act of sexual intercourse. His argument would

have us address whether he could have "accomplished" the result

by knowingly taking advantage of a condition through passive

conduct. However, because we find the evidence insufficient to

prove that Teresa had a mental incapacity as defined in the

statute, we do not address this contention. For the foregoing

reasons, we reverse the conviction and dismiss the indictment.

Reversed and dismissed.

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