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 HIVpositive 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 In addition 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 AFLCIO 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]ontentbased 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 freespeech 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 statutes6 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 HIVpositive 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 twentyfive-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-fiveyear 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-ofcourt 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 ineffectiveassistance-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.