Published January, 2006

State v. Musser, No. 04-0719 (Iowa 2006)

This is the second of two appellate decisions, made the same day, by the Supreme Court of Iowa affirming Adam Donald Musser's conviction and 25-year prison sentences under Iowa's criminal transmission of HIV statute. The first decision, State v. Musser, 721 N.W.2d 734, 741 (Iowa 2006)  dismissed the defendant's claims that the statute violated the First Amendment, is vague and overbroad, and infringed on his right to privacy; that that his sentence constituted cruel and unusual punishment; and that laboratory reports showing his HIV status were impermissibly admitted into evidence. Here, the court disposed of these and addressed only the defendant's two remaining claims.

First, Musser claimed that the prosecution had failed to prove he exposed his sexual partner to HIV since there was no evidence that he had ejaculated during sexual intercourse and, regardless, he had used a condom. The court found this unpersuasive, citing a public health director's trial testimony that it is possible to transmit HIV during intercourse even if the man does not ejaculate. The court refused to grant an acquittal on the assumption that the jury would believe the defendant's testimony that he had used a condom over his partner's testimony that he had not. The court dismissed this claim.

Second, Mr. Musser claimed that his trial attorney's failure to request a key jury instruction constituted ineffective assistance of counsel. The court dismissed this claim, finding that Mr. Musser had failed to show that the trial outcome would have been different had the court entered this instruction.