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Posts Tagged ‘Criminal liability for exposure to HIV’

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.

Mississippi Appeals Court Upholds 75 Year Prison Term for HIV-Positive Man Who had Unprotected Sex With Gay Teen

Posted on: May 6th, 2016 by Art Leonard No Comments

On April 19 the Court of Appeals of Mississippi affirmed a 75-year prison sentence for Timothy Allen McCoy, who was convicted of four counts of sexual battery and one count of exposing another to HIV.  McCoy did not argue on appeal that he did not engage in the conduct charged against him, but he claimed that the trial judge was biased, resulting in an excessive sentence, and the evidence did not support his conviction.  Judge Jim Greenlee wrote for the unanimous appeals court panel of nine judges.  McCoy v. State, 2016 WL 1568004, 2016 Miss. App. LEXIS 228.

According to McCoy, the teenage boy, who is identified in the court’s opinion as “G.G.,” contacted him on a social-networking website for gay men.  They chatted back and forth on-line before deciding to meet in person.  McCoy was 41 at the time and the boy claimed in his trial testimony that he was then fifteen.  G.G. gave McCoy the address of his father’s house near Decatur and arranged for McCoy to pick him up at 2 a.m.  G.G. “sneaked out” and got into McCoy’s car.  McCoy drove them to a secluded spot where they had sex.  According to G.G., McCoy said nothing about being HIV positive, said he was 34 years old, and did not use condoms.  They had oral and anal sex and were together less than an hour before McCoy drove G.G. back to his father’s house.  G.G.’s parents were divorced and he lived with his mother and stepfather.  At the time he was just visiting with his father.

G.G. testified that this encounter occurred in mid-April 2012, but he could not remember the exact date.  McCoy testified that it took place in late July, shortly after G.G.’s 16th birthday.  He also testified that he told G.G. that he was HIV-positive, that G.G. had consented to having sex with a condom, and that when they met G.G. told McCoy that he was 18.

G.G.’s mother testified that she became concerned about G.G.’s behavior and began looking at his phone and phone records on Mother’s Day in May 2012.  According to Judge Greenlee’s opinion, “She discovered naked pictures of men and sexually explicit text messages” and turned this information over to the police.  A warrant for McCoy’s arrest was issued on September 10, 2012, after he was identified from the phone records, and he was interviewed by police officers the next day.  He agreed to give a voluntary statement without speaking to an attorney, probably because he believed he had done nothing wrong.  This is almost always a mistake.

The police officers testified that McCoy told them he met G.G. online, drove to G.G.’s father’s home at 2 a.m. to pick him up, drove G.G. to a secluded spot on a dirt road, and that they exchanged oral and anal sex. The police testified that McCoy admitted to the police that he was HIV positive and that he had not used condoms.

The court’s opinion does not say anything about G.G. becoming infected with HIV as a result of this incident. It also says nothing about McCoy’s viral load or treatment history, or whether there was testimony at trial about how HIV is and is not transmitted.

The jury convicted McCoy on all counts. The Judge Marcus D. Gordon sentenced him to a total of 75 years on the battery counts and ten years on the HIV exposure count, to run “concurrently” with the battery sentences, to pay a $10,000 fine, and to register as a sex offender. Given McCoy’s age, this is virtually a life sentence.

McCoy argued that Judge Gordon had expressed a personal prejudice against his sexual orientation resulting in an unduly harsh sentence and asked that the court re-assign the case to a new judge for re-sentencing. The court of appeals included extensive quotations from the transcript of the sentencing hearing that were offered by McCoy as evidence of prejudice.

Judge Gordon said, “Well, Timothy Allen McCoy, I consider myself a normal person, and I don’t understand fully what you have – you yourself have testified that you are homosexual, that you are attracted to someone for physical activities. I want you to tell me why is it that you as a forty-one year old man was [sic] attracted to a fifteen year old boy for sexual activity?”  McCoy replied, “At the time, sir, I did not know that he was fifteen.”  “How old did you think he was?” asked Gordon.  “He said he was eighteen,” responded McCoy.  “All right.  That is still a minor child in my opinion,” said Gordon.  “Yes, sir, I understand,” said McCoy.  “Why is it that you was [sic] attracted to him?”  “I can’t answer that, sir,” replied McCoy.

Continuing the questioning, Gordon asked, “You’ve done it before? This is not your first experience?”  “With…” “Anyone?”  “No,” replied McCoy, “it’s not my first experience with anyone, no, sir.”  “All right, all right,” said Gordon.  “You know that that type of activity was wrong, did you not?  That a forty-one year old man should not have sex with a person, a male person, who is either fifteen or eighteen?  You knew it was wrong to have sex with an eighteen-year-old person or a fifteen year old person, did you not?”  “Yes, sir.”  “Why did you do it?”  “I don’t know at the time, sir.  Actually, Your Honor, I had a – I guess – a drug problem at the time.  I was on Lortab.”  “That’s an excuse, not a justification,” said Gordon.

Interestingly, the age of consent for sex in Mississippi is 16, which explains why, from a defense strategic point of view, McCoy testified that they had sex after G.G.’s 16th birthday, which would have made it legal solely from an age point of view.  And, of course, if Gordon was suggesting that it would be illegal for McCoy to have sex with an 18 year old boy, as he claimed G.G. had represented himself to be, Gordon would be in error.  Courts have consistently ruled that because age of consent laws are intended to protect minors from sexual exploitation by adults, a misrepresentation of his or her age by a minor is irrelevant to the guilt or innocence of the defendant.  Sex between an adult and a minor will be deemed non-consensual regardless of “actual” consent.

The judge then headed off on a somewhat rambling diatribe: “In reviewing your activities,” he said, “I refer again to the sentencing statute, and my thoughts regarding sentences are controlled by the fact that you have some education, including some education in college, and that you as an adult man, forty-one years old, with your background, knowing what’s involved with you having sex with a minor person, that you joined with that young fellow, not knowing him, and taking him in your car and driving a short distance to a dirt road with a strange person and having anal sex and fellatio at a time when you had HIV, knowing what you were doing, knowing that this was a minor child, soliciting him to a wrongful act, an act that shocks the conscience of people of this country, that you would do that to a minor child, causing that child possibly to live a life such as you. He will have this life for the remainder of his life.  Perhaps, he will become a person as you because he has had now we know, I know, a sexual experience which, if you want to call it sexual…  He has that life.  Perhaps, he will not have a job, and perhaps he will be ridiculed and not likely he’ll be accepted in the general society as you are not accepted in generally accepted…  He will live a life in secretion.”

Opposing McCoy’s appeal of the sentence, the State argued that the judge’s comments were not “sufficient to overcome the presumption that he was unbiased and impartial.” The court of appeals agreed with the State, despite the quoted passages.  Judge Greenlee wrote that McCoy’s contention that the judge was biased was based on “mere speculation.”  He pointed out that the judge explicitly relied on “multiple aggravating factors,” including G.G.’s actual age, McCoy’s “admission” to the police that he was HIV positive and had not used condoms (which he contradicted in his testimony by saying he had used condoms), the secretive nature of the 2 a.m. meeting, and the “secluded spot on a dirt road” where the admittedly furtive encounter took place.  It seems as well that McCoy had a police record, including four misdemeanor charges or convictions in Georgia between 1990 and 2001, one involving “enticing a minor.”

Greenlee pointed to the consistent practice of the appellate courts in Mississippi to uphold sentences imposed by trial courts if they fell within the limits prescribed by the sentencing statute. In this case, he wrote, on four sexual battery counts McCoy was exposed to a potential sentence of up to 130 years, so 75 was well under the statutory maximum and the court concluded that bias had not been shown.

McCoy also argued that his lawyer had not provided effective representation at trial. The appeals court refused to address this claim in the context of an appeal of the sentence rather than an appeal of the conviction, asserting that the trial record did not clearly support the claim and that McCoy  could raise it anew in a petition for post-conviction relief.  McCoy also faulted his attorney for not getting the case dismissed on the grounds that G.G. was “of age” when the incident occurred, but the court pointed out that his attorney did make this argument for a directed verdict after the prosecution put on its witnesses, pointing out that there was no direct evidence that the incident occurred before G.G. turned 16 and that this was a “crucial element” of the prosecution’s case, so the court of appeals said the attorney could not be faulted for not making an argument he actually made.

McCoy emphasized the same issues to argue that the evidence did not support the verdict. “He asserts the evidence showed the first contact (on-line) occurred on July 22, 2012, and the sexual encounter occurred on July 28, 2012, after G.G. turned sixteen, rather than April 13, 2012, as charged in the indictment,” wrote Judge Greenlee.  Thus, McCoy argued, his battery conviction could not be based on G.G.’s testimony, since G.G. was vague about when it occurred.

However, pointed out Greenlee, G.G.’s mother testified that she became suspicious something was up and began reviewing G.G.’s phone records on “Mother’s Day of 2012,” which was in May, and that’s when she discovered the communication with McCoy, contradicting his testimony that the first on-line contact was in July. A police detective also testified in support of an April date for the encounter, although he did not specify a specific date but rather a range of days.  When McCoy was cross-examined about the date, he testified, “I might not be sure, but I’m almost positive that that’s the date it happened,” referring to July 28.  Thus, there was conflicting testimony, and the court of appeals held that a jury could have resolved the conflict in favor of the prosecution.

There was also conflicting testimony about whether McCoy told G.G. he was HIV positive and whether condoms were used. When there is conflicting testimony, it is up to the jury to resolve it based on credibility, and in this case it was resolved against McCoy.  “Viewing the evidence in the light most favorable to the state,” as the court is obliged to do after a conviction, “we find that a reasonable jury could have found McCoy guilty beyond a reasonable doubt.”

Finally, responding to McCoy’s contention that his sentence was disproportionate to the seriousness of the crime, the court quoted a U.S. Supreme Court decision to the effect that sentences “that do not exceed the maximum punishment allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal.” Greenlee pointed out that McCoy “has cited no cases where a comparable crime resulted in a lesser sentence.”

McCoy was represented on appeal by attorneys from the Office of the State Public Defender, George T. Holmes and Justin Taylor Cook, and is also listed as having participated actively in his own defense. He could attempt to appeal this ruling further to the state Supreme Court, which is not a notably gay-friendly bench.  It appears that McCoy may spend the rest of his life in prison for a brief fling with a boy who said he was 18 when they met, during which HIV was not transmitted.  McCoy is not claiming that he is innocent, just that the sentence is excessive in light of how things turned out.