COURT OF APPEALS OF VIRGINIA 

Present: Judges Barrow*, Coleman and Senior Judge Hodges 

Argued at Salem, Virginia 

ROBERT VINCENT ADKINS 

v. Record No. 1862-93-3 OPINION BY 

 JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA MAY 16, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Lawrence D. Gott (Office of the Public Defender, 

 on brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, 

 on brief), for appellee. 

 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 

 

 * Judge Bernard G. Barrow participated in the hearing and 

decision of this case and joined in the opinion prior to his 

death. 
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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." 
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 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 minimarket 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 
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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 
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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] 
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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 
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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 Mead 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 and mental age. 

 The admissibility of expert witness evidence is within the 
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sound discretion of the trial court, and the decision will not be 

disturbed on appeal unless the trial court has clearly abused its 

discretion. Thorpe v. Commonwealth, 223 Va. 609, 614, 292 S.E.2d 

323, 326 (1982). The trial judge did not abuse his discretion by 

admitting Dr. Culbert's opinion as to Teresa's IQ and mental age; 

therefore, we affirm the trial court's ruling. 

II. SUFFICIENCY OF EVIDENCE 

 When the sufficiency of the evidence is challenged on 

appeal, "it is our duty to consider [the evidence] in the light 

most favorable to the Commonwealth and give it all reasonable 

inferences fairly deducible therefrom." Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The 

trial court's judgment will not be reversed unless it is plainly 

wrong or without evidence to support it. Code § 8.01-680; 

Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520, 

524 (1993). 

 Code § 18.2-61(A) provides that "[i]f any person has sexual 

intercourse with a complaining witness who is not his or her 

spouse . . . and such act is accomplished . . . (ii) through the 

use of the complaining witness's mental incapacity . . . he or 

she shall be guilty of rape." (emphasis added). "Mental 

incapacity" is defined as "that condition of the complaining 

witness existing at the time of an offense under this article 

which prevents the complaining witness from understanding the 

nature or consequences of the sexual act involved in such offense 
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and about which the accused knew or should have known." 

Code § 18.2-67.10 (emphasis added). 

 The elements necessary to constitute a crime are generally 

to be gathered from the definition of the crime. Commonwealth v. 

Callaghan, 4 Va. (2 Va. Cas.) 460, 462 (1825). The Commonwealth 

has the burden of proving beyond a reasonable doubt each and 

every element of the charged crime. Powers v. Commonwealth, 211 

Va. 386, 388, 177 S.E.2d 628, 629 (1970). 

 Adkins concedes that the evidence proved beyond a reasonable 

doubt that he had sexual intercourse with Teresa, who was not his 

spouse. However, the critical question is whether the evidence 

proved that he "accomplished" the act of sexual intercourse with 

her "through the use of" her "mental incapacity." His argument 

is twofold: first, he contends that "mental incapacity," for 

purposes of Code § 18.2-61(A)(ii), has a more particularized 

meaning than diminished mental capacity in general, requiring the 

Commonwealth to prove specifically that the victim did not 

understand the nature and consequences of sexual intercourse; 

second, he contends that the Commonwealth must prove that he in 

some way used or took advantage of Teresa's mental incapacity in 

order to "accomplish" the act of sexual intercourse with her. 

 The legislative purpose of Code § 18.2-61(A)(ii) is to 

protect persons who are mentally impaired or retarded from being 

sexually exploited due to their mental incapacity. See State v. 

Ortega-Martinez, 881 P.2d 231, 236 (Wash. 1994) (explaining the 
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legislative purpose of a similar statute). However, such 

statutes must not be interpreted and applied in a manner that 

creates an unintended rule that would prohibit all mentally 

impaired or retarded persons from engaging in consensual sexual 

intercourse without having their partners commit a felony.1

 See

State v. Olivio, 589 A.2d 597, 604 (N.J. 1991) (expressing 

concern about "unenlightened attitudes toward mental impairment 

and about the importance of according the mentally handicapped 

their fundamental rights"). By specifically defining mental 

incapacity, the legislature has chosen to protect those mentally 

deficient persons whose mental condition prevents them from 

"understanding the nature and consequences of the sexual act 

involved." Code § 18.2-67.10(3). 

 Thus, in order to convict a person of violating 

Code § 18.2-61(A)(ii), the Commonwealth must prove that the 

victim was "mentally incapacitated" as defined in 

Code § 18.2-67.10(3), which means that the person does not 

understand "the nature and consequences of the sexual act 

involved." 

 Some jurisdictions have interpreted and applied similar 

statutory requirements narrowly by requiring the state to prove 

that the victim was incapable of comprehending the "distinctively 

 

 1 Although not a felony, consensual sexual intercourse 

between adults who do not have a "mental incapacity" as defined 

by Code § 18.2-67.10(3) is fornication, a Class 4 misdemeanor, 

Code § 18.2-344, a conviction for which is punishable by a fine 

of not more than $250. 
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sexual nature of the conduct." See Olivio, 589 A.2d at 599. See 

also K.H. Carson, Rape or Similar Offense Based on Intercourse 

With Woman Who Is Allegedly Mentally Deficient, 31 A.L.R. 3d 1227 

(1970) (discussing the treatment of mental incapacity in similar 

rape statutes). Other jurisdictions have interpreted similar 

statutes more broadly, requiring the state to prove only that the 

victim did not understand the physiological, social, and moral 

ramifications of his or her actions. See People v. Easley, 364 

N.E.2d 1328, 1332 (N.Y. 1977) (stating that being able to 

"appraise" the nature of conduct means an "appreciation of how it 

will be regarded in the framework of the societal environment and 

taboos to which a person will be exposed"). See also People v. 

McMullen, 414 N.E.2d 214, 217 (Ill. App. Ct. 4th 1980) (stating 

that the victim was unable to understand how "illicit sexual 

activity is regarded by other people"). 

 While the interpretations that other jurisdictions have 

given similar statutes are instructive, they are not controlling. 

 Code § 18.2-61(A)(ii) does not leave solely to judicial 

interpretation the defined class of persons protected by the 

statute. To the extent that we must interpret the meaning of the 

statutory language—"understanding the nature and consequences of 

the sexual act"—we construe it strictly against the Commonwealth, 

because the statute is penal in nature, and limit its application 

to cases falling clearly within its ambit. Turner v. 

Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). 
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 A person suffers from a "mental incapacity" within the 

meaning of the statute if he or she has a mental "condition" that 

"prevents" the person from being able to "understand" either the 

"nature" or "consequences" of engaging in sexual intercourse. To 

"understand" is "to grasp the meaning of[; to] comprehend," 

Webster's Third New International Dictionary 2490 (1986) or "to 

know; to apprehend the meaning; to appreciate." Black's Law 

Dictionary 1526 (6th ed. 1990). See State v. Johnson, 745 P.2d 

81 (Ariz. 1987) (en banc) (discussing the meaning of "to 

understand"). "Nature" is defined as the "normal and 

characteristic quality . . . of something," "the distinguishing 

qualities or properties of something." Webster's Third New 

International Dictionary 1507 (1986). "Consequence" is defined 

as "something that is produced by a cause or follows from a form 

of necessary connection or from a set of conditions: a natural or 

necessary result." Id. at 482. 

 To "know, apprehend, or appreciate" the "nature and 

consequences" of sexual intercourse can range from a simple 

understanding of how the act of coitus is physically accomplished 

together with an understanding that a sensation of pleasure may 

accompany the act, to a thorough and comprehensive understanding 

of the complex psychological and physiological "nature" of "the 

sexual act involved" and that, aside from immediate 

gratification, the act may have dire familial, social, medical, 

physical, economic, or spiritual consequences. 
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 Manifestly, the legislature did not intend to include as 

part of the protected class of people under Code § 18.2-61(A)(ii) 

those whose mental impairment or handicap may prevent them from 

comprehending the more complex aspects of the nature or 

consequences of sexual intercourse, but who, nevertheless, have 

the mental capacity to have a basic understanding of the 

elementary and rudimentary nature and consequences of sexual 

intercourse. Not all persons who are mentally retarded or 

handicapped need the special protection of Code § 18.2-61(A)(ii). 

 The range of intellectual functioning among the mentally 

impaired and mentally retarded varies widely. The statute was 

not designed to unfairly punish the sexual partners of those 

mentally impaired or mentally retarded persons who have a basic 

understanding of the act and consequences of sexual intercourse 

and are capable of making a volitional choice to engage or not 

engage in such conduct. 

 The commentary of the Supreme Court of New Jersey 

interpreting a similar statute is noteworthy: 

 The statutory concept of ["mental 

incapacity"] implicates both the intellectual 

or cognitive capacity and the volitional or 

consensual capacity of the individual with 

respect to personal sexual activity. The 

consensual capacity involves knowing that 

one's body is private and is not subject to 

the physical invasions of another, and that 

one has the right and ability to refuse to 

engage in sexual activity. The cognitive 

capacity, which is also implicit in the 

notion of consensual capacity, involves the 

knowledge that the conduct is distinctively 

sexual. 
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Olivio, 589 A.2d at 604-05. 

 When a mentally impaired or mentally retarded person has 

sufficient cognitive and intellectual capacity to comprehend or 

appreciate that he or she is engaging in intimate or personal 

sexual behavior which later may have some effect or residual 

impact upon the person, upon the person's partner, or upon 

others, then the person does not have a "mental incapacity" 

within the meaning of the statute. If a person is mentally 

incapacitated but, nevertheless, has the capacity to understand 

the nature and consequences of the sexual act, which 

understanding includes the capacity to make a volitional choice 

to engage or not engage in such act, then that person's sexual 

partner has not violated the rape statute merely because a 

mentally impaired person has made an unwise decision or has 

chosen to be sexually active. 

 The fact finder cannot infer from proof of general mental 

incapacity or retardation or an IQ range or mental age that a 

victim is prevented or unable to understand the nature and 

consequences of a sexual act, unless the evidence proves that the 

victim lacks the ability to comprehend or appreciate either the 

distinguishing characteristics or physical qualities of the 

sexual act or the future natural behavioral or societal results 

or effects which may flow from the sexual act. The Commonwealth 

has the burden to prove every element of the offense in order to 

prove guilt beyond a reasonable doubt. 
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 In this case, the Commonwealth presented testimony of 

Dr. Culbert, an expert witness; the victim's mother; and the 

victim. Dr. Culbert testified that the victim had an IQ of 

fifty-nine and a mental age of 10.4 years. He did not relate her 

IQ or her mental age to her capacity to understand the nature or 

consequences of sexual intercourse, particularly her capacity to 

make a volitional choice. On cross-examination, Dr. Culbert 

stated that although he measured her IQ and general intellectual 

capacity, he did not know whether Teresa understood or could use 

words like "penis" and "vagina," because he does not test such 

knowledge. Teresa's mother testified that Teresa is "severe[ly] 

mentally retarded." 

 When Teresa testified, she stated, on cross-examination, 

that she "made love" to the appellant, that she knew that she 

could get pregnant from "making love" and could catch AIDS, that 

she had had sex education classes in school, and she used the 

words "penis" and "vagina" when describing the act of sexual 

intercourse. The Commonwealth did not explore the extent to 

which she knew or understood the significance of these words or 

engaging in sexual intercourse. No attempt was made to prove 

that Teresa may have been superficially mouthing these words to 

describe what had happened to her or to explain that she did not 

understood the nature and consequences of her actions. In fact, 

her testimony shows that she was the person who conceived the 

notion of having sexual intercourse with Adkins and initiated the 
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sexual liaison between them. 

 We recognize that a person may passively or suggestively 

take advantage of a mentally retarded or incapacitated 

individual; however, the fact that a victim may have diminished 

mental capacity does not relieve the Commonwealth of its burden 

of proving that the "mental incapacity" is that defined by 

Code § 18.2-67.10(3). We, therefore, find that the Commonwealth 

failed to meet its burden. 

 Adkins also contends that the evidence failed to prove an 

additional element of the offense—that he "accomplished" having 

sexual intercourse with Teresa "through the use of" her mental 

incapacity. He argues that the evidence failed to show that he 

knowingly used or took advantage of her incapacity in order to 

accomplish the act of sexual intercourse. His argument would 

have us address whether he could have "accomplished" the result 

by knowingly taking advantage of a condition through passive 

conduct. However, because we find the evidence insufficient to 

prove that Teresa had a mental incapacity as defined in the 

statute, we do not address this contention. For the foregoing 

reasons, we reverse the conviction and dismiss the indictment. 

Reversed and dismissed.