State v. Bonds

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
August 2, 2005 Session

STATE OF TENNESSEE v. HEZZIE BONDS

Direct Appeal from the Circuit Court for Gibson County
Nos. 16028 & 16184 Clayburn Peeples, Judge

No. W2004-02447-CCA-R3-CD - Filed September 22, 2005

This is a direct appeal as of right from a jury conviction of aggravated rape and criminal exposure
of another to HIV. The trial court sentenced the Defendant to consecutive terms of twenty-five years
and six years, for an effective sentence of thirty-one years. On appeal, the Defendant raises only one
issue: there is insufficient evidence to find him guilty of the two offenses for which he was
convicted. We affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.

Paul B. Conley, III, Humboldt, Tennessee, for the appellant, Hezzie Bonds.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and
Garry Brown, District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

The Defendant was indicted by a Gibson County grand jury on one count of aggravated rape
of a thirteen-year-old male.1 After it was learned that the Defendant was HIV positive, he was also
indicted by a Gibson County grand jury on one count of criminal exposure of another to HIV.2 The
two cases were consolidated, and the Defendant’s first trial on these charges resulted in a hung jury.
The Defendant was retried, and a jury found him guilty as charged. This appeal followed.

1
See Tenn. Code Ann. § 39-13-502.

2
See Tenn. Code Ann. § 39-13-109.
 At the second trial, the victim, M.S.,3 testified that at the time of the incident he was thirteen
years old, weighed about one hundred five pounds, and was approximately five feet and two inches
tall. Although he had since moved, at the time of the incident he lived in Milan with his mother.
On the day in question, he attended school and then afterwards visited the home of his best friend,
Brian Bradford, where the two “play[ed] games and stuff” for a period of time. At some point, the
two boys decided to walk to the Defendant’s house to get some cigarettes. M.S. stated that the two
remained at the Defendant’s house for approximately ten minutes, got the cigarettes, and left. Both
boys returned to Brian’s house where they continued to play video games and smoked the cigarettes.
M.S. further testified that he “knew of” the Defendant because several months earlier the two boys
and the Defendant had gone fishing together. The Defendant’s house was described as “around the
corner” and only a “five to seven minute walk” from Brian Bradford’s house.

At some point that same afternoon, M.S. decided to go back to the Defendant’s house alone
to get more cigarettes. M.S. testified that he thought he may have told Brian where he was going but
was unsure. M.S. testified that when he arrived at the Defendant’s house, there was “another man”
there, sitting on the couch. M.S. described this man as “a large black male” who was about six feet
four inches tall and weighed between three hundred and three hundred fifty pounds. The Defendant
gave M.S. two more cigarettes, which he put in the front pocket of his jeans. As he attempted to
leave, the large man stopped him. M.S. described what happened next as follows:

[H]e got up and grabbed me and he was a lot larger than I was so, I mean, he just
threw me on the ground and he laid across my back across my shoulders and held my
arms down and then Mr. Bonds pulled my pants down and he stuck his penis in my
anus. . . . I kicked. I punched. I done everything. Screamed. There wasn’t much
I really could do, ‘cause I was so small and there was two of them and one of me.

M.S. testified that after the Defendant raped him, the Defendant also threatened to kill him
if he told anyone what had happened. M.S. was then allowed to leave. M.S. stated that he pulled
his underwear and pants up and started to walk back to Brian’s house. Because he felt “nasty and
dirty,” he did not want anyone to see him, so he took a longer, more secluded route to Brian’s house.
He walked slowly through a forested area and cried. It took him about ten to twelve minutes to get
to Brian’s house, but upon arriving he and Brian played video games for thirty or forty-five minutes,
smoked the two cigarettes, and then M.S. went home. He did not tell Brian or his mother what had
happened the day of the incident. After arriving at home that evening, he ate supper, and then went
to his room where he sat for several hours until he was sure everyone else was asleep. At about 3:00
a.m., he took a shower because he “felt dirty and ashamed and nasty.” M.S. stated that he was not
bleeding from his rectum as a result of the rape.

M.S. further testified that he did not tell anyone what had happened for some time because
he was so ashamed. Two weeks after the incident, M.S. finally told Brian, who convinced him he
should tell an adult. The two boys informed their school principal, who called the police. M.S.

3
It is the practice of this Cou rt to identify juvenile victims o f sexual o ffenses by their initials on ly.

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stated that he believed his mother first learned of the rape through the police. M.S. testified that
since the incident, he has undergone years of out-patient counseling and spent a brief period of time
in a medical facility for in-patient counseling. He has been tested for HIV eight times, each time
testing negative.

On cross-examination, M.S. testified that the large man who held him down never spoke, but
that he bit this man on the hand. He also stated that Brian never asked him if he had been crying
when he returned with the cigarettes. Additionally, M.S. admitted that despite the violent nature of
the attack, the cigarettes, which were in the front pocket of his jeans, were not significantly damaged.
M.S. further testified that while he identified a large black man from a photo lineup shortly after the
incident, when he saw the man in person he “was not sure.”4

Brian Bradford testified that he was a friend of the victim, and had been with him on the date
at issue. Mr. Bradford stated that he did not remember if M.S. specifically told him that he was
going back to the Defendant’s house for more cigarettes, but that it was not unusual for him to come
and go as he pleased. He did remember M.S. leaving that day and returning a short time later. Mr.
Bradford testified that when M.S. returned he was “acting quiet,” and “walked funny.” However,
Mr. Bradford did not question M.S. about this at the time. He did, however, remember this unusual
behavior because M.S. “usually talked” when they were together.

Mr. Bradford stated that it was some time later when M.S. finally told him that a large man
held him down while the Defendant raped him. He convinced M.S. to go and tell their high school
principal. On cross-examination, Mr. Bradford admitted that when M.S. returned to his house after
the incident he did not look like he had been crying or sweating.

The prior testimony of Carol Jones, a children and youth therapist, was introduced.5 Ms.
Jones stated that she had seen the victim on a professional basis one or two times a month for a year
and sporadically after that. She testified that while the victim talked of the rape, she never pressed
him for details. She further testified that the victim never gave her any reason to believe he was
being deceptive about the incident.

Jane Vernon, a registered nurse, testified at trial that the Defendant’s medical records reveal
that he is HIV positive. Ms. Vernon testified further that these records also reveal that the Defendant
was informed of this fact as early as 1994, and was given several “HIV clinics” in which he was
educated about the disease and given counseling on how it would effect his life and those around
him. Ms. Vernon also stated that an HIV positive person may not always infect another person via

4
The record reveals that an unidentified m an was arrested in connection with this incident based on the victim’s
identification of him from a photographic array. However, further investigation revealed that this man was at another
location at the time of the incident, and the victim also stated that he was “not sure” it was the right man after seeing him
in person. T his man was released, and no other susp ect was located.

5
Ms. Jone s was unable to attend the M arch 2 004 trial, but had previously testified about the issue at a prior
proceed ing. M s. Jone s’ testimony was re ad into the record at trial.

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sexual intercourse. She explained that many factors are involved, the most significant of which is
the strength of the non-infected person’s immune system. Other factors include the amount of semen
or bodily fluids transferred, and blood exposure.

The defense called only one witness, Investigator Jerry Harsfield. Officer Harsfield testified
that he was assigned to investigate the case after the rape was reported. He first talked to the victim
on January 4, 2001, slightly over a month after the rape. He had the victim’s mother take him to a
doctor for an examination. Officer Harsfield stated that the victim described the man that assisted
the Defendant in the rape as a “big, stocky guy,” but did not report that he had bit him on the hand.
Officer Harsfield showed the victim some photos, and the victim identified one suspect, who Officer
Harsfield arrested. However, further investigation revealed that this suspect had a strong alibi which
would have precluded his involvement in the rape of the victim.

At the conclusion of the trial, the Defendant was found guilty of aggravated rape, a Class A
felony, and criminal exposure of another to HIV, a Class C felony. The Defendant was subsequently
sentenced as a violent offender to twenty-five years for his aggravated rape conviction, and received
a consecutive sentence of six years as a Range I, standard offender for his conviction for criminal
exposure to another of HIV.

The Defendant timely filed a motion for a new trial, alleging insufficient evidence. The
motion was denied by the trial court, and this appeal followed.

ANALYSIS
I. Standard of Review
The Defendant argues on appeal that there was insufficient evidence presented at trial for any
rational trier of fact to find beyond a reasonable doubt that he was guilty of the two crimes for which
he was convicted. In support of this assertion, the Defendant raises two basic arguments: 1) the
victim’s testimony, upon which the entire case against him rested, was not credible, and there was
no physical evidence to corroborate this testimony; and 2) the State failed to provide evidence to
support the “exposure of bodily fluid” element of the criminal exposure offense. We disagree.

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant
who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that any rational trier of fact could have found the essential elements of

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the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

II. Aggravated Rape
The Defendant was convicted of one count of aggravated rape. Aggravated rape is, in
relevant part, the “unlawful sexual penetration of a victim by the defendant or the defendant by a
victim accompanied by . . . the following circumstances: (3) The defendant is aided or abetted by one
(1) or more other persons; and (A) Force or coercion is used to accomplish the act.” Tenn. Code
Ann. § 39-13-502(a)(3)(A).

The Defendant does not argue that if the State’s evidence is accepted as true the proof fails
as a matter of law to establish all the elements necessary for aggravated rape. Rather, the Defendant
argues that the State’s only eyewitness testimony, that of the victim, is not credible, and furthermore,
there is no physical evidence to corroborate the victim’s testimony. Thus, the Defendant asserts,
there is insufficient evidence to find him guilty beyond a reasonable doubt. To support his argument
the Defendant first notes that while the victim claimed two men were involved in the rape, he was
only able to identify one. Moreover, the victim initially misidentified the second man, and despite
police investigations, the six-foot four inch, three hundred to three hundred fifty pound black man
was never found. The Defendant submits that such a man, should he actually exist, would be hard
to miss. The Defendant also asserts that the victim’s version of the event lacks credibility because
while the victim states he was thrown to the ground and his pants were pulled down in a violent
attack, the two cigarettes in his front pants pocket were not broken.

Additionally, the Defendant points to the complete dearth of physical evidence of the type
that would normally corroborate a claim of aggravated rape. The Defendant emphasizes the fact that
there was no medical report presented at trial to support a claim of rape. Furthermore, the victim’s
own testimony as well as that of Mr. Bradford revealed that the victim suffered no physical injuries
despite the victim’s version of the violent nature of the attack. Based on these arguments, the
Defendant asserts that the State failed to provide sufficient evidence to prove he was guilty of
aggravated rape.

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 The Defendant’s first argument, questioning the plausibility of the victim’s testimony,
amounts to nothing more than a challenge to the jury’s determination of the credibility of the
witnesses. However, as already stated, a jury’s guilty verdict accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See Bland,
958 S.W.2d at 659. Moreover, questions about the credibility of a witness and the weight and value
of the evidence presented at trial are issues that are resolved by the trier of fact, and this Court will
not re-weigh or re-evaluate this evidence. See Evans, 108 S.W.3d at 236. In this case, the jury
obviously accredited the testimony of the victim as to the events of the crime. Thus, the Defendant’s
argument that the State failed to provide sufficient evidence to convict him of aggravated rape
because the victim’s testimony was of questionable credibility is misplaced.

The Defendant also argues that the State failed to provide sufficient evidence to convict him
of aggravated rape because there was no physical evidence to corroborate the victim’s testimony.
However, this argument also fails. It is well-settled law in Tennessee that “the testimony of a victim,
by itself, is sufficient to support a conviction.” State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim.
App. 1993); State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981). In short,
corroboration of a victim’s testimony by physical evidence is not required for a jury conviction to
be upheld on appeal. In this case, the victim’s testimony established that the Defendant unlawfully
sexually penetrated the victim when the Defendant “stuck his penis in [the victim’s] anus,” and this
act was accomplished by means of force and with the aid of another person. Accordingly, we
conclude there was sufficient evidence presented at trial for a rational trier of fact to find that the
Defendant committed the offense of aggravated rape beyond a reasonable doubt.

III. Criminal Exposure of Another to HIV
The Defendant was also convicted of exposing another to HIV. Since 1994 it has been a
criminal offense in Tennessee for any person with knowledge that he or she is infected with human
immunodeficiency virus (HIV) to “[k]nowingly [e]ngage[] in intimate contact with another.” Tenn.
Code Ann. § 39-13-109(a)(1). The statute further defines “intimate contact with another” as “the
exposure of the body of one person to a bodily fluid of another person in any manner that presents
a significant risk of HIV transmission.” Id. at 39-13-109(b)(2).6

A. Witness Credibility and Lack of Physical Evidence
The Defendant raises the same arguments pertaining to his conviction for criminal exposure
of another to HIV that he raised in challenging his aggravated rape conviction, but also adds the
argument that because the victim has been diagnosed as free from HIV, this piece of physical
evidence also weighs against the Defendant’s testimony. As to the first arguments, we find they fail
for the same reasons outlined above. As to the suggestion that the victim’s HIV negative status
weighs against a conviction for criminal exposure, we note that the testimony at trial from the
registered nurse was that not every sexual encounter with someone infected with HIV will transmit

6
W e note that it is an affirmative defense to prosecution that the person exposed to HIV knew that the Defendant
was infected with HIV, knew that the action could result in infection with HIV, and consented to the action with that
know ledge . See Tenn. Cod e Ann. § 39-13-109 (c).

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the virus. Additionally, the criminal exposure statute itself states that “[n]othing in this section shall
be construed to require the actual transmission of HIV in order for a person to have committed the
offense of criminal exposure of another to HIV.” Tenn. Code Ann. § 39-13-109(d).

The evidence that supports the aggravated rape conviction is largely the same evidence the
jury relied upon to find the Defendant guilty of criminal exposure to another of HIV. As stated
above, this Court will not re-evaluate the credibility of witness testimony, nor will we re-weigh the
evidence presented at trial upon which a jury has based a verdict of guilt. Accordingly, the
Defendant’s argument that questionable witness testimony and lack of corroborating physical
evidence resulted in insufficient evidence upon which to base a conviction for criminal exposure of
another to HIV is also misplaced.

B. Interpretation of Criminal Exposure Statute
The Defendant also asserts that there was insufficient evidence as a matter of law to convict
him of criminal exposure of another because the State failed to meet the “exposure of bodily fluid”
element. It is the Defendant’s position that, pursuant to the statutory definition of “intimate contact
with another,” the criminal offense of exposure of HIV to another “requires the exposure of ‘bodily
fluid’ of the infected person to the body of another.” On this point, the Defendant argues that “[a]
close review of the testimony shows that there was no evidence introduced that any ‘bodily fluid’
(i.e. semen) of Mr. Bonds was found on the victims [sic] body.” The State argues that the statute at
issue does not require proof of actual transfer of a bodily fluid as the Defendant asserts, but rather
the plain meaning of “exposure” requires only that the Defendant put the victim at risk of coming
into contact with bodily fluids. The State further argues that unprotected sexual penetration of the
victim’s anus qualifies as “exposure” to bodily fluids.

This issue is essentially a matter of statutory interpretation. We begin by noting that when
examining a purely legal issue, such as statutory construction, Tennessee appellate courts adhere to
a de novo standard with no presumption of correctness as to the lower court’s conclusions of law.
See State v. Owens, 20 S.W.3d 634, 637 (Tenn. 2000); State v. Alford, 970 S.W.2d 944, 945 (Tenn.
1998) (“Construction of a statute is a question of law which we review de novo, with no presumption
of correctness”).

The Tennessee Supreme Court has ruled that “[t]he most basic principle of statutory
construction is to ascertain and give effect to the legislative intent without unduly restricting or
expanding a statute’s coverage beyond its intended scope.” Owens v. State, 908 S.W.2d 923, 926
(Tenn. 1995). See also Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998) (“The cardinal rule
of statutory construction is to effectuate the legislative intent, with all rules of construction being
aides to that end.”). With this in mind, the first step in determining legislative intent is to determine
whether the statutory language itself is ambiguous. If it is not, we are limited to the plain meaning
of the statutory language. We are instructed by our highest court to “initially look to the language
of the statute itself in determining the intent of the legislature. Courts are restricted to the natural
and ordinary meaning of the language used by the legislature in the statute, unless an ambiguity
requires resort elsewhere to ascertain legislative intent.” Id., 975 S.W.2d at 311 (citing Austin v.

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Memphis Pub. Co., 655 S.W.2d 146, 148 (Tenn. 1983)). Additionally, appellate courts must
“assume that the legislature used each word in the statute purposely, and that the use of these words
conveys some intent and has a meaning and purpose.” Id., (citing Locust v. State, 912 S.W.2d 716,
718 (Tenn. App. 1995)). Thus, “[w]here the words of the statute are clear and plain and fully express
the legislature’s intent, there is no room to resort to auxiliary rules of construction, and we need only
enforce that statute as written.” Id., (citing Roberson v. University of Tennessee, 912 S.W.2d 746,
747 (Tenn. App. 1995) and In re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn. App. 1995)).

While the elements of the criminal offense of exposure of another to HIV via intimate contact
are outlined in part (a) of the statute, the Defendant argues that the definition section in part (b)
requires the prosecution to prove the additional element of exposure to a “bodily fluid.”
Additionally, the Defendant interprets the phrase “the exposure of the body of one person to a bodily
fluid of another person in any manner that presents a significant risk of HIV transmission,” Tenn.
Code Ann. § 39-13-109(b)(2), to mean the State must prove the Defendant’s bodily fluid be “found
on” the victim.

The Defendant’s argument hinges on his interpretation of the word “exposure” in the phrase
“exposure of the body of one person to a bodily fluid of another person” as used in the statute’s
definition of what constitutes “intimate contact with another.” See Tenn. Code Ann. § 39-13-
109(b)(2). The Defendant argues that this Court should interpret the word “exposure” to connote
“transfer of” or “contact with” bodily fluids. However, the statutory language selected by the
Tennessee legislature does not require actual contact with or transfer of bodily fluids; the statute
simply requires “exposure” of bodily fluids to a victim. The commonly accepted definition of
“expose” is to “make accessible to something that may prove detrimental.” Webster’s Third New
International Dictionary 802 (1976). Moreover, Black’s Law Dictionary succinctly provides the
legal definition of “exposure” as “[t]he amount of liability or other risk to which a person is subject.”
Black’s Law Dictionary (8th ed. 2004). We conclude that the use of the word “exposure” requires
something less than actual contact with bodily fluids. Consequently the statute at issue requires that
for a defendant to be found guilty of criminal exposure of another to HIV via intimate contact, the
prosecution need only show that the defendant subjected the victim to the risk of contact with the
Defendant’s bodily fluids.

We thus find the Tennessee legislature’s use of the word “exposure” in the statute at issue
to require only evidence that a defendant subjected a victim to risk of contact with bodily fluids in
a manner that would present a significant risk of HIV transmission. Furthermore, we find this
language, including the word “exposure,” unambiguous. In interpreting statutory text, appellate
courts must “presume that the legislature says in a statute what it means and means in a statute what
it says there.” BellSouth Telecommunications v. Greer, 972 S.W.2d 663, 673 (Tenn. App. 1997).
While the criminal code drafters could have required actual contact with or transfer of bodily fluids
in the criminal exposure of another to HIV statute, they elected instead to require only “exposure”
to bodily fluids. We are mindful of our supreme court’s admonition that “[c]ourts are restricted to
the natural and ordinary meaning of the language used by the legislature in the statute.” Browder,

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975 S.W.2d at 311. In this case, we conclude that when the Defendant, with knowledge that he was
HIV positive, raped the victim by anal penetration, and he “exposed” the victim to bodily fluids, i.e.,
made his bodily fluids accessible to the victim, in a manner that presented a significant risk of HIV
transmission.

We also note that contrary to the Defendant’s arguments, both our existing case law
construing the statute at issue, and case law on the same subject emanating from other jurisdictions,
support our conclusion that “exposure” to bodily fluids requires no more than subjecting the victim
to a risk of contact. We are aware of five cases pertaining to this offense that have reached this
court. Four of the five have upheld convictions based only on evidence of unprotected sexual
intercourse or mere sexual involvement with a victim.7 In all four of these cases, actual contact with
or physical transmission of bodily fluids was not deemed a required element.8 See State v. Michael
Danelle Harvey, No. W2001-01164-CCA-R3-CD, 2002 WL 1162346, at *1 (Tenn. Crim. App.,
Jackson, May 31, 2002) (upholding a conviction based upon “unprotected sex”); State v. Martin
Charles Jones, No. E1999-01296-CCA-R3-CD, 2001 WL 30198, at *1 (Tenn. Crim. App.,
Knoxville, Jan. 12, 2001) (upholding a guilty plea based on a defendant who was “sexually
involved” with the victims); State v. Pamela Denise Wiser, No. M1999-02500-CCA-R3-CD, 2000
WL 1612363, at *2 (Tenn. Crim. App., Nashville, Oct. 30, 2000) (upholding multiple convictions
for engaging in “unprotected sex”); State v. Chester Lebron Bennett, No. 03C01-9810-CR-00346,
1999 WL 544653, at *1 (Tenn. Crim. App., Knoxville, July 28, 1999) (upholding guilty plea based
on “unprotected sexual encounters”).

The Defendant asserts that our frequent mention of “unprotected” sex in these prior cases is
an indication that “exchange of bodily fluids is required.” However, our prior case law does not
support this conclusion. Rather, the majority of the convictions were upheld without evidence of
an “exchange” of bodily fluids. Indeed, our prior case law’s emphasis on “unprotected” sex supports
the conclusion that “exposure” means simply to submit to a risk of contact with bodily fluids, such
a risk being substantially more prevalent in unprotected sex than when some form of prophylactic
is utilized.

Likewise, case law from outside jurisdictions mirror the reasoning of this Court in holding
that “exposure” does not require proof of actual transfer of bodily fluids or the virus itself. As noted
by the State, the Louisiana Court of Appeals held that Louisiana’s HIV exposure statute, which

7
Our research has revealed that only six unreported appellate co urt opinions, all from this court, have p reviously
add ressed the criminal exp osure of ano ther to HIV statute. Of these, only five separate cases we re involved (o ne case
was again reviewed by this court after remand) and the major ity of the cases invo lved guilty pleas c hallenging only
sentencing, where the sufficiency of evidence and elements of the crime we re not at issue. Ac cord ingly, the D efendant’s
issue pertaining to the definition o f “expo sure” is a matter of first impression .

8
The conviction for criminal exposure of another to HIV was upheld in the fifth case as well, but the evidence
submitted at trial did include testimony of the actual transmission of bod ily fluids of the d efendant to the victim. See
State v. Robert Morrow, No. E2000-02796-CCA-R3-CD, 2001 WL 1105371 (Tenn. Crim. App. , Knoxville, Sept. 18,
2001). However, n othing in this case indicates that the transmission of bodily fluids was itself considered a required
element of the offense.

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required proof that a person “intentionally expose another” to the AIDS virus, did not require
scientific evidence or expert testimony of actual victim contact with the virus. See La. R.S. §
14:43.5. (2003). Rather, the court found that the evidence of “sexual conduct” was itself sufficient
to convict the defendant of intentional exposure to the AIDS virus. See State v. Roberts, 844 So.2d
263, 271 (La. App. 4 Cir. 2003).

We also find persuasive the reasoning of the Washington Court of Appeals, which upheld
convictions for second degree assault based on Washington’s criminal exposure statute. State v.
Stark, 832 P.2d 109 (Wash. App. 1992). Washington’s criminal exposure statute provides that a
person is guilty of second degree assault if “[w]ith intent to inflict bodily harm, [the person] exposes
or transmits human immunodeficiency virus . . . .” R.C.W. § 9A.36.021(1)(e) (1992).9 In Stark,
the evidence adduced at trial revealed that the defendant “withdrew his penis from the victim prior
to ejaculation” in count one and “wore a condom” or “ejaculated outside of [the victim’s] body” in
count two, thereby not supporting a theory of actual transfer or contact. Stark, 832 P. 2d at 112.
Nonetheless, the court ruled that “[s]ince Stark is undisputedly HIV positive, he necessarily exposed
his sexual partners to the virus by engaging in unprotected sex.” Id. at 114 (emphasis added). The
Washington Court of Appeals, like this Court, finds a key distinction between “transfer” and
“exposure.”

In this case, the evidence shows that the Defendant knew he was infected with HIV. It is
“generally known” that HIV is “spread by the transfer of bodily fluids such as blood, genital
secretions, and perhaps saliva.” 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 §
2 (2004). Therefore the act of anal penetration is itself sufficient evidence of “exposure of the body
of one person to a bodily fluid of another person in [a] manner that presents a significant risk of HIV
transmission.” Tenn. Code Ann. § 39-13-109(b)(2). The risk of the transfer of bodily fluids is self
evident in such an activity, and such risk is all that is required under the Tennessee statute.
Accordingly, when viewed in the light most favorable to the State, we conclude that the evidence
was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the Defendant
is guilty of criminal exposure of another to HIV. This issue is without merit.

CONCLUSION
Based on the aforementioned reasoning and authorities, the judgments of the trial court are
affirmed.

___________________________________
DAVID H. WELLES, JUDGE

9
It is worthy of note that the Washington criminal exposure statute allows for either “transfer” or “exposure”
of HIV. T he use of the two words suggests that they are not synonymous; i.e., exposure does not itself mean transfer.

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