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Ohio Appeals Court Upholds Conviction of HIV-Positive Gay Man for Felonious Assault in Non-Disclosure Case

Posted on: July 14th, 2017 by Art Leonard No Comments

The 9th District Court of Appeals of Ohio affirmed a felonious assault conviction and five-year prison sentence for Jeffrey A. Boatright, a gay man who was convicted by a jury of violating the section of the state’s felonious assault statute pertaining to HIV-positive individuals who fail to disclose their status prior to engaging in sex.  State of Ohio v. Boatright, 2017-Ohio-5794, 2017 Ohio App. LEXIS 2854, 2017 WL 2979147 (July 12, 2017).  The jury heard conflicting stories about how and when Boatright learned that he was HIV-positive and decided to believe the prosecution’s witnesses, who directly contradicted Boatright’s claim that he did not know he was HIV-positive when he had sex with the victim, a gay man identified in the opinion by Presiding Judge Diana Carr as “M.H.”

Summarizing the trial record, Judge Carr wrote that “prior to November 13, 2014, M.H. and Boatright were just friends and would text each other often. Because M.H. was having problems with his boyfriend and wanted to have ‘fun,’ he contacted Boatright and went over to his house around 11 p.m. on November 13, 2014.  The two had a few alcoholic drinks and watched TV.  Boatright then asked M.H. to give him a massage.  M.H. declined because he knew Boatright had a boyfriend.  However, M.H. came to discover that Boatright and his boyfriend were having problems.  Shortly thereafter, M.H. left and went downtown, but, before long, returned to Boatright’s house.  Boatright began to make sexual advances and M.H. began to ask Boatright about his sexual history.  Boatright indicated that he last had sex with someone in September 2014, was tested for sexually transmitted diseases, including HIV, shortly thereafter, and that the result ‘was negative.’  After that discussion, the two engaged in unprotected, consensual anal and oral intercourse; Boatright penetrated M.H. orally and anally.  Afterwards, M.H. went home and the two never engaged in sex again.  M.H. testified that, prior to that night, M.H.’s last HIV test was the summer of 2013, and it was negative.  Approximately a week and a half after M.H. and Boatright had sex, M.H. began to develop flu-like symptoms.  About a week after that, M.H. presented to an emergency room as he was still suffering from flu-like symptoms.  Based upon his history and symptoms, doctors ordered an HIV test.  Both the preliminary and confirmatory tests came back positive.”

Continued Carr, “M.H. contacted Boatright while M.H. was waiting for his test results and told Boatright there was a possibility he gave M.H. HIV. Boatright again stated he was HIV negative and said he was sorry M.H. had to go through the situation.  After M.H. got his results, he again spoke to Boatright.  Boatright kept saying how sorry he was but never stated that he had been deceptive about his HIV status.  However, at the end of their conversation, M.H. testified that Boatright stated, ‘I’m sorry, man.  I lied.’  After M.H. received his test results, he kept stating that he did not want to live life having HIV.  In light of those statements, as a precaution, M.H. was admitted to a psychiatric unit for observation.”

The prosecution presented evidence that Boatright had been an occasional compensated plasma donor at CSL Plasma, during which he filled out intake forms in which he failed to disclose, as required by the questions, that he was a man who had sex with other men, which would have caused him to be deferred as a donor. CSL, as required by regulations, tested all donations for HIV.  Boatright made a donation on August 22, 2011, that tested positive for HIV.  CSL sent him a certified letter, but it was returned by the post office for wrong address.  They also called and left a voicemail for him to call back, but received no response.  Shortly thereafter, as required by public health regulations, CSL reported this HIV-positive test result to the Ohio Disease Reporting System, and Health Department employees attempted to contact Boatright, leaving a voicemail on September 2, 2011, and sending a letter on September 6, 2011.  The letter was returned.  Two appointments were made for Boatright to come to the Health Department, but he failed to show up.  Following standard procedure, the case was closed.  However, Boatright showed up at CLS Plasma on December 12, 2012, to make another donation.  Bonnie Chapman, a registered nurse who worked there, testified that at that time she counseled Boatright about his prior test result and gave him literature, and documented the session in an electronic record.  She confirmed that she told him on December 12, 2012, that he was HIV-positive, and she gave him the appropriate forms.  “Ms. Chapman testified that, from her recollection, when she told Boatright he had tested positive for HIV, she was expecting a reaction but did not get one.  Instead, he said, ‘Okay; and he left.’”

Another witness, a registered nurse at the Health Department referred to in the opinion as “Mr. Osco,” testified that Boatright came to the Health Department in December 2014 requesting HIV testing “because he was informed that one of his sexual contacts was hospitalized with an HIV diagnosis, and because the home test Boatright took thereafter was positive. Mr. Osco indicated that both Boatright’s preliminary and confirmatory HIV tests were positive.  Mr. Osco also discovered the prior 2011 positive test result while researching Boatright in the Ohio Disease Reporting System.  When Mr. Osco informed Boatright of the results in early 2015, Boatright became emotional and seemed very sincere.  Boatright told Mr. Osco that he had been in a relationship for two years and the only other person he had sexual contact with was M.H.  Boatright declined to name his partner, but indicated that he had told the partner about the possibility Boatright had HIV and his partner had thereafter tested negative.  Mr. Osco testified that he informed Boatright of the prior positive result, and Boatright maintained that he was never contacted by anyone about it.”

However, during his own testimony, Boatright basically admitted that he had lied to Mr. Osco. He testified that “his partner, who he was dating at the time he engaged in sexual conduct with M.H., testified positive for HIV in March 2013.  The parties also entered into a stipulation with respect to this fact.  Boatright stated that, after he learned of the diagnosis, the two men waited to have sex until after his boyfriend’s viral load was undetectable and also used condoms.  Boatright acknowledged that he lied to Mr. Osco when Boatright told Mr. Osco that his partner was negative for HIV.”

As for the sex with M.H., Boatright admitted that they engaged in unprotected sex. “He stated that he did not use a condom because he thought he was HIV-negative.  He acknowledged that he and M.H. discussed their respective HIV statuses that night,” and he essentially confirmed M.H.’s testimony about his contacting Boatright, which had prompted Boatright to test himself and then seek testing from the Health Department.

The statute under which Boatright was tried, R.C. 2903.11(B)(1), states that “no person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall knowingly engage in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct.” Another section of the statute states that “a person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature.  A person has knowledge of circumstances when he is aware that such circumstances probably exist.”

The major point of contention in the case, of course, was whether Boatright could be charged with criminal liability based on his state of knowledge about his HIV status at the time he had sex with M.H. on November 13, 2014. He had tested positive in 2011 when donating plasma, but he claimed he had never been notified.   He also made much of the fact that he either worked for or volunteered at the Akron AIDS Collective beginning in 2008, in which role he was an AIDS outreach worker involved in counseling about prevention and detection of HIV, and he claimed that in that connection he was regularly tested for HIV and had tested negative.  He was aware that the man he was dating tested positive in March 2013, but he asserted that they did not resume having sex until his partner’s HIV load was undetectable and they used condoms.  His case depended on his testimony that he genuinely thought he was HIV-negative as of November 13, 2014, and that he first learned he was positive when M.H. contact him, leading to his home test followed by the Health Department test.  Set against this was the testimony by Nurse Chapman that she had counseled Boatright about his HIV status on December 12, 2012, which Boatright denied in court, and Mr. Osco’s testimony confirming that a record of Boatright’s 2011 positive test result was in the Ohio reporting database.

In appealing his conviction and sentence, Boatright argued first that the statute was unconstitutional, but his attorney had not raised a constitutionality objection during the trial, so the appeals court found this argument to have been waived. Boatright contended that the trial judge should have dismissed the case rather than sending it to the jury, on grounds of insufficient evidence for a conviction, but the appeals court rejected this out of hand, finding that in sorting through the contradictory evidence, the jury could reasonably have reached the conclusion that Boatright knew about his HIV-positive status and lied to M.H. before they had sex.  The court emphasized that Boatright even admitted during his testimony to having lied more than once, including when he filled out plasma donation forms and failed to disclose that he was a sexually active gay man who should have been deferred as a donor.  He claimed he did this because he was opposed to the categorical exclusion of gay men as donors, and that he was altruistically donating because “he wanted to help people and did not think that his sexual orientation should prevent him from donating.”

“After a thorough, independent review of the record,” wrote Judge Carr, “we conclude that the jury did not lose its way in finding Boatright guilty of felonious assault. The jury was presented with two competing views of the evidence.  Ms. Chapman clearly testified that she informed Boatright in 2012 that he had tested positive for HIV.  Boatright denied that he ever received that information and averred that he had no knowledge that he had tested positive for HIV prior to engaging in sexual conduct with M.H.  Boatright testified about his work in the community to prevent and educate people about HIV and AIDS and about his knowledge of the importance of testing and receiving prompt treatment.  He also presented Mr. Osco’s testimony which, if believed, could evidence that Boatright was surprised by the HIV diagnosis in 2015.  However, the jury also heard about the multiple instances in which Boatright lied.  He lied on the CSL Plasma questionnaires and to Mr. Osco about Boatright’s partner’s HIV status.  Additionally, M.H. testified that, following his diagnosis, Boatright apologized for lying.” The court refused to overturn the jury’s verdict “on a manifest weight of the evidence challenge merely because the trier of fact opted to believe the testimony of a particular witness,” wrote Carr.  “Under these circumstances, and in light of the argument made on appeal, we cannot say that the trier of fact lost its way and committed a manifest miscarriage of justice in finding Boatright guilty of felonious assault.”

The court also rejected Boatright’s challenge to the jury instructions on the issue of knowledge, finding that the trial judge’s charge paraphrasing the statute did not constitute “reversible error,” even if the statute was less than ideally phrased. The court also rejected Boatright’s challenge to the length of his sentence, observing that the range provided by the statute was between two and eight years, so a five-year sentence was comfortably within the range.  The court also pointed out that Boatright had failed to present a full record in support of his argument that the sentence was excessive, noting that “the presentence investigation report, the statements by Boatright’s friends, and the victim impact statement, which the trial court considered in sentencing Boatright, have not been included in the record on appeal.”  It is the appellant’s responsibility to provide this kind of information to the appeals court.  “This Court has consistently held that, where the appellant has failed to provide a complete record to facilitate appellate review, we are compelled to presume regularity in the proceedings below and affirm the trial court’s judgment.”  The court also rejected Boatright’s argument that his trial attorney had presented an ineffective defense by failing to raise a constitutional objection to the statute, pointing out that another district of the court of appeals had recently rejected a constitutional argument attack on the statute.  Given the strong presumption of constitutionality accorded to statutes, and the lack of any legal authority cited by Boatright to support the claim that it was viable argument, the court was unwilling to fault his trial attorney for failing to raise such an objection.  Similarly, the court was unwilling to credit the argument that the attorney was ineffective for failing to object to the length of his sentence at the time it was imposed, again because Boatright did not support documentation to the appeals court that could be the basis for a review of the sentence.

Boatright’s appellate counsel is James K. Reed.

Military Appeals Court Changes Analysis of “Aggravated Assault” HIV Exposure Cases

Posted on: February 24th, 2015 by Art Leonard No Comments

Reversing the conviction of HIV-positive Air Force Technical Sergeant David Gutierrez on charges of aggravated assault for engaging in unprotected oral and vaginal sex with women during “swingers” parties, the U.S. Court of Appeals for the Armed Forces ruled on February 23 in United States v. Gutierrez, No. 13-0522, that statistics about the likelihood of transmission of HIV under such circumstances would not support a conviction under Article 128(b) of the Uniform Code of Military Justice, which applies when a person “commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.”

Gutierrez was convicted of “aggravated assault” and other charges at a court martial presided over by Military Judge William C. Muldoon, Jr., who applied a 1993 decision, United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), which held that “the question is not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body.  The probability of infection need only be more than merely a fanciful, speculative, or remote possibility.”  Thus, Muldoon rejected Gutierrez’s contention that the statistics presented in the court martial would not support a conclusion that his conduct was “likely” to cause death or grievous injury to the women with whom he was having sex.

The court of appeals, bowing to criticism of its prior reasoning as having become outmoded as a result of medical advances and better knowledge about how HIV is transmitted, agreed that if HIV transmission is highly unlikely as a statistical matter, then it cannot be said that the defendant had acted in way that was “likely to produce death or grievous bodily harm.”

Clearly, any sexual activity using barrier contraception (condoms) could not constitute an aggravated assault on this reasoning, in light of the very high rate of effectiveness of condoms in preventing transmission.  The expert testimony presented in this case, wrote Judge Baker, “makes clear that condom use protects against the transmission of bodily fluids in ninety-seven to ninety-eight percent of cases, and that any transmission risk only obtains in the transmission of bodily fluids.”  The government’s own expert witness had testified that the risk of HIV transmission  in a case of “protected vaginal sex was only ‘remotely possible.'”  As such, it could hardly be called “likely.”

As to unprotected vaginal sex, the same expert put the risk of transmission at 20 out of 10,000, or about 1-in-500, which was described as the “high-end” statistic.  Based on this number, the court concluded that “HIV transmission is not the likely consequence of unprotected vaginal sex.  This is so because, in law, as in plain English, an event is not ‘likely’ to occur when there is a 1-in-500 chance of occurrence.  As a result, Appellant’s conviction for aggravated assault by engaging in unprotected vaginal sex is legally insufficient” to support the conviction.

As to unprotected oral sex, the expert testimony said that the chance of transmission through that mechanism was “almost zero.”  Under the court’s new reasoning, that testimony would not support a conviction for aggravated assault.

The court also rejected the government’s argument that Gutierrez could be convicted of “attempted aggravated assault,” since that would require proof of “specific intent to commit the offense of afflicting “grievous bodily harm” on the victim.  The court hypothesized that an HIV-positive person who filled a syringe with his own blood and injected it into another person could be convicted of this offense.

However, the court held that David Gutierrez was guilty of the lesser-included offense of simple assault, which requires that the accused “did bodily harm” which includes “any offensive touching of another, however slight.”  Since the women involved testified that they would not have consented to unprotected sex with Gutierrez had they known he was HIV-positive, they did not give “informed consent” based on awareness of the risks involved.  “Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent,” wrote Judge Baker.  Thus, Gutierrez “is therefore guilty of assault consummated by battery, and we affirm that offense as a lesser included offense of aggravated assault.”

The court stated that it was expressly overruling U.S. v. Joseph and reversing the aggravate assault conviction, but affirming the conviction on other charges (including adultery, in that these swingers parties in which Gutierrez and his wife participated included other married couples and everybody was mixing it up with each other’s spouses).  The case was sent back to the lower court to either reassess the sentence originally imposed or to hold a new sentencing hearing. Recognizing that this case has dragged on for a very long time, the court also charged the Air Force Court of Criminal Appeals with considering whether Gutierrez’s due process rights were violated “by the facially unreasonable appellate delay that occurred in this case.”

This ruling raises important issues outside the military context, since civilian courts have also imposed severe penalties in some cases upon HIV-positive defendants comparable to Gutierrez, using much the same reasoning.  It is noteworthy, however, that in the past few years courts have started to become much more sensitive to the developing knowledge about transmission risks, especially when HIV-positive people are compliant with anti-retroviral therapy rendering their viral load undetectable or are using condoms to block transmission.  This military case involved a “swingers” club that, so far as the court’s decision went, didn’t involve same-sex contact or anal sex.  It will be interesting to see whether the military courts will be consistent in their reasoning if they are presented with cases involving gay service members who credibly testify that they are compliant with treatment regimens that have sharply reduced their infectiousness to the vanishing point.

New York Appellate Division Rebuffs Syracuse D.A. on Felony Charges in HIV Exposure Case

Posted on: November 18th, 2013 by Art Leonard No Comments

A unanimous five-judge panel of the New York Appellate Division, 4th Department, has rejected an argument by the office of Syracuse District Attorney William Fitzpatrick that an HIV-positive man should face felony charges carrying a mandatory minimum prison term for exposing another person to HIV by failing to disclose his infection before engaging in unprotected sex.  The court approved a decision by Onondaga County Supreme Court Justice John J. Brunetti to reduce the charge to a misdemeanor in People v. Williams, 2013 N.Y. Slip. Op. 7636, 2013 N.Y. App. LEXIS 7558 (November 15, 2013).

According to the court’s opinion, Terrance Williams “engaged in unprotected sex with the victim on two to four occasions without disclosing his HIV positive status.  Shortly after their sexual relationship ended, defendant told the victim that a former sexual partner had tested positive for HIV and urged the victim to be tested.  The victim was diagnosed as HIV positive several months later.”  The victim, whose sex is not mentioned in the opinion, then complained to law enforcement.  Williams was indicted under N.Y. Penal Law Section 120.25, “reckless endangerment in the first degree,” a Class D felony with a potential prison sentence of 2-7 years.  That provision states that a person is guilty of the offence when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.”

Williams, represented by Kristen McDermott of the Frank H.  Hiscock Legal Aid Society in Syracuse, moved to have the charges reduced, arguing that the facts would not support the felony charge.  He had told the police that “he did not disclose his HIV positive status to the victim because he was afraid [the victim] would not want to be with” him, and that he “loved [the victim] so very much.”  When he found out the victim was diagnosed, he wrote a letter apologizing “because he was ‘so upset’ and ‘felt terrible’.”  Williams argued that these facts would not support a finding that he exhibited “depraved indifference to human life” or that his conduct created “a grave risk of death to another person.”

The victim’s doctor offered testimony that ended up supporting Williams’ motion.   As summarized in the Appellate Division’s opinion, the doctor, “an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different anti-viral medications available for treatment.  The expert testified that although an HIV positive diagnosis may have been tantamount to a death sentence in the past, with treatment, the prognosis today is ‘outstanding,’ particularly when a patient promptly learns that he or she is infected and seeks treatment.  Indeed, the expert testified that patients with HIV who take their medication, eat well, do not smoke, and reduce their alcohol intake can live a ‘very healthy, normal lifestyle,’ and he expected a similar prognosis for the victim.”

In light of this testimony, Justice Brunetti agreed with the defendant that he had been over-charged, and reduced the charge to “reckless endangerment in the second degree” under Penal Law section 120.20, which is a Class A misdemeanor with a maximum prison sentence of up to one year, although a trial judge has discretion to impose penalties other than incarceration (such as, for example, community service and/or supervised probation).  The District Attorney appealed Justice Brunetti’s decision to reduce the charges, but the Appellate Division unanimously upheld Justice Brunetti.

“We conclude that, although defendant may have acted with indifference to the victim’s health, his conduct lacked the ‘wanton cruelty, brutality, or callousness’ required for a finding of depraved indifference toward a single victim,” wrote the court.  “The fact that defendant encouraged the victim to be tested for HIV indicates that defendant ‘was trying, however weakly and ineffectively,’ to prevent any grave risk that might result from his conduct.”  Thus, he could not be found to have been totally indifferent to the health of the victim, a necessary finding for “depraved indifference.”  Furthermore, the court found that the doctor’s testimony, which was not contradicted by any evidence from the prosecution, “failed to establish that defendant’s reckless conduct posed a grave or ‘very substantial’ risk of death to the victim.”

This opinion stands in stark contrast to rulings from other jurisdictions that have upheld lengthy prison sentences on similar facts, usually citing outdated medical sources about the mortality prognosis from HIV infection.  Those opinions tend to come from jurisdictions whose legislatures reacted to the AIDS epidemic by passing specific laws criminalizing knowing exposure to HIV and mandating severe sentences.  New York, by contrast, has dealt with HIV transmission under its general penal code provisions, leaving the courts with flexibility to take account of new medical information and the facts of individual cases.  If Williams is a first offende, he may end up not having to serve any prison time in this case, although the prosecutor’s pursuit of a felony charge on appeal doesn’t suggest that a lenient plea-bargain is in the offing.