              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.
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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.”                   Again, Stevens

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

       1The  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
§ 709C.1(2)(b) and (4).
                                      4

Stevens guilty of both charges, and he was sentenced to twenty-five years

on the criminal-transmission-of-HIV charge and ten years on the sexual-

abuse charge.    They were ordered to run consecutively.        Stevens now

appeals his conviction for the criminal transmission of HIV, again arguing

that insufficient evidence exists to support the conviction.

      II. Scope of Review.

      We will affirm the denial of a motion for judgment of acquittal if

substantial evidence in the record supports each element of the offense

challenged by the defendant. State v. Sayles, 662 N.W.2d 1, 3 (Iowa 2003).

Evidence is substantial if it would convince a rational trier of fact that the

defendant is guilty beyond a reasonable doubt.          Id.   In making this

assessment, this court considers all the evidence and views it in the light

most favorable to the State. Id.

      III. Analysis.

      The sole issue on this appeal is the sufficiency of the evidence to

support a conviction of criminal transmission of HIV. Specifically, Stevens

challenges the evidence supporting the element of the charge, which

requires that he engaged in “intimate contact” with another person. See

Iowa Code § 709C.1(1)(a). Stevens characterizes the issue as presenting two
questions:

            1. May fellatio (oral sex) be performed “in a manner that
      could result in the transmission” of HIV? and
             2. Did the State prove that fellatio was so performed in
      this case beyond a reasonable doubt?

      Under Iowa law, a person who knows that he or she is HIV positive

commits a crime when that person engages in intimate contact with another

person. See Iowa Code § 709C.1(1)(a). “Intimate contact” is defined as,
                                     5
      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.

Iowa Code § 709C.1(2)(b).

      The jury was instructed as follows:

            The State must prove all of the following elements of
      Criminal Transmission of Human Immunodeficiency Virus
      (HIV) as alleged in Count I:
            1. Between July 1, 2003, and September 11, 2003, the
      defendant engaged in intimate contact with [J.B.].
            2. At that time the Defendant’s HIV status was positive.
             3. The defendant knew his human immunodeficiency
      virus (HIV) status was positive.
           4. At the time of the intimate contact, [J.B.] did not
      know that the defendant had a positive HIV status.
            If the State has proved . . . all of these elements, the
      defendant is guilty of Criminal Transmission of Human
      Immunodeficiency Virus. If the State has failed to prove any
      one of the elements, the defendant is not guilty.

The jury instruction defining intimate contact mirrored the legislative

definition and informed the jury that the State need not prove that the

person exposed actually became infected with the HIV.

      It is well established that the State bears the burden of proving

beyond a reasonable doubt every element of the crime charged. See In re

Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375

(1970) (“[T]he Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.”); accord State v. McMullin,

421 N.W.2d 517, 519 (Iowa 1988).         The jury was instructed on this

principle. Thus, the State was required to prove, as an element of the crime

charged, that “intimate contact” took place, i.e., that (1) there was an

intentional exposure of the body of one person to a bodily fluid of another
                                      6

person, and (2) this occurred in a manner that could result in the

transmission of the HIV.
      Stevens acknowledges that, in State v. Keene, 629 N.W.2d 360 (Iowa

2001), this court took judicial notice of the fact that the HIV can be

transmitted through bodily fluids.        See Keene, 629 N.W.2d at 365.

However, he argues that Keene can be distinguished because Keene

involved a guilty plea and therefore relieved the State of its burden of proof

in that case. See State v. Young, 293 N.W.2d 5, 7 (Iowa 1980) (“A plea of

guilty, if voluntarily and intelligently made, relieves the prosecution of the

burden of proving any facts necessary to support the conviction.”) (citation

omitted). Given that this relief was not available to the State in the present

case, as Stevens denied that “intimate contact” took place, Stevens argues

that Keene does not apply and that the State was required to introduce

evidence on the “intimate contact” element.

      The State argues that the significance of Keene, in taking judicial

notice of the methods of transmission of the HIV, is in giving voice to what

is common knowledge—that the HIV can be transmitted via semen and

other bodily fluids and that sexual intercourse is a common method of

transmitting the virus. The existence of this common knowledge is not
dependent upon a guilty plea/nonguilty plea distinction. The State believes

that, in light of Keene and its conclusion that the statute was sufficient to

give notice of what acts were prohibited, the jury can be assumed to have

the knowledge, common sense, and collective intelligence to know that oral

sex resulting in ejaculation could result in the transmission of the HIV.

      The district court reasoned as follows:

           Further, then, with respect to the suggestion that there
      must be causative proof, the Court looks to the decision of the
      Supreme Court in State vs. Keene . . . . On page 365 the Court,
      among other things, states: We take judicial notice of the fact
                                           7
       that the HIV may be transmitted through contact with an
       infected individual’s blood, semen or vaginal fluid, and that
       sexual intercourse in that case is one of the most common
       methods of passing the virus.

       We agree with the State’s position and the conclusion of the district

court. In Keene we took judicial notice of “the fact that the HIV may be

transmitted through contact with an infected individual’s blood, semen or

vaginal fluid, and that sexual intercourse is one of the most common

methods of passing the virus.” Keene, 629 N.W.2d at 365. “To be capable

of being judicially noticed, a matter must be of common knowledge or

capable of certain verification.” Motor Club of Iowa v. Dep’t of Transp., 251

N.W.2d 510, 517 (Iowa 1977); see also 22A C.J.S. Criminal Law § 658, at

302 (1989) (“Courts take judicial notice of facts within the common

experience or knowledge of every person of ordinary understanding and

intelligence, and of such things as are, or generally should be, known in

their respective jurisdictions. A fact may be judicially noticed where it is so

universally and commonly known as to carry its own indicia of correctness

. . . .”). Therefore, only facts to which sufficient notoriety attach so as to

make it safe and proper to assume their existence without specific proof

should be judicially noticed. State v. Ladd, 252 Iowa 487, 490, 106 N.W.2d

100, 101 (1960). By taking judicial notice in Keene that certain bodily

fluids can transmit the HIV and that sexual intercourse is a manner of

transmission of the HIV, we acknowledged what is, in fact, common

knowledge. Therefore, the significance of Keene lies not in the underlying

basis of the case, i.e., whether a plea of guilty or not guilty was entered, but

in its recognition of what is clearly common knowledge in today’s society. 2
See Keene, 629 N.W.2d at 365 (“any reasonably intelligent person is aware

       2Notably,   we took judicial notice of these matters in Keene when considering
Keene’s constitutional challenge to the statute, not only in analyzing the existence of a
factual basis for his guilty plea.
                                       8

it is possible to transmit HIV during sexual intercourse, especially when it is

unprotected”).

      Admittedly, Keene referenced “sexual intercourse” as the manner of

transmission of the virus, as the case involved potential transmission via

vaginal intercourse. “Sexual intercourse” has not been defined by our

legislature.   In that situation, we look to the common meaning of the

phrase. State v. Tesch, 704 N.W.2d 440, 451 (Iowa 2005). “The dictionary

provides a ready source for the common meaning of a word or phrase.” Id.

Webster’s dictionary defines “sexual intercourse” as:

            1: heterosexual intercourse involving penetration of the
      vagina by the penis: coitus 2: intercourse involving genital
      contact between individuals other than penetration of the
      vagina by the penis.

Webster’s Third New International Dictionary 2082 (unabridged 1986). Under

this definition, Keene should be read as taking judicial notice of the very

issue before this court, i.e., sexual intercourse may be committed through

oral sex. In any event, oral sex is a well-recognized means of transmission

of the HIV. See People v. Russell, 630 N.E.2d 794, 795 (Ill. 1994) (court took

judicial notice that intimate sexual contact whereby blood or semen of an

infected person is transferred to an uninfected person is a primary method

of spreading the infection); People v. Dempsey, 610 N.E.2d 208, 223 (Ill. Ct.
App. 1993) (“In the instant case, defendant placed his penis in the mouth of

the victim and ejaculated semen. Defendant acknowledged that semen is a

bodily fluid well known as a transmitter of the HIV. Oral sexual intercourse

is a penetrative sexual contact which is recognized as allowing transmission of

the virus. Thus, defendant clearly exposed the body of another to his bodily

fluid in a manner that could result in the transmission of HIV.” (Emphasis

added.)); Recreational Devs. of Phoenix, Inc. v. City of Phoenix, 83 F. Supp. 2d

1072, 1101 (D. Ariz. 1999), aff’d, 238 F.3d 430 (9th Cir. 2000) (“It is
                                      9

common knowledge that engaging in sexual intercourse and oral sex

without the use of condoms place people at risk for sexually transmitted

diseases, including HIV/AIDS.”); see also Alan Stephens, Annotation,

Transmission or Risk of Transmission of Human Immunodeficiency Virus (HIV)

or Acquired Immunodeficiency Syndrome (AIDS) as Basis for Prosecution or

Sentencing in Criminal or Military Discipline Case, 13 A.L.R.5th 628 (1993) (It

is “generally known” that the HIV is “spread by the transfer of bodily fluids

such as blood, genital secretions, and perhaps saliva.”).

       In addition to courts accepting as common knowledge methods of

transmission of the HIV, the legislature has also done so. See Iowa Code

§ 915.40(11) (presumption of significant exposure to the HIV when infected

individual engages in sexual intercourse, including oral sex); id.

§ 709C.1(1)(b) (recognizing semen and blood as potentially infectious bodily

fluids).

       By recognizing that it is common knowledge that oral sex is a manner

of transmission of the HIV, we find that the State did not fail to meet its

burden of proof.    Importantly, “ ‘[j]urors are not expected to lay aside

matters of common knowledge or their own observation and experience of

the affairs of life, but may give effect to such inferences as common
knowledge or their personal observation and experience may reasonably

draw from the facts directly proved.’ ” State v. Manning, 224 N.W.2d 232,

236 (Iowa 1974) (quoting 75 Am. Jur. 2d Trial § 1019, at 860); see also State

v. Post, 286 N.W.2d 195, 203 (Iowa 1979) (history, common sense, and

experience are factors to be considered in determining whether there is a

rational connection between basic facts that the prosecution has proved

and the ultimate fact presumed).

       This is not the first time we have determined that jurors could rely on

their common knowledge to support a conviction. See State v. Theodore,
                                     10

150 N.W.2d 612, 616 (Iowa 1967) (jurors could find from common

knowledge and experience that ninety-one boxes of loins, five boxes of

cooked hams, three boxes of smoked hams, and one box of shankless hams,

which allegedly were subject of conspiracy to commit felony larceny and/or

embezzlement, were worth more than $20, even though no evidence had

been presented on the value of the meat).

      We conclude that the State produced substantial evidence to support

a finding of “intentional exposure of the body of one person to a bodily fluid

of another person . . . .” We therefore affirm.

      AFFIRMED.
