                   IN THE SUPREME COURT OF IOWA

                            No. 38 / 04-0810

                          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, Judge.



      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 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.
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PER CURIAM.

       The defendant, Adam Musser, appeals his conviction of criminal
transmission of human immunodeficiency virus (HIV) in violation of Iowa

Code section 709C.1(1)(a) (2001). With the exception of an insufficiency-of-

the-evidence claim, the issues raised on appeal in this case duplicate those

raised in two other appeals brought by this defendant from two additional

convictions for criminal transmission of HIV.            See State v. Musser, ___

N.W.2d ___ (Iowa 2006) (affirming conviction in case no. 04-0809); State v.

Musser, ___ N.W.2d ___ (Iowa 2006) (affirming conviction in case no. 04-

0719). We found no merit in the issues raised by the defendant in those

cases and will rely on our opinions there to dispose of the common claims

made here.

       As for the remaining issue, we conclude the evidence is sufficient to

support the jury’s guilty verdict. Therefore, we affirm the judgment of

conviction and sentence entered in this case.

       Musser argues the evidence was insufficient to support a finding that

the victim did not know he was HIV positive. 1 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.

       The victim testified she met the defendant in June 2002, and they

first had sexual intercourse late that month. She said the defendant did


       1Although the victim’s consent is an affirmative defense under chapter 709C, see
Iowa Code § 709C.1(5), the trial court included the victim’s lack of knowledge of the
defendant’s HIV-positive status as an element of the State’s case.
                                       3

not use a condom, and he did not tell her “anything [she] needed to worry

about such as sexually transmitted diseases, HIV, anything.”
      Later that summer, the victim heard rumors from her sister that the

defendant was HIV positive.      She confronted the defendant with this

information in September 2002, but the defendant denied he was infected

with HIV and claimed he had no idea why anyone would say he was. The

victim testified she believed the defendant, and they resumed their physical

relationship.   Between September 2002 and January 2003, the couple

engaged in sexual intercourse about twelve more times, sometimes using a

condom and sometimes not. According to the victim, the defendant never

informed her he was HIV positive.

      The victim testified that in February 2003, she was told by a reliable

source that the defendant was HIV positive. She then informed the local

police.

      The defendant testified that he and the victim had a sexual

relationship, but he stated he told her prior to their first sexual encounter

that he was HIV positive. He further asserted that he used a condom every

time they engaged in sexual intercourse.

      The State called the victim’s sister as a rebuttal witness. She testified
she was told by a friend that the defendant was HIV positive. When she

passed this information along to her sister, the victim, the victim appeared

shocked.

      The testimony on what the victim knew was conflicting. 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.”
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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 she did not know, prior to engaging in sexual intercourse

with the defendant, that he was HIV positive. 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 told the victim before

their first sexual encounter of his positive HIV status. 2

       Finding the evidence sufficient to support the jury’s guilty verdict, we

affirm the defendant’s conviction and sentence.

       AFFIRMED.

       This opinion shall not be published.




       2The defendant also argues on appeal that the evidence was insufficient to prove he
had “intimate contact” with the victim. This issue was not raised in Musser’s motion for
judgment of acquittal. Therefore, error was not preserved, and we will not consider this
issue on appeal. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996).
