State v. Branch, WL 204591 (Ohio Ct. App. 2006)

In 2004, Branch, an Ohio man living with HIV, was convicted of felonious assault of a peace officer after spitting in a police officer’s eye following an altercation. Branch’s appealed his conviction on three grounds: (1) there was no evidence that Branch attempted to cause “serious physical harm,” (2) the trial court erred by admitting evidence tending to prove Branch was a “bad man,” and (3) the prosecution’s closing arguments were unfairly prejudicial. The Court of Appeals of Ohio, Sixth District, Lucas County affirmed the conviction.

Branch’s first objection is based on the actual risk of HIV transmission through spitting. The officer “observed what he believed to be blood in the saliva that he cleaned out of his eye.” The risk of transmission through such an act, in conjunction with Branch’s knowledge that he was living with HIV, was sufficient for the court to deny this objection.

The second objection, based on evidence presented that Branch had a similar previous incident with another law enforcement officer, was also denied. Such evidence may not be admitted to show character, though it may be admissible to prove motive, intent, knowledge, or for other such purposes. The appellate court deferred to the trial court’s discretion in allowing the evidence as proof that Branch knew “he was HIV positive and . . . intended to transmit HIV . . . by spitting . . . .”

The third objection was to the prosecution’s characterization that Branch “’terrorized’ people and wanted to ‘cause panic and fear.’” Because Branch’s counsel did not object to those statements at trial, the objection now must meet a high standard: that he “would not have been convicted in the absence of the improper comments.” The appellate court denied this objection as well.

This case has potentially far-reaching consequences. Although the case was not reported, it may still “be cited as legal authority and weighted as deemed appropriate.” Ohio Sup. Ct. R. Rep. Op. 3.4. This is especially troubling given the blatant disregard for accurate scientific and medical evidence regarding HIV transmission, as well as the dubious interpretation of the rules of evidence, from Branch’s first and second objections, respectively. The case also underscores the need for effective and diligent counsel for all those facing criminal proceedings.