State Of Iowa Vs. Adam Donald Musser

IN THE SUPREME COURT OF IOWA

No. 33 / 04-0809

Filed August 4, 2006

STATE OF IOWA,

Appellee,

vs.

ADAM DONALD MUSSER,

Appellant.

Appeal from the Iowa District Court for Johnson County, L. Vern

Robinson, Judge.

Defendant appeals his conviction of criminal transmission of human

immunodeficiency virus in violation of Iowa Code section 709C.1(1)(a)

(2001). AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich,

Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins and Cristen

Douglass, Assistant Attorneys General, J. Patrick White, County Attorney,

and Victoria Dominguez, Assistant County Attorney, for appellee.

2

TERNUS, Justice.

The defendant, Adam Donald Musser, appeals his conviction of

criminal transmission of human immunodeficiency virus (HIV) in violation

of Iowa Code section 709C.1(1)(a) (2001). Musser claims the statute violates

the First Amendment, is vague and overbroad, and infringes his right of

privacy. 1 He also argues his twenty-five-year sentence constitutes cruel

and unusual punishment. In addition to these constitutional claims,

Musser challenges the admission of laboratory reports showing his HIV-

positive status, asserting they lacked a proper foundation and contained

inadmissible hearsay. Finally, the defendant raises a claim of ineffective

assistance of counsel based on trial counsel’s failure to object to the

admission of the lab reports as a Confrontation Clause violation and failure

to object to the prosecutor’s opening statement and closing argument. 2 We

find no merit in any of the issues raised on appeal, and therefore, we affirm

the judgment of conviction and sentence.

I. Factual Background and Prior Proceedings.

The jury could have found the following facts from the evidence

introduced at trial. The defendant had unprotected sexual intercourse with

the victim, R.D., on three occasions in late 2002. At this time, he was HIV

positive and was receiving medical treatment for this condition. Musser did

not, however, tell the victim that he was HIV positive.

In April 2003, R.D. learned the defendant was HIV positive and

contacted the police. Musser was charged with criminal transmission of

1Musser also asserts section 709C.1 violates the Equal Protection Clause and his

right to procedural due process. We do not address these claims, however, because the

defendant failed to raise these issues in the district court. See State v. McCright, 569

N.W.2d 605, 607 (Iowa 1997) (“Issues not raised before the district court, including

constitutional issues, cannot be raised for the first time on appeal.”).

2Although the defendant initially challenged the sufficiency of the evidence to

support his conviction, he abandoned that issue at oral argument. Therefore, we do not

address it.

3

human immunodeficiency virus in violation of section 709C.1(1)(a). This

statute states a crime is committed if a “person, knowing that the person’s

human immunodeficiency virus status is positive, . . . [e]ngages in intimate

contact with another person.” Iowa Code § 709C.1(1)(a). The other person’s

knowing consent to exposure to the virus is an affirmative defense under

chapter 709C:

It is an affirmative defense that the person exposed to the

human immunodeficiency virus knew that the infected person

had a positive human immunodeficiency virus status at the

time of the action of exposure, knew that the action of exposure

could result in transmission of the human immunodeficiency

virus, and consented to the action of exposure with that

knowledge.

Id. § 709C.1(5).

The defendant filed a motion to dismiss challenging the

constitutionality of section 709C.1(1), which was overruled by the district

court. The case was subsequently tried to a jury, and the defendant was

found guilty of criminal transmission of HIV. After his post-trial motions

were overruled, Musser was sentenced to an indeterminate twenty-five-year

prison term. 3 See id. §§ 709C.3, 902.9(2).

II. Constitutional Challenges to Statute.

We first consider Musser’s various constitutional challenges to section

709C.1(1)(a). Our review of these claims is de novo. State v. Seering, 701

N.W.2d 655, 661 (Iowa 2005).

We presume a statute is constitutional. Id. To overcome this

presumption, a challenger must prove the unconstitutionality of the statute

beyond a reasonable doubt. Id. This burden can be met only by refuting “

3 Inaddition to the case involved in this appeal, the defendant was charged in three

other cases with violations of section 709C.1(1)(a). He was convicted in all four cases and

sentenced in each case to an indeterminate twenty-five-year prison term. Three of the

sentences were ordered to run concurrently, but the sentence in this case was ordered to

be consecutive.

4

‘every reasonable basis upon which the statute could be found

constitutional.’ ” Id. (citation omitted).

A. First Amendment. The defendant claims section 709C.1 offends

the First Amendment to the United States Constitution because it “compels

speech.” Specifically, he argues an HIV-positive person engaging in

intimate contact with another person can avoid criminal liability only by

telling the potential victim that the person is HIV positive and educating the

potential victim about the possible transmission of the virus. An infected

person who has sexual relations with another without conveying this

information is punished, he contends.

The legal principle upon which the defendant bases his argument is

valid: the First Amendment safeguards not only “the right to speak freely,”

but also “the right to refrain from speaking at all.” W. Va. State Bd. of Educ.

v. Barnette, 319 U.S. 624, 645, 63 S. Ct. 1178, 1189, 87 L. Ed. 1628, 1641

(1943) (Murphy, J., concurring). Moreover, the right to refrain from

speaking encompasses not only thoughts and opinions; it applies “equally

to statements of fact the speaker would rather avoid.” Hurley v. Irish-Am.

Gay, Lesbian & Bisexual Group, 515 U.S. 557, 573, 115 S. Ct. 2338, 2347,

132 L. Ed. 2d 487, 503 (1995).

The State contends these principles are inapplicable here, however,

because section 709C.1 does not compel speech. It points out the Iowa

statute, unlike statutes from other states, does not expressly require an

infected person to tell a potential victim that the person is HIV positive.

See, e.g., Mich. Comp. Laws Ann. § 333.5210 (2006) (making it a felony for

an HIV-infected person to “engage[ ] in sexual penetration with another

person without having first informed the other person that he or she . . . is

HIV infected”). The State asserts the victim “could learn of the HIV status

from any source.”

5

Even though section 709C.1 does not explicitly require disclosure by

the defendant, we think the practical effect of the Iowa statute is the same

as those statutes mandating disclosure. To avoid violating section 709C.1,

a defendant must rely on the consent defense set out in section 709C.1(5).

Realistically, the only way a defendant can be assured the victim knowingly

consents to exposure is for the defendant to tell the victim of the

defendant’s HIV status. The unlikelihood of the victim obtaining this

knowledge in any other way is underscored by the confidential nature of

this medical information. See Iowa Code § 141A.9(1) (“Any information,

including reports and records, obtained, submitted, and maintained

pursuant to this chapter [Acquired Immune Deficiency Syndrome (AIDS)] is

strictly confidential medical information.”); see also id. § 622.10 (preventing

medical professional from disclosing confidential communications). In other

words, the only way a potential victim will know the defendant is HIV

positive is if the defendant discloses this fact or otherwise waives the

privilege protecting this fact from disclosure by his treatment providers. 4

For this reason, we conclude the statute compels speech. 5 Cf. People v.

Jensen, 586 N.W.2d 748, 758 (Mich. Ct. App. 1998) (concluding Michigan

statute compelled speech).

This conclusion brings us to the critical issue: Does the statute’s

impact constitute an unconstitutional infringement of the defendant’s free

4 The limited disclosure allowed through the “partner notification program” set up in

section 141A.5 does not alter our conclusion. The primary focus of that program is on

persons “with whom the [infected] person has had sexual relations” or a person who “is a

sexual partner” of the infected person. Iowa Code § 141A.5(3)(a), (c) (emphasis added);

accord Iowa Admin. Code r. 641—11.40 (establishing a procedure for notification of “an

identifiable third party who is a sexual partner of . . . a person who has tested positive for

the human immunodeficiency virus” (emphasis added)). The program does not encompass

a method for informing future sexual partners of the infected person’s status.

5 This court opined in State v. Keene, 629 N.W.2d 360, 364 n.3 (Iowa 2001), that

section 709C.1 “does not implicate the First Amendment.” Our observation was dicta, and

we now disavow it.

6

speech rights? See Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n,

447 U.S. 530, 535, 100 S. Ct. 2326, 2332, 65 L. Ed. 2d 319, 326 (1980)

(stating not every limitation on speech violates the Constitution). In testing

the constitutionality of section 709C.1 under the First Amendment, we

choose the appropriate level of scrutiny based on “the nature of the speech

taken as a whole and the effect of the compelled statement thereon.” Riley

v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796, 108 S. Ct. 2667,

2677, 101 L. Ed. 2d 669, 689 (1988). If the affected speech is commercial

speech or if the regulation is content neutral, an intermediate level of

scrutiny applies. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642,

114 S. Ct. 2445, 2459, 129 L. Ed. 2d 497, 517 (1994) (stating “regulations

that are unrelated to the content of speech are subject to an intermediate

level of scrutiny”); Cent. Hudson Gas & Elec. v. Pub. Serv. Comm’n, 447 U.S.

557, 566, 100 S. Ct. 2343, 2351, 65 L. Ed. 2d 341, 351 (1980) (holding

regulation of commercial speech is subject to an intermediate level of

review).

The nature of the speech at issue here is clearly noncommercial.

Commercial speech is “expression related solely to the economic interests of

the speaker and its audience.” Cent. Hudson Gas & Elec., 447 U.S. at 561,

100 S. Ct. 2349, 65 L. Ed. 2d at 348. The interests at stake in the intimate

relationship providing the context for the speech regulated by section

709C.1 are plainly not economic.

In deciding whether the statute regulates speech on the basis of

content, we find guidance in the following observations of the Supreme

Court:

[T]he “principal inquiry in determining content neutrality . . . is

whether the government has adopted a regulation of speech

because of [agreement or] disagreement with the message it

conveys.” . . . But while a content-based purpose may be

7

sufficient in certain circumstances to show that a regulation is

content based, it is not necessary to such a showing in all

cases. Nor will the mere assertion of a content-neutral purpose

be enough to save a law which, on its face, discriminates based

on content.

As a general rule, laws that by their terms distinguish

favored speech from disfavored speech on the basis of the ideas

or views expressed are content based. By contrast, laws that

confer benefits or impose burdens on speech without reference

to the ideas or views expressed are in most instances content

neutral.

Turner Broad. Sys., Inc., 512 U.S. at 642-43, 114 S. Ct. at 2459, 129 L. Ed.

2d at 517-18 (citations omitted). An example of a content-neutral

regulation is one that addresses “only the time, place, or manner of speech.”

Consol. Edison Co. of N.Y., Inc., 447 U.S. at 536, 100 S. Ct. at 2332, 65 L.

Ed. 2d at 327. “[T]he essence of time, place, or manner regulation lies in

the recognition that various methods of speech, regardless of their content,

may frustrate legitimate governmental goals.” Id.; accord Ward v. Rock

Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754, 105 L. Ed. 2d

661, 675 (1989) (“Government regulation of expressive activity is content

neutral so long as it is ‘justified without reference to the content of the

regulated speech.’ ” (Citation omitted.)).

Applying these principles, we conclude section 709C.1 regulates

speech on the basis of content. The focus of section 709C.1 is not on the

time, place, or manner of expression, but on the content of the

communication. The statute requires transmission of specific information—

the infected person’s HIV-positive status. See Riley, 487 U.S. at 795, 108 S.

Ct. at 2677, 101 L. Ed. 2d at 688 (“Mandating speech that a speaker would

not otherwise make necessarily alters the content of the speech. We

therefore consider the Act as a content-based regulation of speech.”). The

content-based nature of the statute is no less so because the state’s primary

intent is to limit the spread of AIDS. See Turner Broad. Sys., Inc., 512 U.S.

at 642-43, 114 S. Ct. at 2459, 129 L. Ed. 2d at 518 (“Nor will the mere

8

assertion of a content-neutral purpose be enough to save a law which, on

its face, discriminates based on content.”). In addition, the fact that the

public interest undoubtedly supports the required disclosure does not

change the nature of the statute as compelling the communication of

specific facts the speaker would prefer not to reveal. See Mich. State AFL-

CIO v. Miller, 103 F.3d 1240, 1252 (6th Cir. 1997) (“As Turner Broadcasting

makes clear, the real issue is whether the law is aimed at the

communicative impact of speech.”).

Because section 709C.1 is a content-based regulation, it is subject to

strict scrutiny. United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,

813, 120 S. Ct. 1878, 1886, 146 L. Ed. 2d 865, 879 (2000) (“[C]ontent-

based speech restriction . . . can stand only if it satisfies strict scrutiny.”);

Turner Broad. Sys., Inc., 512 U.S. at 642, 114 S. Ct. at 2459, 129 L. Ed. 2d

at 517 (“Laws that compel speakers to utter or distribute speech bearing a

particular message are subject to [strict] scrutiny.”). “If a statute regulates

speech based on its content, it must be narrowly tailored to promote a

compelling Government interest. If a less restrictive alternative would serve

the Government’s purpose, the legislature must use that alternative.”

Playboy Entm’t Group, Inc., 529 U.S. at 813, 120 S. Ct. at 1886, 146 L. Ed.

2d at 879 (citation omitted).

We believe section 709C.1 withstands strict scrutiny. The obvious

purpose of this statute is the protection of public health by discouraging the

transmission of the AIDS virus. As one court has explained,

Considering the ease of transmitting AIDS and HIV through

sexual penetration and the absence of any “cure,” the state’s

interest in protecting the public health, safety, and general

welfare of its citizenry becomes extremely significant. Although

the statute may significantly infringe defendant’s individual

interests in remaining silent, the state’s interest to compel her

to disclose that she is HIV infected before engaging in sexual

penetration is undeniably overwhelming.

9

Jensen, 586 N.W.2d at 759; accord State v. Gamberella, 633 So. 2d 595, 604

(La. Ct. App. 1993) (“No one can seriously doubt that the state has a

compelling interest in discouraging the spread of the HIV virus.”). We think

section 709C.1 promotes a compelling state interest, and the legislature

narrowly tailored the statute to promote this compelling interest. See

Gamberella, 633 So. 2d at 604 (holding statute “[f]orcing an infected person

to inform all of his sexual partners so the partner can make an informed

decision prior to engaging in sexual activity . . . is narrowly drawn to further

the state’s compelling interest”). The statute does not absolutely prohibit an

infected person from having sexual relations with another. Moreover,

section 709C.1 does not compel public disclosure of an infected person’s

HIV status; an infected person may privately inform a potential sexual

partner of his or her condition. We cannot conceive of a less restrictive way

in which the state could accomplish its goal, and the defendant has not

suggested such an alternative. We hold, therefore, that section 709C.1 does

not unconstitutionally infringe the defendant’s First Amendment free-

speech rights.

B. Vagueness. “The Due Process Clause of the Fourteenth

Amendment to the United States Constitution prohibits vague statutes.”

State v. Wiederien, 709 N.W.2d 538, 542 (Iowa 2006).

A statute can be impermissibly vague for either of two

independent reasons. First, if it fails to provide people of

ordinary intelligence a reasonable opportunity to understand

what conduct it prohibits. Second, if it authorizes or even

encourages arbitrary and discriminatory enforcement.

Hill v. Colorado, 530 U.S. 703, 732, 120 S. Ct. 2480, 2498, 147 L. Ed. 2d

597, 621 (2000).

Musser claims the statutory prohibition of “intimate contact” between

an infected person and another is unconstitutionally vague because the

10

statutory definition of “intimate contact” lacks clarity. Section 709C.1(2)(b)

defines “intimate contact” as “the intentional exposure of the body of one

person to a bodily fluid of another person in a manner that could result in

the transmission of the human immunodeficiency virus.” The defendant

argues an ordinary person would not know what type of contact—mode of

transmission—is prohibited. Consequently, he asserts, the statute is vague

not only as applied to him, but facially as well. We discuss each claim

separately.

1. Vague as applied. When considering a vague-as-applied challenge,

we focus on whether the defendant’s “conduct clearly falls ‘within the

proscription of the statute under any construction.’ ” State v. Hunter, 550

N.W.2d 460, 465 (Iowa 1996) (citation omitted), overruled on other grounds

by State v. Robinson, 618 N.W.2d 306, 312 (Iowa 2000). In the case before

us, Musser engaged in sexual intercourse with the victim. The question,

therefore, is whether the definition of “intimate contact” gave the defendant

fair warning that sexual intercourse fell within the statutory prohibition, in

other words, involved the exposure of the victim to a bodily fluid that could

transmit the virus.

This question was answered in State v. Keene, 629 N.W.2d 360 (Iowa

2001). This court took judicial notice in Keene of the fact that “sexual

intercourse is one of the most common methods of passing the [human

immunodeficiency] virus.” 629 N.W.2d at 365. We concluded based on this

common knowledge and related statutes 6 that “any reasonably intelligent

person is aware it is possible to transmit HIV during sexual intercourse,

especially when it is unprotected.” Id. This court held, therefore, that the

6We cited two statutes in which “the risk of transmission during sexual intercourse”

had been recognized: Iowa Code section 709C.1(1)(b) (referring to semen as a “potentially

infectious bodily fluid”) and Iowa Code section 915.40(11) (presuming significant exposure

to HIV during sexual intercourse).

11

statute was not vague as applied to the defendant in Keene, who had had

unprotected sexual intercourse with the victim. Id. at 366.

The same conclusion is warranted here. When the statute is read as

a whole and considered in the light of common knowledge and related

statutes, it clearly gives fair warning that the transfer of semen through

sexual intercourse could transmit the virus and is, therefore, prohibited.

Consequently, section 709C.1(1) is not vague as applied to Musser, who

engaged in unprotected sexual intercourse with the victim.

2. Facial vagueness and overbreadth.

[I]mprecise laws can be attacked on their face under two

different doctrines. First, the overbreadth doctrine permits the

facial invalidation of laws that inhibit the exercise of First

Amendment rights if the impermissible applications of the law

are substantial when “judged in relation to the statute’s plainly

legitimate sweep.” Second, even if an enactment does not

reach a substantial amount of constitutionally protected

conduct, it may be impermissibly vague because it fails to

establish standards for the police and public that are sufficient

to guard against the arbitrary deprivation of liberty interests.

City of Chicago v. Morales, 527 U.S. 41, 52, 119 S. Ct. 1849, 1857, 144 L.

Ed. 2d 67, 77-78 (1999) (citation omitted). We conclude section 709C.1

passes constitutional muster under both doctrines. 7

a. Overbreadth. Musser argues section 709C.1 impermissibly chills

the exercise of infected persons’ freedom of association. He suggests the

statute could be interpreted to prohibit an infected person “from sweating

on another while playing a game of basketball” or “from kissing another.”

Assuming such social contact is protected by the First Amendment, we

7A defendant to whom a statute can be constitutionally applied lacks standing to

make a facial challenge to the statute “unless a recognized exception applies.” Hunter, 550

N.W.2d at 463. One such exception is a situation in which the vagueness of the statute

chills the exercise of First Amendment rights. Id. State courts are not required to apply

the standing doctrine. See Morales, 527 U.S. at 55-56 n.22, 119 S. Ct. at 1858-59 n.22,

144 L. Ed. 2d at 79-80 n.22. Given this discretion, we choose not to address the standing

issue and instead proceed directly to the merits of the facial vagueness challenge in the

case before us.

12

disagree that the statute could be interpreted to apply to such interactions

when they are not capable of transmitting HIV.

The statute clearly defines the proscribed contact: contact that

exposes another to bodily fluid from the infected person “in a manner that

could result in the transmission of the human immunodeficiency virus.” See

Iowa Code § 709C.1(2)(b) (emphasis added). We have previously determined

the state has a compelling interest in stopping the spread of HIV infections

and AIDS, and the statute is clearly limited to contact that can spread these

conditions. See Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct.

3244, 3252-53, 82 L. Ed. 2d 462, 474-75 (1984) (finding infringement of

associational rights constitutional in light of compelling state interest). In

view of the state’s compelling interest, the proscribed contact is not

sheltered by the First Amendment. We conclude, therefore, that the statute

simply “does not reach a substantial amount of constitutionally protected

conduct.” Morales, 527 U.S. at 52, 119 S. Ct. at 1857, 144 L. Ed. 2d at 78.

For that reason, section 709C.1 does not violate the overbreadth doctrine.

b. Facial vagueness. The defendant claims the statute is facially

vague because it does not define the modes of transmission that could

result in transfer of the virus. We think the desired clarification is provided,

however, by reference to common knowledge and related statutes. “A

statutory term provides fair warning if the meaning of the word ‘is . . . fairly

ascertainable by reference to similar statutes, prior judicial determinations,

reference to the dictionary, or if the questioned words have a common and

generally accepted meaning.’ ” Hunter, 550 N.W.2d at 465 (citation

omitted). In addition, a challenged statute should be viewed “in the context

of the entire statutory scheme of which it is a part.” State v. Robinson, 618

N.W.2d 306, 314-15 (Iowa 2000). We proceed to do that now.

13

Initially, we take judicial notice of the fact, as we also did in Keene,

that “the HIV may be transmitted through contact with an infected

individual’s blood, semen or vaginal fluid.” 629 N.W.2d at 365. In addition,

we note section 709C.1(1) prohibits not only intimate contact by an HIV-

positive person, but also the transfer of semen “or other potentially

infectious bodily fluids” for “insemination, or other administration to

another person.” Further clarification of the modes of transmission

encompassed in chapter 709C is found in Iowa Code chapter 141A, a

related statute dealing with AIDS. See State v. Millsap, 704 N.W.2d 426,

436 (Iowa 2005) (concluding statute gave fair warning when meaning was

ascertainable by reference to related statutory definition). Section

141A.1(13) defines “infectious bodily fluids” as “bodily fluids capable of

transmitting HIV infection as determined by the centers for disease control

and prevention of the United States department of health and human

services and adopted by rule of the department.” The website of the

Department of Health and Human Services’ Centers for Disease Control and

Prevention contains information detailing which bodily fluids transmit HIV,

as well as an explanation of the ways in which HIV can be transmitted. See

Divs. of HIV/AIDS Prevention, Ctrs. for Disease Control & Prevention, Dep’t

of Health & Human Servs., Fact Sheet: HIV and Its Transmission, available

at http://www.cdc.gov/hiv/pubs/facts/transmission.pdf (July 1999);

Divs. of HIV/AIDS Prevention, Ctrs. for Disease Control & Prevention, Dep’t

of Health & Human Servs., Which Body Fluids Transmit HIV?,

http://www.cdc.gov/hiv/pubs/faq/faq37.htm (last updated Dec. 15, 2003).

When common knowledge and related statutes are considered,

section 709C.1 provides “standards for the police and public that are

sufficient to guard against the arbitrary deprivation of liberty interests.”

Morales, 527 U.S. at 52, 119 S. Ct. at 1857, 144 L. Ed. 2d at 78. Therefore,

14

the statute does not violate the void-for-vagueness doctrine. Gamberella,

633 So. 2d at 603 (holding statute prohibiting “sexual contact” between

infected person and another who has not given “knowing and lawful

consent” was not facially vague).

C. Right of privacy.

Under the Due Process Clause of the Fifth and Fourteenth

Amendments to the United States Constitution, the state is

forbidden from infringing on certain fundamental liberty

interests, no matter what process is provided, unless the

infringement is narrowly tailored to serve a compelling state

interest.

In re Interest of C.S., 516 N.W.2d 851, 860 (Iowa 1994) (citing Reno v. Flores,

507 U.S. 292, 301-02, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1, 16 (1993)).

“If a fundamental right is not implicated, a statute need only survive a

rational basis analysis, which requires . . . ‘a reasonable fit between the

government interest and the means utilized to advance that interest.’ ”

Seering, 701 N.W.2d at 662 (citation omitted).

The defendant contends section 709C.1(1) infringes on his

fundamental right to privacy. See generally Griswold v. Connecticut, 381

U.S. 479, 485, 85 S. Ct. 1678, 1682, 14 L. Ed. 2d 510, 515-16 (1965)

(recognizing a protected right to privacy in the marriage relationship and the

marital bedroom); Eisenstadt v. Baird, 405 U.S. 438, 453-54, 92 S. Ct. 1029,

1038, 31 L. Ed. 2d 349, 362-63 (1972) (holding privacy rights apply to

individuals, married and single). He relies principally on the United States

Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct.

2472, 156 L. Ed. 2d 508 (2003). In Lawrence, the Court struck down a

Texas statute “making it a crime for two persons of the same sex to engage

in certain intimate sexual conduct.” 539 U.S. at 562, 123 S. Ct. at 2475,

156 L. Ed. 2d at 515. The Court held the state’s attempt to control private

15

sexual activity violated citizens’ right to liberty under the Due Process

Clause. Id. at 578, 123 S. Ct. at 2484, 156 L. Ed. 2d at 525-26.

We think Lawrence is readily distinguishable from the present case.

As the Supreme Court noted in Lawrence, that case “involve[d] two adults

who, with full and mutual consent from each other, engaged in sexual

practices common to a homosexual lifestyle.” Id. at 578, 123 S. Ct. at 2484,

156 L. Ed. 2d at 525 (emphasis added). The Court also observed the case

before it did not “involve persons who might be injured or coerced.” Id. In

contrast, the statute challenged here prohibits intimate contact when there

is not “full and mutual consent” from the infected person’s sexual partner.

Surely it cannot be disputed that one considering having sexual intercourse

with another would want to know whether the other person is infected with

HIV prior to engaging in such intimate contact. Consent in the absence of

such knowledge is certainly not a full and knowing consent as was present

in Lawrence. It is also significant that the sexual partner of an infected

person is at serious risk of injury and even death from the prohibited sexual

contact.

Although section 709C.1(1) infringes on Musser’s privacy rights, we

conclude the State has a compelling interest in discouraging the spread of

the virus and protecting human life. See Cruzan v. Director, Dep’t of Health,

497 U.S. 261, 282, 110 S. Ct. 2841, 2853, 111 L. Ed. 2d 224, 244 (1990)

(holding “a State [has] an unqualified interest in the preservation of human

life”); Gamberella, 633 So. 2d at 603 (“No one can seriously doubt that the

state has a compelling interest in discouraging the spread of the HIV

virus.”). Moreover, as we have already determined, the statute is narrowly

tailored to further this compelling state interest. For these reasons, the

statute does not unconstitutionally infringe on the defendant’s right to

privacy and does not violate principles of substantive due process. See

16

Gamberella, 633 So. 2d at 603 (holding similar Louisiana statute did not

violate defendant’s right of privacy).

D. Eighth Amendment. “Criminal transmission of the human

immunodeficiency virus is a class ‘B’ felony.” Iowa Code § 709C.1(3).

Although this crime carries a twenty-five-year sentence, see id. § 902.9(2),

it is not a forcible felony subject to restrictions on eligibility for parole or

work release, see id. § 902.12.

Musser claims a twenty-five-year sentence for the criminal

transmission of HIV constitutes cruel and unusual punishment in violation

of the Eighth Amendment. 8 See U.S. Const. amend. VIII. The Eighth

Amendment prohibits “sentences that are disproportionate to the crime

committed.” Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006, 77

L. Ed. 2d 637, 645 (1983). The defendant claims the punishment provided

for his crime fails the proportionality analysis set out in Solem. 463 U.S. at

292, 103 S. Ct. at 3011, 77 L. Ed. 2d at 650 (stating court should consider

gravity of offense, harshness of penalty, “sentences imposed on other

criminals in the same jurisdiction,” and “sentences imposed for commission

of the same crime in other jurisdictions”).

As this court has previously noted, the Solem proportionality test is

limited “ ‘to the rare case [in which] a threshold comparison of the crime

committed to the sentence imposed leads to an inference of gross

disproportionality.’ ” State v. Lara, 580 N.W.2d 783, 785 (Iowa 1998)

(citation omitted). Therefore, our first inquiry is whether Musser’s sentence

8Musser also challenges his sentence under the Iowa Constitution’s prohibition of

“cruel and unusual punishment.” Iowa Const. art. I, § 17. Because the Iowa prohibition is

similar to the federal prohibition, we look to the interpretation of the federal constitution for

guidance in interpreting the state provision. State v. Izzolena, 609 N.W.2d 541, 547 (Iowa

2000). Because the defendant has not suggested any distinction between the analyses

applicable to the state clause and the federal clause, we address the clauses together. See

In re Detention of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000). Therefore, our discussion

of the Eighth Amendment applies equally to Musser’s claim under the Iowa Constitution.

17

appears grossly disproportionate in view of the gravity of his offense. See

State v. August, 589 N.W.2d 740, 743 (Iowa 1999). This analysis is

undertaken objectively without considering the individualized

circumstances of the defendant or the victim in this case. Id.

Viewed objectively, we cannot say the punishment set by the

legislature for the crime of criminal transmission of HIV is grossly

disproportionate to the harm sought to be punished and deterred. HIV is

“the causative agent of AIDS.” Iowa Code § 141A.1(11). AIDS is a chronic,

life-threatening condition. See MedlinePlus Medical Encyclopedia: AIDS,

http://www.nim.nih.gov/medlineplus/ency/article/000594.htm (last

updated Apr. 14, 2004) (“AIDS . . . is the final and most serious stage of HIV

disease . . . . At the present time, there is no cure for AIDS. It has proven

to be a universally fatal illness.”). Clearly, the dire consequences of this

crime can be significant and serious. The potential harm to the public

welfare from the spread of this deadly virus is equally grave and severe.

Musser argues in his brief that his offense is “de minimis” because

the victim did not become infected with HIV. But as noted above, in

evaluating the proportionality of a sentence, we do not consider the

circumstances of the particular case in which the challenge is made. See

State v. Ramirez, 597 N.W.2d 795, 797-98 (Iowa 1999) (concluding twenty-

five-year sentence for first-degree robbery was not cruel and unusual

punishment, refusing to consider the gravity of defendant’s specific

conduct, which consisted of shoplifting knife and gun and then briefly

brandishing knife toward store employee). Rather, we look at the harm the

legislative provision was designed to prevent—the spread of HIV infections.

The defendant also claims a twenty-five-year sentence is excessive in

view of the fact section 709C.1 does not require an intent to inflict injury or

the occurrence of an injury at all. While section 709C.1 may not expressly

18

require an intent to injure, it does require the functional equivalent: that the

defendant intentionally expose another person to the defendant’s infected

bodily fluid in such a way that the virus could be transmitted. See Iowa

Code § 709C.1(2)(b).

The crime of criminal transmission of HIV is actually quite similar to

the crime of first-degree robbery for purposes of proportionality analysis.

First-degree robbery does not require an intent to inflict injury (only an

intent to commit a theft), and it does not require that any actual injury

result from the defendant’s action. See Iowa Code §§ 711.1, .2. On the

other hand, it does require that the defendant “purposely inflict[ ] or

attempt[ ] to inflict serious injury” or be “armed with a dangerous weapon.”

Id. § 711.2. Based on the high “risk of death or serious injury to persons

present when first-degree robbery is committed,” this court has held that a

twenty-five-year sentence for that crime is not grossly disproportionate,

even though a defendant is required to serve at least eighty-five percent of

the maximum sentence. Lara, 580 N.W.2d at 785, 786.

The same conclusion is warranted here. Infection with HIV carries

the potential for serious injury, even death. Thus, a defendant who

intentionally exposes another to the virus is just like the first-degree robber

who attempts to inflict serious injury on his victim. And, just like the

robber carrying a gun or a knife, a defendant infected with HIV is armed

with a dangerous virus capable of inflicting serious injury or death on the

victim. In view of the gravity of the offense, we cannot say a twenty-five-

year sentence for the criminal transmission of HIV appears grossly

disproportionate. Because there is no inference of gross disproportionality,

we need not undertake the Solem analysis. The defendant’s sentence does

not constitute cruel and unusual punishment.

19

III. Admission of Laboratory Reports.

Over the defendant’s objection, the trial court admitted two reports

from the University of Iowa Hygienic Laboratory, showing the defendant had

tested positive for HIV on two occasions. On appeal, the defendant renews

his objections: (1) an inadequate foundation was laid for admission of the

reports; and (2) the reports contained inadmissible hearsay. We, like the

trial court, find no merit in the defendant’s challenges to these exhibits.

A. Foundation. “Whether the [offering] party has established . . . a

proper foundation is a matter committed to the sound discretion of the trial

court; reversal is warranted only when there is a clear abuse of discretion.”

Sechler v. State, 340 N.W.2d 759, 764 (Iowa 1983); accord Duncan v. City of

Cedar Rapids, 560 N.W.2d 320, 323 (Iowa 1997).

The State introduced the lab reports through the testimony of

epidemiologist Randy Mayer, HIV coordinator of the Iowa Department of

Public Health. Mayer testified the department is required by law to keep a

record of persons who test positive for HIV. See Iowa Code § 141A.6. To

ensure the department is aware of who has had a positive HIV test, all

laboratories and physicians in Iowa are required to report any positive

results directly to the department. Id. § 141A.6. Mayer also testified to the

procedure for collecting specimens from persons being tested, and to the

fact that a positive test is confirmed by a second test. He said the

department contracts with several testing sites across the state to do free

HIV testing, and one such site is the Free Medical Clinic in Iowa City. The

department also contracts, according to Mayer, with the Hygienic

Laboratory to test the specimens collected at the testing sites.

Mayer identified the two lab reports at issue in this case as being the

defendant’s HIV test results from the Hygienic Laboratory. He testified the

department has these reports in its possession as part of its statutory

20

recordkeeping responsibility. The reports showed the Free Medical Clinic

had collected two samples from the defendant, these samples were sent to

the Hygienic Laboratory where they were tested in July 2000, and both test

results were positive for HIV.

The defendant argues Mayer’s testimony was inadequate because

Mayer “did not conduct the tests, never met or examined Mr. Musser, had

no knowledge of the protocol of the tests, or of the method of record

keeping.” But we do not think these matters are required for proper

authentication or identification under Iowa Rule of Evidence 5.901.

Rule 5.901 provides in pertinent part:

a. General provision. The requirement of authentication

or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.

b. Illustrations. By way of illustration only, and not by

way of limitation, the following are examples of authentication

or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that

a matter is what it is claimed to be.

....

(7) Public records or reports. Evidence that a writing

authorized by law to be recorded or filed and in fact recorded or

filed in a public office, or a purported public record, report,

statement, or data compilation, in any form, is from the public

office where items of this nature are kept.

Iowa R. Evid. 5.901. The foundation made through Mayer satisfied

subparagraphs (1) and (7) of rule 5.901(b). Mayer testified the exhibits were

lab reports showing HIV test results maintained by the department as

required by law. This testimony established that the exhibits were “what

[they were] claimed to be” and that they were records “from the public office

where items of this nature are kept.” Iowa R. Evid. 5.901(b)(1), (7); see

Spear v. McDermott, 916 P.2d 228, 233 (N.M. 1996) (“All that is necessary is

the testimony of a witness who knows that the documents in fact came from

21

the legal custodian of the document.”); State v. D’Alo, 649 A.2d 498, 499

(R.I. 1994) (holding proper foundation existed for admission of defendant’s

driving record through testimony of employee of public office where such

records are kept). The trial court did not abuse its discretion in admitting

these exhibits over the defendant’s foundation objection.

B. Hearsay. Our scope of review is well established:

We review the defendant’s hearsay claims for errors at law.

“Hearsay . . . must be excluded as evidence at trial unless

admitted as an exception or exclusion under the hearsay rule

or some other provision.” Subject to the requirement of

relevance, the district court has no discretion to deny the

admission of hearsay if it falls within an exception, or to admit

it in the absence of a provision providing for admission.

Inadmissible hearsay is considered to be prejudicial to the

nonoffering party unless otherwise established.

State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006) (citation omitted).

Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Iowa R. Evid. 5.801. Clearly, the lab reports contained

hearsay: the test results shown in the reports were conclusions of a lab

technician who did not testify, and the results were offered to prove the

truth of the matter asserted—that the defendant was HIV positive. See

State v. McCurry, 544 N.W.2d 444, 446 (Iowa 1996) (holding DNA reports

were hearsay); State ex rel. Buechler v. Vinsand, 318 N.W.2d 208, 210 (Iowa

1982) (holding paternity blood test results were hearsay).

Hearsay evidence is not admissible unless some exception allows its

admission. Iowa R. Evid. 5.802. One exception is for records of regularly

conducted activity, known as the business records exception:

A memorandum, report, record or data compilation, in any

form, of acts, events, conditions, opinions, or diagnoses, made

at or near the time by, or from information transmitted by, a

person with knowledge, if kept in the course of a regularly

conducted business activity, and the regular practice of that

22

business activity was to make the memorandum, report,

record, or data compilation, all as shown by the testimony of

the custodian or other qualified witness, unless the source of

information or the method or circumstances of preparation

indicate lack of trustworthiness. The term “business” as used

in this subrule includes business, institution, association,

profession, occupation, and calling of every kind, whether or

not conducted for profit.

Iowa R. Evid. 5.803(6) (emphasis added). This exception applies to hearsay

falling within its scope even though the declarant is not shown to be

unavailable. See Iowa R. Evid. 5.803.

We think the business records exception applies to the information

contained in the exhibits challenged by the defendant. See Ex parte: Dep’t

of Health & Envtl. Control, In re: State v. Doe, 565 S.E.2d 293, 297 (S.C.

2002) (approving admission of HIV tests as a business record based on

testimony of department-of-health employee). First, the lab report from the

Hygienic Laboratory is the type of document encompassed in this exception:

it is a “record . . . of [a] diagno[sis], made at or near the time by . . . a person

with knowledge.” Iowa R. Evid. 5.803. As the witness from the department

of public health explained, the Hygienic Laboratory does the actual testing

for the presence of HIV and prepares a report showing the results when the

testing is completed. The witness also established it was “the regular

practice of [the laboratory] to make the . . . report.” Id. These reports are

required by law and, according to the witness, all reports showing a positive

HIV test are routinely forwarded to the department. Finally, the witness

was qualified to give this testimony, as he was an employee of the agency

designated by law as the custodian of these reports. We find nothing in the

record or the defendant’s briefing to indicate a lack of trustworthiness with

respect to the Hygienic Laboratory or the method or circumstances of the

reports’ preparation. The trial court did not err in admitting the lab reports

under the business records exception.

23

IV. Ineffective-Assistance-of-Counsel Claims.

Musser raises two claims of ineffective assistance of counsel. He

asserts his attorney failed to object to the admission of the lab reports

based on the Confrontation Clause. He also contends the prosecutor made

improper statements in the opening statement and closing argument to

which counsel should have objected.

To establish a claim of ineffective assistance of counsel, the defendant

must show: (1) trial counsel failed to perform an essential duty; and (2)

prejudice resulted from this failure. State v. Scalise, 660 N.W.2d 58, 61

(Iowa 2003). Counsel has no duty to raise an issue or make an objection

that has no merit. Id.

“Generally, ineffective-assistance claims are preserved for

postconviction relief proceedings to afford the defendant an

evidentiary hearing and thereby permit the development of a

more complete record.” If the record on appeal shows,

however, that the defendant cannot prevail on such a claim as

a matter of law, we will “affirm the defendant’s conviction

without preserving the ineffective-assistance-of-counsel

claims.” Conversely, if the record on appeal establishes both

elements of an ineffective-assistance claim and an evidentiary

hearing would not alter this conclusion, we will reverse the

defendant's conviction and remand for a new trial.

State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citations omitted).

A. Confrontation Clause. The Sixth Amendment to the United States

Constitution guarantees that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI; see also Pointer v. Texas, 380 U.S. 400, 406, 85 S.

Ct. 1065, 1069, 13 L. Ed. 2d 923, 927-28 (1965). This constitutional

provision reflects the “preference for face-to-face confrontation at trial and

the right of cross-examination.” State v. Castaneda, 621 N.W.2d 435, 444

(Iowa 2001). It is not to be equated with the hearsay rule. See State v.

Brown, 656 N.W.2d 355, 361 (Iowa 2003). That is because “[t]he

24

Confrontation Clause bars the admission of some evidence that would

otherwise be admissible under an exception to the hearsay rule.”

Castaneda, 621 N.W.2d at 444.

An out-of-court statement by a witness that is testimonial in nature is

barred under the Confrontation Clause unless the witness is unavailable

and the defendant had a prior opportunity to cross-examine the witness.

Crawford v. Washington, 541 U.S. 36, 59-60, 124 S. Ct. 1354, 1369, 158 L.

Ed. 2d 177, 197 (2004). This prohibition applies even though the out-of-

court statement is deemed reliable by the court. Id. at 61, 124 S. Ct. at

1370, 158 L. Ed. 2d at 199. Nontestimonial statements are not subject to

scrutiny under the Confrontation Clause. Davis v. Washington, 547 U.S.

___, ___, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 236 (2006).

The first question here, then, is whether the test results contained in

the lab reports are testimonial or nontestimonial hearsay.

Various formulations of [the] core class of “testimonial”

statements exist: “ex parte in-court testimony or its functional

equivalent—that is, material such as affidavits, custodial

examinations, prior testimony that the defendant was unable

to cross-examine, or similar pretrial statements that declarants

would reasonably expect to be used prosecutorially”;

“extrajudicial statements . . . contained in formalized

testimonial materials, such as affidavits, depositions, prior

testimony, or confessions”; “statements that were made under

circumstances which would lead an objective witness

reasonably to believe that the statement would be available for

use at a later trial . . . .”

Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193

(citations omitted). In addition, statements in response to police

interrogations that are “solely directed at establishing the facts of a past

crime, in order to identify (or provide evidence to convict) the perpetrator,”

are also testimonial statements subject to the Confrontation Clause. Davis,

547 U.S. at ___, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240.

25

The test results at issue here are clearly nontestimonial. See People

v. Johnson, 18 Cal. Rptr. 3d 230, 233 (Ct. App. 2004) (“A laboratory report

does not ‘bear testimony,’ or function as the equivalent of in-court

testimony.” (Citation omitted.)); Commonwealth v. Lampron, 839 N.E.2d 870,

875 (Mass. App. Ct. 2005) (holding hospital records containing drug and

alcohol test results were nontestimonial); State v. Dedman, 102 P.3d 628,

636 (N.M. 2004) (holding laboratory report of defendant’s blood alcohol level

was nontestimonial). The HIV tests were not requested by law enforcement;

they were done two years before the crime at issue here was even

committed. Compare People v. Brown, 801 N.Y.S.2d 709, 712 (Sup. Ct.

2005) (holding records of lab technicians who tested DNA samples were not

testimonial because they “were not prepared solely for litigation” but for

routine business purposes), with State v. Crager, 844 N.E.2d 390, 397 (Ohio

Ct. App. 2005) (holding DNA reports prepared by state bureau of criminal

investigation were testimonial because they were “prepared wholly in

anticipation of litigation”). In addition, the statements were not given in

response to structured questioning in an investigative setting or litigation

context. See State v. Staten, 610 S.E.2d 823, 830 (S.C. Ct. App. 2005)

(observing testimonial statements described in Crawford “ ‘all involve a

declarant’s knowing responses to structured questioning in an investigative

environment or a courtroom setting where the declarant would reasonably

expect that his or her responses might be used in future judicial

proceedings’ ” (citation omitted)). Although lab personnel possibly realized

the report could be used in a later prosecution for criminal transmission of

HIV, that use would be rare and certainly collateral to the primary purpose

of providing the defendant and his medical providers with the information

they needed to make informed treatment decisions. Cf. Davis, 547 U.S. at

___, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240 (considering primary

26

purpose of police interrogation to determine whether responsive statements

were testimonial or nontestimonial).

Because the reports are nontestimonial statements, an objection

under the Confrontation Clause would have had no merit. Consequently,

Musser’s counsel did not fail to perform an essential duty when he did not

raise this issue at trial.

B. Prosecutorial misconduct. The defendant contends the prosecutor

committed prosecutorial misconduct in opening statement and closing

argument and his counsel should have objected. In considering this claim,

we are guided by the following principles:

The prosecutor’s duty to the accused is to “assure the

defendant a fair trial” by complying with “the requirements of

due process throughout the trial.” Thus, while a prosecutor is

properly an advocate for the State within the bounds of the

law, the prosecutor’s primary interest should be to see that

justice is done, not to obtain a conviction.

Graves, 668 N.W.2d at 870 (citations omitted).

In order to establish a due process violation based upon prosecutorial

misconduct, the defendant must first establish proof of misconduct. Id. at

869. We noted in Graves that “[a] prosecutor ‘is entitled to some latitude

during closing arguments in analyzing the evidence admitted in the trial. ’ ”

Id. at 874 (citation omitted). “[A] prosecutor may argue the reasonable

inferences and conclusions to be drawn from the evidence,” but may not

suggest that the jury decide the case on “any ground other than the weight

of the evidence” introduced at trial. Id. In addition, a prosecutor is not “

‘allowed to make inflammatory or prejudicial statements regarding a

defendant in a criminal action.’ ” Id. (citation omitted). Nor is the

prosecutor allowed to instruct the jury “to place themselves in the position

of the victim.” Lucas v. State, 335 So. 2d 566, 567 (Fla. Dist. Ct. App. 1976)

(“The technique of asking jurors to place themselves in the position of the

27

victim has been held improper in both criminal and civil cases.”); see also

Oldsen v. Jarvis, 159 N.W.2d 431, 435 (Iowa 1968) (“Direct appeals to jurors

to place themselves in the situation of one of the parties . . . [is] condemned

by the courts.”). These rules ensure the case is decided solely on the

evidence.

Prosecutorial misconduct alone does not entitle a defendant to a

mistrial, however. See State v. Trudo, 253 N.W.2d 101, 106 (Iowa 1977).

There must be proof the misconduct resulted in prejudice to the extent the

defendant was denied a fair trial. Id. In determining whether prejudice

resulted, we consider several factors “ ‘within the context of the entire trial.’”

Graves, 668 N.W.2d at 869 (citation omitted). These factors include the

severity and pervasiveness of the misconduct, the significance of the

misconduct to the central issues in the case, the strength of the State’s

evidence, the use of cautionary instructions or other curative measures,

and the extent to which the defense invited the improper conduct. Id. We

turn now to the facts of this case.

The defendant claims his trial counsel was ineffective for failing to

object to the following italicized portions of the prosecutor’s quoted

statements:

[State’s Opening Statement]: At the end of the trial, I will have

the opportunity to come back and stand here before you and

ask you to find the Defendant guilty. And I will do that for two

reasons. First of all, because the evidence in this case will only

point you in that direction. And, second, because it is the right

thing to do.

[State’s Closing Argument]: We submit to you that in

December of 2002, two and a half years after he knew he was

HIV positive, this man did not care. Either he was in denial or

he was angry about the fact that, out of everyone in this world,

he was afflicted with HIV. And at the point in time that you

don’t care about yourself, you care less about somebody else.

When he met the victim in this case, the least he could have

done was be honest with her. The least he could have done

28

was respect her life. But when the time came, the only thing

he said was, “I ain’t got nothing,” and that is not true.

I am asking you to find the Defendant guilty, not only

because the State proved all the elements of the offense, but

because the only way that he will care is if you make him care.

[State’s Rebuttal Closing Argument]: The only thing you need

in order to decide this case is the evidence that was presented

in this matter. That evidence is the testimony of those five

witnesses that came in here and took the oath and told you

what they knew about this case, and the exhibits. That’s all

you need. Find him guilty. Make him responsible because, if

you don’t, no one will.

(Emphasis added).

Although the defendant claims the prosecutor improperly vouched for

the credibility of witnesses, injected her personal belief of the defendant’s

guilt into her statements to the jury, and asked the jurors to place

themselves in the position of the victim, we agree with the State that

nothing in the quoted statements can be construed in this manner. The

defendant is correct, however, when he asserts the prosecutor improperly

urged the jurors to decide the case on something other than the evidence.

The ABA Standards for Criminal Justice state: “The prosecutor

should refrain from argument which would divert the jury from its duty to

decide the case on the evidence.” ABA Standards for Criminal Justice 3-5.8

(3d ed. 1993); see also id. commentary (“Predications about the effect of an

acquittal on lawlessness in the community also go beyond the scope of the

issues in the trial and are to be avoided.”). See generally United States v.

Young, 470 U.S. 1, 8, 105 S. Ct. 1038, 1042, 84 L. Ed. 2d 1, 7-8 (1985)

(relying on ABA Standards in considering claim of prosecutorial

misconduct, noting the Standards were “useful guidelines”); State v.

Williams, 334 N.W.2d 742, 745 (Iowa 1983) (relying on ABA Standards in

reviewing allegations of prosecutorial misconduct). Although there is

always some gray area between proper and improper argument, we think

29

the prosecutor here inappropriately diverted the jury from its duty to decide

the case solely on the evidence by injecting issues broader than the guilt or

innocence of the defendant and by making predictions of the consequences

of the jury’s verdict. Whether the defendant should be made to care is not a

reason independent of the evidence for a finding of guilt, yet that is what the

prosecutor suggested when she told the jury to find the defendant guilty

“not only because the State proved all the elements of the offense, but

because the only way that he will care is if you make him care.” (Emphasis

added.) Similarly, whether a finding of guilt is “the right thing to do” in an

abstract sense is not the issue, yet that is what the prosecutor implied

when she said she would ask for a guilty verdict based on the evidence

“[a]nd because it is the right thing to do.” (Emphasis added.) See Impson v.

State, 721 N.E.2d 1275, 1283 (Ind. 2000) (holding prosecutor’s request that

the jury “do the right thing” was “an improper statement” insofar as it urged

the jury to act for reasons other than the evidence); Lisle v. State, 937 P.2d

473, 482 (Nev. 1997) (holding prosecutor’s statements to the jury that it

must be “accountable” and “do the right thing” were improper). The issue in

any criminal case is ultimately one of guilt or innocence as shown by the

evidence. The prosecutor here improperly attempted to broaden the jury’s

duty to include a responsibility to do the right thing and to make the

defendant care. See Trudo, 253 N.W.2d at 106 (holding prosecutor’s

comment in closing argument “that the jury should be concerned about

returning defendant to the community was improper”); People v. Brown, 817

N.Y.S.2d 139, 140 (App. Div. 2006) (holding prosecutor’s “public safety

arguments” to jury were improper).

Although the statements made by the prosecutor were objectionable,

prosecutorial misconduct is not, standing alone, a due process violation. As

noted above, only when the prosecutor’s conduct deprives the defendant of

30

a fair trial is the right to procedural due process denied. We conclude

based on our review of the entire record the defendant was not denied a fair

trial. See Young, 470 U.S. at 11, 105 S. Ct. at 1044, 84 L. Ed. 2d at 10

(stating “statements or conduct must be viewed in context; only by so doing

can it be determined whether the prosecutor’s conduct affected the fairness

of the trial”). The evidence against the defendant was strong, the comments

did not go to a central issue in the case, and the improper statements by

the prosecutor were isolated. In addition, the jurors were instructed they

were to decide the defendant’s guilt or innocence “from the evidence and the

law in these instructions,” and that evidence did not include “[s]tatements,

arguments, and comments by the lawyers.”

At this juncture, we briefly address a related argument made by the

defendant with respect to the jury instructions. Musser argues his attorney

should at least have requested that the court give the jury the following

instruction: “The duty of the jury is to determine if the defendant is guilty or

not guilty. In the event of a guilty verdict, you have nothing to do with

punishment.” The defendant contends this instruction would have

mitigated the effect of the prosecutor’s inappropriate statements. We do not

think counsel failed to perform an essential duty when he opted not to

request this instruction. As we have already determined, the defendant was

not prejudiced by the improper statements made by the prosecutor.

Therefore, we cannot say trial counsel was duty bound to request an

instruction arguably to avoid the inconsequential effect of the prosecutor’s

misconduct.

In summary, we frown upon the prosecutor’s improper appeal to the

jury to convict the defendant for reasons other than his guilt as established

by the State’s evidence. But in the context of the entire record, we cannot

say the defendant was denied a fair trial. Therefore, defense counsel did not

31

fail to perform an essential duty when he did not claim a due process

violation at trial.

V. Conclusion.

There is no merit in the defendant’s constitutional challenges to

section 709C.1 defining the crime of criminal transmission of HIV and to

the punishment a conviction of that offense carries. The statute does not

violate defendant’s freedom of speech. It is not unconstitutionally vague, on

its face or as applied to the defendant, in its description of the proscribed

“intimate contact.” Section 709C.1 is not overbroad because it does not

infringe on a substantial amount of constitutionally protected conduct.

Moreover, the statute does not violate the defendant’s substantive due

process rights by unconstitutionally infringing on his right of privacy. The

sentence imposed for this crime does not constitute cruel and unusual

punishment. In view of the serious health risk the defendant’s conduct

poses to the victim of his crime, the twenty-five-year sentence does not raise

an inference of gross disproportionality. Therefore, the district court did not

err in overruling the defendant’s motion to dismiss.

The trial court properly admitted the laboratory reports of the

defendant’s HIV testing under the business records exception to the hearsay

rule. The State adequately authenticated these reports through the

testimony of an epidemiologist employed by the department of public

health, the official custodian of these records.

As a matter of law, the defendant cannot prevail on his ineffective-

assistance-of-counsel claims. The admission of the hearsay test results

contained in the lab reports did not violate the defendant’s confrontation

rights because these statements were nontestimonial. Consequently, trial

counsel did not fail to perform an essential duty by not objecting to the lab

reports on the basis of the Confrontation Clause. With respect to the

32

defendant’s ineffective-assistance claim based on counsel’s failure to object

to prosecutorial misconduct, the record shows the prosecutor made

improper statements when addressing the jury. Notwithstanding the

objectionable nature of the prosecutor’s comments, these comments were

not so pervasive as to deny the defendant a fair trial. The defendant’s

ineffective-assistance-of-counsel claims are not preserved.

Finding no basis for reversal, we affirm the defendant’s conviction and

sentence.

AFFIRMED.