Johnson v. State

785 N.E.2d 1134, 2003 Ind. App. LEXIS 523, 2003 WL 1735309

• Court: Indiana Court of Appeals
• Decided: April 2, 2003
• Docket: 34A05-0205-CR-215
• Status: Published

Opinions

OPINION

VAIDIK, Judge.

Case Summary

Larry Johnson appeals his convictions and sentences on two counts of Failure of Carriers of Dangerous Communicable Diseases to Warn Persons at Risk as Class D felonies.¹ Specifically, Johnson argues that the trial court abused its discretion in admitting into evidence a letter from the Social Security Administration denying Johnson's request for disability benefits, testimony from three women detailing their previous sexual relationships with Johnson and their subsequent positive test results for the human immunodeficiency virus (HIV), and testimony that Johnson admitted that he is HIV-positive. Johnson also argues that the State presented insufficient evidence to establish that he is HIV-positive or that he knew that he was HIV-positive when he engaged in sexual relationships with two women. Finally, Johnson argues that the trial court abused its discretion in ordering him to serve consecutive sentences.

Because the letter from the Social Seeu-rity Administration was not introduced for the truth of the matter asserted, we find that it did not constitute hearsay and was admissible. Further, the testimony of Johnson's previous sexual partners and his admission were properly admitted to establish that Johnson was HIV-positive and knew that he was positive for HIV. Also, based on the testimony of Johnson's previous sexual partners concerning their HIV status and their confrontations with Johnson and Johnson's admissions to his HIV status, we find that there is sufficient evidence to support Johnson's convictions. Finally, because the trial court found two valid aggravating factors, we affirm the trial court's imposition of consecutive sentences.

Facts and Procedural History

The facts most favorable to the judgment show that during a six-month period in 1993, Johnson had sexual intercourse with C.B. Starting in the summer of 1994, Johnson then had sexual intercourse with Y.V., and his sexual relationship with Y.V. continued off and on until 1998. Johnson and Y.V. have one child together; Y.V. eventually tested positive for HIV. In 1995, Johnson also had a one-time sexual encounter with T.D. In 1996, both T.D. and C.B. tested positive for HIV. In 1998, TD. confronted Johnson and accused him of infecting her; Johnson denied it. Tr. p. 161.

In January 1999, LW. performed oral sex on Johnson and Johnson penetrated L.W.'s vagina. During the sexual encounter, Johnson did not inform LW. that he was HIV-positive. In February 1999, Johnson began a sexual relationship with KJ. In late February or early March of 1999, LW. and K.J. confronted Johnson after K.J. heard rumors that Johnson was HIV-positive. Johnson denied that he was HIV-positive.

After this initial confrontation, K.J. and Johnson continued their sexual relationship, and they have one child together. In April or May of 1999, Johnson told C.B. that he finally was tested and that he was HIV-positive. Tr. p. 170-71. After his admission To C.B., Johnson continued his sexual relationship with K.J. without warning her of his HIV status. In August or September of 1999, K.J. found a social security document that indicated that Johnson was HIV-positive. When KJ. confronted him with the document, Johnson admitted to her that he was HIV-positive. On October 2, 2000, K.J. learned that she was HIV-positive.

On February 28, 2001, the State charged Johnson with four counts of Failure of Carriers of Dangerous Communicable Diseases to Warn Persons at Risk as Class D felonies. The first three counts concerned Johnson's sexual relationship with KJ., and the last count concerned Johnson's sexual encounter with LW. After the close of evidence at Johnson's jury trial, the trial court issued directed verdicts of not guilty on Counts I and II because these two counts involved Johnson's sexual encounters with K.J. after she learned of his HIV status. The jury then found Johnson guilty on the remaining count involving his sexual relationship with K.J. and the one count involving his sexual encounter with L. W. The trial court sentenced Johnson to two consecutive three-year sentences with one year suspended on each count for a total executed sentence of four years and two years on probation. This appeal ensued.

Discussion and Decision

Johnson raises a number of issues on appeal challenging the admission of evidence at trial, the sufficiency of that evidence, and the appropriateness of his consecutive sentences. Johnson asserts that the trial court abused its discretion in admitting a letter from the Social Security Administration that constituted hearsay. Johnson also asserts that the trial court abused its discretion in admitting testimony from C.B., Y.V., and T.D. in which they detailed their previous sexual relationships with Johnson and in admitting testimony of Johnson's admissions that he is HIV-positive when the corpus delicti of his crimes was not established. Johnson then argues that the State presented insufficient evidence to establish that Johnson is HIV-positive or that he knew of his condition at the time of his sexual encounters with K.J. and LW. Finally, Johnson asserts that the trial court abused its discretion in sentencing him to consecutive sentences because it failed to explain its sentence. We address each argument in turn.

I. Admission of Evidence

Johnson contends that the trial court abused it discretion when it admitted into evidence a letter from the Social Seeu-rity Administration, the testimony of three women detailing their previous sexual relationships with Johnson and their subsequent positive test results for HIV, and the testimony of two women stating that Johnson admitted to them that he is HIV-positive. The admissibility of evidence is within the sound discretion of the trial court, and the decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Rhodes v. State, 771 N.E.2d 1246, 1251 (Ind.Ct.App.2002), trans. denied. In determining admissibility of evidence, the reviewing court will only consider the evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor. Id.

A. Letter

Johnson asserts that the trial court abused its discretion in admitting a letter from the Social Security Administration denying social security benefits to Johnson because the letter contained inadmissible hearsay. The letter provides that Johnson was denied benefits on December 11, 1998, after he claimed that he was disabled because he is HIV-positive. Exhibit 1. The letter also contained information detailing the names of doctors who had performed medical services for Johnson and the dates that they had forwarded the documentation of those services to the Social Security Administration. Exhibit 1.

Johnson claims that the letter was inadmissible hearsay because it contains information gathered by the Social Security Administrators from various doctors, all of whom Johnson was unable to cross-examine, and that the letter was admitted to establish that Johnson is HIV-positive and that he knew of his condition before his sexual encounters with LW. and KJ. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Bufkin v. State, 700 N.E.2d 1147, 1150 (Ind.1998) (quoting Ind. Evidence Rule 801(c)). A "statement" is defined as an oral or written assertion. Evid. R. 80l(a)(1). A statement is not hearsay if offered for another purpose. Bufkin, 700 N.E.2d at 1150; In re A.C., 770 N.E.2d 947, 951 (Ind.Ct.App.2002).

While the State concedes that the letter would have been inadmissible if it had been introduced to prove that Johnson knew he was HIV-positive, that was not the purpose given for the letter's introduction. After Johnson objected to the admission of the social security letter on hearsay grounds at trial, the State argued that the letter was not being offered for the truth of the matter asserted within; but rather, it was offered to explain what prompted K.J. to confront Johnson a see-ond time about his HIV status. Tr. p. 124. In admitting the letter into evidence, the trial court issued the following decision and instruction to the jury:

Well for what is in it. I'm gonna sustain, but for his purpose I'm going to allow this over your objection, and I will instruct the jury that when you examine this exhibit, you are to look at it only for the purpose of determining what she saw when she saw it, and what she did with it, not for the content. You cannot accept the content as truth.

Tr. p. 125.

We agree with the trial court's decision and its admonishment to the jury. At trial, K.J. testified that after she found this letter, she confronted Johnson with it, and he admitted that he is HIV-positive. Regardless of the truth of the matter asserted in the social security letter, the letter was admissible because its very existence explains the reason for the confrontation between K.J. and Johnson. Because the letter was not being offered for the truth of the matter asserted within and the trial court specifically admonished the jury to consider the letter only for the purpose of explaining what prompted K.J. to confront Johnson about his HIV status, we conclude that the letter was not hearsay and that the trial court did not abuse its discretion in admitting it into evidence.

B. Testimony of Previous Sexual Partners

Johnson also argues that the trial court abused its discretion in admitting the testimony of Y.V., TD., and C.B. detailing their prior sexual relationships with Johnson and their subsequent positive test results for HIV. Johnson argues that the women's testimony should have been excluded under Indiana Evidence Rule 404(b) because it is evidence of prior bad acts that only showed Johnson's "propensity to have sex with people." Appellant's Br. p. 17. Generally, evidence of a person's sexual preference or propensities is considered character evidence. Utley v. State, 699 N.E.2d 723, 728 (Ind.Ct.App.1998), trans. denied. Indiana Evidence Rule 404(b) provides in pertinent part that "[elvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." See also Rhodes, 771 N.E.2d at 1251. In evaluating the admissibility of evidence under Rule 404(b), a trial court must, "(1) decide if the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Rule 408." Hicks v. State, 690 N.E.2d 215, 219 (Ind.1997). "In short, if the evidence bears on some issue other than eriminal propensity and clears the balancing hurdle of Rule 408, it is admissible." Roop v. State, 730 N.E.2d 1267, 1270 (Ind.2000).

Johnson is correct that his prior sexual history would be inadmissible if it was introduced in order to establish the inference that he must have engaged in sexual relationships with LW. and K.J. because he had engaged in sexual relationships with several other women in the past. However, this evidence was introduced to establish the inference that Johnson was HIV-positive and knew that he was positive for HIV at the time he engaged in sexual relationships with LW. and K.J. At trial, Y.V. testified that she had sexual intercourse with Johnson off and on between 1994 and 1998 and that she tested HIV-positive in 1999. C.B. testified that she had sexual intercourse with Johnson in 19983 and tested HIV-positive in 1996, and T.D. testified that she had sexual intercourse with Johnson in 1995 and tested HIV-positive in 1996. In addition, TD. testified that she confronted Johnson in 1998 and accused him of infecting her, which Johnson denied. However, C.B. testified that in April or May of 1999, Johnson told her that he finally was tested and that he was HIV-positive. Tr. p. 171.

The testimony of C.B., Y.V., and T.D. detailing their sexual relationships with Johnson and their HIV status was admissible to establish Johnson's HIV status. In addition, the testimony from C.B. and TD. concerning their confrontations with Johnson was admissible under the knowledge exception listed in Rule 404(b) to establish Johnson's knowledge of his HIV status. See Fuller v. State, 674 N.E.2d 576, 578 (Ind.Ct.App.1996) (finding that evidence of dead and injured dogs on the defendant's property was admissible under 404(b) to prove defendant's knowledge that dog fighting was being conducted on his property). Evidence of the HIV status of Johnson'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 L.W. and K.J. As Johnson's HIV status and his knowledge of his status were two elements that the State had to establish for a conviction, we find that the probative value of the testimony outweighed any prejudicial effect from its admission. Therefore, we find that the testimony of the three women was admissible.

C. - Johnson's Admission

Johnson also argues that his admission to C.B. and KJ. that he is HIV-positive is inadmissible because the State never established the corpus delicti. The corpus delicti requirement seeks to prevent the admission into evidence of a confession by a defendant to a crime that never occurred. Regan v. State, 590 N.E.2d 640, 643 (Ind.Ct.App.1992).

In Indiana, a crime may not be proven based solely on a confession, and admission of a confession requires some independent evidence of the crime including evidence of the specific kind of injury and evidence that the injury was caused by criminal conduct. However, this evidence need not prove that a crime was committed beyond a reasonable doubt, but merely "provide an inference that a crime was committed."

Workman v. State, 716 N.E.2d 445, 447-48 (Ind.1999) (quoting Stevens v. State, 691 N.E.2d 412, 425 (Ind.1997), reh'g denied ). The State is also not required to prove the corpus delicti by independent evidence pri- or to the admission of a confession, provided the totality of independent evidence presented at trial establishes it. McManus v. State, 541 N.E.2d 538, 539-40 (Ind.1989). Finally, the inference of a crime may be established by cireumstan-tial evidence. Workman, 716 N.E.2d at 448.

Based on the totality of the evidence, we determine that there is independent evidence of a crime. Four women testified that they had engaged in sexual intercourse with Johnson and later tested positive for HIV. Two of those women testified that they confronted Johnson about their HIV status before the time that he engaged in a sexual relationship with LW. and K.J., and LW. and K.J. testified that Johnson engaged in sexual activity with them without telling them that he was HIV-positive. Based on this evidence there is an inference that Johnson committed the crime of Failure of Carriers of Dangerous Communicable Diseases to Warn Persons at Risk. Therefore, it was proper for the trial court to admit into evidence the testimony of C.B. and KJ. detailing Johnson's admissions to them that he is HIV-positive because there is evidence of a crime independent of Johnson's admissions.

II. Sufficiency of the Evidence

Johnson argues that there is insufficient evidence to sustain his two convictions for Failure of Carriers of Dangerous Communicable Diseases to Warn Persons at Risk as Class D felonies. Specifically, Johnson asserts that there is insufficient evidence to establish that he is HIV-positive or that he knew he was HIV-positive at the time he engaged in a sexual relationship with LW. and K.J. When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Cruz Angeles v. State, 751 N.E.2d 790, 797 (Ind.Ct.App.2001), trans. denied. We consider only the evidence most favorable to the verdict, together with all reasonable inferences to be drawn therefrom. Id. We will affirm if there is substantial evidence of probative value to support the conclusion of the trier of fact. Id.

In defining the crime of Failure of Carriers of Dangerous Communicable Diseases to Warn Persons at Risk, Indiana Code § 35-42-1-9 provides:

(a) Except as provided in this section, a person who recklessly violates or fails to comply with IC 1641-7 commits a Class B misdemeanor.

(b) A person who knowingly or intentionally violates or fails to comply with IC 16-41-7-1 commits a Class D felony.

(c) Each day a violation described in this section continues constitutes a separate offense.

In turn, Indiana Code § 16-41-7-1 provides

(a) This section applies to the following dangerous communicable diseases:

(1) Acquired immune deficiency syndrome (AIDS).

(2) Human immunodeficieney virus (HIV).

(8) Hepatitis B.

(b) As used in this section, "high risk activity" means sexual or needle sharing contact that has been demonstrated epi-demiologically to transmit a dangerous communicable disease described in subsection (a).

(c) As used in this section, "person at risk" means:

(1) past and present sexual or needle sharing partners who may have engaged in high risk activity; or

(2) sexual or needle sharing partners before engaging in high risk activity;

with the carrier of a dangerous communicable disease described in subsection (a).

(d) Carriers who know of their status as a carrier of a dangerous communicable disease described in subsection (a) have a duty to warn or cause to be warned by a third party a person at risk of the following:

(1) The carrier's disease status.

(2) The need to seek health care such as counseling and testing.

Thus, in order to convict Johnson of Failure of Carriers of Dangerous Communicable Diseases to Warn Persons at Risk as a Class D felony, the State had to establish that Johnson (1) is HIV-positive, (2) knew he was HIV-positive, (8) and knowingly or intentionally, (4) engaged with a partner in sexual contact that has been demonstrated epidemiologically to transmit HIV, (5) while failing to warn the partner of his HIV status and the need to seek health care.

In attacking the sufficiency of the evidence, Johnson argues only that there is insufficient evidence to establish that he is HIV-positive and that he knew he was HIV-positive at the time of his sexual encounters with LW. and K.J. Even though Johnson does attack the sufficiency of the evidence supporting the other elements, we note that K.J. testified that she began a sexual relationship with Johnson in February of 1999 and that Johnson did not tell her that he was HIV-positive until August of 1999. With regard to the count involving LW., LW. testified that in January of 1999, she performed oral sex on Johnson, that he penetrated her vagina with his penis, and that he never told her that he was HIV-positive. Therefore, we find that Johnson engaged in sexual contact with K.J. and LW. without warning them of his HIV status.

As to the element of Johnson's HIV status, K.J. testified that Johnson told her that he was HIV-positive in August of 1999, and C.B. testified that Johnson told her that he was HIV-positive in April or May of 1999. In addition, C.B., K.J., Y.V., and T.D. all testified that they tested HIV-positive after engaging in a sexual relationship with Johnson, indicating that Johnson infected them and that Johnson could have been HIV-positive at least as early as 19983, the date of his sexual relationship with C.B. Based on these facts, we find that there was sufficient evidence to establish that Johnson was HIV-positive at the time that he engaged in sexual contact with LW. and K.J.

With regard to Johnson's knowledge of his HIV status, C.B. testified that Johnson told her that he knew he was HIV-positive in April or May of 1999. In April and May of 1999, Johnson engaged in a sexual relationship with K.J. that continued through his revelation to her in August of 1999 of his HIV status. Therefore, we find that there was sufficient evidence to establish that Johnson knew of his HIV status at the time that he engaged in a sexual relationship with K.J. In addition, T.D. and C.B. testified that they tested HIV-positive in 1996, and TD. further testified that she confronted Johnson in 1998, accusing him of infecting her. Based on the facts that TD. and C.B. tested HIV-positive as early as 1996, T.D. confronted Johnson about this in 1998, and Johnson admitted to another woman in April or May of 1999 that he was HIV positive, we find that there was sufficient evidence for the jury to reasonably infer that Johnson also knew that he was HIV-positive in January of 1999 when he engaged in a sexual encounter with LW. Thus, we find that sufficient evidence of probative value exists to support Johnson's two convictions for Failure of Carriers of Dangerous Communicable Diseases to Warn Persons at Risk as Class D felonies.

III. Consecutive Sentences

Finally, Johnson argues that the trial court abused its discretion in imposing consecutive sentences for his convictions. It is well established that sentencing decisions lie within the discretion of the trial court including the decision to enhance a presumptive sentence or to impose consecutive sentences. Echols v. State, 722 N.E.2d 805, 808 (Ind.2000). Indiana Code § 35-38-1-7.1 sets forth aggravating and mitigating circumstances a trial court may consider in deciding whether to deviate from a presumptive sentence or to impose consecutive sentences. Id. When the trial court exercises its discretionary authority to impose enhanced and/or consecutive sentences, the trial court must enter, on the record, a statement which (1) identifies all of the significant mitigating and aggravating circumstances; (2) states the specific reason why each circumstance is considered to be mitigating or aggravating; and (8) shows that the court evaluated and balanced the mitigating circumstances against the aggravating cireumstances in order to determine if the aggravating cireumstances offset the mitigating cireumstances. Becker v. State, 695 N.E.2d 968, 974 (Ind.Ct.App.1998); see also Ortis v. State, 766 N.E.2d 370, 377 (Ind.2002). As with sentence enhancement, even a single aggravating cireum-stance may support the imposition of consecutive sentences. Ajabu v. State, 722 N.E.2d 339, 344 (Ind.2000).

In sentencing Johnson to two consecutive three-year sentences with one year suspended on each count, the trial court made the following statement regarding aggravating and mitigating factors:

The Court finds the following aggravating factors after having considered all of the statutory requirements. First of all, I consider Mr. Johnson's prior ree-ord, and while not extensive, he does have a prior record .... the reason that is an aggravating factor is that it does show a propensity for eriminal behavior. The second aggravating factor is the number of offenses or stated differently, as the State just stated, the number of people who have been affected. And the reason for this to be an aggravating factor is primarily the possibility that these children could have been infected. And apparently that meant nothing to Mr. Johnson. I find no mitigating factors.

Tr. p. 209. Johnson now argues that this sentencing statement is insufficient because the trial court found that Johnson's criminal history is not extensive and therefore it should have balanced out as neutral and because the trial court did not identify any children or explain how Johnson's conduct could have infected them. We disagree.

While the trial court did not recite the incidents comprising Johnson's criminal . history, we find that the trial court's statements regarding the relative inextensiveness of Johnson's criminal history indicate the court's awareness of the individual incidents that comprised the history.² See Battles v. State, 688 N.E.2d 1230, 1235 (Ind.1997) (finding that statements regarding extensiveness of the defendant's criminal history demonstrated the trial court's awareness of the individual incidents that comprised the defendant's criminal history). In addition, the trial court's statement that Johnson's criminal history shows a propensity for criminal behavior explains why the court considered the criminal history to be an aggravating factor. Contrary to Johnson's assertion, even though the trial court found that Johnson's criminal record was not extensive, the trial court was still free to find that Johnson's criminal record constituted an aggravating factor. We have consistently held that a defendant's history of criminal activity is sufficient to support an enhanced sentence. Culver v. State, 727 N.E.2d 1062, 1072 (Ind.2000), reh'g denied.

As to the second aggravating factor, the number of people affected by Johnson's conduct and his lack of concern, we find that there was testimony at trial that Johnson fathered children with Y.V. and K.J. As the children of HIV-positive mothers who were infected by Johnson, Johnson's children also had the possibility of being infected with HIV. The trial court may find the nature and cireumstances of the offense to be an aggravating cireum-stance. Lemos v. State, 746 N.E.2d 972, 975 (Ind.2001). Therefore, we conclude that the trial court identified two proper aggravating factors, and because the trial court did not find and Johnson does not identify any mitigating factors, we conclude that the trial court acted within its discretion.in ordering Johnson to serve his sentences consecutively.

Judgment affirmed.

NAJAM, J., concurs. BROOK, C.J., dissents with separate opinion.

1 . Ind.Code §§ 16-41-7-1, 35-42-1-9.

2 . While the trial court and all the parties referenced the pre-sentence investigation report at Johnson's sentencing hearing, we note that Johnson failed to include in his appeal a copy of the pre-sentence investigation report. Therefore, we are unable to look to Johnson's pre-sentence investigation report to determine what crimes made up Johnson's criminal history.