Davis v. State, 806 S.E.2d 3 (Ga. Ct. App. 2017)

A Georgia court of appeals affirmed the conviction of a Georgia man living with HIV—under the state’s HIV “reckless conduct” law—for engaging in sexual conduct without notifying his sexual partner of his HIV status. The court rejected both of the defendant’s arguments that: 1) the trial court wrongly permitted the introduction of prejudicial evidence (“prior bad acts”) that the defendant transmitted HIV to a different sexual partner; and 2) his trial attorney provided ineffective assistance because he enlisted attorneys and experts from the Office of Medical and Scientific Justice (OMSJ), a known HIV “denialist” organization, who claimed that there is no reliable test for HIV, and that the prosecution could not prove that the defendant was living with HIV.

The defendant (Davis) first argued that the trial court violated the rules of evidence by allowing testimony from one of his previous sexual partners (“the witness”) that he had previously transmitted HIV to her. Though testimony like this is generally barred as “prior bad acts” evidence to avoid jury bias against a defendant, it may be allowed if 1) it is relevant to something other than the defendant’s character, 2) its value as evidence is not significantly outweighed by potential prejudice against the defendant, and 3) there is enough proof for the jury to find the defendant in fact committed the “previous bad act(s).”

The Court of Appeals found the testimony appropriate because, “[e]vidence of the HIV status of [the defendant]’s sexual partners as well as his knowledge of their HIV status and his own status was highly probative and relevant as to whether he is HIV-positive and knew that he was positive at the time he engaged in sexual relationships with [the victims].” However, Davis’ knowledge of his own HIV status was sufficiently shown by his doctor’s testimony of providing Davis with post-test counseling and by Davis’ own statement to medical personnel. And evidence of the witness’s HIV status—as well as his knowledge of that HIV status—could be established by testimony limited to those issues. Moreover, since transmission routes among sexual partners are difficult to establish, it is questionable, at best, that the jury could find that Davis in fact transmitted HIV to the witness. Testimony that Davis allegedly transmitted HIV to the witness is precisely the type of evidence the “prior bad acts” prohibition is meant to exclude, particularly with the stigma PLHIV already face.

Davis also argued that his trial attorney provided ineffective assistance because he enlisted help from the OMSJ, who attempted to show that Davis was not, in fact, living with HIV and that no reliable HIV test exists. The Court dismissed this claim because the OMSJ only presented an alternative defense, and defense attorneys have wide discretion in creating a defense strategy and selecting expert witnesses.