State Of Iowa Vs. Jimmy Dean Stevens ( 2006 )

IN THE SUPREME COURT OF IOWA
No. 51 / 04-2066
Filed August 4, 2006
STATE OF IOWA,
Appellee,
vs.
JIMMY DEAN STEVENS,
Appellant.
Appeal from the Iowa District Court for Black Hawk County,
Stephen C. Clarke, Judge.
Defendant appeals from conviction of criminal transmission of HIV
under Iowa Code section 709C.1 (2003). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis D.
Hendrickson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and James
Katcher, Assistant County Attorney, for appellee.
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LARSON, Justice.
Jimmy Dean Stevens has appealed his conviction for criminal
transmission of HIV under Iowa Code section 709C.1 (2003), alleging that
the district court erred in denying his motion for judgment of acquittal. We
affirm.
I. Facts and Prior Proceedings.
The evidence, when viewed in the light most favorable to the State,
reveals the following facts. Stevens, the defendant, was thirty-three years
old at the time of the offense. The victim, J.B., was fifteen years old. Both
are homosexual and met in an internet chat room for gay men. They
exchanged photographs, and according to J.B., he and Stevens engaged in
some chat about their sexual preferences.
The two arranged to meet in person that night. J.B.’s mother,
believing that Stevens was somehow connected with a university and could
assist J.B. in getting into college, consented to Stevens’ visit. After Stevens
arrived at J.B.’s house, he talked with J.B. and his mother for some time.
J.B. and Stevens then went to get fast food. On the way, Stevens stopped at
a Kwik Star to use the ATM machine. When he returned to the car, he said
he was sexually aroused and wished someone would perform oral sex on
him. Stevens drove to a dark location on a street in Waterloo where J.B.
and Stevens performed oral sex on each other. Stevens ejaculated into
J.B.’s mouth.
Afterwards, J.B. asked Stevens if he was clean, i.e., free from sexually
transmitted diseases. Stevens represented that he was clean, and offered to
pay for testing if J.B. so wished. The pair then got some food, and Stevens
took J.B. home.
Upon returning home, J.B.’s mother, recognizing that they had been
gone longer than necessary, informed J.B. that Stevens “looked like he was
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a good candidate for AIDS.” J.B. again became concerned about sexually
transmitted diseases. He made himself vomit and then called Stevens, once
more questioning him as to whether he was “clean.” Again, Stevens
responded that he was.
In reality, Stevens was HIV positive and had been aware of this since
1990. The parties stipulated that,
[t]he Defendant, Jimmy Dean Stevens, has known since
being diagnosed in 1990 that his human immunodeficiency
virus (HIV) status is positive.
On the night of his sixteenth birthday, J.B. learned that Stevens was in fact
HIV positive. J.B. eventually informed someone of his situation, pressed
charges and, at the time of trial, had been tested twice for the HIV. Both
results were negative. 1
Stevens was charged with two offenses: criminal transmission of HIV
in violation of Iowa Code section 709C.1 and sexual abuse in the third
degree in violation of Iowa Code section 709.4(2)(c)(4). Stevens admitted at
trial that he had met J.B. online, that he sent nude pictures of himself to
J.B., and that he met J.B. in person on the evening in question. He also
admitted that he did not tell J.B. about his HIV positive status, as he did
not see the need to. However, he denied that he knew J.B. was only fifteen
years old when he e-mailed the nude photographs of himself, that he and
J.B. talked online about their sexual preferences, and that he intended to or
had any sexual encounter with J.B.
When the State rested, and again at the conclusion of the trial,
Stevens moved for judgment of acquittal, alleging insufficient evidence to
support both counts. The motion was denied. The jury subsequently found
1The fact that the victim does not actually contract HIV does not impact on the
charge, as the statute does not require that HIV actually be transmitted, only that the
circumstances were such that it could have been transmitted. See Iowa Code
§ 709C.1(2)(b) and (4).
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Stevens guilty of both charges, and he was sentenced to twenty-five years
on the criminal-transmission-of-HIV charge and ten years on the sexual-
abuse charge. They were ordered to run consecutively. Stevens now
appeals his conviction for the criminal transmission of HIV, again arguing
that insufficient evidence exists to support the conviction.
II. Scope of Review.
We will affirm the denial of a motion for judgment of acquittal if
substantial evidence in the record supports each element of the offense
challenged by the defendant. State v. Sayles, 662 N.W.2d 1, 3 (Iowa 2003).
Evidence is substantial if it would convince a rational trier of fact that the
defendant is guilty beyond a reasonable doubt. Id. In making this
assessment, this court considers all the evidence and views it in the light
most favorable to the State. Id.
III. Analysis.
The sole issue on this appeal is the sufficiency of the evidence to
support a conviction of criminal transmission of HIV. Specifically, Stevens
challenges the evidence supporting the element of the charge, which
requires that he engaged in “intimate contact” with another person. See
Iowa Code § 709C.1(1)(a). Stevens characterizes the issue as presenting two
questions:
1. May fellatio (oral sex) be performed “in a manner that
could result in the transmission” of HIV? and
2. Did the State prove that fellatio was so performed in
this case beyond a reasonable doubt?
Under Iowa law, a person who knows that he or she is HIV positive
commits a crime when that person engages in intimate contact with another
person. See Iowa Code § 709C.1(1)(a). “Intimate contact” is defined as,
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the intentional exposure of the body of one person to a bodily
fluid of another person in a manner that could result in the
transmission of the human immunodeficiency virus.
Iowa Code § 709C.1(2)(b).
The jury was instructed as follows:
The State must prove all of the following elements of
Criminal Transmission of Human Immunodeficiency Virus
(HIV) as alleged in Count I:
1. Between July 1, 2003, and September 11, 2003, the
defendant engaged in intimate contact with [J.B.].
2. At that time the Defendant’s HIV status was positive.
3. The defendant knew his human immunodeficiency
virus (HIV) status was positive.
4. At the time of the intimate contact, [J.B.] did not
know that the defendant had a positive HIV status.
If the State has proved . . . all of these elements, the
defendant is guilty of Criminal Transmission of Human
Immunodeficiency Virus. If the State has failed to prove any
one of the elements, the defendant is not guilty.
The jury instruction defining intimate contact mirrored the legislative
definition and informed the jury that the State need not prove that the
person exposed actually became infected with the HIV.
It is well established that the State bears the burden of proving
beyond a reasonable doubt every element of the crime charged. See In re
Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375
(1970) (“[T]he Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.”); accord State v. McMullin,
421 N.W.2d 517, 519 (Iowa 1988). The jury was instructed on this
principle. Thus, the State was required to prove, as an element of the crime
charged, that “intimate contact” took place, i.e., that (1) there was an
intentional exposure of the body of one person to a bodily fluid of another
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person, and (2) this occurred in a manner that could result in the
transmission of the HIV.
Stevens acknowledges that, in State v. Keene, 629 N.W.2d 360 (Iowa
2001), this court took judicial notice of the fact that the HIV can be
transmitted through bodily fluids. See Keene, 629 N.W.2d at 365.
However, he argues that Keene can be distinguished because Keene
involved a guilty plea and therefore relieved the State of its burden of proof
in that case. See State v. Young, 293 N.W.2d 5, 7 (Iowa 1980) (“A plea of
guilty, if voluntarily and intelligently made, relieves the prosecution of the
burden of proving any facts necessary to support the conviction.”) (citation
omitted). Given that this relief was not available to the State in the present
case, as Stevens denied that “intimate contact” took place, Stevens argues
that Keene does not apply and that the State was required to introduce
evidence on the “intimate contact” element.
The State argues that the significance of Keene, in taking judicial
notice of the methods of transmission of the HIV, is in giving voice to what
is common knowledge—that the HIV can be transmitted via semen and
other bodily fluids and that sexual intercourse is a common method of
transmitting the virus. The existence of this common knowledge is not
dependent upon a guilty plea/nonguilty plea distinction. The State believes
that, in light of Keene and its conclusion that the statute was sufficient to
give notice of what acts were prohibited, the jury can be assumed to have
the knowledge, common sense, and collective intelligence to know that oral
sex resulting in ejaculation could result in the transmission of the HIV.
The district court reasoned as follows:
Further, then, with respect to the suggestion that there
must be causative proof, the Court looks to the decision of the
Supreme Court in State vs. Keene . . . . On page 365 the Court,
among other things, states: We take judicial notice of the fact
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that the HIV may be transmitted through contact with an
infected individual’s blood, semen or vaginal fluid, and that
sexual intercourse in that case is one of the most common
methods of passing the virus.
We agree with the State’s position and the conclusion of the district
court. In Keene we took judicial notice of “the fact that the HIV may be
transmitted through contact with an infected individual’s blood, semen or
vaginal fluid, and that sexual intercourse is one of the most common
methods of passing the virus.” Keene, 629 N.W.2d at 365. “To be capable
of being judicially noticed, a matter must be of common knowledge or
capable of certain verification.” Motor Club of Iowa v. Dep’t of Transp., 251
N.W.2d 510, 517 (Iowa 1977); see also 22A C.J.S. Criminal Law § 658, at
302 (1989) (“Courts take judicial notice of facts within the common
experience or knowledge of every person of ordinary understanding and
intelligence, and of such things as are, or generally should be, known in
their respective jurisdictions. A fact may be judicially noticed where it is so
universally and commonly known as to carry its own indicia of correctness
. . . .”). Therefore, only facts to which sufficient notoriety attach so as to
make it safe and proper to assume their existence without specific proof
should be judicially noticed. State v. Ladd, 252 Iowa 487, 490, 106 N.W.2d
100, 101 (1960). By taking judicial notice in Keene that certain bodily
fluids can transmit the HIV and that sexual intercourse is a manner of
transmission of the HIV, we acknowledged what is, in fact, common
knowledge. Therefore, the significance of Keene lies not in the underlying
basis of the case, i.e., whether a plea of guilty or not guilty was entered, but
in its recognition of what is clearly common knowledge in today’s society. 2
See Keene, 629 N.W.2d at 365 (“any reasonably intelligent person is aware
2Notably, we took judicial notice of these matters in Keene when considering
Keene’s constitutional challenge to the statute, not only in analyzing the existence of a
factual basis for his guilty plea.
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it is possible to transmit HIV during sexual intercourse, especially when it is
unprotected”).
Admittedly, Keene referenced “sexual intercourse” as the manner of
transmission of the virus, as the case involved potential transmission via
vaginal intercourse. “Sexual intercourse” has not been defined by our
legislature. In that situation, we look to the common meaning of the
phrase. State v. Tesch, 704 N.W.2d 440, 451 (Iowa 2005). “The dictionary
provides a ready source for the common meaning of a word or phrase.” Id.
Webster’s dictionary defines “sexual intercourse” as:
1: heterosexual intercourse involving penetration of the
vagina by the penis: coitus 2: intercourse involving genital
contact between individuals other than penetration of the
vagina by the penis.
Webster’s Third New International Dictionary 2082 (unabridged 1986). Under
this definition, Keene should be read as taking judicial notice of the very
issue before this court, i.e., sexual intercourse may be committed through
oral sex. In any event, oral sex is a well-recognized means of transmission
of the HIV. See People v. Russell, 630 N.E.2d 794, 795 (Ill. 1994) (court took
judicial notice that intimate sexual contact whereby blood or semen of an
infected person is transferred to an uninfected person is a primary method
of spreading the infection); People v. Dempsey, 610 N.E.2d 208, 223 (Ill. Ct.
App. 1993) (“In the instant case, defendant placed his penis in the mouth of
the victim and ejaculated semen. Defendant acknowledged that semen is a
bodily fluid well known as a transmitter of the HIV. Oral sexual intercourse
is a penetrative sexual contact which is recognized as allowing transmission of
the virus. Thus, defendant clearly exposed the body of another to his bodily
fluid in a manner that could result in the transmission of HIV.” (Emphasis
added.)); Recreational Devs. of Phoenix, Inc. v. City of Phoenix, 83 F. Supp. 2d
1072, 1101 (D. Ariz. 1999), aff’d, 238 F.3d 430 (9th Cir. 2000) (“It is
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common knowledge that engaging in sexual intercourse and oral sex
without the use of condoms place people at risk for sexually transmitted
diseases, including HIV/AIDS.”); see also Alan Stephens, Annotation,
Transmission or Risk of Transmission of Human Immunodeficiency Virus (HIV)
or Acquired Immunodeficiency Syndrome (AIDS) as Basis for Prosecution or
Sentencing in Criminal or Military Discipline Case, 13 A.L.R. 5th 628 (1993) (It
is “generally known” that the HIV is “spread by the transfer of bodily fluids
such as blood, genital secretions, and perhaps saliva.”).
In addition to courts accepting as common knowledge methods of
transmission of the HIV, the legislature has also done so. See Iowa Code
§ 915.40(11) (presumption of significant exposure to the HIV when infected
individual engages in sexual intercourse, including oral sex); id.
§ 709C.1(1)(b) (recognizing semen and blood as potentially infectious bodily
fluids).
By recognizing that it is common knowledge that oral sex is a manner
of transmission of the HIV, we find that the State did not fail to meet its
burden of proof. Importantly, “ ‘[j]urors are not expected to lay aside
matters of common knowledge or their own observation and experience of
the affairs of life, but may give effect to such inferences as common
knowledge or their personal observation and experience may reasonably
draw from the facts directly proved.’ ” State v. Manning, 224 N.W.2d 232,
236 (Iowa 1974) (quoting 75 Am. Jur. 2d Trial § 1019, at 860); see also State
v. Post, 286 N.W.2d 195, 203 (Iowa 1979) (history, common sense, and
experience are factors to be considered in determining whether there is a
rational connection between basic facts that the prosecution has proved
and the ultimate fact presumed).
This is not the first time we have determined that jurors could rely on
their common knowledge to support a conviction. See State v. Theodore,
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150 N.W.2d 612, 616 (Iowa 1967) (jurors could find from common
knowledge and experience that ninety-one boxes of loins, five boxes of
cooked hams, three boxes of smoked hams, and one box of shankless hams,
which allegedly were subject of conspiracy to commit felony larceny and/or
embezzlement, were worth more than $20, even though no evidence had
been presented on the value of the meat).
We conclude that the State produced substantial evidence to support
a finding of “intentional exposure of the body of one person to a bodily fluid
of another person . . . .” We therefore affirm.
AFFIRMED.