Adkins v. Com.

• Decision Date: 16 May 1995
• Docket Number: No. 1862-93-3,1862-93-3
• Citation: 20 Va.App. 332,457 S.E.2d 382
• Parties: Robert Vincent ADKINS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 382

457 S.E.2d 382

20 Va.App. 332

Robert Vincent ADKINS v. COMMONWEALTH of Virginia.

Record No. 1862-93-3.

Court of Appeals of Virginia Salem.

May 16, 1995.

Lawrence D. Gott (Office of the Public Defender, on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: BARROW ^*, COLEMAN, JJ., and HODGES, Senior Judge.

COLEMAN, Judge.

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 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."

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 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 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] 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 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 Meade 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...