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Davis v. State

Court of Appeals of Georgia, Fourth Division

September 27, 2017

DAVIS
v.
THE STATE.

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

          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/EIA[2] 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, 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 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 police[4] 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.

         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 ...


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