Updated: Mar 10
The Court of Appeals released three published opinions today. The first of these involves an increasingly common phenomenon of a woman meeting a person through a “dating app” and ending up the victim of a violent sexual assault. In every generation, there seems to be a new way to “hook-up” – bars in the 60s, discos in the 70s, pool halls in the 80s, coffee shops in the 90’s, clubbing in the 00s, and now dating apps. While most encounters in these other settings did not lead to sexual assault, the premise of the dating app seems almost tailor-made for the sexual predator.
In Akeem Alee Calokoh v. Commonwealth of Virginia the defendant and the victim connect through an app called “Scout” and Calokoh asked the victim if she wanted to “chill.” Although he said that it was not looking for a sexual encounter, he also said that the victim could spend the night with him. The victim, who lived in West Virginia, agreed to meet Calokoh at his home in Fairfax County. The visit resulted in the victim being raped in a wooded area. These facts are not disputed on appeal. Rather, Calokoh argues that the circuit court erred in not permitting him to introduce school records to support his claim that he is intellectually disabled and could not have formed the requisite intent to commit rape. This case thus gives us a first look at how the Court of Appeals will address claims raised under the new mental health evidence statute, Code § 19.2-271.6.
At trial, Calokoh sought to introduce the records through the testimony of a psychologist who testified about Calokoh’s developmentally disability as reflected in the record. The circuit court sustained the Commonwealth’s objection that the majority of the records was irrelevant and mostly hearsay.
Calokoh contended that Code § 19.2-271.6 permitted him to introduce evidence of his developmental disability and that it provided him with an affirmative defense which required the Commonwealth to prove that Calokoh “knowingly and intentionally” acted against the victim’s will and without her consent. The circuit court declined to amend the model jury instruction on the elements of rape, but did instruct the jury on Code § 19.2-271.6, giving two instructions proffered by the Commonwealth and rejecting three proffered by Calokoh.
The jury sent a question of to the court asking whether it could consider the evidence of intellectual disability with respect to finding whether the victim consented. The court responded that the jury should consider intellectual disability only with respect to whether Calokoh formed the intent to commit rape, not whether the victim consented.
With respect to the admission of Calokoh’s school records, the Court, Judge AtLee joined by judges Humphreys and Huff, affirmed. Because evidence of Calokoh’s developmental disability had been introduced through the psychologist’s, admission of the records, which were mostly irrelevant and consisted of hearsay, was not improper. However, this is the tail wagging the dog, as this opinion is the first to address Code § 19.2-271.6 and, thus, is a must-read for criminal defense attorneys (and prosecutors).
The Court today holds that Code § 19.2-271.6 did not create an affirmative defense. It is an evidentiary rule that abrogated the common law regarding presenting mental health evidence to show lack of the ability to form the requisite intent to commit an offense. Thus, when evidence is presented that the defendant suffers from some form of mental disease or defect, this is fact evidence for the jury to weight with respect to whether the defendant could have formed the intent to commit the crime. It does not alter the elements of the offense or create an additional element for the Commonwealth to prove.
The defendant in Taylor Amil Wallace v. Commonwealth of Virginia gets a somewhat better result in his appeal from a conviction for another crime involving technology – the use of a computer for a fraudulent purpose without authorization. The computer in question is an ATM and the fraudulent purpose was using the ATM to deposit forged checks.
The Court of Appeals, Judge Ortiz joined by Judge Lorish with Judge Athey concurring in part and dissenting in part, first have to decide whether an ATM is a computer within the meaning of Code § 18.2-152.3, and it is on this point that the majority and dissent differ – the majority decides not to decide the issue because it finds that the Commonwealth failed to prove that Wallce used the ATM “without authority,” so the conviction for that offense must be reversed. Because Judge Athey would find that using an ATM “without authority” includes using it for a fraudulent transaction, he must address whether this ATM is a computer.
The dissent takes the view that while not all ATMs are computers, those that function, in effect, as AI tellers certainly are because they have a sophisticated function involving many types of transactions. He distinguishes these full-service ATMs from those that one finds in convenience stores, hotels, and bars that only dispense cash.
I am going to take issue with both the majority and the dissent. First, I think the majority should have addressed whether an ATM is, or at least can be, a computer. Having said that, however, I disagree with Judge Athey that a customer who uses their ATM card to access their bank’s ATM network and then uses it for a fraudulent purposes is using that ATM “without authority.” Expect to see a petition for rehearing from the Commonwealth or an appeal or cross-appeals to the Supreme Court.
The last opinion today, The Manors LLC and Darrick Harris v. Board of Supervisors of Albemarle County, in some ways seems to accord with the hi-tech tone of the first two opinions, while at the same time harking back to a simpler time. Harris renovated a rundown property with the intent of turning it into a guest hose in which he would live, but also rent out five rooms for short periods. This required a special use permit for using a residence for “homestays” with more than two rooms for rent. While this harkens back to the days of boarding houses and quaint bed-and-breakfasts, one presumes that Harris was going to obtain his guests through some form of on-line booking service.
Alas, Harris was not able to welcome guests to his humble abode at more than two rooms at a time because the Board of Supervisors of Albemarle County turned down his request for a special use permit, the circuit court upheld that decision, and so too today does the Court of Appeals, Judge Callins joined by Judges Beals and Friedman.
First, a word about appeals from zoning actions. Whether the matter is taken to a Board of Zoning Appeals or to the local governing body, the administrative decision of a zoning action falls within the appellate jurisdiction of the circuit court. That’s right, the circuit court sits in appellate jurisdiction reviewing the zoning decision on a writ of certiorari.
Now, as to why the County rejected the special use permit, the zoning staff had several concerns: aside from concern about whether Harris would live on-site (he previously filed an application for an exemption for this requirement), fall into four main categories: (1) the large house and garage are aesthetically out of character with the surrounding neighborhood; (2) the proposal is essentially a “small hotel” and a party house, which is out of character with the neighborhood; (3) the homestay will increase traffic and parking problems; and (4) granting the special exception will set a precedent that allows residential neighborhoods to be overcome by homestay and short-term rental properties.
Apparently Harris has at least one other property like The Manors and it has been a sore spot with neighbors because it is used as a “party house.” That is, the “guests” book the rooms and then host a large, often boisterous and alcohol fueled party with many more guests that would typically be at a residential home.
For those interested in the minutiae of the review of zoning issues, the opinion is a fairly easy read at just 14 pages. However, the appeal comes down to one issue – was the Board’s determination of the facts and application of the law “fairly debatable?” This is about as high a standard of review to overcome as abuse of discretion. Some would argue that it is contextual even higher because the courts are hesitant to set aside a decision which is essentially legislative in nature.