Akeem Alee Calokoh v. Commonwealth of Virginia ( 2023 )


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  •                                           COURT OF APPEALS OF VIRGINIA
    Present: Judges Humphreys, Huff and AtLee
    PUBLISHED
    Argued by videoconference
    AKEEM ALEE CALOKOH
    OPINION BY
    v.     Record No. 0226-22-4                                  JUDGE RICHARD Y. ATLEE, JR.
    FEBRUARY 28, 2023
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
    Richard E. Gardiner, Judge
    Corinne J. Magee (The Magee Law Firm, on brief), for appellant.
    Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares,
    Attorney General, on brief), for appellee.
    Appellant Akeem Alee Calokoh appeals his convictions for rape, in violation of Code
    § 18.2-61, and sexual penetration with an animate object, in violation of Code § 18.2-67.2.
    Calokoh argues that the trial court erred by refusing to admit his school records. He also argues
    that the trial court erred by ruling that Code § 19.2-271.6 did not permit the jury to consider his
    intellectual disability when considering whether he “knowingly and intentionally had intercourse
    with the complaining witness against her will, and without her consent.” For the following
    reasons, we disagree and affirm.
    I. BACKGROUND
    “On appeal of criminal convictions, we view the facts in the light most favorable to the
    Commonwealth, and [we] draw all reasonable inferences from those facts.” Johnson v.
    Commonwealth, 
    73 Va. App. 393
    , 396 (2021) (alteration in original) (quoting Payne v.
    Commonwealth, 
    65 Va. App. 194
    , 198 (2015)). So viewed, the facts are as follows.
    In 2018, S.F., a woman from Martinsburg, West Virginia, met Calokoh on a dating app
    called “Scout.” The pair exchanged phone numbers, and they spoke on the phone and texted
    prior to meeting in person. During their first text conversation, Calokoh asked S.F. if she wanted
    to “chill” and said she could spend the night with him. S.F. asked Calokoh if he was “just trying
    to hook up” and told him that it was not going to happen. Calokoh suggested they meet the
    following day, and they made plans to go out to eat and see a movie.
    The following morning, S.F. drove from West Virginia to Fairfax County, Virginia.
    When she arrived, Calokoh asked her if she would take him to get cigarettes. She agreed and
    drove to the store. After Calokoh got the cigarettes, he offered to drive, and S.F. agreed and got
    into the passenger seat. Her car had a disabled parking placard, and while in the car, they
    discussed S.F.’s mobility issues. S.F. explained that she had “drop foot,” a condition caused by
    nerve damage, where her foot would “just drop whenever it wants to drop” causing her to trip
    and fall, meaning she could not walk fast or run.
    Calokoh did not drive back to his house; instead, he drove to a nearby neighborhood and
    parked the car across from a row of townhouses. Calokoh wanted to smoke weed, so he “rolled
    his blunt” in the car and started smoking. They sat in the car talking for over half an hour about
    their kids, the death of S.F.’s son’s father, and previous relationships. S.F. mentioned that her
    son’s father got turned on just by her kissing his neck. Calokoh then tried to grab S.F.’s breasts,
    but she told him “[n]o” and “pushed his hand away.” When he tried to kiss her, she backed
    away. According to her, “she didn’t think much of it” because they were both laughing and
    Calokoh stopped when asked.
    Because Calokoh did not want to be seen smoking weed in public, they got out of the car
    and walked down a path to a green utility box. After about fifteen minutes, Calokoh started
    walking around the townhouses, and S.F. followed him. As they were walking, he asked if she
    -2-
    could run, and she replied, “Like what the fuck do you mean can I run? No. I have drop foot.”
    When they got to the secluded path behind the townhouses, Calokoh grabbed her hand, placed it
    on his crotch, and said “[s]uck it please.” S.F. laughed and said no. When he asked a few more
    times, she turned to walk away. Calokoh slammed her against the fence and tried to put his hand
    in her pants. She asked him to stop. He shoved her against the fence, which scratched the side
    of her face, snagged her shirt, and “ripped” her earring out of her ear. She was screaming and
    asking him to stop. Despite her struggles, Calokoh managed to get her pants down, and he put
    his fingers inside her vagina. He then removed his fingers and inserted his penis. At this point,
    she “couldn’t get back away,” and she “just closed [her] eyes and prayed for it to end.”
    When Calokoh was finished, S.F. pulled her pants up and walked away. He followed and
    told her, “You’re going to be mine.” When they got back to the car, she drove him to his
    apartment. He told her to wait while he checked on his son and then they would go to the
    movies. But when he went inside, she left. She drove to the nearest gas station, where she tried
    to call a couple of people who did not answer. A friend called her back and urged her to call the
    police. She drove to a second gas station and went to the bathroom, where she discovered the
    scratches on her face, her torn shirt, and bleeding ear. She then called 911. The police
    responded, and an officer took her to the hospital.
    After the incident, Calokoh texted S.F., asking her where she was and telling her to
    “[c]ome back.” He also texted, “Let[’s] fuck again” and “Did u like my dick deep in u.” When
    Detective Sean Cheetham of the Fairfax County Police Department arrived, he asked S.F. if she
    would be willing to participate in a controlled call with Calokoh. She agreed, but when she
    called Calokoh and confronted him about what happened, he ultimately hung up on her.
    A different detective from the Fairfax County Police Department went to the scene to
    investigate. In the dirt near the fence, he discovered a gold hoop earring, which matched S.F.’s
    -3-
    remaining earring. A sexual assault nurse examiner conducted a physical examination of S.F.
    The nurse examiner observed that S.F.’s shirt was snagged, she had dried blood on her right ear
    lobe, and an abrasion on the side of her face. The nurse examiner also swabbed S.F.’s lips,
    breasts, thighs, external genitalia, vagina, and buttocks to collect DNA evidence. Subsequently,
    a forensic scientist found sperm in the samples recovered from S.F.’s external genitalia, vagina,
    and buttocks. A DNA profile was also developed from the sample taken from S.F.’s breast. At
    trial, the forensic scientist testified that Calokoh could not be eliminated as a contributor to the
    sperm or the DNA profile.
    Detective Cheetham interviewed Calokoh. Initially, Calokoh denied anything happened
    and claimed S.F. left when the timing did not work out to go to the movies. He told multiple
    different stories about what happened in the car, from denying anything happened to claiming
    that S.F. tried to touch him. He denied having sex with S.F. and any possibility of his DNA
    being found on S.F.
    At trial, Calokoh’s mother, Fatima Jahami, testified on his behalf. She explained that her
    son had “learning issues,” which she noticed when he was “about three.” Once he started school,
    he was in special education classes, and he had an independent educational plan (“IEP”).
    Calokoh sought to introduce his school records into evidence. The Commonwealth objected,
    arguing that the records were not relevant to whether he had the intent to rape S.F. at the time of
    the offense. The trial court sustained the objection. Jahami also testified that she taught her son
    not to talk to the police, and she explained that when he is scared, he “just says anything at that
    moment.”
    Calokoh testified in his own defense. His explanation of the first part of their meeting
    largely mirrored S.F.’s version. In the car, however, he claimed that S.F. was kissing his neck
    and “pulling on [his] private parts.” In his account, S.F. asked if he knew where they could find
    -4-
    a private spot to “do it.” At this point, they got out of the car, and after he finished smoking his
    joint by the utility box, they walked down the path behind the townhouses. Calokoh admitted
    that he had sex with S.F., but he denied that S.F. screamed, told him no, or pushed him away.
    When they were finished, Calokoh claimed that S.F. asked him for $80, which he refused. He
    explained that they went back to his house so he could check on his son, and when he looked
    outside, S.F. had left.
    Calokoh’s last witness was Dr. Michael Hendricks, a forensic psychologist. The
    Commonwealth objected to his testimony. It argued that Calokoh was attempting to negate
    intent with the new diminished capacity statute in Code § 19.2-271.6 and that Dr. Hendricks had
    never evaluated Calokoh’s intent at the time of the offense.1 The trial court ultimately allowed
    the expert to testify “with regard to the very narrow question of whether the defendant
    knowingly and intentionally committed the acts constituting the elements of rape.”
    Dr. Hendricks testified that he reviewed Calokoh’s school records, including
    psychological evaluations and IEPs. Calokoh again tried to introduce the school records. The
    Commonwealth objected; it argued that the records contained a lot of irrelevant information and
    that a lot of it would be hearsay. Calokoh argued that he had to show the mental condition
    existed “prior to his being age 18” and the records had to come in because they were part of the
    basis for the expert’s opinion. The trial court refused to admit the documents, but it allowed
    Dr. Hendricks to testify “to whatever he relied on that relates specifically to whether the
    defendant had an intellectual disability.” It concluded that “[e]verything else is irrelevant.”
    Dr. Hendricks testified that it was his opinion that Calokoh had an intellectual disability,
    one established very clearly during his school years. When asked what documents he relied
    1
    The Commonwealth also argued that Code § 19.2-271.6 did not apply to general intent
    crimes, such as rape. It does not make that argument on appeal.
    -5-
    upon, he explained that he relied on evaluations with IQ testing or achievement testing, but he
    “didn’t rely so much specifically on the IEPs. The IEPs are simply what happens after you
    demonstrated that someone has an intellectual disability.” Dr. Hendricks explained the
    difficulties someone with an intellectual disability may face. He explained that someone like
    Calokoh would be able to follow “clear and concrete” messages, but that he would struggle with
    mixed messaging. He explained that Calokoh would not be able to navigate mixed messages, or
    something like someone changing their mind, in a social situation.
    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 trial court ruled that it did not want to amend the model instructions, but
    it would give a separate instruction to deal with the new Code § 19.2-271.6.
    Calokoh offered three new instructions: I, J, and K. Instruction I provided, “The Court
    instructs the jury that the Commonwealth must prove that the Defendant committed the elements
    of rape and animate object sexual penetration knowingly and intentionally.” Instruction J
    provided, “The Court instructs the jury 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 stated, “The Court instructs the jury that if you have a reasonable doubt as to
    whether the defendant knowingly and intentionally penetrated the outer lips of the female sexual
    -6-
    organ of [S.F.] against her will and without her consent, by force, threat or intimidation, you
    shall find the defendant not guilty.” The trial court refused to grant 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) and three
    (3)” of rape (Instruction 19) and object sexual penetration (Instruction 20).2 Calokoh objected to
    these instructions, arguing that “knowingly and intentionally” applied to all three elements,
    including the second element, which is whether the victim consented. 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.
    Once the jury instructions were finalized, the trial court instructed the jury, and the
    parties gave their closing arguments. On the second day of deliberations, 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.” Ultimately, the
    2
    Element one of rape is that the defendant had sexual intercourse with the victim.
    Element one of object sexual penetration is that the defendant penetrated the outer lips of the
    female sexual organ with any animate object. The third element of both is that the sexual contact
    was accomplished by force, threat, or intimidation. See Code § 18.2-61 (rape); Code § 18.2-67.2
    (object sexual penetration).
    -7-
    jury convicted Calokoh of both rape and animate object sexual penetration. He now appeals
    those convictions.
    II. ANALYSIS
    A. Code § 19.2-271.6
    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. He also argues that Code § 19.2-271.6
    supersedes prior decisions by both the Supreme Court and this Court and allows the jury to
    consider a defendant’s intellectual disability as it relates to all elements of the offense for which
    he was charged, including whether the victim consented to the sexual intercourse. Based on this
    argument, Calokoh contends that the trial court erred by denying his proposed jury Instructions I,
    J, and K; by granting Instructions 19 and 20; and “by responding to the jury’s question that they
    could not consider [Calokoh’s] intellectual disability with respect to the complaining witness’s
    unwillingness or lack of consent.” For the following reasons, we disagree.
    1. Standard of Review
    “As a general rule, the decision to grant or deny proffered instructions rests within the
    sound discretion of the trial court.” Sarafin v. Commonwealth, 
    288 Va. 320
    , 325 (2014).
    “[W]hether a jury instruction accurately states the relevant law is a question of law that we
    review de novo.” Watson v. Commonwealth, 
    298 Va. 197
    , 207 (2019) (quoting Payne v.
    Commonwealth, 
    292 Va. 855
    , 869 (2016)). To the extent we review the trial court’s statutory
    interpretation of Code § 19.2-271.6, we review it de novo. Brothers v. Commonwealth, 
    50 Va. App. 468
    , 473 (2007). Additionally, “[a] judicial response to a jury question is considered a
    legal instruction.” Ludwig v. Commonwealth, 
    52 Va. App. 1
    , 11 (2008). Thus, we review the
    -8-
    trial court’s response to the jury’s question under the same standard as we review the decision to
    grant jury instructions. Id.
    2. Code § 19.2-271.6 did not create an affirmative defense. It is an evidentiary rule that
    abrogated the common law.
    Code § 19.2-271.6 went into effect on July 1, 2021. It provides,
    evidence offered by the defendant concerning the defendant’s
    mental condition at the time of the alleged offense, including
    expert testimony, is relevant, is not evidence concerning an
    ultimate issue of fact, and shall be admitted if such evidence
    (i) tends to show the defendant did not have the intent required for
    the offense charged and (ii) is otherwise admissible pursuant to the
    general rules of evidence.
    Code § 19.2-271.6(B). To establish such a mental condition,
    the defendant must show that his condition existed at the time of
    the offense and that the condition satisfies the diagnostic criteria
    for (i) a mental illness, (ii) a developmental disability or
    intellectual disability, or (iii) autism spectrum disorder as defined
    in the most recent edition of the Diagnostic and Statistical Manual
    of Mental Disorders of the American Psychiatric Association.
    Id. Calokoh argues that Code § 19.2-271.6 creates an affirmative defense relating to intent,
    “requiring the Defendant to go forward with evidence of that disability to show that he did not
    knowingly and intentionally commit any of the elements of those offenses.” We disagree.
    It is well-established that “the burden is on the Commonwealth to prove every essential
    element of the offense beyond a reasonable doubt.” Williams v. Commonwealth, 
    57 Va. App. 341
    , 351 (2010) (quoting Bishop v. Commonwealth, 
    275 Va. 9
    , 12 (2008)). When it comes to
    defenses, however, there is an important distinction between “case-in-chief defenses” and
    affirmative defenses, the latter of which may place a burden of proof on the defendant. Ronald J.
    Bacigal & Corinna Barrett Lain, Criminal Procedure § 17:28 (2022-2023 ed.).
    In a case-in-chief defense, the defendant “challenges the prosecution’s ability to prove
    some essential element of the charged offense.” Id. A common example of this is an alibi
    -9-
    defense. When a defendant puts forth an alibi, it is not an affirmative defense, “but . . . a denial
    of an essential element of the offense, i.e., presence at the scene of the crime.” Id. at § 17:32.
    With these types of defenses, the burden of proof remains on the prosecution, and the defendant
    need only offer enough evidence (e.g., of an alibi) to create a reasonable doubt as to guilt.
    Marlow v. Commonwealth, 
    2 Va. App. 619
    , 624 (1986); see also Bacigal & Lain, supra, § 17:32.
    “‘An affirmative defense,’ however, raises ‘a separate issue which may carry a separate
    burden of proof.’” Williams, 57 Va. App. at 352 (quoting Ronald J. Bacigal, Criminal
    Procedure § 17:28 (2007-2008 ed.)). The defendant carries the burden to produce evidence to
    establish his affirmative defense. Tart v. Commonwealth, 
    52 Va. App. 272
    , 276 (2008).
    Self-defense is an example of an affirmative defense. The “defendant implicitly admits the
    killing was intentional and assumes the burden of introducing evidence of justification or excuse
    that raises a reasonable doubt in the minds of the jurors.” Commonwealth v. Cary, 
    271 Va. 87
    ,
    99 (2006) (quoting McGhee v. Commonwealth, 
    219 Va. 560
    , 562 (1978)). Affirmative defenses
    often “make[] an excuse or justification for what would otherwise be criminal conduct.” Foley v.
    Commonwealth, 
    63 Va. App. 186
    , 200 (2014) (quoting Flanagan v. Commonwealth, 
    58 Va. App. 681
    , 698 (2011)).
    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.” Code § 19.2-271.6(B).
    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.” Foley, 63 Va. App. at 200 (finding Code § 18.2-308 creates an affirmative defense to
    carrying a concealed weapon by exempting an accused acting “in his own place of abode or the
    - 10 -
    curtilage thereof” (quoting Flanagan, 58 Va. App. at 698)). The mental condition in Code
    § 19.2-271.6 is more akin to the alibi case-in-chief defense. Presenting evidence of a qualifying
    mental condition is not an excuse or justification, but rather “a denial of an essential element of
    the offense.” Bacigal & Lain, supra, § 17:32. Under Code § 19.2-271.6(B), the defendant is
    denying that he had the “intent required for the offense charged.” The burden of proof is still on
    the Commonwealth to prove the defendant’s guilt beyond all reasonable doubt, with the
    defendant’s mental condition making up part of the evidence that the factfinder considers.
    Consequently, Code § 19.2-271.6 does not create a new affirmative defense. See Temple v.
    Commonwealth, No. 1172-21-1 (Va. Ct. App. Oct. 4, 2022) (coming to the same conclusion).3
    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.” Schmul v. Commonwealth, 
    69 Va. App. 281
    , 300 (2018) (quoting Stamper v. Commonwealth, 
    228 Va. 707
    , 717 (1985)), aff’d, 
    298 Va. 131
     (2019). Any person not deemed legally insane was “presumed to be sane, and to possess a
    sufficient degree of reason to be responsible for [their] crimes.” 
    Id.
     (alteration in original)
    (quoting Stamper, 
    228 Va. at 717
    ). Thus, short of raising an insanity defense, a defendant was
    not permitted to present evidence of his or her mental state or diminished capacity to negate
    mens rea. Stamper, 
    228 Va. at 716-17
     (declining to recognize diminished capacity as a defense).
    The General Assembly, however, is permitted to alter the common law if it so chooses,
    Code § 1-200, which is exactly what it did with Code § 19.2-271.6. While the common law
    precluded all evidence of a defendant’s mental state unless the defendant raised an insanity
    3
    “Although not binding precedent, unpublished opinions can be cited and considered for
    their persuasive value.” Blowe v. Commonwealth, 
    72 Va. App. 457
    , 468 n.10 (2020) (quoting
    Otey v. Commonwealth, 
    61 Va. App. 346
    , 350 n.3 (2012)).
    - 11 -
    defense, 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.
    3. Code § 19.2-271.6 did not alter the elements of rape and animate object penetration.
    Calokoh also argues that Code § 19.2-271.6 “change[d] the ruling” in prior cases and
    “allows the jury to consider the intellectual disability with respect to all three elements of both
    . . . offense[s],” including whether the victim consented. We disagree.
    Under Virginia law, a person is guilty of rape if he or she “has sexual intercourse with a
    complaining witness, whether or not his or her spouse . . . 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.” Code § 18.2-61(A). A person is guilty of animate
    object sexual penetration
    if he or she penetrates the labia majora or anus of a complaining
    witness, whether or not his or her spouse, other than for a bona fide
    medical purpose . . . and . . . [t]he act is accomplished against the
    will of the complaining witness, by force, threat or intimidation of
    or against the complaining witness or another person.
    Code § 18.2-67.2(A)(2). Both offenses require that the prohibited act be done against the will or
    without the consent of the complaining witness.
    Although proof of rape requires that the accused “knowingly and intentionally”
    committed the acts constituting rape, the Supreme Court has pointed out that “a defendant’s
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    intent to commit the crime of rape is not the same issue as whether a victim consented to sexual
    intercourse. Those two issues are distinct and should not be blurred.” Commonwealth v. Minor,
    
    267 Va. 166
    , 173 (2004). “[T]he crime of rape does not require proof that the defendant harbor a
    specific intent to have intercourse without the victim’s consent, only the general intent evidenced
    by the act of committing the offense itself.” Gonzales v. Commonwealth, 
    45 Va. App. 375
    , 382
    (2005) (en banc). “The lack of consent required for rape involves the victim’s mental state, not
    the defendant’s.” 
    Id.
     The same rules apply to object sexual penetration. See Wactor v.
    Commonwealth, 
    38 Va. App. 375
    , 380 (2002) (“Object sexual penetration may be analogized to
    the crime[] of rape (Code § 18.2-61) . . . [and t]herefore, cases interpretating [Code § 18.2-61]
    are useful in discerning the meaning and intent of Code § 18.2-67.2.”).
    Calokoh contends that Code § 19.2-271.6 supersedes Minor and Gonzales 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. See City of Charlottesville v. Payne, 
    299 Va. 515
    , 527 (2021) (“We consider the language of [the] statute at issue to determine the General
    Assembly’s intent from the plain and natural meaning of the words used.” (alteration in original)
    (quoting Hoffman Fam., L.L.C. v. City of Alexandria, 
    272 Va. 274
    , 284 (2006))).
    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. Rather, the plain
    language generally refers to “the intent required for the offense charged,” which indicates that
    - 13 -
    the General Assembly did not change the intent requirement for any offenses. Instead, it allowed
    a new form of evidence, which had previously been prohibited, to challenge the
    Commonwealth’s evidence of intent. This is further supported by the fact that Code
    § 19.2-271.6 is a general statute, applying not just to rape or animate object sexual penetration,
    but to “any criminal case.” Code § 19.2-271.6(B).
    The purpose of Code § 19.2-271.6 is not to amend the intent element of any criminal
    offense, but rather, as discussed above, to abrogate the common law rule that prohibited evidence
    of a defendant’s mental condition short of legal insanity. Because Code § 19.2-271.6 does not
    create an affirmative defense and did not amend the elements of rape or animate object
    penetration, the trial court did not err when it denied Calokoh’s proffered jury instructions and
    granted the Commonwealth’s instructions. Nor did it err when it answered the jury question by
    telling the jury that the evidence of Calokoh’s mental condition could not be considered in
    relation to whether the victim consented.
    B. Admissibility of Calokoh’s school records
    Calokoh argues that the trial court erred by refusing to admit into evidence his school
    records, which included psychological evaluations and Calokoh’s IEPs. We review “the circuit
    court’s decisions regarding the admissibility of evidence for abuse of discretion.” Jones v.
    Commonwealth, 
    71 Va. App. 70
    , 85 (2019). “Only when reasonable jurists could not differ can
    we say an abuse of discretion has occurred.” Kenner v. Commonwealth, 
    71 Va. App. 279
    , 289
    (2019) (quoting Tynes v. Commonwealth, 
    49 Va. App. 17
    , 21 (2006)), aff’d, 
    299 Va. 414
     (2021).
    Calokoh relies on Simpson v. Commonwealth, 
    227 Va. 557
     (1984), and Virginia Rule of
    Evidence 2:703 to argue that the school records should have been admitted because his expert
    - 14 -
    relied on them to establish that Calokoh had an intellectual disability and that it occurred prior to
    the age of eighteen, which was necessary under Code § 19.2-271.6.4
    In Simpson, the Supreme Court recognized that an expert witness in a criminal case in
    Virginia generally is not permitted to base his or her opinion on facts not in evidence, and it
    refused to adopt a rule that would allow experts to do so. 
    227 Va. at 565
    . Under Rule 2:703, an
    expert witness’s testimony in a criminal case is admissible “if it is based upon facts personally
    known or observed by the expert, or based upon facts in evidence.” (Emphasis added). Because
    Calokoh’s expert relied on the school records, he contends that the records themselves should
    have been admitted into evidence.
    But this situation is the inverse of the situation addressed by the Court in Simpson. Both
    the case and rule cited by Calokoh govern the admissibility of the expert witness’s testimony, not
    the admissibility of the evidence upon which the expert relies. Here, it is the admissibility of the
    documents that are at issue—not the admissibility of the expert’s testimony. Calokoh’s expert,
    Dr. Hendricks, was permitted to testify. While an expert witness must base his or her testimony
    upon facts in evidence, the expert’s reliance on or review of certain facts or documents does not
    4
    To establish a mental condition under Code § 19.2-271.6(B), a defendant must show
    that the condition existed at the time of the offense and that the condition “satisfies the diagnostic
    criteria for . . . (ii) a developmental disability or intellectual disability.” Code § 19.2-271.6(A)
    defines “Intellectual disability” by reference to the definition in Code § 37.2-100, which defines
    it as
    a disability, originating before the age of 18 years, characterized
    concurrently by (i) significant subaverage intellectual functioning
    as demonstrated by performance on a standardized measure of
    intellectual functioning, administered in conformity with accepted
    professional practice, that is at least two standard deviations below
    the mean and (ii) significant limitations in adaptive behavior as
    expressed in conceptual, social, and practical adaptive skills.
    Code § 37.2-100.
    - 15 -
    automatically render those facts or documents admissible evidence. The evidence relied upon
    must be admissible under the rules of evidence.
    The trial court concluded that large portions of the school records were not relevant.
    Relevant evidence is “evidence having any tendency to make the existence of any fact in issue
    more probable or less probable than it would be without the evidence.” Va. R. Evid. 2:401.
    Beyond arguing that the documents were admissible because the expert relied on them,
    Calokoh’s single argument addressing the relevance of the documents is that he was required to
    show that the intellectual disability occurred prior to age eighteen. But this argument does not
    address the trial court’s ruling that large portions of the record were not relevant to whether
    Calokoh had a disability. And even Dr. Hendricks’ testimony confirmed that portions of the
    school record were not relevant, as he testified that he “didn’t rely so much specifically on the
    IEPs. The IEPs are simply what happens after you demonstrated that someone has an intellectual
    disability.”
    Furthermore, the trial court permitted Dr. Hendricks to testify about the portions of the
    record that he relied on that related to whether Calokoh had an intellectual disability. And it also
    permitted him to testify about how that disability may have impacted Calokoh’s decision making
    during the incident with S.F. Calokoh’s arguments to this Court focused on the admissibility of
    expert testimony, which was not at issue. He did not otherwise address the relevance issues of
    the school records. Therefore, the trial court did not abuse its discretion by refusing to admit the
    school records into evidence.
    III. CONCLUSION
    For the foregoing reasons, we affirm Calokoh’s convictions.
    Affirmed.
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