                                 FOURTH DIVISION
                                  DILLARD, C. J.,
                               RAY, P. J. and SELF, J.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                   September 27, 2017




In the Court of Appeals of Georgia
 A17A1008. DAVIS v. THE STATE.                                                 SE-031C

      SELF, Judge.

      Craig Davis appeals from his convictions of two counts of reckless conduct in

violation of OCGA § 16-5-60 (c), contending (1) that the trial court erred by allowing

evidence that he had previously infected another a person with HIV, rather than

admitting only his previous nondisclosure of his HIV status, and (2) that his counsel

provided ineffective assistance by submitting expert witnesses who opined about the

validity of HIV testing. For the reasons explained below, we affirm.

      Davis’s Knowledge of His HIV Status. The State presented evidence showing

that on March 18, 2005, Davis was admitted into the hospital from the emergency

room after he complained of coughing, shortness of breath, weakness, and

unexplained weight loss. The doctor who treated Davis testified that he had a type of
pneumonia associated with the opportunistic infections typically seen in AIDS

patients. Davis also suffered from thrush, another opportunistic infection associated

with immune-compromised patients.

         The doctor explained that the HIV virus destroys the immune system as it

grows inside the body by “eat[ing] up . . . CD4 cells.” When a person’s CD4 cell

count is less than 200, a patient is diagnosed with AIDS.1 A patient with AIDS is also

considered HIV positive. At the time of Davis’s hospital admission, his CD4 count

was 36. The doctor ordered an HIV/EIA2 screen and a Western Blot test.3 Both HIV

tests were positive, and the doctor diagnosed Davis with “full blown AIDS.”

         The doctor personally delivered the news to Davis, who did not display the

typical reaction to the diagnosis. The doctor explained that “it might have seemed as

though he knew or he was aware. I didn’t see shock. I didn’t see panic or fear. I – just

indifference. It’s hard to describe.” In March 2005, Davis’s doctor counseled him

multiple times about the transmission of HIV through body fluids, blood, sex, semen,



         1
             A low CD4 count begins at 699.
         2
             This test looks for antibodies fighting the HIV infection.
         3
             This test looks for components of the virus such as proteins that make up the
virus.

                                               2
and needles and the importance of limiting partners and practicing safe sex. He had

an independent recollection of counseling Davis because they were about the same

age and their children had been in a spelling bee together.

      Davis’s doctor prescribed antiviral medication to stop the growth of the virus

and help his CD4 count grow. The doctor testified that the antiviral medication does

not cure HIV or AIDS, it treats it. The patient will “always have HIV” as there is no

cure. During cross-examination of the defendant’s doctors, Davis’s counsel

established that viruses other than HIV, such as mononucleosis, can establish low

CD4 counts, as well as opiate use, malnutrition, over-exercising, and stress.

      In October 2009, four years after receiving his diagnosis, Davis was admitted

to jail. During processing, Davis told a medical assistant he had “a history of being

HIV positive,” dating back to 2005. After his arrest on the charges at issues in this

case, Davis completed a form on July 27, 2012, notifying the jail that he was “HIV

positive and would like a high protein diet.” On August 1, 2012, he told a nurse

practitioner at the jail that he was HIV positive.

      Similar Transaction in Atlanta. C. M. testified that she met Davis at church in

2010. Later the same year, they became “romantically involved.” In the year 2011

through January 24, 2012, they engaged in unprotected vaginal and oral sex. Later

                                           3
that month, C. M. learned through a routine doctor’s appointment that she had tested

positive for HIV. Her previous HIV tests in 2004 and 2006 had been negative. When

she first confronted Davis about whether he was HIV positive, he denied it and asked

her to get a second test. When the second test revealed the same result, Davis told her

that he had learned he was HIV positive in July 2011. In her last conversation with

Davis, C. M. told him “whatever you do, don’t do this to anyone else.” After he

responded, “girl, whatever,” she became concerned. She later viewed Davis’s

Facebook page and saw “all these different women . . . posting things, and that

disturbed me. And I’m . . . he can’t do that. He got to be sleeping with them like he

did with me and (sic) didn’t tell me anything.”

      On April 18, 2012, she contacted the police4 about Davis’s conduct. On April

26, 2012, a detective interviewed C. M. and obtained Davis’s phone number “to get

his side also.” The detective left a message on this number, and in June 2012,

someone who identified himself as Davis called the detective from the number

provided by C. M. When the detective explained that she was calling about a report

of “ag[gravated] assault” by C. M., Davis interrupted and said, “I never touched [C.

M.]. . . . [S]he just mad at me because she contracted HIV from me. That’s all. And

      4
          C. M. contacted the City of Atlanta Police Department.

                                          4
I got it from another girl.” On June 16, 2012, the detective obtained a warrant for

Davis’s arrest.

      Davis and the Victim in this Case. In April 2012, the victim and Davis, who

knew each other through mutual acquaintances, exchanged phone numbers and began

having “flirty and fun” conversations on the telephone. During one of her

conversations with Davis, the victim joked about him being “gay” or having “the

package,”5 and Davis “got really upset” and denied it. Before having unprotected oral

and vaginal sex with the victim on several occasions in May 2012, Davis never told

the victim he was HIV positive.

      On May 22, 2012, Davis called the victim and said, “I got a phone call from a

girl that [he] was messing with back in . . . October, November. We were having sex

unprotected and she told me she tested positive for HIV.” When the victim became

“frantic,” he told her: “[C]alm down. It’s not the end of the world. People live with

HIV every day. It can go undetected. It’s not a death sentence. . . . [C]all your doctor.

. . . [I]t’s some medicines out there you can take that will prevent you from contacting

HIV.” He also told her that she should “be fine,” because he never ejaculated inside

her. Beginning on June 2, 2012, Davis began blocking her calls and texts on his cell

      5
          “The package” is slang for HIV or AIDS.

                                           5
phone. On June 12, 2012, the victim went to the Clayton County Police Department

for help because she wanted Davis to get tested.

      Davis’s Testimony at Trial. Davis admitted that he was diagnosed as being HIV

positive in March of 2005. He explained that at the time of this diagnosis, he had

been “smoking crack cocaine” for about three months and had attributed the

symptoms that landed him in the hospital to his drug use. He contended that the first

two tests taken in the hospital were “inconclusive” and that a third test performed by

a Dr. Shelton came back “HIV positive.” He then began taking “HIV medicine.”

While he accepted the diagnosis at the time, he believed at the time of trial that his

HIV status was “in question.” He admitted that he was nonetheless continuing to take

his HIV medication.

      He claimed that he told C. M. he was HIV positive before having sex with her.

He testified that while they “started off” using a condom, it eventually “came off.” He

explained that he mistakenly believed that he could not infect her if he did not

ejaculate inside of her, and was surprised when she informed him that she was HIV

positive. He admitted during cross-examination that his doctors had informed him to

use a condom when having intercourse to protect against infecting another person.



                                          6
      Davis testified that C. M. initially continued their intimate relationship for

several months after learning she was HIV positive. When C. M. learned that Davis

had informed his wife, from whom he was separated, that C. M. was HIV positive,

C. M. became angry, because she viewed resumed communications with his wife as

a sign that Davis planned to work on his marriage. When the detective called him

about an alleged aggravated assault involving C. M., he told the detective, “I’m HIV

positive . . . and she’s gotten [it] from me . . . and she’s mad because I told my wife

. . . I never put my hands on her.”

      With regard to the victim, Davis denied having “sex of any type” with her. He

testified that the victim told him that he “was too large for her” after seeing a

photograph of his penis, and they decided before meeting that they would only

masturbate in one another’s presence. During cross-examination, he clarified that she

told him that “she like small penises, that she didn’t like large penises.” According

to Davis, she also described a photograph of his penis as “a Picasa” that she was

going to put in a frame. He claimed that his ejaculate never came anywhere near the

victim and that there was no need to inform her of his HIV status. He called her a liar

for testifying that they had sexual intercourse.



                                          7
      Defense Experts’ Testimony. Dr. Rodney Richards, who holds a Ph.D. in

organic chemistry, testified that the various tests for HIV “are not approved to

diagnose actual infectious HIV in someone’s blood at any given time.” They are not

designed to test for the presence of the HIV virus itself. He pointed out that the

manufacturers of these tests state that “the significance of the positive Elisa [test]

followed by another positive [Elisa] test followed by a Western Blot positive is

unknown in persons without symptoms and that clinical correlation as (sic) indicated

to see whether a diagnosis of infection is correct.” In essence, presumptions about the

presence of the HIV virus are made based upon the presence of antibodies that could

relate to other antigens or germs. While he has always assumed that the HIV virus is

real, the HIV virus has never been cultured or found in a person’s blood.

      Dr. Nancy Banks, a doctor board-certified in obstetrics and gynecology,

testified that Davis’s symptoms when he went to the emergency room in 2005 could

be attributed to crack cocaine use rather than AIDS as this drug “is very immuno

suppressive.” She also testified that there is no test on the market that can be used to

diagnose HIV because no scientist has been able to culture the virus. Additionally,

there are about 70 conditions that can cause a false positive result on tests currently

used to identify an HIV infection. In her opinion, the CD4 count parameters

                                           8
established by the CDC have limited value because “[i]t is uncertain what a normal

CD4 count is” and “we don’t have a standard at this time.”

      Dr. David Rasnick, who has a Ph.D. in chemistry, testified that he is the chief

science officer at the Office of Medical and Scientific Justice. He stated that smoking

crack cocaine is a “documented” cause of thrush, weight loss, and pneumonia, as well

as “a strong powerful immune suppressant.” Accordingly, it “can cause or manifest

symptoms that we think are AIDS leading.”

      1. Davis asserts that the trial court erred by allowing evidence that he actually

infected a similar transaction witness with HIV because the State failed to satisfy the

second and third prongs of the test for admission of other acts evidence under OCGA

§ 24-4-404 (b). In his view, this evidence was irrelevant because “[t]he felony

provision of OCGA § 16-5-60 does not require transmission of HIV and in fact

criminalizes acts that in the current age of HIV treatment are highly unlikely to pass

the virus.” We disagree.

             We review a trial court’s decision to admit other acts evidence for
      an abuse of discretion. For trials, like [Davis]’s, that occur after January
      1, 2013, the admissibility of other acts evidence is governed by OCGA
      § 24-4-404 (b) (“Rule 404 (b)”), which provides that “evidence of other
      crimes, wrongs, or acts shall not be admissible to prove the character of
      a person in order to show action in conformity therewith. It may,

                                           9
      however, be admissible for other purposes, including, but not limited to,
      proof of . . . intent . . . .” For other acts evidence to be admissible, the
      moving party must show that: (1) the evidence is relevant to an issue
      other than the defendant’s character, (2) the probative value is not
      substantially outweighed by undue prejudice under OCGA § 24-4-403,
      and (3) there is sufficient proof so that the jury could find that the
      defendant committed the acts. Rule 404 (b) is a rule of inclusion, but it
      does prohibit the introduction of other acts evidence when it is offered
      for the sole purpose of showing a defendant’s bad character or
      propensity to commit a crime.


(Citations and punctuation omitted.) Booth v. State, Ga. (3) (Case No. S17A0705,

decided August 14, 2017).

      While neither this Court nor the Supreme Court of Georgia has previously

ruled on the admission of other act evidence in an HIV reckless conduct case, an

Indiana court rejected a similar argument in Johnson v. State, 785 NE2d 1134, 1139

(I) (B) (Ind. Ct. App. 2003). The defendant in that case asserted “that the trial court

abused its discretion in admitting the testimony of Y. V., T. D., and C. B. detailing

their prior sexual relationships with [the defendant] and their subsequent positive test

results for HIV.” Id. The Indiana Court of Appeals was not persuaded by this

assertion and concluded:



                                          10
      Evidence of the HIV status of [the defendant]’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 [the
      victims]. As [the defendant]’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.


Id. at 1140 (I) (B). We are persuaded by this reasoning to conclude that the State

established the first and second factors for admissibility under Rule 404 (b).

      With regard to the third factor, “other acts evidence may be admitted if the

court concludes that the evidence is sufficient for the jury to find by a preponderance

of the evidence that the other act was committed.” Bradshaw v. State, 296 Ga. 650,

656 (3), n. 4 (769 SE2d 892) (2015). Based upon C. M.’s testimony about her HIV

status before and after she had sexual relations with Davis, as well as medical

testimony verifying her negative status, a jury could have found by a preponderance

of the evidence that Davis transmitted the HIV virus to C. M. Accordingly, we find

no error in the trial court’s admission of other act evidence under Rule 404 (b).

      2. Davis argues that his counsel’s “decision to share [his] defense with an

agenda-driven organization, and his failure to vet the group’s experts, much less

                                          11
prevent them from spouting obviously baseless theories, blew [his] credibility in a

case where credibility was everything.” In Davis’s view, counsel’s strategic decision

to present such experts, who suggested that crack cocaine use caused his HIV

symptoms, “‘was an unreasonable one no competent attorney would have made under

the same circumstances.’”

              In order to succeed on his claim of ineffective assistance, [Davis]
      must prove both that his trial counsel’s performance was deficient and
      that there is a reasonable probability that the trial result would have been
      different if not for the deficient performance. Strickland v. Washington,
      466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails
      to meet his burden of proving either prong of the Strickland test, the
      reviewing court does not have to examine the other prong. Id. at 697
      (IV).


(Citation and punctuation omitted.) Baugh v. State, 293 Ga. 52, 54 (2) (743 SE2d

407) (2013). Satisfying the requirement for deficient performance “requires [a]

showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment.” Turpin v. Bennett, 270 Ga. 584, 589

(2) (513 SE2d 478) (1999), citing Strickland, supra, 466 U. S. at 687 (III).

      The test for determining whether trial counsel’s performance was
      deficient is whether a reasonable lawyer could have acted, under the
      same circumstances, as defense counsel acted before and during the trial.

                                          12
      Hindsight is not employed, and our purpose in making this
      determination is not to grade trial counsel’s performance, but simply to
      ensure that the adversarial process at trial worked adequately. We are
      therefore highly deferential to the choices made by trial counsel during
      a trial that are arguably dictated by a reasonable trial strategy.


(Citations and punctuation omitted.) Head v. Taylor, 273 Ga. 69, 79 (3) (538 SE2d

416) (2000).

      It is well established that the decision as to which defense witnesses to
      call is a matter of trial strategy and tactics. In particular, the decision of
      how to deal with the presentation of an expert witness by the opposing
      side, including whether to present counter expert testimony, to rely upon
      cross-examination, to forego cross-examination and/or to forego
      development of certain expert opinion, is a matter of trial strategy
      which, if reasonable, cannot be the basis for a successful ineffective
      assistance of counsel claim.


(Citations and punctuation omitted.) Humphrey v. Nance, 293 Ga. 189, 221 (744

SE2d 706) (2013). “The selection of an expert witness is a ‘paradigmatic example’

of the type of strategic choice that, when made after thorough investigation of the law

and facts, is ‘virtually unchallengeable.’” Rockwell v. Davis, No. 4:14-CV-1055-O,

2016 U. S. Dist. LEXIS 109568 (N.D. Tex. 2016). See also Adem v. State, 300 Ga.




                                           13
App. 708, 712 (2) (686 SE2d 339) (2009) (defense counsel afforded wide discretion

in decision to call particular expert witness).

      During the motion for new trial hearing, Davis’s primary trial counsel testified

that he had practiced law for 43 years, with 22 years as a prosecutor and the

remaining years as a criminal defense attorney. After familiarizing himself with the

elements of “a reckless conduct HIV charge,” including the element that a person be

“HIV positive,”6 he received information from the Office of Medical and Scientific

Justice (“OMSJ”) about the nature of HIV tests and the ability of the State to prove

this element of the crime. He explained that his client, Davis, made the decision to

request help from OMSJ. The OMSJ then provided, free of charge, an attorney

familiar with the HIV testing evidence to act as co-counsel7 and three expert

witnesses at trial to support Davis’s alternative defense that the State could not prove

an essential element of the offense, i. e. that Davis was “an HIV infected person.”

Davis’s primary trial counsel testified that he “took no responsibility for any of the



      6
       OCGA § 16-5-60 (c) precludes “an HIV infected person” from knowingly
engaging in sexual intercourse or acts without informing the other person of a known
HIV infection.
      7
         Davis did not present testimony from this attorney during the motion for new
trial hearing.

                                          14
HIV material” during the trial. He explained that Davis “requested them” and he

“acquiesced.” His responsibility during the trial centered around the primary defense

that Davis never had sex with the victim. In his view, the two alternative defenses did

not interfere with one another; he looked “at the HIV portion of it as icing on the

cake.” In his view, the HIV experts “weren’t so far-fetched[,]” and “one of the

substantial things that hurt the defense was Mr. Davis’s testimony itself.” He

explained that “when [Davis] testified his penis was like a Picasso, that was the game

. . . in [his] opinion.” After Davis’s testimony, he was not surprised by the verdict.

      Davis testified in the motion for new trial hearing that one of the first people

he notified about the charges against him was his doctor, who “had him call HIV law

and policy in New York.” He explained that his doctor “is one of the leading doctors

in America for HIV research. Matter of fact, there is lobbying before [C]ongress for

this law to be even taken from off the books.” He denied, however, that the OMSJ

contacted him about assistance with his case. He also claimed that his doctor warned

him against using OMSJ and that he passed this information along to his primary trial

counsel.

      We agree with the trial court’s conclusion that Davis’s claim of ineffective

assistance has no merit. “[A] strategy that presents alternative defense theories – all

                                          15
of which are better for the defendant than the prosecution theory of the case –

generally falls within the broad range of reasonable professional conduct.” (Citation,

punctuation and footnote omitted.) Issa v. State, 340 Ga. App. 327, 344 (8) (796 SE2d

725) (2017) (rejecting ineffective assistance of counsel claim grounded upon alleged

“absurd” defense theory). Based upon the elements of the crime with which Davis

was charged and our review of the expert testimony presented on his behalf, we

cannot say that the strategy was “so unsound that no reasonable lawyer would have

pursued it.” (Citations, punctuation and footnote omitted.) Id.

      Judgment affirmed. Dillard, C. J., and Ray, P. J., concur.




                                         16
