DILLARD, C. J., RAY, P. J. and SELF, J.
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,
Knowledge of His HIV Status.
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
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. 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/EIA screen and a Western Blot
test. Both HIV tests were positive, and the
doctor diagnosed Davis with "full blown AIDS."
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, 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.
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.
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
Transaction in Atlanta.
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 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."
April 18, 2012, she contacted the police 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
I got it from another girl." On June 16, 2012, the
detective obtained a warrant for Davis's arrest.
and the Victim in this Case.
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, " 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.
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 ...