State v. Hinkhouse

912 P.2d 921 (1996)

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Nature of the Case

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Facts

D tested positive for HIV in 1989. That year, D began a sexual relationship with P.B., who was 15 years old at the time. D refused to use condoms, saying that he did not like them. He and P.B. did not discuss HIV. In July 1990, D told P.B. that she might want to get tested for HIV. P.B. was tested and, in August 1990, she learned that she was HIV-positive. On November 3, 1990, D told his probation officer, Bill Carroll, that D was HIV-positive. Carroll immediately explained the seriousness of the disease and the manner in which it is transmitted. Carroll explained that using a condom limits the risks of transmitting the virus, but he also explained that it would not eliminate the risk entirely. He told D that if he passed the virus to another person, 'he would be killing someone.' Carroll and Dt continued to have conversations about HIV and the need to take precautions to avoid transmitting the virus. Carroll cautioned D: 'If you infect anyone, that is murder.' D said that he understood and agreed that he would take appropriate precautions. D continued to engage in sexual relations with a number of women. D was heard bragging about his sexual prowess with women, expressing neither concern nor remorse for the people whom he might have exposed to HIV. D signed a probation agreement that included a commitment not to engage in any unsupervised contact with women without express permission from his parole officer. D began several sexual relationships without notifying Carroll. D refused to use a condom during sex and failed to disclose his HIV status. One of D's victims, L.K., demanded that D use a condom, and he did so for three or four weeks. On one occasion, D penetrated her without one, in spite of L.K.'s protests. L.K. and D had a long talk about safe sex, in which defendant told her that he had just ended a long-term relationship, that he had not engaged in any risky behavior since then, and that he had recently tested negative for HIV. D continued to have unprotected sex with L.K. D stated there was no need for condoms because, if either of them had HIV, the other already had been exposed. D agreed to be tested for HIV but never followed through. D continued with his conduct with a total of 10 women. D was indicted. Dr. Norman, testified that D had a long history of acting out sexually and that he suffered from attention deficit disorder; D understood how HIV is transmitted and that it is a fatal disease. According to Norman, D simply did not think about the consequences of his behavior. The state's expert found no evidence to suggest that D was acting impulsively or without the intent to harm. D moved for a judgment of acquittal, which was denied. D was convicted and appealed. D argues that the evidence is insufficient to support convictions for either attempted murder or attempted assault. D argues that there is no evidence that he intended to cause death or serious bodily injury; only evidence that--at most--he acted in reckless disregard of the consequences of his conduct.