State v. Keene

• Decision Date: 05 July 2001
• Docket Number: No. 00-0643.,00-0643.
• Citation: 629 N.W.2d 360
• Parties: STATE of Iowa, Appellee, v. Justin Auman KEENE, Appellant.
• Court: Iowa Supreme Court

629 N.W.2d 360

STATE of Iowa, Appellee, v. Justin Auman KEENE, Appellant.

No. 00-0643.

Supreme Court of Iowa.

July 5, 2001.

Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Fred H. McCaw, County Attorney, and Christine Corken, Assistant County Attorney, for appellee.

CADY, Justice.

This appeal requires us to determine whether our criminal transmission of the human immunodeficiency virus (HIV) statute, Iowa Code section 709C.1(1) (1999),¹ is unconstitutionally vague as applied to the facts of this case. Additionally, we must determine whether a factual basis existed to support a plea of guilty to the charge of criminal transmission of the HIV. We conclude the statute is not unconstitutionally vague and that a factual basis supported the plea of guilty. We affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

Justin Keene was charged by trial information with criminal transmission of the HIV. The charge stemmed from a sexual encounter with a woman we identify as C.J.H. Keene agreed to plead guilty to the crime in exchange for a lenient sentence.

Before accepting Keene's guilty plea, the district court determined that Keene was voluntarily and intelligently entering the plea and that a factual basis existed for the plea.² The court relied upon the minutes of testimony and statements made by Keene during the guilty plea proceeding to find a factual basis.

The minutes of testimony included the testimony of C.J.H. C.J.H. has a mental illness and met Keene while she worked at a McDonald's restaurant. They had a brief romance and engaged in consensual, unprotected sexual intercourse on October 9, 1998. C.J.H. was uncertain whether or not Keene ejaculated during the sexual encounter, and was unaware of Keene's HIV status. C.J.H. further stated that Keene accompanied her to Hillcrest Family Services in Dubuque on October 16 for a pregnancy test. During this visit, C.J.H. expressed her desire to conceive a baby with Keene to Hillcrest nurse Kathy Meyer. Keene subsequently questioned Meyer concerning "what having AIDS meant to having a child."

The testimony of Meyer confirmed the October 16 meeting at Hillcrest with C.J.H. and Keene. Meyer reiterated Keene's questions regarding the transmission of the HIV and the potential effects on a baby conceived by an HIV positive parent. Furthermore, Meyer stated C.J.H. appeared surprised when Keene questioned Meyer about the HIV's effect on babies.

The minutes of testimony also included the statements of Dubuque police officer Tom Parker, who investigated the charge against Keene. Keene admitted to Parker that he engaged in consensual, unprotected sexual intercourse with C.J.H. on October 9. Keene believed he did not ejaculate during the October 9 encounter, but if he did ejaculate, he did so only on his or C.J.H.'s stomach. Additionally, Keene acknowledged his visit to Hillcrest with C.J.H. on October 16. Keene further informed Parker that he was infected with the HIV and that he did not notify C.J.H. of the infection prior to engaging in sexual intercourse.

Parker was prepared to additionally testify to his subsequent interview with C.J.H. C.J.H. told Parker she had consensual, unprotected vaginal intercourse with Keene on October 9, but could not recall whether Keene ejaculated during intercourse.

The minutes of testimony also listed Keene's physician, Dr. Jack Stapleton. He would testify to Keene's HIV positive status during October 1998. Kris Keene, Keene's mother, would provide the same testimony. Mary Rose Corrigan, a public health nurse with the Dubuque Health Department, would testify to the risk of exposure to the HIV during sexual contact with an infected individual. Elizabeth Blasen, a co-worker of both C.J.H. and Keene in October 1998, stated she warned C.J.H. of rumors concerning Keene's HIV status. Lastly, Robert Bradfield, Keene's cellmate at the Dubuque County Jail, stated Keene admitted he had unprotected sexual intercourse with C.J.H. without informing her he was HIV positive.

In response to the district court's questions concerning the factual basis of the guilty plea, Keene stated that the witnesses would be telling the truth if they testified according to the minutes of testimony. Although Keene acknowledged that the State could prove the elements of the charge beyond a reasonable doubt, he claimed he never intended to expose C.J.H. to the HIV. However, Keene admitted that he knew he was HIV positive when he had sexual intercourse with C.J.H.

Finding a factual basis, the district court accepted the guilty plea and advised Keene of his right to file a motion in arrest of judgment to challenge the plea. Keene subsequently received a twenty-five year suspended prison sentence and was placed on probation.

Keene appeals. He argues section 709C.1 is unconstitutionally vague. Additionally, he claims his trial counsel was ineffective for permitting him to plead guilty to a charge which lacked a factual basis.

II. Scope of Review.

We review challenges to the constitutionality of a statute de novo. State v. Robinson, 618 N.W.2d 306, 311 (Iowa 2000); In re Morrow, 616 N.W.2d 544, 547 (Iowa 2000). Although we ordinarily review challenges to guilty pleas on error, Iowa R.App. P. 4, we review Keene's factual basis challenge de novo as it is raised as an ineffective assistance of counsel claim. State v. Campbell, 589 N.W.2d 705, 706 (Iowa 1999).

III. Preservation of Error.

Keene failed to file a motion in arrest of judgment challenging his guilty plea. See Iowa R.Crim. P. 23(3)(a); Robinson, 618 N.W.2d at 310. Normally, Keene would be precluded from asserting error on appeal. See State v. Gant, 597 N.W.2d 501, 503-04 (Iowa 1999)

; State v. Birch, 306 N.W.2d 781, 783 (Iowa 1981). However, in State v. Hunter, 550 N.W.2d 460 (Iowa 1996), we held a guilty plea does not waive an as applied vagueness challenge.³

Hunter, 550 N.W.2d at 465; see Robinson, 618 N.W.2d at 312. We recently disavowed our analysis in Hunter and held a guilty plea does waive as applied vagueness claims. Robinson, 618 N.W.2d at 312. Notwithstanding, we ruled this precedent would apply only to guilty pleas accepted after the date of the decision. Id. at 312-13. Accordingly, because Keene entered his guilty plea prior to the issuance of Robinson, he did not waive his vague-as-applied claim.

Alternatively, Keene claims his trial counsel was ineffective for permitting him to plead guilty and for failing to file a motion in arrest of judgment challenging the guilty plea. We recognize an ineffective assistance of counsel claim serves as an exception to our error preservation rules. See Gant, 597 N.W.2d at 504

; State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998). Consequently, Keene preserved error on his factual basis claim.

IV. Constitutionality of Section 709C.1.

We begin our analysis of the challenge to section 709C.1 with the presumption that a statute is constitutional. State v. White, 545 N.W.2d 552, 557 (Iowa 1996); State v. Sylvester, 516 N.W.2d 845, 849 (Iowa 1994). To overcome this heavy burden, the party challenging the statute must prove beyond a reasonable doubt the statute's unconstitutionality. Robinson, 618 N.W.2d at 314; White, 545 N.W.2d at 557; Sylvester, 516 N.W.2d at 849. To do so, the challenger must refute every reasonable basis upon which the statute could be found to be constitutional. Robinson, 618 N.W.2d at 314; Morrow, 616 N.W.2d at 547.

To withstand a vagueness challenge, a criminal statute must sufficiently define the offense so that ordinary people have fair notice of what type of conduct is prohibited under the statute. Robinson, 618 N.W.2d at 314; State v. Milner, 571 N.W.2d 7, 14 (Iowa 1997); Sylvester, 516 N.W.2d at 849. Moreover, explicit standards protect against arbitrary and discriminatory enforcement by those applying the statute. Milner, 571 N.W.2d at 14.

However, a statute need not contain express definitions of its terms. State v. Osmundson, 546 N.W.2d 907, 909 (Iowa 1996). Fair notice of prohibited conduct is provided "if the meaning of the words used can be fairly ascertained by reference to their ordinary and usual meaning, the dictionary, similar statutes, the common law, or previous judicial determinations." Id.; see Milner, 571 N.W.2d at 15

. We must give effect to each statutory term, Osmundson, 546 N.W.2d at 910, and consider the statute together with the entire statutory scheme to which it belongs. Robinson, 618 N.W.2d at 314-15.

Iowa Code section 709C.1 criminalizes the transmission of the HIV. Iowa Code § 709C.1. A person violates section 709C.1. if he "[e]ngages in intimate contact with another person" while knowing he is HIV positive. Id.

§ 709C.1(1)(a).⁴ Section 709C.2(b) defines intimate contact as "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 [HIV]." Id. § 709C.1(2)(b) (emphasis added). The person exposed to the HIV need not become infected with the virus in order for the infected person to be prosecuted under this section. Id. § 709C.1(4). However, if the exposed person was aware of the infected person's HIV positive status, an affirmative defense exists. Id. § 709C.1(5).

Keene claims section 709C.1 is unconstitutionally vague because the term "could result" is not defined in the statute. Keene argues that the meaning of "could" is unclear, and thus he was not fairly warned that his conduct was prohibited by the statute.

We find the statute is sufficiently clear and consequently provides a reasonably intelligent person with fair notice of its meaning. In enacting this statute, the legislature did not intend "could result" to mean "did result." See id. § 709C.1(4). Furthermore, "could" is the past tense of "can," which is defined as "[u]...