Calokoh v. Commonwealth

76 Va.App. 717

883 S.E.2d 674

Akeem Alee CALOKOH

v.COMMONWEALTH of Virginia

Record No. 0226-22-4

Court of Appeals of Virginia.

February 28, 2023

Corinne J. Magee (The Magee Law Firm, on brief), McLean, for appellant.

Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Huff and AtLee

OPINION BY JUDGE RICHARD Y. ATLEE, JR.

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, 860 S.E.2d 408 (2021) (alteration in original) (quoting Payne v. Commonwealth , 65 Va. App. 194, 198, 776 S.E.2d 442 (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 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 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 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 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...