Published December, 2018

Propes v. State, 815 S.E. 2d 571 (Ga. Ct. App. 2018)

The Georgia Court of Appeals reversed the defendant’s conviction for reckless conduct after he had been sentenced to ten years in prison for having sex without prior disclosure of his status. The reversal was based on the State’s failure to present sufficient evidence that the defendant is a person living with HIV.

The defendant was originally arrested in 2016 after he allegedly had condomless sex with two women without prior disclosure of his HIV status. Importantly, he had been charged previously in the states of Indiana and Oregon for similar conduct. An official from an Indiana prosecutor’s office testified that he had investigated the defendant in 2012 for failure to disclose and offered supportive documents from the Indiana Department of Health, including multiple documents signed by the defendant in which he acknowledged his legal duty to disclose prior to sex. An official from an Oregon sheriff’s office described how he had arrested the defendant for reckless endangerment in 2012. The State relied on the testimony of these two witnesses to demonstrate defendant’s HIV-positive status.

The defendant appealed his conviction and argued that the State failed to offer any laboratory results sufficient for the jury to conclude that he is a person living with HIV, as statutorily required for conviction. In order for someone to be defined as an “HIV-infected person” under OCGA § 16-5-60, there must be confirmation from at least two separate types of HIV tests that are approved for that purpose by the Georgia Department of Community Health. Rather than meeting this requirement, the State relied on the officials from Indiana and Oregon, along with a one-page laboratory testing report that was not accompanied by testimony from a competent witness to describe the report’s origin, methodology, or consistency with Georgia Department of Community Health requirements.

The case is important because it shows how standards of proof regarding a defendant’s health status can be vigorously enforced by defense counsel to protect HIV criminal defendants. The strength of the evidentiary requirements for establishing health status can also offer a lesson to advocates seeking to reform their laws so that they are more protective of defendants, including with respect to requiring a prosecutor to demonstrate that transmission of disease occurred.