State v. Bird, 692 N.E.2d 1013 (Ohio 1998)

In this decision, the Supreme Court of Ohio affirmed the defendant-appellant’s conviction for felonious assault with a deadly weapon after he spit in the eye of a police officer. In 1994, defendant-appellant Bird, who has HIV, pleaded no contest to the charges and was sentenced to three to 15 years in prison. Bird was granted probation six months later, but this was revoked in 1996 due to several incidents involving additional misdemeanor charges, drunken belligerent behavior, and failure to complete community service and maintain employment. After his probation was revoked, Bird filed an appeal challenging his original no contest plea and the effectiveness of his attorney.

In his appeal, Bird contended that the trial court should not have accepted his no contest plea, arguing that the indictment was insufficient to charge him with felonious assault with a deadly weapon because it had not been established that the saliva of a person with HIV is a deadly weapon or that he had knowingly caused or attempted to cause the officer physical harm. The court rejected this argument, stating that when Bird pleaded no contest, he lost the right to challenge the factual merits of the underlying charge. The court declined to discuss whether saliva could transmit HIV because “[b]y pleading no contest, [Bird] admitted the truth of the allegations in the indictment.” Bird’s second point of appeal was that his attorney was ineffective because he had failed to file a motion to dismiss the indictment or assert the defense that saliva is not a deadly weapon. The court rejected this, finding Bird had failed to prove both that his attorney’s performance was deficient and that it was this inefficiency that led Bird to enter his plea. For these reasons, the court affirmed Bird’s conviction.