Linn County trial involving HIV-related charge on hold  

CEDAR RAPIDS - A judge granted a motion of stay and delayed a trial set to start Monday for a man accused of sexually abusing a 15-year-old boy in 2011, which will allow his attorneys to file an interlocutory appeal with the Iowa Supreme Court.

Last week, a different judge ruled a prosecutor could amend charges against Eddie Jones, 37, of Cedar Rapids, initially filed in 2012 of the now repealed felony charge criminal transmission of HIV to a misdemeanor charge of criminal transmission of a contagious or infectious disease.

Anne Laverty, Jones' attorney, filed the application for an interlocutory appeal last Friday after 6th Judicial District Mary Chicchelly granted the amended charges.

Sixth Judicial District Robert Sosalla granted the stay Monday before the trial was set to begin.

Laverty argues in her application for appeal the amended charge 709D.3 is for a new and different crime, compared to original charge of now repealed code 709C.1. The amendment charges Jones with a violation of law that didn't exist until May 30, 2014, when the other charge was repealed, and nearly three years after the alleged acts, she contends.

She also objected to the introduction of the new charged offense less than a week before trial. Assistant Linn County Attorney Nick Maybanks filed for application to amend the charge Sept. 4, and then filed the amended trial information Sept. 11, after Chicchelly's ruling.

Laverty in her motion pointed out the differences in the criminal acts. In code 709C.1, it required the person to have knowledge of his or her positive HIV status before he or she 'engages in intimate contact.” In 709D.3, it requires the person have knowledge he or she is 'infected with a contagious or infectious disease” and 'exposes” an uninfected person to the disease 'acting with a reckless disregard as to whether the uninfected person contracts” the disease.

Laverty made similar arguments two weeks ago during a hearing before Chicchelly.

Laverty in the appeal motion also said it's unfair for the state to amend charges at the last minute because the defense would be forced to 'shift or eliminate its theory with little time to investigate and challenge the new charge.”

The 'fear and stigma” associated with HIV and people infected with it will change how it's presented to the jury, Laverty said. These issues were part of the reason the legislators changed the code, to 'de-stigmatize” HIV status.

Laverty said this issue could also make case law in Iowa and has the potential to guide similar pending HIV-related prosecutions and would clarify the law.

Chicchelly said in her order last week after reviewing the relevant statutes and language she doesn't think amending the charge is against the legislators' intent in repealing code section 709C. According to the language of both codes, the legislators wanted to reduce the transmission of infectious or contagious diseases from people who know they have the diseases, provide more severe punishment to those who act with the intent to infect the uninfected person and/or those who do infect the uninfected person.

Chicchelly said in her ruling it's not a new or different offense being charge because '709.D.3(4) encompasses the same conduct that was prescribed in 709C.1, for which the defendant has been facing allegations of since May 30, 2012.”

She also didn't agree with Laverty's contention that it violates the ex post facto clause, which refers to laws adopted after an act is committed making it illegal. She said the state wasn't seeking punishment for an act that was not a crime when it was committed. In fact, she pointed out, the defendant benefits, if convicted, because the punishment is less severe and it places a higher burden on the state regarding criminal intent.

Jones is charged with felony third-degree sexual abuse and criminal transmission of contagious or infectious disease, a misdemeanor. He is accused of sexually abusing a 15-year-old boy and exposing him to a disease July 1 and Aug. 31, 2011 in different locations in Cedar Rapids, according to the criminal complaint.

The trial will not be reset until the court makes its ruling on the appeal.