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IN THE SUPREME COURT OF IOWA
No. 51 / 04-2066 Filed August 4, 2006 STATE OF IOWA, Appellee, vs. JIMMY DEAN STEVENS, Appellant.

Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.

Defendant appeals from conviction of criminal transmission of HIV under Iowa Code section 709C.1 (2003). AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.

2 LARSON, Justice. Jimmy Dean Stevens has appealed his conviction for criminal transmission of HIV under Iowa Code section 709C.1 (2003), alleging that the district court erred in denying his motion for judgment of acquittal. We affirm. I. Facts and Prior Proceedings. The evidence, when viewed in the light most favorable to the State, reveals the following facts. Stevens, the defendant, was thirty-three years old at the time of the offense. The victim, J.B., was fifteen years old. Both are homosexual and met in an internet chat room for gay men. They exchanged photographs, and according to J.B., he and Stevens engaged in some chat about their sexual preferences. The two arranged to meet in person that night. J.B.'s mother,

believing that Stevens was somehow connected with a university and could assist J.B. in getting into college, consented to Stevens' visit. After Stevens arrived at J.B.'s house, he talked with J.B. and his mother for some time. J.B. and Stevens then went to get fast food. On the way, Stevens stopped at a Kwik Star to use the ATM machine. When he returned to the car, he said he was sexually aroused and wished someone would perform oral sex on him. Stevens drove to a dark location on a street in Waterloo where J.B. and Stevens performed oral sex on each other. Stevens ejaculated into J.B.'s mouth. Afterwards, J.B. asked Stevens if he was clean, i.e., free from sexually transmitted diseases. Stevens represented that he was clean, and offered to pay for testing if J.B. so wished. The pair then got some food, and Stevens took J.B. home. Upon returning home, J.B.'s mother, recognizing that they had been gone longer than necessary, informed J.B. that Stevens "looked like he was

3 a good candidate for AIDS." J.B. again became concerned about sexually transmitted diseases. He made himself vomit and then called Stevens, once more questioning him as to whether he was "clean." responded that he was. In reality, Stevens was HIV positive and had been aware of this since 1990. The parties stipulated that, [t]he Defendant, Jimmy Dean Stevens, has known since being diagnosed in 1990 that his human immunodeficiency virus (HIV) status is positive. On the night of his sixteenth birthday, J.B. learned that Stevens was in fact HIV positive. J.B. eventually informed someone of his situation, pressed charges and, at the time of trial, had been tested twice for the HIV. Both results were negative. 1 Stevens was charged with two offenses: criminal transmission of HIV in violation of Iowa Code section 709C.1 and sexual abuse in the third degree in violation of Iowa Code section 709.4(2)(c)(4). Stevens admitted at trial that he had met J.B. online, that he sent nude pictures of himself to J.B., and that he met J.B. in person on the evening in question. He also admitted that he did not tell J.B. about his HIV positive status, as he did not see the need to. However, he denied that he knew J.B. was only fifteen years old when he e-mailed the nude photographs of himself, that he and J.B. talked online about their sexual preferences, and that he intended to or had any sexual encounter with J.B. When the State rested, and again at the conclusion of the trial, Stevens moved for judgment of acquittal, alleging insufficient evidence to support both counts. The motion was denied. The jury subsequently found
fact that the victim does not actually contract HIV does not impact on the charge, as the statute does not require that HIV actually be transmitted, only that the circumstances were such that it could have been transmitted. See Iowa Code

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