State v. Gonzalez
| Decision Date | 22 August 2003 |
| Docket Number | APPEAL NO. C-020384. |
| Court | Ohio Court of Appeals |
| Parties | STATE OF OHIO, Plaintiff-Appellee, vs. NADER GONZALEZ, Defendant-Appellant. |
Michael K. Allen, Hamilton County Prosecuting Attorney, and James Michael Keeling, Assistant Prosecuting Attorney, for Appellee,
Lane, Felix & Raisbeck Co., L.P.A., and Thomas E. Raisbeck, for Appellant.
{¶1} We affirm defendant-appellant Nader Gonzalez's conviction on two counts of felonious assault for his failure to disclose to a sexual partner his knowledge that he was HIV-positive.1 This new manner of committing felonious assault was added in 2000. Gonzalez's crimes are second-degree felonies, and the trial court sentenced him to the maximum term of 16 years in prison.
{¶2} Gonzalez contends that the statute under which he was convicted is unconstitutional, and that the trial court committed myriad errors. We hold the statute constitutional and hold that the trial court's errors were harmless.
{¶3} (1) R.C. 2903.11(B)(1) is not unconstitutionally vague. The word "disclose" is easily understood.
{¶4} (2) R.C. 2903.11(B)(1) does not inflict cruel and unusual punishment.
{¶5} (3) R.C. 2903.11(B)(1) does not violate due process by failing to provide for an affirmative defense. On the contrary, it places the burden on the prosecution to prove the lack of an affirmative defense—a disclosure—beyond a reasonable doubt.
{¶6} (4) By complying with R.C. 3701.243(B), which requires a search warrant or subpoena, law enforcement authorities may obtain HIV medical records for investigative use but may not further disclose those records.
{¶7} (5) Law enforcement authorities—or anyone else—cannot disclose HIV medical records without complying with R.C. 3701.243(C), which requires a common pleas court to find "compelling need" for disclosure.
{¶8} (6) In this case, the state did not comply with R.C. 3701.243(C), and the medical records should not have been admitted, but their admission was harmless error, as there was much other evidence that Gonzalez was HIV-positive and that he knew it.
{¶9} (7) R.C. 3701.243(C), when properly complied with, allows the admission of HIV medical records, trumping the medical-privilege statute, R.C. 2317.02(B).
{¶10} (8) In a prosecution for felonious assault under R.C. 2903.11(B)(1)— engaging in sexual conduct with another person without disclosing HIV-positive status— evidence that the victim is HIV-positive after such conduct is irrelevant and inflammatory. Only if the defendant's HIV status is a legitimate issue and the victim testifies that the victim was HIV-negative before the conduct, HIV-positive after, and had no other sexual partners, would the evidence be admissible. Otherwise, such evidence is both irrelevant and inflammatory. But in this case, we hold the error was harmless.
{¶11} (9) The jury verdicts were not inconsistent. While the trial court should have made clear to the jury that HIV status once disclosed was sufficiently disclosed, the jury did not lose its way.
{¶12} (10) The evidence was sufficient to convict Gonzalez beyond a reasonable doubt; and the manifest weight of the evidence was consistent with guilt.
{¶13} (11) Gonzalez was properly classified a sexually oriented offender.
{¶14} (12) Consecutive and maximum sentences, while harsh, complied with the sentencing guidelines and were not clearly and convincingly unsupported by the record. But we caution that consecutive sentences are disfavored and will not be approved if they are disproportionate to the crimes involved.
{¶15} In June 1999, Gonzalez became very sick and checked into University Hospital in Cincinnati. Gonzalez's doctor, Dr. Sandra Riegler, testified that Gonzalez tested positive for HIV and that she made a clinical diagnosis that Gonzalez had AIDS. Dr. Riegler testified that Gonzalez was experiencing several life-threatening illnesses caused by his weakened immune system. After ten days in the hospital, Gonzalez recovered enough from his secondary illnesses to be released.
{¶16} On the day he was discharged from the hospital, Gonzalez went to see Dr. Lisa Haglund at the Infectious Diseases Center, located in the Holmes Hospital in Cincinnati. Dr. Haglund testified that she was primarily responsible for writing prescriptions for the numerous medicines that Gonzalez needed to keep the virus under control, and for setting up appointments for blood tests to continuously monitor his condition. Dr. Haglund testified that she wrote in her notes that she was concerned that Gonzalez was depressed and that he was in denial about his illness. She also noted that Gonzalez was at times noncompliant with either his medicine or his treatment plan.
{¶17} In March or April of 2001, Gonzalez met Maria Jose Alvarado while dancing at a Latin nightclub. They talked and danced, and exchanged phone numbers at the end of the evening. They began dating, meeting at various dance clubs over the next several weeks. About 15 days after they met, they began a sexual relationship, either in late April or early May. They continued this relationship until June or July of 2001. (The uncertainty about the months may explain the later jury verdicts.)
{¶18} The stories of Gonzalez and Alvarado differed as to whether Gonzalez disclosed his HIV-positive status to Alvarado before the sexual relationship began. Alvarado testified that Gonzalez never told her that he had HIV, and that she had no suspicion that he was HIV-positive, before they had sex. She testified that they used a condom the first time, but never again. According to Alvarado, after the first time, Gonzalez asked her to take birth-control pills, and she agreed to do so.
{¶19} Alvarado testified that sometime in April she met Carlos, Gonzalez's friend, who told her that Gonzalez had AIDS. Alvarado confronted Gonzalez, who assured her that it was a lie, and that he did not have anything. Alvarado believed Gonzalez and continued the relationship. In June, another friend of Gonzalez, Elizabeth Shrader, told Alvarado that Gonzalez was sick. Alvarado testified that, at this point, she stopped talking to Gonzalez and got tested for sexually transmitted diseases. Several weeks later, when she received the results of her test, Alvarado learned that she was HIV-positive. Alvarado testified that she went to Gonzalez's house and told him the results of her test, but that he still denied that he had anything or that he had infected her.
{¶20} In contrast, Gonzalez testified that, the night before he and Alvarado first began their sexual relationship, Alvarado told Gonzalez that she had heard that he was HIV-positive. Gonzalez testified that he agreed that it was true, and that he had not told her that he was HIV-positive because they were just friends. Gonzalez testified that the next night Alvarado said that she had heard that people with HIV could have normal relationships with others, as long as they used protection. Gonzalez agreed that was what his doctor had told him, but that it was up to her. They later went to her house and had consensual sex.
{¶21} Gonzalez testified that he and Alvarado used a condom not only the first time, but every time after that. Gonzalez denied that he and Alvarado ever had a conversation concerning her using birth-control pills. Gonzalez said he always used a condom out of fear of either giving or receiving an infection. He also testified that he had never and would never expose someone to his illness without telling the person of the risk.
{¶22} To bolster his claim that he would not have had sex with a person without first disclosing his HIV status, Gonzalez offered the testimony of his previous girlfriend, Giuliana Gelke, whom he dated after learning he was HIV-positive, but before meeting Alvarado. Gelke testified that she met Gonzalez in late November 1999. She testified that they spent time together for several weeks, as friends. Sometime in December, Gonzalez told her that he had been very ill and in the hospital, and that he was HIV-positive. Gelke suggested that, to be sure, they both get tested for HIV. They did and Gelke tested negative, while Gonzalez tested positive. Gelke testified that they had many discussions about dealing with the illness and living with HIV before beginning their sexual relationship, near the end of December 1999. She testified that they always used condoms.
{¶23} Gonzalez and Gelke continued an on-and-off dating relationship through April 2001. Gelke testified that they sometimes separated due to typical relationship difficulties, and that Gonzalez once went back to his home country, Panama, for several months to visit his father, who was ill.
{¶24} Gelke testified that in April 2001, while she and Gonzalez were having sex, the condom they were using broke. Gelke testified that both she and Gonzalez were very afraid that she had been exposed. She stated that they both agreed that they should separate due to the stress of maintaining an intimate relationship. Gonzalez testified that Gelke broke up with him because she was scared to have sex with him after the accident.
{¶25} Also in his defense, Gonzalez presented the testimony of his sister, Jacibe Gonzalez, as well as Kevin Drummond, Gonzalez's case manager at AVOC (AIDS Volunteers of Cincinnati). Both testified that Gonzalez knew and understood that he was infected with a deadly disease. They both testified that Gonzalez knew and understood that he always needed to take precautions when engaging in sexual relations, and that he knew that he must always disclose his condition to any sexual partner beforehand.
{¶26} Cincinnati Police Officer Dionne Winfrey was also called by Gonzalez as a...
To continue reading
Request your trial