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.Tags: Criminal liability for exposure to HIV, criminal liability for failing to disclose HIV status. Ohio Court of Appeals, felonious assault, HIV transmission, Judge Donna Carr, nondisclosure of HIV status, Ohio 9th District Court of Appeals, State of Ohio v. Jeffrey A. Boatright