Five-Year Sentence for Not Disclosing HIV Status Upheld

An Ohio state appeals court has affirmed a felonious assault conviction and five-year prison sentence for Jeffrey A. Boatright, a gay Akron man convicted by a jury of violating a law criminalizing an HIV-positive individual’s failure to disclose their serostatus prior to engaging in sex.

In a July 12 ruling, Ohio’s Ninth District Court of Appeals upheld the verdict by a jury that heard conflicting stories about how and when Boatright learned that he was HIV-positive and decided to believe the prosecution’s witnesses. Those witnesses directly contradicted Boatright’s claim he did not know he was HIV-positive when he had sex with the victim, a gay man that Presiding Judge Diana Carr identified as M.H.

Summarizing the trial record, Carr wrote that the two men, who had previously been friends and each of whom had troubled relationships with their boyfriends, engaged in unprotected oral and anal sex, with Boatright penetrating M.H., in November 2014. Prior to having sex, the record showed, M.H. inquired about Boatright’s sexual history and was told he last had sex that September and had subsequently tested negative for HIV. According to M.H., he had last been tested for HIV in 2013.

Ohio appeals panel accepts jury verdict in case of gay man who denies contrary testimony

About a week and a half after the two men had sex, M.H. developed flu-like symptoms, and after another week went to an emergency room, where he tested positive.

According to the trial record, when M.H. contacted him, Boatright denied he was positive but finally told M.H., ‘I’m sorry, man. I lied.’” When M.H. responded to his HIV results by “stating that he did not want to live life having HIV,” Carr wrote, he “was admitted to a psychiatric unit for observation.”

Evidence regarding blood donations made by Boatright contradicted his claim he didn’t know he was positive. In 2011, without disclosing he has sex with men, which would have barred him from giving blood, he received compensation for donating plasma at CSL Plasma. That donation tested positive for HIV, and CSL sent him a certified letter notifying him, but it was returned by the post office because it had the wrong address. The company also left him a voicemail but received no response. CSL reported the positive result, as required, to the State Health Department, which also sent notifications and made appointments for Boatright to visit, but received no response.

However, when Boatright returned to CLS Plasma in December 2012 to make another donation, Bonnie Chapman, a registered nurse there, notified him of his earlier positive test result, according to her testimony. That meeting was documented in an electronic record. She recalled that his response to the news was simply, “‘Okay,’ and he left.”

Testimony from another registered nurse, identified as Mr. Osco from the State Health Department, indicated that Boatright went there in December 2014 — following his encounter with M.H. — requesting HIV testing “because he was informed that one of his sexual contacts was hospitalized with an HIV diagnosis, and because the home test Boatright took thereafter was positive.” Boatright tested positive at that time, and Osco then found the 2011 positive result in the state’s disease reporting database. According to Carr’s summary of the trial record, “When Mr. Osco informed Boatright of the results in early 2015, Boatright became emotional and seemed very sincere. Boatright told Mr. Osco that he had been in a relationship for two years and the only other person he had sexual contact with was M.H. Boatright declined to name his partner, but indicated that he had told the partner about the possibility Boatright had HIV and his partner had thereafter tested negative.” In response to Osco informing Boatright about the 2011 test result, “Boatright maintained that he was never contacted by anyone about it.”

During his own testimony, Boatright basically admitted he lied to Osco about his boyfriend’s HIV status, stating that “his partner, who he was dating at the time he engaged in sexual conduct with M.H., testified positive for HIV in March 2013.” According to Boatright’s testimony, however, the two men waited to have sex until after his boyfriend’s viral load was undetectable and also used condoms.

Boatright also acknowledged that he and M.H. engaged in unprotected sex “because he thought he was HIV-negative.”

The major point of contention in the case was whether Boatright could be charged with criminal liability based on the evidence that he knew about his HIV status when he had sex with M.H. His defense depended on his testimony that he genuinely thought he was HIV-negative and first learned he was positive when M.H. contacted him. Set against this was the testimony by Chapman, the CLS Plasma nurse, that she had counseled Boatright about his HIV status in December 2012, which Boatright denied in court, and Osco’s testimony confirming that a record of Boatright’s 2011 positive test result was in the Ohio reporting database.

In appealing his conviction and sentence, Boatright argued first that the statute was unconstitutional, but his attorney had not raised that objection during the trial, so the appeals court found he had lost his chance to make this argument.

Boatright also contended that the trial judge should have dismissed the case rather than sending it to the jury, on grounds of insufficient evidence for a conviction, but the appeals court rejected this out of hand, finding that in sorting through the contradictory evidence, the jury could reasonably have reached the conclusion that Boatright knew about his HIV-positive status and lied to M.H. before they had sex. The court emphasized that Boatright even admitted during his testimony to having lied more than once — including when he filled out plasma donation forms and failed to disclose that he was a sexually active gay man who should have been rejected as a donor.

Boatright explained that he did this because he was opposed to the categorical exclusion of gay men as donors. He “wanted to help people and did not think that his sexual orientation should prevent him from donating,” he testified.

Carr’s opinion for the court stated, “After a thorough, independent review of the record, we conclude that the jury did not lose its way in finding Boatright guilty of felonious assault. The jury was presented with two competing views of the evidence.” The appeals court would not overturn the verdict “merely because the trier of fact opted to believe the testimony of a particular witness.”

The court also rejected Boatright’s challenge to the length of his sentence, observing that the range provided by the statute was between two and eight years, so a five-year sentence was comfortably within the range.

Nor would the court entertain Boatright’s argument that his trial attorney presented an ineffective defense by failing to raise a constitutional objection to the statute, pointing out that another appeals panel in Ohio had recently rejected a constitutional attack on the statute. Given the strong presumption of constitutionality accorded to statutes and Boatright’s failure to cite any legal authority to support the claim that it was a viable argument, the appeals court was unwilling to find fault with his trial attorney.

Boatright was represented in his appeal by Akron attorney James K. Reed.