COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

RUDOLPH NATHANIEL WHITE 

 OPINION 

v. Record No. 2427-95-1 BY JUDGE JOSEPH E. BAKER 

 DECEMBER 17, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF YORK COUNTY 

Samuel T. Powell, III, Judge 

 Mary Pettitt St. Jean for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Rudolph Nathaniel White (appellant) appeals from his bench 

trial conviction by the Circuit Court of York County (trial 

court) for rape of a fourteen and one-half-year-old female 

(complainant). Appellant admitted having sexual intercourse with 

complainant at the time charged in the indictment but contended 

that it was consensual. Because the trial court found that the 

sexual act did not occur by force, the sole issue on appeal is 

whether it occurred "through the use of [complainant's] mental 

incapacity" in violation of Code § 18.2-61. For the reasons that 

follow, we reverse. 

 Code § 18.2-61 provides in relevant part: 

 Rape.--A. If any person has sexual 

intercourse with a complaining witness who 

 is not his or her spouse or causes a 

complaining witness, whether or not his or 

her spouse, to engage in sexual intercourse 

with any other person and such act is 

accomplished (i) against the complaining 
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witness's will, by force, threat or 

intimidation of or against the complaining 

witness or another person, or (ii) through 

the use of the complaining witness's mental 

incapacity or physical helplessness, or 

(iii) with a child under age thirteen as the 

victim, he or she shall be guilty of rape. 

(Emphasis added.) The General Assembly has defined "mental 

incapacity" as follows: 

 "Mental incapacity" means 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 and 

about which the accused knew or should have 

known. 

Code § 18.2-67.10(3). Thus, to sustain the conviction in this 

case, the Commonwealth was required to prove beyond a reasonable 

doubt: (1) that the complainant was mentally incapacitated at the 

time of the offense; (2) that her condition prevented the 

complainant from understanding the nature and consequences of the 

sexual act; and (3) that at the time of the offense appellant 

knew or should have known of complainant's condition. 

 Upon familiar principles, we view the evidence in the light 

most favorable to the Commonwealth. Higginbotham v. 

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

However, it is not sufficient that the facts and circumstances 

proved be consistent with appellant's guilt; to sustain his 

conviction, they must be inconsistent with every reasonable 

hypothesis of his innocence. McCall v. Commonwealth, 192 Va. 

422, 427, 65 S.E.2d 540, 542 (1951). 
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 Complainant testified that before the alleged rape, she had 

never been to appellant's house nor had she ever talked to him. 

She said that on this occasion, in a soft voice, appellant 

invited her into his house, told her to sit on the bed, to "take 

them off," and to lie on the bed. She further said that he told 

her "it would not take long." In response to these requests by 

appellant, leaving her shirt on, complainant took off the lower 

part of her clothing, enabling appellant to place his "penis" 

into her "vagina," after which he cautioned her "not to tell." 

She further testified that she became pregnant but did not 

realize that fact until eight months later, and then only when 

she was told by her cousin. Complainant gave her age as fourteen 

and one-half years at the time the sexual act occurred and 

testified that she was in middle school. At trial, she said she 

was sixteen years old and had advanced to high school.1

 When complainant returned home on the night of the alleged 

rape, she saw her mother and grandmother but told neither about 

her sexual encounter with appellant. Thereafter, on at least 

twelve occasions, she visited appellant's house and engaged in 

sexual intercourse with him. On another occasion, she went to 

appellant's house to obtain cigarettes for her uncle. 

 Although the trial judge observed complainant at trial two 

years after the sexual act occurred and listed his observation of 

 1There is no evidence that she ever failed to progress from one 

grade to the next higher grade. 
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complainant as a reason to support his finding that, at the time 

of the offense, complainant was "mentally incapacitated[]" as 

required by Code § 18.2-67.10(3), the trial judge's observations 

are not sufficient to prove beyond a reasonable doubt that 

appellant was guilty of rape. 

 The indictment charged that in July 1993 appellant raped 

complainant against her will "through the use of her mental 

incapacity." The Commonwealth was required to prove beyond a 

reasonable doubt that "at the time of the offense" complainant 

was mentally incapacitated as defined in Code § 18.2-67.10(3). 

The Commonwealth's evidence regarding complainant's mental status 

two years after the offense is not evidence of complainant's 

mental status "on or about July 1993." 

 A school psychologist testified that in October 1991, two 

years prior to the offense, complainant was attending elementary 

school. At that time, complainant was rated "at the upper end of 

the educable mentally retarded range." The psychologist 

attempted to state complainant's "achievement scores"; however, 

he was prevented from giving that evidence by the prosecutor who 

 interrupted his testimony saying, "I think that's enough at this 

point." The Commonwealth did not thereafter present any evidence 

as to complainant's achievement scores either at the time of the 

psychologist's evaluation or at the time of the alleged offense. 

 The record does show that in 1991 "relative to [complainant's] 

chronological peers she was slightly below average," but 
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"compared to other children her age [twelve when she was tested], 

her scores in communication, daily living skills and 

socialization domains were all well above the mentally retarded 

range, with a strength in socialization skills, achievement, 

overall adaptive behavior falling well within the low average 

range." The record further shows that during the two-year period 

after the act, complainant advanced with her peers from middle 

school to high school. 

 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. 

Adkins v. Commonwealth, 20 Va. App. 332, 346, 457 S.E.2d 382, 389 

(1995). 

 We hold that this record fails to show beyond a reasonable 

doubt that, at the time of the alleged rape, complainant suffered 

from a mental incapacity that prevented her "from understanding 

the nature or consequences of the sexual act involved in such 

offense and about which [appellant] knew or should have known." 

Code § 18.2-67.10(3). 

 Accordingly, for the reasons stated, we reverse the judgment 

of the trial court and dismiss appellant from further prosecution 
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thereon. 

 Reversed and dismissed.