State v. Boatright

94 N.E.3d 1007

2017 Ohio 5794

STATE of Ohio, Appellee

v.Jeffrey A. BOATRIGHT, Appellant

No. 28101

Court of Appeals of Ohio, Ninth District, Summit County.

Dated: July 12, 2017

JAMES K. REED, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

CARR, Presiding Judge.

{¶ 1} Defendant–Appellant Jeffrey Boatright appeals the judgment of the Summit County Court of Common Pleas. This Court affirms.

I.

{¶ 2} A few weeks after M.H., an adult, homosexual male, engaged in consensual, unprotected anal and oral intercourse with Boatright, M.H. developed persistent flu-like symptoms and went to an emergency room for treatment. Based upon his constellation of symptoms, M.H. was tested for, and ultimately diagnosed with, HIV. Boatright was also HIV positive; however, Boatright told M.H., prior to engaging in sexual conduct with M.H., that Boatright was negative.

{¶ 3} Boatright was indicted on one count of felonious assault in violation of R.C. 2903.11(A)(1). Thereafter, a supplemental indictment was filed adding a charge of felonious assault in violation of R.C. 2903.11(B)(1). That count alleged that Boatright knowingly engaged in sexual conduct with M.H. without disclosing to him, prior to engaging in sexual conduct, that Boatright had tested positive for HIV.

{¶ 4} Upon motion of the State, the first count, based upon R.C. 2903.11(A)(1), was dismissed. The matter proceeded to a jury trial on count two, at which the primary issue was whether Boatright knew, at the time he engaged in sexual conduct with M.H., that Boatright had tested positive for HIV. The jury found Boatright guilty, and the trial court sentenced Boatright to five years in prison.

{¶ 5} Boatright has appealed, raising seven assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

R.C. 2903.11(B)(1) IS UNCONSTITUTIONAL ON ITS FACE AND/OR AS APPLIED TO MR. BOATRIGHT IN THAT SAID STATUTE VIOLATES 1) THE EQUAL PROTECTION CLAUSE[S] OF THE UNITED STATES AND OHIO CONSTITUTIONS; 2) THE FREE SPEECH CLAUSES OF THE FIRST AMENDMENT AND SECTION 11, ARTICLE 1, OF THE OHIO CONSTITUTION ; AND 3) PROHIBITIONS AGAINST DISCRIMINATION ON THE BASIS OF DISABILITY, ANY OF WHICH CONSTITUTES ERROR REQUIRING REVERSAL OF MR. BOATRIGHT'S CONVICTION.

{¶ 6} Boatright argues in his first assignment of error that R.C. 2903.11(B)(1) is unconstitutional on its face and as applied.

{¶ 7} "Legislative enactments are afforded a strong presumption of constitutionality." State v. Smith , 2017-Ohio-359, 83 N.E.3d 302, ¶ 28, citing State v. Collier , 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). "[I]f at all possible, statutes must be construed in conformity with the Ohio and United States Constitutions."

Collier at 269, 581 N.E.2d 552. "A party asserting that a statute is unconstitutional must prove that the statute is unconstitutional beyond a reasonable doubt." Smith at ¶ 28. " ‘The failure to challenge the constitutionality of a statute in the trial court forfeits all but plain error on appeal, and the burden of demonstrating plain error is on the party asserting it.’ " Id. , quoting State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 2.

{¶ 8} Boatright did not raise this issue in the trial court, and has thus, forfeited all but plain error. See Smith at ¶ 28. While Boatright has mentioned plain error on appeal, he has failed to develop a plain error argument. See App.R. 16(A)(7) ; see also M.H. v. J.P. , 9th Dist. Lorain Nos. 15CA010832, 2017-Ohio-33, 2017 WL 74862, ¶ 10. We decline to create an argument on his behalf and overrule his first assignment of error on that basis.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT DENIED MR. BOATRIGHT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL.

ASSIGNMENT OF ERROR III

MR. BOATRIGHT'S CONVICTION FOR FELONIOUS ASSAULT IS NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE AND MUST BE REVERSED.

{¶ 9} Boatright argues in his second assignment of error that the trial court erred in failing to grant his Crim.R. 29 motion. In his third assignment of error, he asserts that his conviction was based upon insufficient evidence. Specifically, in both arguments, he asserts that the State presented insufficient evidence to demonstrate that, prior to engaging in sexual conduct with M.H., Boatright knew that he had tested positive for HIV. We will limit our analysis accordingly.

{¶ 10} Crim.R. 29(A) provides:

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case.

{¶ 11} When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks , 61 Ohio St.3d 259, 279, 574 N.E.2d 492 (1991).

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

{¶ 12} R.C. 2903.11(B)(1) states that, "[n]o person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall knowingly * * * [e]ngage in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct[.]" "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." Former R.C. 2901.22(B).

{¶ 13} The record reflects 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.

{¶ 14} 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.

{¶ 15} 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 for HIV.

{¶ 16} 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."

{¶ 17} 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.

{¶ 18} With respect to when Boatright had knowledge that he was infected with HIV, the State presented witnesses who worked at CSL Plasma and Summit County Public Health ("Health Department"). The testimony indicated that Boatright had been a plasma donor at CSL Plasma since 2008. The center manager of CSL Plasma, Joseph Jacko, testified that the company screens blood for HIV, hepatitis, other sexually transmitted diseases, and drugs of abuse. The initial testing is performed in Knoxville, Tennessee, and if the sample tests positive, it is sent for a confirmatory test at a different laboratory in North Carolina. If the sample tests positive for HIV, the donation associated with the sample would be destroyed and the state health department would be notified. He indicated that donors were paid between $20 and $50 for donating.

{¶ 19} He further testified that, prior to donation, donors have to complete a questionnaire.

Some of those questions are designed to identify donors who engage in "high risk activities." Donors who are determined to engage in high-risk activities are not allowed to donate. For example, if a male donor indicates that he has had sex with other men, he is disqualified from donating.

{¶ 20} Boatright donated plasma on August 22, 2011, and August 25,...