State v. Mahan
| Decision Date | 16 June 1998 |
| Docket Number | Nos. 80128,80268,s. 80128 |
| Citation | 971 S.W.2d 307 |
| Parties | STATE of Missouri, Respondent, v. Charles Ervon MAHAN, Jr., Appellant. STATE of Missouri, Respondent, v. Sean L. SYKES, Appellant. |
| Court | Missouri Supreme Court |
Rebecca L. Kurz, Asst. Public Defender, for Appellant in cause No. 80128.
Ellen H. Flottman, Craig A. Johnston, Asst. Public Defenders, Columbia, for Appellant in cause No. 80268.
Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Joiner, Asst. Atty. Gen., Jefferson City, for Respondent in cause Nos. 80128 & 80268.
Section 191.677, RSMo 1994, creates the class D felony of creating a grave and unjustifiable risk of infecting another with HIV. Specifically, section 191.677.1. (2), RSMo 1994 1 provides:
It shall be unlawful for any individual knowingly infected with HIV to ... deliberately create a grave and unjustifiable risk of infecting another with HIV through sexual or other contact when an individual knows that he is creating that risk.
Sean Sykes was charged with two counts and Charles Mahan was charged with one count under the statute. Juries in separate trials convicted both men. Both claim on appeal that section 191.677 is unconstitutionally broad. Mahan makes the additional claim that the statute is void for vagueness. We have exclusive jurisdiction. Mo. Const. art. V, sec. 3. The judgments of the circuit courts are affirmed.
HIV is the human immunodeficiency virus that causes acquired immunodeficiency syndrome (AIDS). Section 191.650(5), RSMo 1994. AIDS is a viral disease that weakens and then destroys the body's immune system, which leads to death. State ex rel. Callahan v. Kinder, 879 S.W.2d 677, 679 (Mo.App.1994) (citing Doe v. Barrington, 729 F.Supp. 376, 380 (D.N.J.1990)). HIV is acquired through contact with the blood, semen or vaginal fluid of an infected person. Id. It is most commonly passed through sexual intercourse and the sharing of intravenous needles, although there are other means of exposure to the virus.
On May 14, 1992, 2 Sykes received his first session of "level II counseling." Level II counseling is administered to an HIV-positive individual by a public health counselor when officials receive reports that the individual may be exposing people to the virus. 3 Kevin Wells, a public health counselor with the Kansas City Health Department, conducted the session.
At this session, Wells first asked Sykes to explain how HIV is transmitted. Wells testified that Sykes "remember[ed] the modes of transmission from the first interview that he had before mine." Wells then explained to the jury that:
Since this is a level II intervention and there was further need for counseling, we talk to them about a need for behavior modification.... We discuss why there was a further need for counseling and ways that we could eradicate this so modes of transmission won't happen so no one else can get infected with the disease.
Wells testified that Sykes "knew that he needed to notify his sex partners" that he was HIV-positive. Wells also testified and he and Sykes Nevertheless, Sykes told Wells that he did not like wearing them. Wells went over the proper technique for applying and using a condom with Sykes after Sykes told Wells that condoms seemed to break when he wore them.
Wells also testified that he read section 191.677 to Sykes and that he had Sykes repeat the law back to him. Sykes also signed a form in which he stated that he was aware of what Missouri law entailed and that he would not violate the law. 4 In this form, Sykes acknowledged as well that he was HIV-positive and that he had received level II counseling that day from Kevin Wells.
Before they parted, Wells gave Sykes a pamphlet that stated:
Criminal charges could be filed against you if you know you carry the AIDS virus and you create a risk of infecting another person with the virus through sex, needle sharing, or other established means of transmitting the virus.... It is your responsibility to alter your behavior so that you do not expose other people to the AIDS virus.
About eight months later, Wells learned that Sykes was in need of another level II counseling session. They met on January 15, 1993. Once again they went over the modes of transmission and the need for Sykes to use condoms and to tell his partners that he was HIV-positive. Sykes told Wells that "he couldn't use condoms because they would break on him and that his penis was too large." Wells told Sykes that a properly cared-for and applied condom would fit over any sized penis. He demonstrated this by stretching a condom over his fist. Before they parted, Sykes signed another form acknowledging his HIV status and promising to abide by the law.
Wells testified that at this second meeting, Sykes' attitude was "nonchalant." Wells stated that "[Sykes] knew about the disease and yet it seemed like I was being a nuisance coming there to discuss the disease with him because he didn't want anyone to know about his status by having a public health official there."
About a year and a half after this encounter, Sykes met Jamie Walker, who was sixteen years old. Sykes and Walker had sex four times between October of 1994 and September of 1995. Sykes never told her that he was HIV-positive. Before their first sexual encounter, Walker asked Sykes whether he had a condom. He told her that he did not. Walker testified that she never mentioned the subject of condoms after that. To date, Walker has not tested HIV-positive.
In October of 1995, two and a half years after his last level II intervention, Sykes met nineteen-year-old Jana Brent. By Thanksgiving, Brent had moved in with Sykes and they began a sexual relationship. Brent testified that they had sex three to four times a week between November of 1995 and April of 1996, the time period in which they lived together. Brent testified that Sykes never told her that he was HIV-positive. She also stated that while they sometimes used a condom when having sex, "more often than not" they did not. Brent discovered that she had contracted HIV in the summer of 1996.
Charles Mahan tested positive for HIV in June of 1990. Shirley Wells, an official with the Joplin City Health Department and the Missouri Department of Health, conducted a level II counseling session with Mahan on July 23, 1992. Wells testified that her method of counseling was to "engage the individual in discussion and on occasion have them critique what I've said in their own words so that I can be sure that they do understand the mode of transmission [and] Missouri laws ..." Using this method of counseling, Wells and Mahan "discussed in detail" how HIV is transmitted to others. Wells stated that Mahan "fully understood the modes of transmission."
Wells also emphasized that to minimize the risk of infection, Mahan should notify sexual partners of his HIV-positive status and should use condoms when engaging in sexual acts. Wells demonstrated proper condom usage and discussed with Mahan alternative sexual behaviors that did not subject others to the risk of infection. Wells also testified that she read section 191.677 to Mahan, gave him a copy of the statute, and asked him whether he had any questions regarding Missouri law. At the end of their session, Mahan signed a verification form in which he acknowledged that he was HIV positive and that he had undergone level II counseling that day with Wells.
That same month, Mahan met Bruce Stuebner. Stuebner and Mahan had anal sex ten to twenty times over the course of the following eleven months without ever using a condom. Before they had engaged in any sexual acts, Stuebner asked Mahan if he was HIV-positive. Mahan responded that he was not. Stuebner contacted authorities after he learned in July of 1995 that he had contracted HIV.
An information charged Sean Sykes with two counts of creating a grave and unjustifiable risk of HIV infection under section 191.677, RSMo. A jury convicted him and recommended a sentence of five years imprisonment for each count. The trial court sentenced him to two consecutive five-year terms of imprisonment.
Charles Mahan was charged by indictment with one count of creating a grave and unjustifiable risk of HIV infection under section 191.677, RSMo. A jury found him guilty as well and recommended a five-year prison term. The trial court sentenced him to five years imprisonment.
Both Sykes and Mahan appeal from their convictions and sentences. They allege that their respective trial courts erred in overruling their motions to dismiss on grounds of unconstitutionality and in submitting the charges to the jury over their objections. We have combined the appeals owing to the similarity of their arguments.
Sykes and Mahan each raise a facial overbreadth challenge to section 191.677.1. (2). Appellants argue that the statute is unconstitutionally overbroad because it criminalizes certain conduct that they claim is constitutionally protected. Appellants include in this category heterosexual intercourse between an HIV-positive individual and a willing and informed partner and childbirth by an HIV-positive mother. 5
Sykes and Mahan concede that their actions do not fall into any constitutionally protected category. It is a fundamental rule of constitutional adjudication that "a person to whom a statute may be constitutionally applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); see also R.J.J. by Johnson v. Shineman, 658 S.W.2d 910, 914 (Mo.App.1983).
The United States Supreme Court has recognized some exceptions to this principle. "One such exception is where individuals not parties to a particular suit stand to lose by its...
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