State v. Richardson

• Citation: 209 P.3d 696
• Decision Date: 19 June 2009
• Docket Number: No. 100,445.,No. 100,835.,100,445.,100,835.
• Parties: STATE of Kansas, Appellee, v. Robert William RICHARDSON, Appellant.
• Court: Kansas Supreme Court

209 P.3d 696

STATE of Kansas, Appellee, v. Robert William RICHARDSON, Appellant.

No. 100,445.

No. 100,835.

Supreme Court of Kansas.

June 19, 2009.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for the appellant.

Amy L. Aranda, assistant county attorney, argued the cause, and Marc Goodman, county attorney, and Steve Six, attorney general, were with her on the brief the appellee.

The opinion of the court was delivered by JOHNSON, J.:

Robert W. Richardson, II, appeals his convictions and sentences for two counts of exposing another to a life-threatening communicable disease. Richardson claims the statute defining the crime, K.S.A. 21-3435, is unconstitutionally vague; that the district court erred in failing to treat K.S.A. 21-3435 as a specific intent crime; that, alternatively, the evidence was insufficient to convict him of violating K.S.A. 21-3435; and that the use of his criminal history to increase his sentences violated the Sixth Amendment to the United States Constitution.

For more than a decade, Richardson has known that he is infected with the human immunodeficiency virus (HIV), a viral infection that attacks the immune system of the body, making it susceptible to infections. HIV can advance into acquired immunodeficiency syndrome (AIDS), where the immune system begins to fail and renders the body susceptible to a number of other diseases and conditions. If an immune system is weak enough, severe infections can result in death. Neither HIV nor AIDS is currently curable.

In October 2005, Richardson had sexual intercourse with two females, M.K. and E.Z. At the time, Richardson was being treated to lower the number of HIV particles in his blood, which is measured by a "viral load" test. A February 2005 viral load test had revealed 11,700 parts per milliliter, which was characterized as a medium level of the virus. Prior to that time, Richardson had consistently measured very low levels of HIV, and, accordingly, Richardson was prescribed a new medication. The next viral load test occurred in November 2005, after the incidents of sexual intercourse. The result was a viral load level of less than the minimum which could be measured, i.e., less than 50 parts per milliliter.

In separate cases filed in May and June 2006, the State charged Richardson with violating K.S.A. 21-3435 for having sexual intercourse with M.K. and E.Z. Over Richardson's objection, the district court consolidated the two cases. The district court denied Richardson's motion to dismiss based upon a claim that K.S.A. 21-3435 is unconstitutionally vague because it does not define what it means to "expose" someone to a disease and it does not clarify what makes a disease "life threatening" or "communicable." Richardson then waived his right to a jury trial and proceeded to a bench trial, which included the parties' stipulations that Richardson knew he was infected with HIV; that he engaged in sexual intercourse with M.K. on or about October 17, 2005, and he engaged in sexual intercourse with E.Z. between October 1, 2005, and October 30, 2005, both in Lyon County; and that the term "sexual intercourse" meant "penetration of the female sex organ by the male sex organ."

Other than the parties' stipulations, the evidence submitted during Richardson's bench trial consisted entirely of the testimony of two medical doctors: Dr. Christopher Penn called by the State and Dr. Clifton Jones called by the defense. Dr. Penn had been Richardson's treating physician from 2003 to the end of 2005. The testimony of both doctors concentrated on whether HIV may be transmitted when a viral load level is low or undetectable and the effect of the virus on an infected individual's lifestyle.

Richardson defended on the basis that the State had failed to establish that HIV is always a life-threatening disease; that he had actually exposed the victims to the disease because of the lack of evidence that bodily fluids were exchanged during intercourse; or that he had the specific intent to expose his sexual partners to HIV. The district court found Richardson guilty on both counts and sentenced him to consecutive prison terms. Richardson appealed, and this court transferred the case from the Court of Appeals on its own motion.

SPECIFIC INTENT CRIME

We take the liberty of rearranging the order in which we address the issues, first considering whether K.S.A. 21-3435 is a specific intent crime. The district court did not specifically say that it was interpreting K.S.A. 21-3435 as only requiring a general criminal intent. However, Richardson insists that the district court must have applied that interpretation because it found Richardson guilty without the State presenting any evidence of a specific intent to expose the victims to HIV. The State counters that, despite the language of the applicable statute, the legislature intended to create a general intent crime.

Except for limited instances described in K.S.A. 21-3204, "a criminal intent is an essential element of every crime defined by [the criminal] code." K.S.A. 21-3201(a). The requisite general criminal intent must be established by proof that the defendant's conduct was intentional, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner. K.S.A. 21-3201(a).

However, in addition to the nearly omnipresent general criminal intent requirement, some crimes require an additional, specific intent. See State v. Sterling, 235 Kan. 526, 527, 680 P.2d 301 (1984). The distinction between general intent and specific intent crimes is "whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts." State v. Cantrell, 234 Kan. 426, Syl. ¶ 7, 673 P.2d 1147 (1983), cert. denied 469 U.S. 817, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984). When a crime requires a specific intent, that specific intent element "must be included in the charge and in the instructions of the court covering the separate elements" of the crime. Sterling, 235 Kan. at 528, 680 P.2d 301.

Whether a criminal statute establishes a general intent or a specific intent offense is a legal question over which appellate courts exercise unlimited review. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003) (statutory interpretation is a question of law requiring de novo review); Sterling, 235 Kan. at 530, 680 P.2d 301 (interpreting K.S.A. 21-3720 [Ensley 1981] to determine whether criminal damage to property is a specific intent offense). The analysis must begin by looking at what the legislature said when it defined the crime. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003) ("When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]"). In relevant part, the statute provides:

"(a) It is unlawful for an individual who knows oneself to be infected with a life threatening communicable disease knowingly:

(1) To engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease." K.S.A. 21-3435(a)(1).

Clearly, the prohibited conduct is engaging in sexual intercourse or sodomy with another, when the defendant knows that he or she is infected with a life-threatening communicable disease. The statute requires the defendant to "knowingly" engage in that prohibited conduct. Therefore, pursuant to K.S.A. 21-3201(a), the general criminal intent must be established by proof of intentional conduct because the crime-defining statute does not criminalize reckless conduct. Just as clearly, K.S.A. 21-3435(a)(1) "identifies or requires a further particular intent which must accompany the prohibited acts," i.e., the intent to expose the sex partner to the life-threatening communicable disease. See Cantrell, 234 Kan. 426, Syl. ¶ 7, 673 P.2d 1147.

The State acknowledges that, on its face, K.S.A. 21-3435(a)(1) purports to be a specific intent crime. However, the State does not acknowledge that this State's appellate courts have consistently interpreted statutes that define a crime by using the phrase "with intent to" as requiring a specific intent element. See, e.g., State v. Harper, 235 Kan. 825, 827, 685 P.2d 850 (1984) (burglary, [K.S.A.21-3715(a) ], defined as entering a building "with intent to commit a felony, theft or sexual battery therein," is a specific intent crime); State v. Wells, 223 Kan. 94, 98, 573 P.2d 580 (1977) (indecent liberties with a child, [K.S.A. 21-3503(a)(1) ], providing that prohibited conduct be done with "intent to arouse or satisfy the sexual desires of the either the child or the offender, or both," is a specific intent crime); State v. Meinert, 31 Kan.App.2d 492, 499, 67 P.3d 850, rev. denied 276 Kan. 972 (2003) (criminal threat, [K.S.A. 21-3419(a) ], defined as "any threat to ... [c]ommit violence communicated with intent to terrorize another," requires "a specific intent such as the intent to terrorize"); State v. Ferris, 19 Kan.App.2d 180, 183, 865 P.2d 1058 (1993) (contributing to child's misconduct or deprivation under K.S.A. 21-3612[a][4], defined as "sheltering or concealing a runaway with intent to aid the runaway in avoiding detection or apprehension by law enforcement officers," requires the State to prove specific intent to aid the child in avoiding detection).

Instead, without proffering any authority, the State contends that giving effect to the statute's plain specific intent language would actually thwart the legislature's intended purpose of preventing the intentional exposure of others to HIV. The State argues that any act of sexual intercourse or sodomy by an HIV positive person, even utilizing a condom, creates some element of risk that the...