               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




       1On  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.”).
                                        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 § 709C.1(1)(a). Chapter 709C defines “intimate contact” as “the

intentional exposure of the body of one person to a bodily fluid of another

person in a manner that could result in the transmission of the human

immunodeficiency virus.” Id. § 709C.1(2)(b). The defendant claims the

State failed to prove he exposed the victim to bodily fluid in a manner that

could result in the transmission of HIV for two reasons: (1) he testified he

always wore a condom when he had sex with the victim; and (2) the victim
could not say whether he ejaculated.

      Musser’s testimony that he always wore a condom was directly

controverted by the victim’s testimony that he did not use condoms. This

factual dispute was for the jury to resolve:

      “It is not the province of the court, in determining [a] motion
      [for judgment of acquittal], to resolve conflicts in the evidence,
      to pass upon the credibility of witnesses, to determine the
      plausibility of explanations, or to weigh the evidence; such
      matters are for the jury.”
                                      6

State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005) (citation omitted); see also

State v. Laffey, 600 N.W.2d 57, 60 (Iowa 1999) (stating “credibility was for
the jury to decide”). The jury could have found, based on the victim’s

testimony, that the defendant did not use a condom when engaging in

sexual intercourse with the victim, thereby exposing her to infectious bodily

fluid. Therefore, the trial court correctly refused to grant a judgment of

acquittal on the assumption the jury would believe the defendant’s

testimony that he wore a condom.

      In a related argument, the defendant contends there was no proof he

ejaculated during intercourse with S.S. Even though the victim testified she

was not certain the defendant ejaculated, this testimony would not

establish the absence of “intimate contact” as defined by the statute. The

public health director testified it is possible to transmit HIV during

intercourse even when the man does not ejaculate. This testimony was

undisputed at trial. The defendant cites in his brief to purportedly contrary

testimony introduced at a hearing on his motion to dismiss. He cannot rely

on that testimony, however, because it was not presented to the jury. The

defendant’s challenge to the sufficiency of the evidence is without merit.

      II. Ineffective-Assistance-of-Counsel Claim.
      To establish a claim of ineffective assistance of counsel, the defendant

must show: (1) trial counsel failed to perform an essential duty; and (2)

prejudice resulted from this failure. State v. Scalise, 660 N.W.2d 58, 61

(Iowa 2003).   To prove prejudice, the defendant “must show that the

outcome of the trial would have been different.” Id.

      The defendant faults his trial counsel for failing to request an

instruction on the affirmative defense of consent set out in section

709C.1(5). That section states it is “an affirmative defense” that the victim

knew the defendant was HIV positive, knew that exposure could transmit
                                            7

the virus, and “consented to the action of exposure with that knowledge.”

Iowa Code § 709C.1(5). The defendant contends his testimony that he told

the victim of his HIV status prior to their first sexual encounter warranted

an instruction on the consent defense.

       “Parties are entitled to have their legal theories submitted to a jury if

they are supported by the pleadings and substantial evidence in the record.”

Beyer v. Todd, 601 N.W.2d 35, 38 (Iowa 1999). A trial court need not give a

requested instruction, however, if the subject is already covered in the

court’s own instructions. See State v. Lindsey, 302 N.W.2d 98, 102 (Iowa

1981); State v. Freeman, 267 N.W.2d 69, 70 (Iowa 1978).

       The marshalling instruction given by the court at trial included as an

element: “At the time of the intimate contact, [the victim] did not know that

the defendant had a positive human immunodeficiency virus status.” The

instruction further told the jury that “[i]f the State has failed to prove any

one of the elements, the defendant is not guilty.”                Clearly, the court’s

marshalling instruction embodied one aspect of the consent defense. 2 In

fact, the court’s instruction was more favorable to the defendant than the

instruction the defendant now claims his counsel should have requested

because under the court’s instruction the burden was on the State to
disprove the victim’s knowledge of the defendant’s HIV status rather than

on the defendant to prove the victim knew.

       In any event, in order to find the defendant guilty under the court’s

instruction, the jury had to find that the victim did not know the defendant

was HIV positive at the time they engaged in sexual intercourse. Therefore,


       2 The State argues “[t]rial counsel did not breach an essential duty by failing to
request an affirmative defense instruction because the ‘consent’ defense is embodied in the
marshalling instruction as given to the jury.” We cannot agree. Only one element of the
consent defense was included in the court’s marshalling instruction. Nonetheless, as we
discuss in our opinion, any difference between the court’s instructions and those now
preferred by the defendant on appeal did not work to the defendant’s disadvantage.
                                     8

even if counsel had requested and obtained an instruction on the

affirmative defense of consent, the defendant would not have been

successful on this defense because the jury did not believe his testimony

that he told S.S. of his positive HIV condition. Consequently, we cannot say

the outcome of the trial would have been different had the court given a

separate instruction on consent as an affirmative defense. Therefore, the

defendant cannot prove prejudice, and his claim of ineffective assistance of

counsel has no merit as a matter of law.

      Finding no basis for reversal, we affirm the defendant’s conviction and

sentence.

      AFFIRMED.
