Akeem Alee Calokoh v. Commonwealth of Virginia

Citation: Not availableDocket: 0226224

Court: Court of Appeals of Virginia; February 27, 2023; Virginia; State Appellate Court

Original Court Document: View Document

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Akeem Alee Calokoh was convicted of rape and sexual penetration with an animate object in Fairfax County, Virginia. He appealed on two grounds: the trial court's refusal to admit his school records and its ruling that Code 19.2-271.6 did not allow the jury to consider his intellectual disability when assessing whether he knowingly and intentionally engaged in non-consensual intercourse with the victim, S.F. The Court of Appeals affirmed the convictions, stating it viewed the facts favorably to the Commonwealth. The case details an incident from 2018 where S.F., after meeting Calokoh through a dating app, drove to Virginia to meet him. Following a series of interactions that included discussions about her mobility issues, Calokoh attempted to engage in sexual acts despite S.F.’s clear refusals. The situation escalated to physical violence, with Calokoh forcibly removing S.F.'s clothing and sexually assaulting her.

S.F. described a traumatic encounter with Calokoh, during which she felt trapped and prayed for it to end. After the incident, he followed her to the car, made possessive comments, and suggested they go to the movies. S.F. left after he entered his apartment and sought help at a gas station, where she found injuries on her body. She called 911, leading to a police response and a hospital visit. Calokoh later sent her texts suggesting sexual activity. Detective Cheetham arranged a controlled call, but Calokoh hung up when confronted. During the investigation, a gold earring matching S.F.’s was found, and a sexual assault examination revealed injuries and DNA evidence, with sperm found that matched Calokoh's profile. 

Calokoh initially denied any wrongdoing, providing inconsistent accounts of the events, while S.F. maintained her version. His mother testified about his learning difficulties and their impact on his behavior, but the court rejected the introduction of his school records as irrelevant. Calokoh admitted to having sex with S.F. but claimed it was consensual, asserting she did not resist or ask for money afterward. The Commonwealth objected to a forensic psychologist's testimony intended to establish diminished capacity, arguing it was irrelevant to Calokoh's intent during the offense.

The trial court permitted expert testimony limited to whether the defendant, Calokoh, knowingly and intentionally committed acts constituting rape. Dr. Hendricks, the expert, reviewed Calokoh’s school records but faced objections from the Commonwealth, which argued the records contained irrelevant information and hearsay. Calokoh contended the records were necessary to demonstrate his mental condition prior to age 18. The court declined to admit the records but allowed Dr. Hendricks to testify about information specifically related to Calokoh’s intellectual disability, which he affirmed based on evaluations rather than Individualized Education Programs (IEPs).

Dr. Hendricks explained that Calokoh could understand straightforward messages but struggled with mixed messages in social contexts. During jury instruction discussions, Calokoh argued for the inclusion of "knowingly and intentionally" in the instructions regarding rape and sexual penetration, asserting that the Commonwealth needed to prove these elements in relation to the victim's consent. The Commonwealth objected, stating that this language pertained only to the act of sex, not consent. The trial court refused to amend the model instructions but agreed to provide a separate instruction concerning a new statutory provision, Code 19.2-271.6.

Calokoh proposed three specific jury instructions emphasizing the necessity of proving his intent regarding the victim's consent. However, the trial court denied these instructions and instead accepted the Commonwealth’s Instructions 19 and 20, which allowed the jury to consider evidence of the defendant's mental condition to determine if he lacked the requisite intent for the charges of rape and sexual penetration.

Calokoh objected to jury instructions, claiming that the terms 'knowingly and intentionally' should apply to all elements of the charges, including the victim's consent. The trial court overruled this objection, clarifying that the issue of intellectual disability pertains to the act itself rather than consent. During deliberations, the jury inquired whether they could consider Calokoh's intellectual disability regarding the consent element, to which the court responded negatively. Calokoh was convicted of rape and sexual penetration and is now appealing, arguing that the newly enacted Code 19.2-271.6 provides an affirmative defense that allows for the consideration of intellectual disability in relation to all elements of the charges, including consent. He contends that the trial court erred by rejecting his proposed instructions and responding to the jury’s inquiry. 

The court noted that the decision to grant or deny jury instructions is at the trial court's discretion, while the interpretation of Code 19.2-271.6 is reviewed de novo. The court found that Code 19.2-271.6 is not an affirmative defense but rather an evidentiary rule that allows for the admission of evidence concerning the defendant's mental condition at the time of the offense, relevant to intent. The law, effective July 1, 2021, stipulates that such evidence must demonstrate that the defendant lacked the required intent and must adhere to general evidentiary rules. To establish a mental condition, the defendant must show it existed at the time of the offense and meets the diagnostic criteria for specified mental conditions.

Calokoh contends that Code 19.2-271.6 establishes an affirmative defense regarding intent, necessitating the defendant to present evidence of their disability to demonstrate a lack of knowing and intentional commission of the offenses. However, it is established that the Commonwealth bears the burden to prove every essential element of the offense beyond a reasonable doubt. The distinction between "case-in-chief defenses" and "affirmative defenses" is crucial; case-in-chief defenses challenge the prosecution's evidence, keeping the burden on the Commonwealth, while affirmative defenses require the defendant to produce evidence to support their claim. For example, a self-defense claim acknowledges that the act was intentional but seeks to justify it, imposing a burden on the defendant. Code 19.2-271.6 permits evidence of a defendant’s mental condition to show a lack of necessary intent for the offense but does not serve as an excuse or justification for criminal conduct. Instead, it functions similarly to a case-in-chief defense, where presenting evidence of a mental condition denies the requisite intent for the charged offense. Thus, the burden of proof remains with the Commonwealth, and Code 19.2-271.6 does not establish a new affirmative defense. This interpretation aligns with recent case law, confirming that the defendant's mental condition is part of the evidence considered in proving intent.

Code § 19.2-271.6 is an evidentiary rule that overrides the common law in Virginia regarding a criminal defendant's mental state. Previously, under common law, evidence of a defendant's mental state was irrelevant unless an insanity defense was raised, as defendants were presumed sane unless legally insane. The General Assembly amended this rule, allowing defendants to present evidence of their mental condition at the time of the offense, which can demonstrate a lack of intent required for the charged offense, even without invoking an insanity defense.

The statute does not change the fundamental elements of crimes such as rape and animate object sexual penetration. Rape is defined as sexual intercourse with a complaining witness against their will, achieved through force, threat, or intimidation. Similarly, animate object sexual penetration involves penetration against the will of the complaining witness. In both cases, the defendant's intent to commit the crime is distinct from the victim's consent; the intent is general, evidenced by the act itself, while the victim's lack of consent pertains to their mental state. The Supreme Court of Virginia emphasizes that the issues of the defendant's intent and the victim's consent must remain separate.

Object sexual penetration is analogized to rape under Code 18.2-61, making interpretations of this code relevant for understanding Code 18.2-67.2. Calokoh argues that Code 19.2-271.6 allows consideration of his intellectual disability in assessing the victim's consent. He claims the Commonwealth must prove he acted without the victim's consent knowingly and intentionally. However, the language of Code 19.2-271.6 does not indicate any intent to alter the elements of rape or other criminal offenses. Instead, it introduces evidence of a defendant’s mental condition at the time of the offense to challenge the Commonwealth’s evidence of intent, without changing the intent requirement for any crimes.

Code 19.2-271.6 applies broadly to all criminal cases and does not amend the intent elements of offenses like rape or animate object penetration. The trial court correctly denied Calokoh’s jury instructions and affirmed that evidence of his mental condition could not be used to determine victim consent.

Regarding the admissibility of Calokoh’s school records, which included psychological evaluations and IEPs, the trial court did not abuse its discretion by refusing to admit them. Calokoh argues that his expert relied on these records to demonstrate his intellectual disability, which is relevant under Code 19.2-271.6. However, precedent established in Simpson v. Commonwealth emphasizes that expert opinions must be based on evidence, not on facts outside the record. Therefore, the records' exclusion did not constitute an error in the court's ruling.

The legal document addresses the admissibility of documents related to expert witness testimony, clarifying that while expert testimony may be admissible, the underlying evidence the expert relies upon must also meet admissibility standards. In this case, the trial court found much of the school records irrelevant, as they did not contribute to proving whether Calokoh had an intellectual disability. Relevant evidence is defined as that which makes the existence of a fact in issue more or less probable. Calokoh's argument centered on the necessity to prove the intellectual disability existed before age eighteen, which did not counter the trial court's ruling on the relevance of the records. Dr. Hendricks, the expert, also acknowledged that not all parts of the school records were pertinent, specifically stating he did not rely heavily on Individualized Education Programs (IEPs). The trial court allowed Dr. Hendricks to testify only about relevant portions of the records concerning Calokoh's intellectual disability and its impact on decision-making. Calokoh's appeal did not effectively challenge the trial court's relevance determination regarding the school records. Consequently, the court affirmed Calokoh's convictions, concluding that the trial court did not abuse its discretion in excluding the school records.