The trial court correctly told the jury at appellant’s rape trial that it could not consider his intellectual disability in relation to the victim’s consent.
A new diminished capacity statute does not require the commonwealth to prove “that he knowingly and intentionally acted without the victim’s consent.”
The commonwealth charged appellant Calokoh with the rape and object penetration of S.F., who he met using an online dating site.
“At the conclusion of the evidence, the parties discussed the jury instructions with the trial court.
“Calokoh argued that Code § 19.2-271.6 created a new affirmative defense, and he argued that in addition to the other elements, the Commonwealth had to prove that Calokoh ‘knowingly and intentionally’ acted against the victim’s will and without her consent.
“He asked that the words ‘knowingly and intentionally’ be inserted into the model jury instructions for rape and animate object sexual penetration.
“The Commonwealth objected, both to alteration of model instructions and because ‘knowingly and intentionally’ applied only to the act of having sex, not the consent aspect.” The court did not amend the instructions as requested.
“Calokoh offered three new instructions: I, J, and K. Proposed instruction I stated that the commonwealth had to prove defendant “‘committed the elements of rape and animate object sexual penetration knowingly and intentionally.’”
Instruction J provided that “if you have a reasonable doubt as to whether the defendant knowingly and intentionally had sexual intercourse with [S.F.] against her will and without her consent, by force, threat or intimidation, you shall find the defendant not guilty.”
Instruction K provided the same instruction regarding object penetration. The court refused these instructions.
Instead, the trial court granted Commonwealth’s Instructions 19 and 20, “which stated, ‘You may consider evidence of defendant’s mental condition if it tends to show the defendant did not have the requisite intent at the time of offense.
“Intent is established upon proof that the accused knowingly and intentionally committed the acts constituting elements one (1) [sexual intercourse with the victim] and three (3) [accomplished with force, threat or intimidation” of rape (Instruction 19) and object sexual penetration (Instruction 20). …
“In overruling Calokoh’s objection to those instructions, the trial court stated, ‘Element 2 is consent. You can certainly argue that factually they should believe him and not her and that she did not consent.
“‘But the issue about whether his intellectual disability is a defense really only goes to, it says the act. And then the only acts that are mentioned here are 1 and 3.’”
The jury began deliberating. On the second day, “the jury sent the trial court a question. It read, ‘Reading instruction #19, in relation to instruction #10, can the Court clarify whether or not we may consider the Defendant’s intellectual disability in relation to the #2 element of the rape charge (ie: whether he believed she had consented)?’
“After discussion with the parties, and over Calokoh’s continuing objection, the trial court responded, ‘No, you may not consider Defendant’s intellectual disability in relation to element #2.’”
Calokoh appeals his convictions.
“Calokoh argues that newly enacted Code § 19.2-271.6 creates an affirmative defense, allowing him to present evidence of an intellectual disability to challenge whether he had the intent necessary to commit the offenses charged. …
“Code § 19.2-271.6 makes evidence of a defendant’s mental condition relevant if it ‘tends to show the defendant did not have the intent required for the offense charged’ and it ‘is otherwise admissible pursuant to the general rules of evidence.’
“The statute also sets out what the defendant must show to ‘establish the underlying mental condition.’ … But unlike an affirmative defense, Code § 19.2-271.6 does not provide individuals with a qualifying mental condition ‘an excuse or justification for what would otherwise be criminal conduct.’ …
“Instead, Code § 19.2-271.6 is an evidentiary rule that abrogates the common law. Prior to the passage of Code § 19.2-271.6, Virginia adhered to the common law rule, which meant that ‘evidence of a criminal defendant’s mental state at the time of the offense [was], in the absence of an insanity defense, irrelevant to the issue of guilt.’ …
“Code § 19.2-271.6 expressly changed that rule, and it allows evidence ‘of the defendant’s mental condition at the time of the alleged offense’ – even if it falls short of insanity – if it ‘tends to show the defendant did not have the intent required for the offense charged’ and is otherwise admissible under the rules of evidence.
“Therefore, a defendant may now raise an insanity defense, or, short of that, satisfy the requirements of Code § 19.2-271.6. Thus, rather than create a new affirmative defense, Code § 19.2-271.6 permits defendants to introduce evidence of a mental condition that previously would not have been permitted under the common law. …
“Calokoh contends that Code § 19.2-271.6 supersedes [Commonwealth v. Minor, 267 Va. 166, 173 (2004) and Gonzales v. Commonwealth, 45 Va. App. 375, 382 (2005) (en banc)] and allows the factfinder to consider the defendant’s intellectual disability as it relates to the victim’s consent.
“He contends that the statute means the Commonwealth must prove that he knowingly and intentionally acted without the victim’s consent.
But nothing in the plain language of Code § 19.2-271.6 indicates an intent to change the elements of rape or any other criminal offense. …
“Code § 19.2-271.6 provides that evidence of a defendant’s mental condition at the time of the alleged offense is relevant if it “tends to show the defendant did not have the intent required for the offense charged.” (Emphasis added).
“There is no indication that the General Assembly intended to alter or change the elements of rape or animate object penetration.”
Calokoh v. Commonwealth, Record No. 0226-221-41, Feb. 28, 2023. CAV (published opinion) (AtLee Jr.). From the Circuit Court of Fairfax County (Gardiner). Corinne J. Magee for appellant. Lindsay M. Brooker, Jason S. Miyares for appellee, VLW 023-7-093, 16 pp.