Howton v. State

2021 Ark. App. 86

619 S.W.3d 29

Maxwell Todd HOWTON, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-432

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: February 24, 2021

John Wesley Hall, Little Rock and Samantha J. Carpenter, for appellant.

Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Sr. Ass't Att'y Gen., for appellee.

STEPHANIE POTTER BARRETT, Judge

Appellant, Max Howton, appeals from a judgment of conviction entered following his conditional guilty plea to two counts of knowingly exposing another person to human immunodeficiency virus (HIV) pursuant to Ark. Code Ann. § 5-14-123 (Repl. 2013). He argues that the circuit court erred in denying his two pretrial motions, which challenged the constitutionality of section 5-14-123 under the United States Constitution and the Arkansas Constitution on grounds that the statute (1) is a bill of attainder; (2) violates the right to equal protection of the law; (3) imposes cruel or unusual punishment; and (4) is unconstitutionally vague. We affirm.

I. Facts and Procedural History

On August 17, 2018, appellant was charged in the Pulaski County Circuit Court with having committed two counts of knowingly exposing another person to HIV in violation of Ark. Code Ann. § 5-14-123(b) by failing to inform two sexual partners that he had tested positive for HIV before having sexual intercourse with either person. On December 16, 2018, appellant filed a "Motion to Dismiss, Offer of Proof and Brief in Support," alleging that section 5-14-123 is unconstitutional because it serves as a bill of attainder, violates his equal-protection rights, constitutes cruel and unusual punishment, and is void for vagueness under both the federal and state constitutions. In response, the State denied each allegation. The circuit court orally denied the motion on April 8, 2019.

On January 6, 2020, appellant filed a "Motion to Hold Ark Code Ann. § 5-14-123 Imposes Or Allows Cruel and/or Unusual Punishment, Due Process, or Equal Protection," which alleged that, due to the vast medical and scientific advancements in the treatment for HIV, prosecuting him for a class A felony for a crime that has become "far less grave and potentially nonexistent when one's viral HIV load is ‘undetectable’ constitutes cruel and/or unusual punishment because the punishment doesn't fit the crime" and alleged that treating him differently by exposing him to such grave punishment violates due process and equal protection of the law. No response was filed. The circuit court denied the motion on the record on February 11, 2020. On that same date, appellant entered a conditional plea statement, pleading guilty to charges as filed, preserving his ability to appeal the circuit court's denial of his two pretrial motions, which is now before us. See Ark. R. Crim. P. 24.3(b)(iii) (2020). Under his plea agreement, appellant was sentenced to an aggregate term of six years’ imprisonment in the Arkansas Department of Correction.

II. Standard of Review

Both the circuit court's interpretation of the constitution and issues of statutory interpretation are reviewed de novo. Worsham v. State , 2019 Ark. App. 65, 572 S.W.3d 1. Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Ray v. State , 2017 Ark. App. 574, 533 S.W.3d 587. Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Id. If it is possible to construe a statute as constitutional, the reviewing court must do so. We acknowledge that it is the duty of the courts to sustain a statute unless it appears to be clearly outside the scope of reasonable and legitimate regulation. Arnold v. State , 2011 Ark. 395, at 4, 384 S.W.3d 488, 493. This court must also give effect to the legislature's intent, making use of common sense and giving words their usual and ordinary meaning.

III. Discussion

A. Bill of Attainder

Appellant argues that the challenged statute is an unlawful bill of attainder because it singles out disfavored persons by illness (HIV positive) and rank labels them as dangers to the public. Specifically, he argues that through the advances in medical treatment of HIV, specifically antiretroviral therapy (ART), a person's HIV levels can now be suppressed to undetectable levels thereby preventing HIV transmission through sexual penetration.¹ We disagree.

A bill of attainder is a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. Selective Serv. Sys. v. Minn. Pub. Interest Research Grp. , 468 U.S. 841, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984) ; see also, e.g. , Burns v. State , 303 Ark. 64, 793 S.W.2d 779 (1990). The prohibition against a bill of attainder reaches only statutes that inflict punishment on the specified individual or group. Id.

In order to determine if a statute inflicts a prohibited punishment, the court must look at the following three factors: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute can reasonably be said to further nonpunitive legislative purposes; and (3) whether the legislative record reveals a congressional intent to punish. Id. Considering these factors, Ark. Code Ann. § 5-14-123 (a) is plainly not a bill of attainder.

Ark. Code Ann. § 5-14-123(a) provides:

A person with acquired immunodeficiency syndrome or who tests positive for the presence of human immunodeficiency virus antigen or antibodies is infectious to another person through the exchange of a body fluid during sexual intercourse and through the parenteral transfer of blood or a blood product and under these circumstances is a danger to the public.

The State submits that the mere labeling of a person capable of transmitting HIV as a "danger to the public" does not punish a person for any act; it imposes no punishment at all. We agree. Ark. Code Ann. § 5-14-123 (a) does not criminalize the status of being HIV positive. Moreover, Ark. Code Ann. § 5-14-123 (b) criminalizes conduct of an HIV-positive person —not a person's status as HIV positive. Simply being HIV positive is not enough to be prosecuted under the statute.

Ark. Code Ann. § 5-14-123(b) provides:

A person commits the offense of exposing another person to human immunodeficiency virus if the person knows he or she has tested positive for human immunodeficiency virus and exposes another person to human immunodeficiency virus through the parenteral transfer of blood or a blood product or engages in sexual penetration with another person without having first informed the other person of the presence of the human immunodeficiency virus.

To be found criminally liable under the statute, a person must expose another to HIV through a blood transfer or engage in sexual penetration without disclosing one's HIV-positive status. In this matter, neither appellant's guilt nor sentence was predetermined by the language of the statute, nor by his HIV-positive status. It is his lack of conduct (informing) that is criminalized. This statute is not a bill of attainder, and the circuit court's rejection of appellant's constitutional challenge on these grounds is affirmed.

B. Equal Protection

Appellant argues that Ark. Code Ann. § 5-14-123 ’s requirement that a knowing HIV carrier must disclose his or her HIV-positive status to a sexual partner prior to engaging in sexual penetration violates the Equal Protection Clause of the United States and Arkansas Constitutions.² Specifically, he argues there is no constitutionally justifiable basis for treating carriers of HIV differently than carriers of other sexually transmitted diseases. We disagree.

Equal protection under the law is guaranteed by the Fourteenth Amendment to the United States Constitution and by articles 2, 3, and 18 of the Arkansas Constitution. Ray , 2017 Ark. App. 574, at 4, 533 S.W.3d 587. In deciding whether an equal-protection challenge is warranted, there must first be a determination that there is a state action that differentiates among individuals. Arnold , 2011 Ark. 395, 384 S.W.3d 488. When the legislation neither invades a fundamental constitutional right nor purposefully operates to the detriment of a suspect class, the only requirement of equal protection is that the legislation be rationally related to a legitimate government interest. Harris v. McRae , 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) ; see also, e.g. , State v. Batista , 64 N.E.3d 498, 501 (Ohio Ct. App. 2016) (HIV-exposure statute does not involve a fundamental right and HIV-positive persons are not a suspect class or semisuspect class). Here, appellant's equal-protection challenge does not involve a "fundamental right" or "suspect classification" warranting strict scrutiny, nor does his challenge involve a right or classification warranting intermediate scrutiny. Accordingly, the applicable standard is whether the classification is rationally related to a legitimate government interest.

Equal protection does not require that persons be dealt with identically; it requires only that classification rest on real and not feigned differences. Landers v. Stone , 2016 Ark. 272, 496 S.W.3d 370. The distinctions must have some relevance to the purpose for which the classification is made, and their treatment be not so disparate as to be arbitrary. Id. When reviewing an equal-protection challenge, it is not this court's role to discover the actual basis for the legislation. Id. Rather, if there is any reasonably conceivable fact situation that demonstrates the possibility of a deliberate nexus between state objectives and the classification in question, the classification is not completely arbitrary, and the statute is constitutional. Id. (emphasis added). Appellant bears the burden to negate every conceivable rational basis that might support the...