State of Idaho v. Kanay Aongola Mubita Transfer of body fluid which may contain the human immunodeficiency virus
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 33252
STATE OF IDAHO,
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Plaintiff-Respondent,
v.
KANAY AONGOLA MUBITA,
Defendant-Appellant.
Boise, February 2008 Term
2008 Opinion No. 78
Filed: June 11, 2008
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Second Judicial District of the State of
Idaho, for Latah County. Hon. John R. Stegner, District Judge.
The district court’s decision is affirmed.
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Elizabeth
Ann Allred argued.
Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent.
Daniel W. Bower argued.
_____________________
J. JONES, Justice
A jury convicted Kanay Mubita on eleven counts of transferring body fluid which may
contain the human immunodeficiency virus (HIV), pursuant to I.C. § 39-608. The district court
imposed a unified sentence of four years, with four months fixed, for each count, to be served
consecutively. Mubita appealed to this Court, asserting: the district court erred when it denied
his motion to suppress certain medical records; the district court erred when it admitted two
laboratory reports concerning his HIV status; it is factually impossible to violate the purposes of
I.C. § 39-608 through oral-genital contact; and the district court’s jury instruction pertaining to
his affirmative defense was improper and violative of his right to due process. We affirm.
1
I.
BACKGROUND
Kanay Mubita immigrated to the United States from Zambia, Africa, and relocated in
Moscow, Idaho. As part of an immigration physical, Dr. Larry Dean Harries executed an
Immigration and Naturalization Service (INS) form on April 30, 2001, indicating that Mubita
tested negative for the HIV antibody. Dr. Harries conducted this examination as part of a threepart examination, the results of which were to be forwarded in a sealed envelope to the INS. 1
Pursuant to the INS procedure, Dr. Harries sent the results in the sealed envelope to Mubita. The
instructions included with the forms direct that the patient keep the envelope sealed and forward
it directly to the INS. Dr. Harries testified at trial that he never directly informed Mubita his test
results were negative for the HIV antibody.
On December 26, 2001, Mubita accompanied his then-wife to a hospital in Pullman,
Washington, and submitted to another HIV test. This test came back with a positive result.
Dr. Timothy Moody informed Mubita of these results by telephone and arranged a second test to
determine the progression of the virus. In January 2002, Mubita submitted to the follow-up test,
which also produced a positive result for HIV antibodies. Dr. Moody reported Mubita’s positive
HIV test results to the Whitman County (Washington) Public Health Department.
Following these test results, Mubita requested services from the North Central District
Health Department (Health Department) in Moscow, Idaho, and began receiving HIV-related
services. In order to receive these services, Mubita had to show he was in fact HIV positive.
The first face-to-face meeting between Mubita and his caseworker, Jenny Ruppel, occurred on
January 17, 2002. 2 As part of the intake process, Mubita executed a number of documents in
January and February 2002, certifying his HIV positive status, including a Ryan White Care Act
Intake Form, and a Ryan White Title II Care Act Client Rights and Responsibilities form. The
latter form indicates that a participant has the right to have information released only in the
following circumstances: (a) when the participant signs a written release of information, (b)
when there is a medical emergency, (c) when there is a clear and immediate danger to the
participant or others, (d) when there is possible child or elder abuse, or (e) when ordered by a
1
Dr. Harries testified at trial that he made a mistake in reading the lab results. Dr. Harries mistakenly believed a test
for Chlamydia and Gonorrhea was an HIV test, which mistake was not discovered until the time of trial. In fact,
there was no HIV test conducted at the time.
2
The alleged sexual contacts, upon which the charges against Mubita are based, began in March 2002 and continued
through December 4, 2005.
2
court of law. Mubita also signed a document containing the text of I.C. § 39-608 and stating that
he had read and understood such law. 3 Mubita executed a series of recertification forms, dated
January 25, 2003, February 25, 2004, and January 11, 2005, all of which certify his HIV positive
status. The record also contains an Authorization to Coordinate Services, executed by Mubita on
July 30, 2002. This document provides, “[t]his authorization does not permit the release of any
client records or files without my expressed written consent.”
As part of the Health Department’s HIV-related services, Ruppel helped Mubita gain
financial assistance for transportation, housing, rental assistance and food. In addition, Ruppel
helped Mubita set up doctor visits and obtain prescriptions. Specifically, Ruppel accompanied
Mubita to see a doctor on May 11, 2005, and to consult a specialist in November 2005. Both
doctors prescribed HIV medications for Mubita. Ruppel discussed the purpose, use, and function
of these medications with Mubita.
Ruppel testified at trial that she had had numerous
discussions with Mubita regarding his HIV status during the time he utilized Health Department
services. She testified that Mubita never said, or acted like, he didn’t have HIV.
In early October 2005, someone notified the Latah County Prosecutor’s Office that “a
Moscow male who is HIV positive was believed to have had sexual activity with two women
without informing them of his status.” 4 In response to this information, the prosecutor’s office
sent a letter to the Health Department, requesting disclosure of “whatever information your
agency may possess in regard to an adult male resident of Latah County who has tested positive
for the HIV virus and who is believed to have engaged in sexual activity with two females in
violation of Idaho Code 39-608 . . .” The letter indicated the request was made for “the purposes
of a law enforcement investigation into whether a violation of I.C. § 39-608 has occurred.” In
addition, the prosecuting attorney requested whatever information the agency possessed
regarding the identification of potential victims.
3
The Health Department responded on
I.C. § 39-608(1) provides, in pertinent part:
Any person who . . . knowing that he or she is or has been afflicted with acquired
immunodeficiency syndrome (AIDS), AIDS related complexes (ARC), or other manifestations of
human immunodeficiency virus (HIV) infection, transfers or attempts to transfer any of his or her
body fluid, body tissue or organs to another person is guilty of a felony and shall be punished by
imprisonment in the state prison for a period not to exceed fifteen (15) years, by fine not in excess
of five thousand dollars ($5,000), or by both such imprisonment and fine.
4
Nothing in the record indicates who provided the prosecutor’s office with this information.
3
October 17, 2005, attaching the documents at issue here.5 The prosecutor’s office forwarded the
information to the Moscow Police Department on December 5.
After receiving the information from the prosecutor’s office, police officers contacted
Mubita by telephone and asked him to come in for an interview. Mubita voluntarily went to the
police station to talk with the officers on December 6, 2005. At the station, the officers informed
Mubita that he was not under arrest and was free to leave at any time. During the interview,
Mubita denied receiving any paperwork demonstrating his HIV positive status. Mubita admitted
that he knew T.A., one of the suspected victims, and that he had had unprotected sexual
intercourse with her. In addition, Mubita stated he believed her child was his. Mubita initially
denied knowing another victim, E.C., but later admitted to knowing her through T.A. Mubita
denied having sexual intercourse with E.C., stating that he only had sexual relations with T.A.
and his wife. While watching the interview on a closed-circuit television system, Detective
Kwiatkowski phoned the director of the Health Department to inquire about Mubita’s HIV
status. The director told him Mubita had been informed of his HIV status and had signed a
number of documents acknowledging his status. At the interview, after Kwiatkowski showed
him the documents from the Health Department, Mubita admitted to signing the documents.
However, Mubita continued to deny having knowledge of his HIV status, stating that he was
never given copies of the documents.
On December 7, Mubita called Ruppel.
During the conversation, Ruppel became
concerned for his well-being, and contacted the Moscow Police Department to request that it
perform a welfare check. Kwiatkowski received the call and asked Ruppel whether Mubita was
HIV positive and whether he knew of his HIV status prior to September 2004. Ruppel said he
was HIV positive, that he had been told so numerous times, and that he had been receiving
financial aid as a direct result of his HIV status. Three officers, one in uniform, went to Mubita’s
home to perform the welfare check after receiving the phone call from Ruppel. The officers
knocked on the door and asked Mubita if they could come inside and talk. Mubita let them in the
house. Kwiatkowski told Mubita he had spoken with Ruppel and that she was worried about his
well-being. Mubita did not appear to be upset. Kwiatkowski informed Mubita he had talked to
Ruppel about his HIV status, and asked whether he knew he was HIV positive.
5
Mubita
The documents showed that Mubita tested positive for HIV twice, and that he acknowledged his HIV status in
order to receive financial assistance. These documents were State’s exhibits at trial, and included two laboratory
reports, the Ryan White Care Act forms, the I.C. § 39-608 acknowledgement form, and the recertification forms.
4
responded that he knew he was HIV positive. Based on the interview the night before, wherein
he disclosed having unprotected sex with T.A., and the information from Ruppel, Kwiatkowski
placed Mubita under arrest.
The police department subsequently issued a press release regarding the arrest, asking
people who may have had sexual contact with Mubita to contact the department. The police
department interviewed 13 potential victims from December 9 through December 30, 2005.
Mubita was charged with a total of eleven counts of violating I.C. § 39-608. Mubita
pleaded not guilty to all counts. Prior to trial, Mubita filed two motions – a motion to change
venue, which the district court denied, 6 and a motion to suppress, which is at issue in this appeal.
In his motion to suppress, Mubita sought suppression of any information or documents released
by the Health Department, as well as any statements Mubita made to law enforcement officials.
The district court denied his motion to suppress with regard to the information and documents
released by the Health Department and the statements made to Kwiatkowski prior to his arrest,
but granted the motion to suppress statements made during the booking process.
A trial was held in late March 2006, and the jury found Mubita guilty of all eleven
counts. The district court imposed a unified sentence of four years, with four months fixed, for
each count, to be served consecutively. Mubita filed a timely appeal.
II.
DISCUSSION
The following issues are presented for determination: (1) whether the district court erred
when it denied Mubita’s motion to suppress documents released by the Health Department to the
prosecutor’s office; (2) whether the district court erred when it admitted the two lab reports
under the business records exception to the hearsay rule; (3) whether it is factually impossible to
violate I.C. § 39-608 by oral-genital contact; and (4) whether the district court violated Mubita’s
due process rights when it added language to his requested jury instruction regarding his
affirmative defense.
6
Mubita does not appeal this decision.
5
A.
The District Court Did Not Err When it Denied Mubita’s Motion to Suppress Documents
the Health Department Released to the Prosecutor’s Office
In reviewing an order granting or denying a motion to suppress evidence, this Court will
defer to the trial court's factual findings unless clearly erroneous. State v. McCall, 135 Idaho
885, 886, 26 P.3d 1222, 1223 (2001). However, the Court exercises free review over a trial
court's determination as to whether the district court satisfied constitutional requirements in light
of the facts found. Id.
Mubita argues his Fourth Amendment rights were violated when his health records were
“seized” from the Health Department by the prosecutor. He asserts that the privacy of health
records, which pertain to the intimate details of a person’s life, is of fundamental importance in
American society because it encourages individuals to trust and confide freely in medical
professionals. Mubita bases his Fourth Amendment argument primarily upon the grounds that
the Health Department released information in violation of the Standards for Privacy of
Individually Identifiable Health Information (HIPAA Standards), 45 C.F.R. §§ 164.500-534. 7
According to Mubita, statutes like HIPAA show that he does indeed have a privacy interest in his
medical records. Therefore, any disclosure of his medical records not made in accordance with
the law is a violation of the Fourth Amendment and should result in suppression of the records.
Further, Mubita claims the Health Department informed him that the records would be released
only in certain specified circumstances. Therefore, he had a legitimate expectation that the
records would remain private, and he reasonably expected the documents would not be released
without his consent. In sum, Mubita argues the Fourth Amendment and Article 1 § 17 of the
Idaho Constitution “specifically protect” against the unauthorized disclosure of his confidential
papers. Such disclosure of confidential papers by a government actor 8 violated his Fourth
Amendment right to be free from unreasonable search and seizure.
The State asserts the district court correctly held that Mubita lacked standing to assert a
search and seizure violation with regard to his health records because he voluntarily released the
records to a third party. The State relies upon United States v. Miller, 425 U.S. 435 (1976), and
State v. Kluss, 125 Idaho 14, 867 P.2d 247 (Ct. App. 1993), to argue that Mubita had no
7
Promulgated pursuant to HIPAA, the Health Insurance Portability and Accountability Act of 1996. Pub. L.
No. 104-191, 110 Stat. 1936 (Aug. 21, 1996).
8
The parties do not dispute his contention that the Health Department is a government actor.
6
legitimate expectation of privacy in information he voluntarily turned over to a third party. The
State points out that Mubita voluntarily turned over the laboratory results in order to obtain the
Health Department’s HIV-related services. The additional documents that Mubita executed to
obtain Health Department services were the Health Department’s own records. As such, he has
no standing to claim a Fourth Amendment violation based on the Health Department’s disclosure
of these records.
The Fourth Amendment guarantees the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV.
Art. 1 § 17 of the Idaho Constitution is substantially similar. Although this Court is free to
interpret the Idaho Constitution as more protective of the rights of Idaho citizens than the U.S.
Supreme Court’s interpretation of the federal constitution, it seriously considers federal law in
determining the parameters of Idaho’s constitutional provisions. State v. Holton, 132 Idaho 501,
503 n.1, 975 P.2d 789, 791 n.1 (1999) (citing State v. Guzman, 122 Idaho 981, 988, 842 P.2d
660, 667 (1992)).
“The Fourth Amendment’s proper function is to constrain, not against all intrusions, but
against intrusions which are not justified in the circumstances, or which are made in an improper
manner.” Holton, 132 Idaho at 503, 975 P.2d at 791 (quoting Schmerber v. State of California,
384 U.S. 757, 768 (1966)). Similarly, the purpose of Art. 1 § 17 is to protect Idaho citizens’
reasonable expectation of privacy against arbitrary government intrusion. Holton, 132 Idaho at
503, 975 P.2d at 791. Thus, the question in determining whether a search violates the Fourth
Amendment’s prohibition on unreasonable searches and seizures is whether one has a reasonable
expectation of privacy in the subject of the search. The U.S. Supreme Court has summarized the
rule as follows:
[T]he application of the Fourth Amendment depends on whether the person
invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate
expectation of privacy” that has been invaded by government action. This
inquiry . . . normally embraces two discrete questions. The first is whether the
individual, by his conduct, has “exhibited an actual (subjective) expectation of
privacy,” – whether . . . the individual has shown that “he seeks to preserve
[something] as private.” The second question is whether the individual’s
subjective expectation of privacy is “one that society is prepared to recognize as
‘reasonable,’” – whether . . . the individual’s expectation, viewed objectively, is
“justifiable” under the circumstances.
Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal citations omitted).
7
In order to prevail on his claim, Mubita must first demonstrate he has a protectable
Fourth Amendment interest in the subject of the search. The State asserts Mubita failed to do so,
citing United States v. Miller. There, the U.S. Supreme Court stated the general rule that one
does not have a Fourth Amendment interest in information he voluntarily turns over to third
parties:
This Court has repeatedly held that the Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and conveyed by him to
Government authorities, even if the information is revealed on the assumption that
it will be used only for a limited purpose and the confidence placed in the third
party will not be betrayed.
425 U.S. at 443. Miller sought suppression of his bank records, which two banks had turned
over in response to defective grand jury subpoenas. Id. at 436-37. The U.S. Supreme Court
upheld the district court’s denial of his motion to suppress, finding there was no intrusion into
any area in which respondent had a protected Fourth Amendment interest. Id. at 440. The
documents at issue were business records of the banks, rather than respondent’s private papers.
Id. In reaching this conclusion, the Court noted the bank itself was a party to these transactions,
with a substantial stake in the continued availability and acceptance of the records. Id. at 440-41.
The Court declined to find Miller had a protectable interest in the documents because “[a]ll of
the documents obtained, including financial statements and deposit slips, contain only
information voluntarily conveyed to the banks and exposed to their employees in the ordinary
course of business.” Id. at 442. Applying the rule stated above, the Court noted the bank
customer “takes the risk, in revealing his affairs to another, that the information will be conveyed
by that person to the Government.” Id. at 443 (citing United States v. White, 401 U.S. 745, 75152 (1971)). Therefore, Miller had no protectable Fourth Amendment interest in the documents.
This case is analogous.
Mubita turned the laboratory reports over to the Health
Department in order to obtain HIV-related services. Applying Miller, he thereby “assumed the
risk” the documents could be further disclosed. 9
The additional documents are the Health
Department’s own forms, which Mubita executed in order to receive the desired services. These
are not medical records, containing information he revealed to his own physician in order to
obtain medical treatment, but rather business records maintained by the Health Department to
9
Mubita cites no authority to support his contention that medical records are treated differently under Fourth
Amendment jurisprudence.
8
administer its HIV services. Like Miller, Mubita has no protectable Fourth Amendment interest
in such documents. 10 See also United States v. Jacobsen, 466 U.S. 109, 117 (1984) (the Fourth
Amendment is implicated only with respect to that which the expectation of privacy has not
already been frustrated; when an individual reveals private information to another, he assumes
the risk his confidant will reveal that information to the authorities); SEC v. O’Brien, 467 U.S.
735, 743 (1984) (SEC not constitutionally required to notify “targets” of nonpublic investigation
into possible violations of the securities laws when the SEC issues subpoenas to third parties);
Donaldson v. United States, 400 U.S. 517, 522 (1971) (Internal Revenue summons directed to
third party does not entrench upon any interests protected by the Fourth Amendment); Couch v.
United States, 409 U.S. 322, 335-36 (1973) (no expectation of privacy where records are handed
to an accountant, knowing that mandatory disclosure of much of the information is required).
Mubita does not base his claim solely on the federal constitution, recognizing this Court
has extended protections under Art. 1 § 17 beyond the Supreme Court’s interpretation of the
Fourth Amendment. The U.S. Supreme Court applied the rule in Miller to the installation and
use of a pen register in Smith v. Maryland. The Court reiterated that a person has no legitimate
expectation of privacy in information he voluntarily turns over to third parties. “When he used
his phone, petitioner voluntarily conveyed numerical information to the telephone company and
‘exposed’ that information to its equipment in the ordinary course of business. In so doing,
petitioner assumed the risk that the company would reveal to police the numbers he dialed.” 442
U.S. at 744. Thus, Smith probably entertained no actual expectation of privacy in the phone
numbers. Id. at 745. Even if he did entertain such an expectation, this expectation was not
reasonable. Id.
In State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988), this Court declined to follow
Smith, holding instead that the use of a pen register constituted a search under Art. 1 § 17 of the
Idaho Constitution, and that the evidence produced by the pen register should not have been
10
Mubita also argues the HIPAA Standards create an expectation of privacy in the records. U.S. v. Miller answers
this question. The respondent in Miller argued the Bank Secrecy Act created a Fourth Amendment interest in the
depositor, even though there was otherwise no protectable Fourth Amendment interest. Miller, 425 U.S. at 441.
The Supreme Court declined to adopt such a rule. The Court noted, “The lack of any legitimate expectation of
privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy
Act, the expressed purpose of which is to require records to be maintained . . . .” Id. at 442-43. Thus, the Bank
Secrecy Act did not alter the Fourth Amendment analysis. Since the Supreme Court declined to hold in Miller that
the mandates of such a statute can create Fourth Amendment standing, and Mubita cites no authority for such a
holding, we conclude that HIPAA does not itself create a protectable Fourth Amendment interest in the documents.
9
considered in the issuance of wiretap orders. 114 Idaho at 747, 760 P.2d at 1163. In reaching
this conclusion, this Court reaffirmed its rule that “in interpreting provisions of our constitution
that are similar to those of the federal constitution we are free to extend protections under our
constitution beyond those granted by the United States Supreme Court under the federal
constitution.” Id. at 748, 760 P.2d at 1164. The Court continued to hold that there is a legitimate
and reasonable expectation of privacy in the phone numbers that are dialed in Idaho, adopting the
reasoning of the dissenters in Smith. Id. at 751, 760 P.2d at 1167.
However, we have limited the scope of Thompson in subsequent cases. For example, in
State v. Donato, 135 Idaho 469, 470-71, 20 P.3d 5, 6-7 (2001), the defendant argued Art. 1 § 17
provided greater protection of his privacy rights than the U.S. Constitution, and that a search of
his garbage was therefore invalid under the Idaho Constitution. We distinguished Thompson
and its progeny:
[I]n these cases, we provided greater protection to Idaho citizens based on the
uniqueness of our state, our Constitution, and our long-standing jurisprudence.
None of these factors support a divergence from the interpretation of the Fourth
Amendment by the United States Supreme Court in this case.
Id. at 472, 20 P.3d at 8. Thus, the Court applied U.S. Supreme Court precedent to find the
defendant had no reasonable expectation of privacy in the garbage left out for collection. Id. at
474, 20 P.3d at 10.
Donato and Miller control the outcome of this case. As per Donato, Mubita cites nothing
that would support a divergence from the U.S. Supreme Court’s interpretation of the Fourth
Amendment in this case. In fact, the State cites an analogous case, where the Court of Appeals
applied Miller to the disclosure of public utility records. Kluss, 125 Idaho 14, 867 P.2d 247. In
that case, Kluss argued the police officer violated both the state and federal constitutions in
obtaining records of a utility company showing the monthly power consumption on his property.
Id. at 19, 867 P.2d at 252. The court looked to Miller and Thompson to determine whether the
disclosure of these records violated Kluss’ rights under Art. 1 § 17 of the Idaho Constitution. Id.
The court ultimately applied the rule from Miller, finding that the scope of Art. 1 § 17’s
protection does not extend to the individual power consumption records maintained by a utility.
Id. at 21, 867 P.2d at 254. “We do not view any such expectation of privacy in those records as
being objectively reasonable.” Id. “If, as a matter of policy, a utility chooses to voluntarily
disclose such information to a law enforcement officer without a subpoena issued under either
10
I.C.R. 17(b) or I.C. § 37-2741A, that disclosure is lawful, and there is neither any statutory nor
constitutional basis for suppression of the evidence so obtained.” Id. For the reasons herein
stated, we believe Miller controls the outcome of the present case.
Additionally, it is worth noting that HIV is a reportable disease, and statutes and
regulations specifically provide for disclosure of public health records where HIV is at issue.
See I.C. § 39-610 (authorizing certain disclosure of HIV information); I.C. § 39-606 (reports to
director of health and welfare shall be made with the name of patient being treated for such
disease); I.C. § 39-609 (declaration of legislative policy that reporting of HIV to public health
officials is essential). Regulations specifically require reporting of HIV, which reports include
the identity and address of the attending physician and the name, current address, telephone
number and birth date or age, race, ethnicity, and sex of the individual.
See
IDAPA 16.02.10.010. (now IDAPA 16.02.10.040. and 050. under revised regulations
implemented on April 2, 2008). The Department of Health and Welfare is charged with a duty to
investigate reportable diseases, including HIV.
IDAPA 16.02.10.015.01.a. (now IDAPA
16.02.10.065.01) (Department shall use all reasonable means to confirm in a timely manner any
case or suspected case and shall determine all sources of infection and extent of exposure). Any
person who may have been exposed to the disease must provide contact information of all
persons from whom the disease may have been acquired. IDAPA 16.02.10.015.10 (now IDAPA
16.02.10.065.10). The HIPAA Standards, which Mubita cites to support his contention that he
has a right to privacy in these documents, also provide for disclosure if the covered entity
believes it is necessary to prevent a threat to the health or safety of the public.
See 45
C.F.R. § 164.512(j)(1). Further, Mubita executed the Ryan White Title II Care Act Client Rights
and Responsibilities form, which indicates that “a participant has the right to have information
released only in the following circumstances: . . . (c) when there is a clear or immediate danger
to you or others.” In this instance, Mubita created a clear and immediate danger to public health,
allowing for release of the records that he voluntarily turned over to, or created with, the Health
Department.
11
B.
The Health Department Complied with HIPAA Standards for Privacy of Individually
Identifiable Health Information
Mubita also argues the records should be suppressed on the ground that the Health
Department’s release of his medical records violated the HIPAA Standards.
Mubita cites
45 C.F.R. § 164.512 to support his argument that the disclosure violated those standards. Under
section 164.512(e), disclosure requires either a court order, or a subpoena or discovery request,
along with notice to Mubita to allow him to object. In addition, Mubita points to section
164.512(f) governing disclosure for law enforcement purposes. Under this section, Mubita again
argues there was no court order or subpoena, nor any administrative request that would allow the
Health Department to disclose his information.
Mubita argues section 164.512(f)(1)(ii)(C)
requires that the information requested be specific and limited in scope. Since the prosecutor
here requested “whatever information your agency may possess” in regard to an adult male
resident of Latah County who has tested positive for the HIV virus, he argues the request was not
specific.
Lastly, Mubita points to section 164.512(f)(2), which covers disclosures for
identification and location purposes. Again, Mubita argues the prosecutor’s request was too
broad.
The State claims its actions were consistent with the HIPAA Standards.
In the
alternative, the State contends that the exclusionary rule does not apply to a statutory violation. 11
Under 45 C.F.R. § 164.502, the general rule is that a covered entity may not use or
disclose protected health information, except as specifically permitted. Section 164.512 sets
forth specific instances where a covered entity may disclose protected health information without
the written consent, authorization or notice to the individual. Section 164.512(f) sets forth the
standard for disclosures to law enforcement officials for law enforcement purposes.12
Subsection (f)(1)(ii)(C) permits such disclosures in compliance with “an authorized investigative
demand, or similar process authorized by law,” provided that: (1) the information sought is
11
Mubita also argues subsection (f)(2) of section 164.512 prohibits the disclosure of information related to the
individual analysis of body fluids. Thus, the State could not have properly requested information regarding HIV
status. However, the State’s request was made pursuant to subsection (f)(1), and the mandates of subsection (f)(2)
pertain to disclosures for identification and location purposes. The regulations separate the (f)(1) requirements from
the (f)(2) requirements. “Except for disclosures required by law as permitted by paragraph (f)(1) . . . .” Thus, this
prohibition is inapplicable to the State’s request.
12
Law enforcement official means an officer of any agency or authority of the United States or a state who is
empowered by law to investigate or conduct an official inquiry into a potential violation of the laws; or prosecute or
otherwise conduct a criminal, civil, or administrative proceeding arising from an alleged violation of law.
45 C.F.R. § 164.501.
12
relevant and material to a legitimate law enforcement inquiry; (2) the request is specific and
limited in scope to the extent reasonably practicable in light of the purpose for which the
information is sought; and (3) de-identified information could not reasonably be used.
The
prosecutor
explicitly
requested
the
documents
pursuant
to
45
C.F.R. § 164.512(f)(1)(ii)(C). The State met the requirements of this section in making its
request for disclosure. The request was an authorized investigative demand made by the county
prosecutor, which demand was material to a law enforcement inquiry. The request was specific
and limited in scope to the extent reasonably practicable in light of the purpose for which the
information was sought. Finally, de-identified information was not a possibility because the
identification and confirmation of Mubita’s HIV status was necessary to preclude any additional
victims. Based on these factors, enumerated in section 164.512(f)(1)(ii)(C), the State complied
with HIPAA Standards. 13
Furthermore, it should be noted that, even if the State had violated HIPAA Standards,
suppression of the evidence is not the proper remedy for a HIPAA violation. See, e.g., SanchezLlamas v. Oregon, 548 U.S. 331, 126 S. Ct. 2669 (2006) (suppression is not a proper remedy for
violation of the Vienna Convention, art. 36); United States v. Frazin, 780 F.2d 1461, 1466 (9th
Cir. 1986) (no suppression for violation of Right to Financial Privacy Act) (“Because the statute,
when properly construed, excludes a suppression remedy, it would not be appropriate for us to
provide one in the exercise of our supervisory powers over the administration of justice. Where
Congress has both established a right and provided exclusive remedies for its violation, we
would ‘encroach upon the prerogatives’ of Congress were we to authorize a remedy not provided
for by statute.”). HIPAA expressly provides for monetary fines in the event of a violation. See
42 U.S.C.A. §§ 1320d-5, 1320d-6.
Thus, the proper remedy for a HIPAA violation is a
monetary fine, consistent with the express provisions of the statute. 14 The district court did not
err when it denied Mubita’s motion to suppress the documents based on the alleged HIPAA
violation.
13
Further, there are additional provisions by which the State could have requested the information sought. For
example, section 164.512(j) permits disclosure if the covered entity, in good faith, believes the use or disclosure is
necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public and is to
a person reasonably able to prevent or lessen the threat. 45 C.F.R. § 164.512(j)(1)(i). The situation here clearly fits
within these standards.
14
It should be noted that any fine would be levied against the person or entity maintaining and releasing the records,
as that is the focus of HIPAA, not the third party requesting the records.
13
C.
The Laboratory Results Were Not Properly Admitted Under the Business Records
Exception, But the Error Was Harmless
Mubita asserts the district court erred in admitting laboratory reports over his objection
because the reports contained hearsay.
The State asserts any hearsay included within the
documents was properly admitted pursuant to the business records exception. The trial court has
broad discretion whether to admit hearsay under one of the exceptions, and we will not overturn
the exercise of that discretion absent a clear showing of abuse. State Dept. of Health & Welfare
v. Altman, 122 Idaho 1004, 1007, 842 P.2d 683, 686 (1992) (quoting Cheney v. Palos Verdes Inv.
Corp., 104 Idaho 897, 900, 665 P.2d 661, 664 (1983)). When an exercise of discretion is
reviewed on appeal, the Court inquires: (1) whether the lower court rightly perceived the issue as
one of discretion; (2) whether the court acted within the boundaries of such discretion and
consistently with any legal standards applicable to specific choices; and (3) whether the court
reached its decision by exercise of reason. State v. Perry, 139 Idaho 520, 522, 81 P.3d 1230,
1232 (2003).
Hearsay is a statement, other than one made by the declarant while testifying at trial,
offered in evidence to prove the truth of the matter asserted. Idaho R. Evid. 801(c). As a general
rule, hearsay is excluded unless the proffered evidence falls within an exception to the rule.
Idaho R. Evid. 802. Under Idaho R. Evid. 803(6), business records are not excluded by the
hearsay rule. The rule provides in pertinent part:
Records of regularly conducted activity. 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 regularly conducted business activity, and if it
was the regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony of the custodian
or other qualified witness, or by certification that complies with Rule 902(11),
unless the source of information or the method or circumstances of preparation
indicate lack of trustworthiness.
The scope of the business records exception is broad. Christensen v. Rice, 114 Idaho 929, 933,
763 P.2d 302, 306 (Ct. App. 1988). It permits the admission of hearsay statements in business
records although the opposing party has no opportunity to cross-examine the author of the record
at trial. Id. “Business records possessing a reasonable degree of necessity and trustworthiness
are to be received in evidence unless the trial court, after examination, doubts their reliability.”
14
Id. at 934, 763 P.2d at 307 (quoting Idaho Falls Bonded Produce and Supply Co. v. Gen. Mills
Rest. Group, Inc., 105 Idaho 46, 49, 665 P.2d 1056, 1059 (1983)).
Business records are
admissible even though they contain minor alterations. Christensen, 114 Idaho at 933, 763 P.2d
at 306.
Records sought to be admitted under the business records exception need not be
authenticated by the person who made the records, but it is necessary that the records be
authenticated by a person who has custody of the record as a regular part of his or her work or
who has supervision of its creation. Henderson v. Smith, 128 Idaho 444, 450, 915 P.2d 6, 12
(1996) (quoting Altman, 122 Idaho at 1007-08, 842 P.2d at 686-87). The custodian need not
have personal knowledge of the actual creation of the document when the record was made.
Henderson, 128 Idaho at 450, 915 P.2d at 12.
Mubita asserts the State failed to lay proper foundation because Dr. Moody was unsure
where the blood sample was taken, either at his clinic, Palouse Medical, or at the hospital
laboratory. In addition, Mubita argues the lab reports are hearsay, and do not fit within any
recognized exception. He argues the documents fail to meet the business records exception
because the State offered no evidence that it was a regularly conducted activity of Dr. Moody to
“make” laboratory results. The State counters that both the foundational issue and the hearsay
issue are settled by the business records rule. According to the State, Dr. Moody properly
authenticated the lab results when he testified he had custody of the records as a regular part of
his work and that the records were kept in the regular course of his work.
On the one hand, Mubita’s point is well taken. Rule 803(6) does speak of the business
activity making the document. The Court of Appeals, relying upon this rule, has declined to
allow the admission of business records through the testimony of someone other than the person
who made them. See, e.g., In the Interest of S.W., 127 Idaho 513, 520, 903 P.2d 102, 109 (Ct.
App. 1995); State v. Hill, 140 Idaho 625, 628, 97 P.3d 1014, 1017 (Ct. App. 2004). On the other
hand, the rule, as written, does not take into account the increasingly complex manner in which
business is conducted today in the medical profession. While in the past, doctors may have had
their own employees perform lab tests and make their own reports, that type of practice is no
longer commonplace due to increased specialization within the medical profession. Doctors
increasingly utilize the services of independently contracting labs, technicians and specialists to
perform analyses of body fluids and tissues, body scans, and the like. The physician acts as the
15
contact with the patient to identify symptoms and arrive at a tentative diagnosis; but the
physician often must farm out a variety of tasks to technicians and specialists in order to get the
detailed information upon which to continue his work in finalizing the diagnosis and treating the
patient. The doctor determines which tests the patient needs and then requests the appropriate
technicians or specialists to perform the same and report back the results, which he or she then
uses in treating the patient. Such reports are the composite of the efforts of a number of
individuals or entities, but they end up in the final analysis in the doctor’s file. Those reports are,
and must be, trustworthy because life or death treatment decisions are necessarily based upon
them. The defendant presented no evidence in this case to indicate that the lab reports requested,
received, and used by Dr. Moody were not trustworthy. On the other hand, the initial INS report,
prepared by Dr. Harries’ own hand, was incorrect and obviously untrustworthy.
We have yet to directly address the question of whether a lab report requested and used
by a physician, but which he did not actually “make,” qualifies for the business records
exception. The Court did consider the rationale for admission of hospital records in Altman,
where the Court stated:
Where (as here) the trial court is satisfied that sufficient testimony has been
adduced regarding the manner in which certain records have been kept and that
their identity has been properly established in compliance with the act, 15 no
objection on the ground of hearsay can be entertained. As applied to hospital
records, compliance with the act obviates the necessity, expense, inconvenience
and sometimes impossibility of calling as witnesses the attendants, nurses,
physicians, X-ray technicians, laboratory and other hospital employees who
collaborated to make the hospital record of the patient. It is not necessary to
examine the person who actually created the record so long as it is produced by
one who has the custody of the record as a regular part of [the person’s] work or
has supervision of its creation.
122 Idaho at 1008, 842 P.2d at 687 (quoting Cantrill v. Am. Mail Line, 257 P.2d 179, 189 (Wash.
1953)) (first emphasis added). This rationale would fit the present case, where Dr. Moody
testified that the documents sought to be admitted were standard laboratory forms he maintains
in his records in the regular course of his business, that he receives and relies upon such records
15
The Act referred to here is the Uniform Business Records as Evidence Act, which was enacted in Idaho in 1939.
1939 Idaho Sess. Laws, ch. 106, § 2, p. 175, currently I.C. §§ 9-415 – 417. A more specific act pertaining to
hospital records – the Uniform Photographic Copies of Business Records as Evidence Act – was enacted in 1951.
1951 Sess. Laws, ch. 173, § 3, p. 368, currently I.C. §§ 9-418 – 420. Neither party has asserted the application of
either of these acts to the case at hand so we do not opine as to their applicability. Neither has either party addressed
the issue of whether the laboratory reports would be admissible under Idaho R. Evid. 803(24), the catch-all
provision of the hearsay exception, and we therefore decline to consider the applicability of that provision.
16
in the regular course of his medical practice, and that the records come from the clinic or the
hospital laboratory in the regular course of his business. It would have been of little utility and
of great inconvenience to summon each technician who examined Mubita’s bodily fluid samples.
Since Dr. Moody relied on these objective scientific findings for Mubita’s course of treatment
and never doubted their trustworthiness, neither should we.
Despite the foregoing considerations, Mubita’s contention that the business records
exemption does not apply because Dr. Moody did not actually “make” the laboratory results
must be addressed. While we can see no good policy reason to exclude the laboratory reports,
we are not comfortable stretching the definition of “make” to the point where we ignore its
ordinary meaning. Thus, rather than trying to fit the situation of these medical records within the
ambit of the current rule, we feel constrained by the language of the rule to concur with Mubita
that the records were improperly admitted under Rule 803(6) because Dr. Moody’s business did
not make them. Thus, we find that, under the current language of the rule, the district court erred
in admitting the laboratory reports.
The State asserts that even if the district court erred in admitting the laboratory reports,
such error was harmless. An error that does not affect the defendant’s substantial rights is
considered harmless and does not require reversal or a new trial. I.C.R. 52; State v. Doe, 137
Idaho 519, 527, 50 P.3d 1014, 1022 (2002). The test for harmless error is whether a reviewing
court can find beyond a reasonable doubt that the jury would have reached the same result
without the admission of the challenged evidence. Id. (quoting State v. Moore, 131 Idaho 814,
821, 965 P.2d 174, 181 (1998)). The State asserts the admission of the lab results would be
harmless error because it presented additional evidence sufficient to prove Mubita’s knowledge
of his HIV status, including testimony by Health Department employees that he went through the
process of applying for and obtaining HIV-related social services, and testimony by Dr. Moody
that he informed Mubita of the positive test results. Thus, the Court can conclude beyond a
reasonable doubt that the jury would have reached the same result even without the lab results.
The State’s argument is well-taken. There was overwhelming evidence presented at trial, in
addition to the laboratory reports, which supports the jury’s finding that Mubita knew he was
17
infected with HIV. Thus, this Court concludes beyond a reasonable doubt that the jury would
have convicted Mubita, even without the laboratory results. 16
D.
Mubita Violated the Plain Language of I.C. § 39-608 by Engaging in Oral-Genital Contact
Mubita asserts it was factually impossible for him to violate the intended purpose of
I.C. § 39-608 with respect to D.W. because his contact with D.W. only involved oral-genital
contact. Mubita points to the Legislature’s statement of purpose in enacting I.C. § 39-608, – to
make “it a felony to knowingly expose another person to AIDS.”
Statement of Purpose,
H.B. 433, RS 21026C1, 49th Leg., 2d Sess. (Idaho 1988). Mubita relies on this statement of
purpose to argue that, since the Legislature intended to criminalize behavior which may result in
the spread of HIV or AIDS, and Mubita’s behavior with D.W. could not have exposed her to
HIV, 17 it was factually impossible to violate the statute’s purpose. Mubita does not assert it was
factually impossible to violate the statute as written, but only that it was factually impossible to
violate the statute as intended. According to the State, Mubita’s oral-genital contact with D.W.
exposed her to the HIV virus based upon the plain language of the statute and is therefore
precisely the kind of criminal behavior the statute was intended to proscribe. In so arguing, the
State points out there is no authority for Mubita’s proposition that policy can override the plain
and unambiguous terms of a statute.
The interpretation of a statute is a question of law over which this Court exercises free
review. State v. Thompson, 140 Idaho 796, 798, 102 P.3d 1115, 1117 (2004). When construing
a statute, the focus of the Court is to determine and give effect to the intent of the legislature.
George W. Watkins Family v. Messenger, 118 Idaho 537, 539-40, 797 P.2d 1385, 1387-88
(1990).
Judicial interpretation of a statute begins with an examination of the statute's literal
words. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999). Where the language of
a statute is plain and unambiguous, this Court must give effect to the statute as written, without
16
Mubita claims his Sixth Amendment rights were violated by virtue of not having the opportunity to confront and
cross-examine those who actually performed the lab tests. However, since admission of the tests has been
determined to be harmless error in any event, we need not address this claim.
17
Mubita bases this assertion on a number of authorities demonstrating that contact with saliva has never been
shown to result in transmission of HIV. The State counters with additional authority demonstrating oral sex could
result in the transmission of HIV and asserts that Mubita’s allegations have no factual basis. Both parties
acknowledge in their briefing that blood from the mouth may enter the body during oral sex, resulting in the
transmission of HIV. None of these authorities are contained in the record below and are exclusively raised in the
parties’ briefing to this Court.
18
engaging in statutory construction. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688
(1999). The language of the statute must be given its plain, obvious and rational meaning.
Burnight, 132 Idaho at 659, 978 P.2d at 219. Unless the result is palpably absurd, this Court
assumes the legislature meant what is clearly stated in the statute. Rhode, 133 Idaho at 462, 988
P.2d at 688.
Where ambiguity exists as to the elements or potential sanctions of a crime, this Court
will strictly construe the criminal statute in favor of the defendant. Rhode, 133 Idaho at 462, 988
P.2d at 688. When the Court must engage in statutory construction, it has the duty to ascertain
the legislative intent and give effect to that intent. Id. To ascertain the intent of the legislature,
not only must the literal words of the statute be examined, but also the context of those words,
the public policy behind the statute and its legislative history. Id.
In this case, we need not go beyond the plain language of the statute. I.C. § 39-608(1)
provides:
Any person who exposes another in any manner with the intent to infect or,
knowing that he or she is or has been afflicted with acquired immunodeficiency
syndrome (AIDS), AIDS related complexes (ARC), or other manifestations of
human immunodeficiency virus (HIV) infection, transfers or attempts to transfer
any of his or her body fluid, body tissue or organs to another person is guilty of a
felony and shall be punished by imprisonment in the state prison for a period not
to exceed fifteen (15) years, by fine not in excess of five thousand dollars
($5,000), or by both such imprisonment and fine.
Further, I.C. § 39-608(2) defines “body fluid” to mean semen, blood, saliva, vaginal secretion,
breast milk, and urine. “Transfer” is also expressly defined to include “engaging in sexual
activity by genital-genital contact, oral-genital contact, anal-genital contact.” I.C. § 39-608(2).
At trial, D.W. testified that she stayed with Mubita for approximately six nights in
October 2005. During this time, Mubita performed oral sex on D.W., but they never engaged in
vaginal intercourse. Mubita never told D.W. about his HIV status. D.W. testified that there was
some genital-genital contact in addition to oral sex, where Mubita stroked his penis on her
clitoris. He ejaculated on her upper thigh. We must first look to the plain words of the statute to
determine legislative intent. Here, the statute unambiguously dictates that one can “transfer”
one’s body fluid via “oral-genital contact,” and the statute expressly defines “body fluid” to
include saliva. Such a transfer violates the unambiguous terms of the statute. Thus, Mubita
violated I.C. § 39-608 by engaging in oral-genital contact with D.W.
19
E.
Jury Instruction No. 20 Does Not Constitute Reversible Error; The District Court’s
Modification of the Language of the Statutory Defense Did Not Violate Mubita’s Due
Process Rights
Whether the trial court properly instructed the jury presents a question of law over which
this Court exercises free review. State v. Blake, 133 Idaho 237, 239, 985 P.2d 117, 119 (1999)
(quoting State v. Row, 131 Idaho 303, 310, 955 P.2d 1082, 1089 (1998)). The Court's review of
jury instructions is “limited to a determination of whether the instructions, as a whole, fairly and
adequately present the issues and state the law.” Garcia v. Windley, 144 Idaho 539, 542-43, 164
P.3d 819, 822-23 (2007). “When the instructions, as a whole, do not mislead or prejudice a
party, an erroneous instruction does not constitute reversible error.” Id. The appellant has the
burden to clearly show prejudicial error from an erroneous jury instruction. Id. An erroneous
instruction is prejudicial when it could have affected or did affect the outcome of the trial. Id.
Mubita objected to Instruction No. 20 below, and asserts on appeal that the district court
erred when it denied Mubita’s requested instruction. First, Mubita asserts the district judge
should have used his proposed instruction because it was a correct statement of the law, taken
directly from Idaho Criminal Jury Instruction 982.
I.C. § 39-608 provides two affirmative
defenses: consent and medical advice. Under I.C. § 39-608(3)(b), “it is an affirmative defense
that the transfer of body fluid, body tissue, or organs occurred after advice from a licensed
physician that the accused was noninfectious.”
The district court’s jury instruction below
provided:
In this case, the law provides the defendant with an affirmative defense to
the charges.
It is an affirmative defense to each charge of transfer or attempted transfer
of body fluid that it occurred after advice from a licensed physician that the
defendant was noninfectious.
In deciding upon the reasonableness of the defendant’s beliefs, you should
determine what an ordinary and reasonable person might have concluded from all
the facts and circumstances which the evidence shows existed at that time.
The burden is on the State to prove beyond a reasonable doubt that the
defendant knew he was infectious at the time the attempted transfer of body fluid
occurred. If there is a reasonable doubt whether the defendant knew he was
infectious, you must find the defendant not guilty.
The district court did not err when it modified the instruction.
Pursuant to
I.C. § 19-2132(a), either party may present jury instructions, and request the court to so instruct
20
the jury. “If the court thinks it correct and pertinent, it must be given; if not, it must be refused.”
I.C. § 19-2132(a). Mubita points to this language to support his proposition that, since he
provided a written instruction, and there was no legal error in this instruction, the district court
erred in denying his instruction. However, the court did give the affirmative defense instruction.
The issue is whether the language the court added made the jury instruction improper. The State
claims the reasonable belief language does not pertain to the affirmative defense, but applied to
the burden that was on the State to prove the element of knowledge. Thus, this language did not
shift the burden, but clarified that the ultimate burden remains with the State even if the jury
rejected Mubita’s affirmative defense. The State’s argument is well-taken. Viewed as a whole,
the instructions fairly and adequately presented the issues and stated the applicable law. 18
In addition, Mubita argues the instruction the district court gave, with added
“reasonableness” language, misstates the law and resulted in a shifting of the State’s burden of
persuasion. According to Mubita, the language lightens the State’s burden to prove each and
every element of the case beyond a reasonable doubt. The United States Constitution prohibits
the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 309 (1979) (quoting In re Winship, 397 U.S. 358, 90 S. Ct.
1068 (1970)). See also State v. Crowe, 135 Idaho 43, 47, 13 P.3d 1256, 1260 (Ct. App. 2000)
(“The requirement that the State prove every element of a crime beyond a reasonable doubt is
grounded in the constitutional guarantee of due process.”). A jury instruction that lightens
prosecution’s burden of proof by omitting an element of the crime, creating a conclusive
presumption as to an element, or shifting to the defendant the burden of persuasion on an
essential element is therefore impermissible. Crowe, 135 Idaho at 47, 13 P.3d at 1260 (citations
omitted).
The threshold inquiry in ascertaining the constitutional analysis applicable to a jury
instruction is to determine the nature of the presumption it describes. Sandstrom v. Montana,
18
The State also asserts on appeal that Mubita was not entitled to a jury instruction on the affirmative defense as a
matter of law. The State supports this contention with the claim that Mubita’s interpretation of the statute would
lead to an absurd result. “Mubita interprets this language to mean that if at any point in a person’s life that person
tested negative for HIV he has an automatic defense from prosecution under the statute regardless of whether at
some later point in his life he finds out he is HIV positive.” Since Mubita presented no evidence that he received
medical advice that he was noninfectious after being informed of his HIV positive status, Mubita was not entitled to
his requested instruction. At trial, the State did not object to the jury instruction. In fact, the State conceded that
Mubita presented enough evidence to obtain the instruction. Since the State did not object below, we decline to
address this argument on appeal
21
442 U.S. 510, 514 (1979). That determination requires careful attention to the words actually
spoken to the jury. Id. Whether a defendant has been accorded his constitutional rights depends
upon the way in which a reasonable juror could have interpreted the instruction. Id. The
instruction itself ends with a statement reminding the jury “the burden is on the State to prove
beyond a reasonable doubt that the defendant knew he was infectious at the time the attempted
transfer of body fluid occurred. If there is reasonable doubt whether the defendant knew he was
infectious, you must find the defendant not guilty.” Looking to the words of the instruction, and
viewing the instructions as a whole, it is clear a reasonable juror would not have understood this
to relieve the prosecution’s burden to prove each element of the offense beyond a reasonable
doubt.
Further, the instruction here did not pertain to an element of the offense. Rather, the
instruction pertained to Mubita’s affirmative defense.
Mubita cites no authority for the
proposition that requiring a defendant to bear the burden of proving his affirmative defense
violates due process. Relevant authority tends to the contrary. See Martin v. Ohio, 480 U.S.
228, 235-36 (1987) (Ohio’s practice of requiring self-defense to be proved by defendant did not
violate due process; noting affirmative defenses were matters for defendant to prove at common
law, when the Fifth Amendment was adopted, and later when the Fourteenth Amendment was
ratified); Montana v. Egelhoff, 518 U.S. 37, 42, 56 (1996) (nothing in the Due Process Clause
prevents Montana from disallowing consideration of voluntary intoxication when a defendant’s
state of mind is at issue) (“The proposition that the Due Process Clause guarantees the right to
introduce all relevant evidence is simply indefensible.”). Thus, even assuming the instruction
did in fact shift the burden of persuasion, Mubita has not demonstrated this violated his right to
due process.
III.
DISPOSITION
We affirm the district court’s decision.
Chief Justice EISMANN, and Justices BURDICK, W. JONES and HORTON CONCUR.
22
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