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IN THE COURT OF APPEALS OF MARYLAND No. 122 September Term, 1995 _____________________________________

DWIGHT RALPH SMALLWOOD

v.

STATE OF MARYLAND

____________________________________ Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker, JJ. ____________________________________ OPINION BY MURPHY, C.J. ____________________________________ Filed: August 1, 1996

In this case, we examine the use of circumstantial evidence to infer that a defendant possessed the intent to kill needed for a conviction of attempted murder or assault with intent to murder. We conclude that such an inference is not supportable under the facts of this case. I A On August 29, 1991, Dwight Ralph Smallwood was diagnosed as being infected with the Human Immunodeficiency Virus (HIV).

According to medical records from the Prince George's County Detention Center, he had been informed of his HIV-positive status by September 25, 1991. In February 1992, a social worker made

Smallwood aware of the necessity of practicing "safe sex" in order to avoid transmitting the virus to his sexual partners, and in July 1993, Smallwood told health care providers at Children's Hospital that he had only one sexual partner and that they always used condoms. Smallwood again tested positive for HIV in February and

March of 1994. On September 26, 1993, Smallwood and an accomplice robbed a woman at gunpoint, and forced her into a grove of trees where each man alternately placed a gun to her head while the other one raped her. On September 28, 1993, Smallwood and an accomplice robbed a

second woman at gunpoint and took her to a secluded location, where Smallwood inserted his penis into her with "slight penetration." On September 30, 1993, Smallwood and an accomplice robbed yet a

third woman, also at gunpoint, and took her to a local school where she was forced to perform oral sex on Smallwood and was raped by him. In each of these episodes, Smallwood threatened to kill his

victims if they did not cooperate or to return and shoot them if they reported his crimes. Smallwood did not wear a condom during

any of these criminal episodes. Based upon his attack on September 28, 1993, Smallwood was charged with, among other crimes, attempted first-degree rape, robbery with a deadly weapon, assault with intent to murder, and reckless endangerment. In separate indictments, Smallwood was also

charged with the attempted second-degree murder of each of his three victims. On October 11, 1994, Smallwood pled guilty in the

Circuit Court for Prince George's County to attempted first-degree rape and robbery with a deadly weapon.1 The circuit court

(Nichols, J.) also convicted Smallwood of assault with intent to murder and reckless endangerment based upon his September 28, 1993 attack, and convicted Smallwood of all three counts of attempted second-degree murder. Following his conviction, Smallwood was sentenced to

concurrent sentences of life imprisonment for attempted rape, twenty years imprisonment for robbery with a deadly weapon, thirty In two additional indictments, Smallwood was charged with the rape and robbery of the two women who were attacked on September 26 and September 30. Smallwood pled guilty to attempted first-degree rape and robbery with a deadly weapon in those cases as well, and the judgments entered pursuant to those pleas are not before us on this appeal. 2
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years imprisonment for assault with intent to murder, and five years imprisonment for reckless endangerment. The circuit court

also imposed a concurrent thirty-year sentence for each of the three counts of attempted second-degree murder. The circuit

court's judgments were affirmed in part and reversed in part by the Court of Special Appeals. In Smallwood v. State, 106 Md. App. 1,

661 A.2d 747 (1995), the intermediate appellate court found that the evidence was sufficient for the trial court to conclude that Smallwood intended to kill his victims and upheld all of his convictions.2 Upon Smallwood's petition, we granted certiorari to

consider whether the trial court could properly conclude that Smallwood possessed the requisite intent to support his convictions of attempted second-degree murder and assault with intent to

murder. C Smallwood asserts that the trial court lacked sufficient evidence to support its conclusion that Smallwood intended to kill his three victims. Smallwood argues that the fact that he engaged

in unprotected sexual intercourse, even though he knew that he carried HIV, is insufficient to infer an intent to kill. The most

that can reasonably be inferred, Smallwood contends, is that he is The Court of Special Appeals concluded, however, that Smallwood's conviction for assault with intent to murder should merge into the conviction for attempted second-degree murder based upon the same event. Because we find that the evidence was insufficient to convict Smallwood of either of these two crimes, however, the issue of merger has become moot. 3
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guilty of recklessly endangering his victims by exposing them to the risk that they would become infected themselves. The State

disagrees, arguing that the facts of this case are sufficient to infer an intent to kill. The State likens Smallwood's HIV-positive

status to a deadly weapon and argues that engaging in unprotected sex when one is knowingly infected with HIV is equivalent to firing a loaded firearm at that person.3 II A In Faya v. Almaraz, 329 Md. 435, 438-440, 620 A.2d 327 (1993), we discussed HIV and the Acquired Immune Deficiency Syndrome (AIDS) in detail. There, we described HIV as a retrovirus that attacks

the human immune system, weakening it, and ultimately destroying the body's capacity to ward off disease. We also noted that

[t]he virus may reside latently in the body for periods as long as ten years or more, during which time the infected person will manifest no symptoms of illness and function normally. HIV typically spreads via genital fluids or blood transmitted from one person to another through sexual contact, the sharing of needles in intravenous drug use, blood transfusions, infiltration into wounds, or from mother to child during pregnancy or Smallwood also argues that the legislature preempted the crimes of assault with intent to murder and attempted murder with respect to transmission of HIV when it enacted Maryland Code (1982, 1994 Repl. Vol.)

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