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IN THE SUPREME COURT OF IOWA
No. 34 / 04-0719 Filed August 4, 2006 STATE OF IOWA, Appellee, vs. ADAM DONALD MUSSER, Appellant.

Appeal from the Iowa District Court for Johnson County, L. Vern Robinson (motion to dismiss) and Robert E. Sosalla (trial), Judges.

Defendant appeals his conviction of criminal transmission of human immunodeficiency virus in violation of Iowa Code section 709C.1(1)(a) (2001). AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney General, J. Patrick White, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.

2 TERNUS, Justice. The defendant, Adam Donald Musser, appeals his conviction of criminal transmission of human immunodeficiency virus (HIV) in violation of Iowa Code section 709C.1(1)(a) (2001), challenging the sufficiency of the evidence to support the jury's guilty verdict. In addition, Musser claims the district court erred in overruling his motion to dismiss the case, in which he asserted section 709C.1(1) violates the First Amendment, is vague and overbroad, and infringes his right of privacy. 1 Musser also challenged the twenty-five-year sentence provided for this offense, contending it constitutes cruel and unusual punishment. In addition to urging these constitutional claims on appeal, the defendant asserts the trial court erred in admitting laboratory reports showing his HIV-positive status because the reports lacked a proper foundation and contained inadmissible hearsay. Finally, the defendant raises a claim of ineffective assistance of counsel based on trial counsel's failure to object to the admission of the lab reports as a Confrontation Clause violation and failure to request an instruction on the affirmative defense of consent set out in section 709C.1(5). With the exception of the insufficiency-of-the-evidence claim and the ineffective-assistance-of-counsel claim based on counsel's failure to request an instruction on consent, we have resolved all issues raised in this appeal adversely to the defendant in another decision we file today, State v. Musser, 721 N.W.2d 734 (Iowa 2006), involving the same defendant. We will rely on our opinion in that case to dispose of the common claims made here. As for

appeal, Musser also asserts section 709C.1 violates the Equal Protection Clause and his right to procedural due process. We do not address these claims, however, because the defendant failed to raise these issues in the district court. See State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997) ("Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal.").

1On

3 the two remaining issues, we find they have no merit. Therefore, we affirm the judgment of conviction and sentence entered in this case. I. Sufficiency of the Evidence. A. Scope of review. We review a challenge to the sufficiency of the evidence for correction of errors of law. See State v. Corsi, 686 N.W.2d 215, 218 (Iowa 2004). " `Evidence is substantial if it could convince a rational jury of the defendant's guilt beyond a reasonable doubt.' " Id. (citation omitted). "In assessing the sufficiency of the evidence, we consider all the evidence in the record, but we view the record in the light most favorable to the State." Id. B. Evidence at trial. S.S., the victim in this case, testified she met the defendant on April 4, 2002, at the home of a mutual friend, Jason Beranek. Late in the evening, she and Musser went to a bedroom in the home and began to have sexual contact. S.S. stated neither she nor Musser had a condom, so she asked Musser whether he "ha[d] anything," meaning sexually transmitted diseases (STDs). According to S.S., the defendant assured her he did not. The couple proceeded to have unprotected sexual intercourse. S.S. testified she did not know whether the defendant

ejaculated. Later that night, when Jason asked S.S. whether she and the defendant had "do[ne] anything," she said "no" because she was embarrassed. A few days later the defendant visited S.S. at her residence, and they again had unprotected sexual intercourse. On this occasion, there was no discussion of STDs. S.S. was subsequently told by Jason's cousin, Matt, that Musser was HIV positive. At first, the defendant led the victim to believe that this information was not correct, but eventually he left messages on the victim's answering machine that he felt bad for what he had done and he felt

4 suicidal about it. S.S. subsequently reported what had happened to the police. An officer who investigated the victim's report testified that she interviewed the defendant, who admitted he was HIV positive and was taking medication for the condition. Musser told the officer he did not have sexual relations with S.S., but said he had used drugs with her at Jason's home on April 4. Jason Beranek also testified at trial. He said Musser told him in 2001 that he--Musser--was HIV positive. Jason denied there was any drug usage at his home on April 4, 2002. Jason's cousin, Matt, testified that when he told S.S. of the defendant's positive HIV status, she was "stunned." The director of Johnson County Public Health testified that a common way to transmit HIV is through sexual intercourse. He also said it is

possible the virus will be transmitted during sexual intercourse even though the male does not ejaculate. The state epidemiologist, Randy Mayer, identified two reports held by his department that showed the defendant had tested positive for HIV on two separate occasions in July 2000. The defendant called as a witness an advanced registered nurse practitioner who had worked with the defendant since his diagnosis. She testified that as part of Musser's education program, he would have been instructed on the importance of disclosure to sexual partners and on safe sex. This witness said condoms, used correctly and consistently, are 95 to 99 percent, but not 100 percent, effective in preventing transmission of the virus. Musser also testified. He acknowledged that he learned in 2000 that he was HIV positive. He claimed that on the night of April 4, 2002, he and the victim smoked marijuana and methamphetamine together. Later, they

5 had sexual intercourse, but he asserted he told her of his HIV status first. He also testified that they used a condom every time they had sexual contact. C. Discussion. The defendant claims the trial court erred in failing to grant his motion for judgment of acquittal because there was insufficient evidence that he had "intimate contact" with the victim. We start our analysis with the relevant statutory provisions that were embodied in the court's instructions to the jury. Iowa Code section 709C.1(1)(a) provides: A person commits criminal transmission of the human immunodeficiency virus if the person, knowing that the person's human immunodeficiency virus status is positive, does any of the following: a. Engages in intimate contact with another person. Iowa Code

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