HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/SCROGGIN.ASC

Text File | 1993-01-14 | 35KB | 643 lines

/* This case is reported in 401 S.E. 2d 13 (Ga. App. 1990). This
case validates a conviction for assault with the intent to kill
based on a person with HIV biting a police officer during an
arrest. */

SCROGGINS

v.

The STATE.

MURRAY

v.

The STATE.

Court of Appeals of Georgia.

Nov. 5, 1990.

Rehearing Denied Dec. 6, 1990.

Certiorari Denied Jan. 7, 1991.



BIRDSONG, Judge.

These are joint appeals by four defendants convicted of various
offenses committed during a fracas following a police response to
a "domestic" call.  Gregory Scott Scroggins was convicted of
aggravated assault with intent to murder and of the misdemeanor
offense of affray; Paul Orson Murray, Jr., was found guilty of
affray and felony obstruction; Greg Scroggins' father, Philip
Elbert Scroggins, Sr., and mother, Angie C. Scroggins, were found
guilty of felony counts of obstruction but sentenced as for
misdemeanor obstruction.

On January 29, 1989, about 2:00 a.m., Officer D.P. Crook
responded to a 911 call made by Greg Scroggins from a convenience
store near Smyrna, Georgia.  Greg Scroggins and his roommate Paul
Murray, who had been arguing at the store, were seen by the store
clerk leaving on foot. Officer Crook followed and soon saw them
engaged in an argument by the side of the road. The officer
motioned for Murray to approach the police vehicle, but Murray
and Scroggins ran. Officer Crook followed them to Scroggins'
parents' house nearby, where an altercation ensued between Murray
and Scroggins.  Officer Crook called for back-up assistance.  Mr.
and Mrs. Scroggins came out of the house in their night clothes
and participated in a struggle to get the officer away from their
son, who, by this time, was "out of control." When back-up
officers arrived, they succeeded in putting "flexicuffs" on Scrog
gins' hands behind his back, but he continued to kick the
officers.

Ultimately, Officer Crook got Greg Scroggins to the ground and
straddled him. He heard Scroggins making noises with his mouth as
if to bring up spittle; then Scroggins raised forward and bit
Officer Crook on the forearm.  The bite was strong enough to tear
through the officer's long-sleeved shirt, and left distinct, full-
mouth bite wounds which took ten months to heal. Thereafter, at
the hospital, Greg Scroggins told a nurse that he was "HIV
positive," i.e., infected with the AIDS virus.  Being so
informed, Officer Crook went to Scroggins and said, "Dude, do you
have AIDS?" Scroggins just looked at him and laughed. He had just
two months earlier been diagnosed as having the HIV virus.

On May 25, 1989, each defendant was indicted for affray and
obstruction of an officer, in Indictment No. 89-1228.  All were
arraigned on July 7, 1989, and all demanded a speedy trial.
Calendar call was scheduled to be held October 12.

At the October 12 calendar call, Greg Scroggins learned he had
that day been indicted in Indictment No. 89-2319 for two felony
counts of aggravated assault: aggravated assault upon the person
of Officer Crook with intent to murder, and aggravated assault by
assaulting Officer Crook with his teeth in a manner likely to
result in serious bodily injury.

Greg Scroggins was advised that day that arraignment and trial of
this new indictment for aggravated assault would be held in four
days, October 16, and that all charges would be tried jointly.
The State served Scroggins with a list of nine witnesses, but
advised him only one, an AIDS expert, would be called.  On
October 16, Greg Scroggins asked for a continuance for adequate
time to prepare for defense of the new charges, and filed a
demand for list of witnesses, demand for scientific reports,
demand for defendant's statements, and demand that Officer Crook
submit to an HIV test.  The trial court refused Scroggins' motion
for extension of time to file motions and prepare for trial, and
denied Murray's and Mr. and Mrs. Scroggins' motions for
severance. The next day (October 17) the trial court heard
Scroggins' motion to suppress evidence of a positive HIV virus
test made pursuant to warrant, and his motion in limine to
exclude evidence of homosexuality.  The motion to suppress the
HIV test result was granted for irregularity in the warrant,
pursuant to OCGA  31-17A-1.

The trial court did grant a two-day continuance for the trial,
but no more, it seemingly being evident that Scroggins, who in
September filed his own motions in limine concerning the AIDS
issue, was aware AIDS might become an issue in the case.

Appellants were tried jointly on October 18, 1989.  They here
consolidate their appeals. Held:

1.  Appellant Greg Scroggins contends the verdict of guilty for
aggravated assault with intent to murder is not supported by
evidence, as there was no evidence the HIV virus can be
transmitted by human saliva, as the expert witness testified
there are no documented cases of the virus being transmitted
through saliva, and that there is at best only a "theoretical
possibility" the virus can be transmitted via human saliva.

Appellant has misconstrued the express code provisions under
which he was indicted and tried. OCGA  16-5-21(a)(1) and (2)
provides: "A person commits the offense of aggravated assault
when he assaults:

(1)  With intent to murder, to rape, or to rob; or ... (2) With a
deadly weapon or with any object, device, or instrument which ...
is likely to or actually does result in serious bodily injury."
(Emphasis supplied.) Appellant was indicted and convicted of
"aggravated assault ... with intent to murder."  In Thadd v.
State, 231 Ga. 623, 624(1), 203 S.E.2d 230, involving an
indictment for aggravated assault with intent to rob, the Supreme
Court noted that under the statute a person commits aggravated
assault when he assaults with intent to murder, rape or rob, or
with a deadly weapon.  "Thus there is no requirement that the
assault must be with a deadly weapon in order to convict of this
offense." Id. See Hanvey v. State, 186 Ga.App. 690, 368 S.E.2d
357.

OCGA 16-5-21(a)(1) proscribes  the commission of assault with the
intent to accomplish the more serious crime of murder, robbery or
rape.  No more need be alleged or proved. The statute
deliberately sets out the offense of having intent, as
disjunctive to an assault with a deadly weapon.

This law expressly proscribes, as a discreet offense, not the
attempt to murder, but an assault made "with intent to murder."
See Harper v. State, 94 Ga.App. 264, 267, 94 S.E.2d 105, as to
the comparison of "attempt" and "intent."  The law has an
indisputable interest in censuring assaultive behavior committed
with the in-tent to do another more serious crime, irrespective
of the method of assault.  OCGA  16-5-21(a)(1) classifies as
"aggravated," those assaults which, though not committed with a
deadly weapon or with a device likely to produce serious bodily
injury, are made with the intent to commit the felonious crime of
murder, robbery, or rape.

[1] A.  Appellant contends the State did not prove the bite was a
"deadly weapon" as it was required to do. See Talley v. State,
137 Ga.App. 548, 224 S.E.2d 455.

It is essential to point out that the concept of requiring proof
that appellant's bite and/or saliva constituted a deadly weapon
is irrelevant to the offense charged and does nothing but confuse
the determination of the offense.  Prior to the comprehensive
criminal code revisions in 1968, the law provided: "An assault
with intent to murder, by using any weapon likely to produce
death, shall be punishable [as a felony]."  Penal Code 1910,  97;
see legislative history notes, OCGA  16-5-21; Wright v. State,
168 Ga. 690,148 S.E. 731. It was often held that to convict for
assault with intent to murder, the assault must have been made
with a weapon likely to produce death. See, e.g., Reddick v.
State, 11 Ga.App. 150, 74 S.E. 901. But the Supreme Court, in
Wright v. State, supra 168 Ga. at 695,148 S.E. 731, held that the
statute did not intend to define what constitutes the offense,
but merely upgraded its status from misdemeanor to felony.
Moreover, at the common law the offense of assault with intent to
murder had never required proof of use of a deadly weapon or any
weapon at all; and the statute did not require it, but if the
indictment charged the use of a weapon likely to produce death,
then of course that element must be proved.  Id. at 694,148 S.E.
731; Paschal v. State, 125 Ga. 279, 280, 54 S.E. 172; Walker v.
State, 124 Ga. 440, 441, 52 S.E. 738; Johnson v. State, 92 Ga.
36, 38, 17 S.E. 974; Monday v. State, 32 Ga. 672.

Despite the fine exposition in Wright, supra, and despite the
crystal clear language of the 1968 enactment, there remain in
some quarters confused ideas that the genetic core of felony
assault is the use of a deadly weapon.  Watts v. State, 142 Ga.
App. 857, 287 S.E.2d 231 cited by both sides in this case for
various propositions, confronted an indictment charging assault
with intent to rob "by pointing a shotgun, a deadly weapon," at
the victim. The defendant's act was especially obnoxious, in that
be grabbed the victim's neck, held a sawed-off shotgun to his
head and threatened to blow his brains out. Under the statute, it
was clearly unnecessary for the State to allege that assault with
intent to rob was committed with a deadly weapon.  But, having
averred it, the State had to prove it.

The gun in Watts was unloaded, which fact alone proves the beauty
of a statute expressly recognizing that such behavior, as a mere
assault (see OCGA  16-5-20), coupled with the intent to rob, rape
or murder, is well classified as an aggravated assault.  In Watts
the court sought to show that in "the assault context" a weapon
can be deadly because the victim thinks it is, whereas in the
"specific intent context," the fact that a weapon is deadly "is
used to support an inference that the defendant had a specific
intent to kill." Id. at 858, 237 S.E.2d 231.

Watts also said cases such as Paschal, supra, did not apply,
being "specific intent" cases which hold "that a specific intent
to kill cannot be inferred from the use of a weapon unless it is
shown, as a matter of fact, that the weapon in the way it was
used was likely to produce death." Watts, 142 Ga.App. at 859, 237
S.E.2d 231.  But, Paschal did not address such a proposition;
rather, it held that if the indictment cites a deadly weapon,
"the character of the weapon [must be proved]."

The State indicted appellant Greg Scroggins for assault with
intent to murder; this was all it needed to allege. There was no
requirement to prove the method of assault was deadly or likely
to inflict serious bodily injury.  Thadd, supra;  Wright,  supra;
Paschal supra; Walker, supra.

The legislature, in making such conduct an aggravated assault,
viewed it as no trivial thing.  The assault, coupled with the
intention to do worse, is the crime.

/* Making the Georgia statute a crime where the thoughts of the
defendant are what make the crime? If a defendant was totally
incapable of carrying out the threat which he made, is he still
guilty? Certainly an unloaded shot gun is still dangerous as a
club. But if a person with HIV wrongfully thinks that they will
spread the disease through biting, is their vain desire to kill
illegal? It is still clearly illegal to bite the police (or
anyone else) and there are penalites for such conduct. */

This case is different from United States v. Moore, 846 F.2d 1163
(8th Cir.), where an HIV infected inmate bit two officers. Moore
was not charged with or convicted of assault with intent to
murder, but of assault with a "deadly and dangerous weapon". Id.
at 1164. The federal court found that under the evidence
presented in that case, it could reasonably be found that a human
bite was a deadly and dangerous weapon without regard to whether
it might transmit the AIDS virus.

Appellant cites a recent Alabama case to bolster his assertion
that his bite must be proved a deadly weapon.  But that case,
Brock v. Alabama, 555 So.2d 285, was decided upon a statute which
provides: "(A) person commits the crime of assault in the first
degree if: (1) with intent to cause serious physical injury to
another person, he causes serious physical injury to any person
by means of a deadly weapon or a dangerous instrument."
(Emphasis sup plied.)  The Alabama statute, unlike the Georgia
statute, is not aimed at a mere assault committed with intent to
murder. Under Alabama law, including statutory definitions of
deadly weapon, we cannot fault the Brock decision, but it bears
no relation to this case or to Georgia law.

According to the standard of Jackson v. Virginia, 443 U.S. 307,
99 S.Ct 2781, 61 L.Ed.2d 560, the evidence was such that a
rational juror could find proof of the assault with intent to
murder pursuant to OCGA  16-5-21(a)(1), beyond a reasonable doubt
and to the exclusion of every other reasonable hypothesis,
without proof that the method used constituted a deadly weapon.

[2, 3]  B.  The jury's finding of "intent to murder," under the
Jackson v. Virginia standard is supported by the evidence that
appellant sucked up excess sputum before biting Officer Crook,
this being evidence of a deliberate, thinking act rather than
purely spontaneous; and that appellant laughed when the officer
asked him if he had AIDS.

Intent is a matter of mind and is evidenced by external
circumstances capable of proof (Smith v. State, 36 Ga.App. 643,
137 S.E. 794); the intent of the accused may be gathered from all
the circumstances of the cases, and is a matter for the
determination of the jury.  Patterson v. State, 85 Ga. 131, 11
S.E. 620.  It is not necessary to find an inference of such in
tent in the suggested fact that appellant's bite was a deadly
weapon, and we do not consider such inferential evidence in the
course of this review. At best, what appellant's defense amounts
to is the defense of impossibility. But, "[i]t is no defense to a
charge of criminal attempt that the crime the accused is charged
with attempting was, under the attendant circumstances, factually
or legally impossible of commission if such crime could have been
committed had the attendant circumstances been as the accused
believed them to be." (Emphasis supplied). OCGA  16-4-4. An
assertion (which was never conceded by the expert and never in
evidence) that it was "impossible" to transmit the HIV virus in
this fashion is even less a defense to the charge of assault
"with intent to murder" than it would be to an accusation of
attempt to murder, since an "attempt" requires a more substantial
act towards completion than does mere intent" See Traylor v.
State, 77 Ga.App. 439(1), 48 S.E.2d 749.  On sound reasoning, the
court in Indiana v. Haines, MS N.E.2d 834, relied on a similar
statute to uphold an attempted murder conviction on similar
facts.

"[A]s it is the intent to commit a crime, not the possibility of
success, that determines whether an act or omission constitutes
the crime of attempt ... it is not necessary that the crime be
factually possible, nor is it necessary that there be a present
ability to complete the crime ..." (Emphasis supplied.) 22 CJS
Criminal Law  123, p. 153.  As the evidence supports a rational
finding appellant believed he could transmit the virus in the
method used, it is immaterial to the offense involving intent
that it might have been impossible to do so.

Appellant analogizes this case to one where a defendant assaults
another by "shooting" him with a toy pistol, since appellant
asserts the bite of an AIDS-infected person is perfectly
harmless, like a "toy." Obviously however, not even that
defendant, if he was sane, would believe he could murder by
shooting with a toy pistol, and so he could not have the intent
to murder. We must asseverate, however, the case would be very
different if the defendant did not know the pistol was a toy, but
thought it was real, and used it to assault another with the
intent to murder.  In those circumstances he would certainly be
prosecutable under OCGA  16-5-21(a)(1) for an assault "with
intent to murder."

Evidence of an intent to murder, coupled with the assault, exists
beyond a reasonable doubt in this case.  But beyond that, we
think the peculiar circumstances of this case, including the
dearth of scientific knowledge as to the precise ways and means
of transmitting this disease, support a finding that, by his
deliberately biting another and injecting saliva into the blood
stream while knowing he was infected with the AIDS virus,
appellant's assault amounted to such wanton and reckless
disregard as to whether he might transmit the disease, that the
jury could infer a malicious intent, i.e., to murder. Gallery v.
State, 92 Ga. 463,17 S.E. 863. The jury could either find
specifically that appellant believed he could transmit the
disease in this fashion or that he did not care whether he trans
mitted the deadly disease.  Gallery, supra.

[4] A wanton and reckless state of mind is sometimes the
equivalent of a specific intent to kill. See Biegun v. State, 206
Ga. 618, 629-630, 58 S.E.2d 149; Gallery, supra.  "The law infers
guilty intention from reckless conduct; and where the
recklessness is of such character as to justify this inference,
it is the same as if defendant had deliberately intended [it]."
Pool v. State, 87 Ga. 526, 530-531, 13 S.E. 556.  Malice is a
matter of intent, and the intent of an accused is a matter
peculiarly within his own knowledge; there is no way to prove it
except by inference from established facts.  Sheffield v. State,
241 Ga. 245, 246, 244 S.E.2d 869.

All the circumstances of the case, including the unsettled state
of the body of knowledge as to the transmission of the AIDS
virus, support a jury inference beyond a reasonable doubt that a
murderous intent was proved by direct or circumstantial evidence
(Paschal, supra), or by inference of malice (defined as
"'wickedness of purpose; a spiteful or malevolent design against
another; a settled purpose to injure or destroy another'"
(Patterson supra 85 Ga. at 133, 11 S.E. 620)) from an act so
wanton and reckless that it "betrayed a reckless disregard of
[another's] life equivalent to an actual intention deliberately
to kill him," (Johnson, supra 92 Ga. at 40,17 S.E. 974), or from
an assault committed while intending to kill "or not caring
whether he kills ... or not."  (Emphasis supplied.)  Gallery,
supra.

[5]  C.  The  trial  court  erroneously charged the jury that, in
order to convict of the offense, it must find the use of a deadly
weapon and intent to murder.  This error caused defendant no
harm; it simply placed an extra burden of proof upon the State
and therefore enured to appellant's benefit.  Emmons v. State,
142 Ga.App. 553, 236 S.E.2d 536.

It is suggested, however, that the jury might have used such
finding to support an inference of intent to murder (see Patter
son, supra 85 Ga. at 133134, 11 S.E. 620), and that to this
extent the verdict cannot stand, for lack of evidence.  If any
such inference were made, we would find it harmless, since the
other evidence in the case amply supports the finding of intent
to murder and it is highly probable such error did not affect the
verdict See John-son v. State, 238 Ga. 59, 61, 230 S.E.2d 869.

In any event, we have no hesitation in saying that, as in all
cases, whether a thing or an action is a deadly weapon is for
jury determination (Hall v. State, 189 Ga.App. 107, 108, 375
S.E.2d 50), and the evidence in this case does support such a
finding beyond a reasonable doubt.  A deadly weapon is one
capable of producing death. The expert in this case did not
testify that it was impossible to transmit the HIV virus via
human saliva, but only that there were no such "documented cases"
although there were two "reports" of it. But, he made it clear
the disease had come to the forefront of medical attention in
much less than ten years and there was a great deficiency of
information on the subject  He stated that he himself would not
"deep French kiss a beautiful woman," and that medical
uncertainty was such that standard medical procedure was to wear
protective gloves when dealing with all bodily fluids of persons,
even those not known to be infected with the virus. From the
assiduousness of direct and cross-examination by the end of the
expert's testimony, the jury could reasonably conclude that it
knew about as much as medical science knew at the date of trial,
which was not very much, and amounted mostly to what had been so
far documented as having occurred, with hardly anything ruled out
as "impossible," and with not much by way of conclusion being
ventured, except that the disease itself is deadly.  The expert
testified that the "risk" of transmitting the virus via saliva
was somewhat less than the documented risk of transmitting the
virus into the blood stream via a needle prick, which was one in
250. From this, we think a reasonable juror could conclude, in
common wisdom, that the statistical "risk" of contracting AIDS
from an infected person via a needle prick is in actuality a
random risk, which alike applies to each and every one of the 250
persons, or to all of them if a large enough theory group is
considered, i.e., the total population; and that therefore every
needle prick introducing the blood of an infected person is as
potentially deadly as the next, and therefore, in the most
reasonable common sense of the word, every one is deadly.  The
same may be said of the supposed much-reduced "risk" of
transmitting the virus through saliva.

Appellant makes much of the expert's testimony that there is only
a "theoretical possibility" of transmittal of the virus through
saliva, but a "theoretical possibility" is clearly a
"possibility," or else the phrase has no meaning. So long as medi
cal science concedes this "theoretical possibility," the jury was
well within the evidence to consider the human bite of a person
infected with the AIDS virus to be "deadly."  Where a medical
expert under thorough examination,  testifies  to  his knowledge
of the subject and still cannot state one way or the other
whether a particular instrumentality is "deadly," the jury in
considering all the circumstances, including the risk to the
victim and to society, is at least as competent as the witness to
determine whether it was an instrument likely to produce death.
See Moran v. State, 120 Ga. 846, 48 S.E. 324.

Most significantly, the expert's testimony showed if an HIV
infected person has an open wound, lesion or sore, or gum disease
in his mouth through which his blood might be transferred into
the blood stream of another, as with a bite, then the victim's
risk of contracting the virus is the risk associated with
transmittal via the blood, and not of the spittle or sputum. On
this basis, the jury could rationally find the risk of
transmitting the virus through a human bite rendered appellant's
bite a "deadly" weapon, if not his spittle, beyond a reasonable
doubt.

In this connection, appellant and his amici allude to OCGA  16-5-
60 and 31-22-9.1, contending that since the legislature in  31-22-
9.1(a)(4) set forth what "bodily fluids" were to be involved
(blood, semen, and vaginal fluids) in HIV testing and, by
extrapolation, in reckless conduct of persons infected with the
HIV virus, only these can be recognized as "deadly" or
"dangerous." This argument is shortsighted.  The legislature is
required to enact statutes which are not unconstitutionally
vague, and this is as much as should be drawn from  31-22-9.1.
Science has not limited the media of AIDS to blood, semen, and
vaginal fluids, and certainly the expert in this case did not do
so; it seems highly unlikely the legislature would undertake to
make such a pronouncement.  Neither OCGA  16-5-60 nor  31-22-9.1
has anything to do with a jury's consideration of what is a
deadly weapon in determining whether there has been an aggravated
assault.

Although the jury was not required to find appellant's bite was a
deadly weapon to find the offense of assault with intent to
murder under OCGA  1-5-21(a)(1), we conclude no possible harm
came to appellant from the imposition on the State in the jury
charge of the extra burden of proving the bite was a deadly
weapon, and such a finding was supported by evidence beyond a
reasonable doubt. Jackson v. Virginia, supra.

We find the verdict of aggravated assault with intent to murder
to be well supported by the evidence in the case. Jackson v.
Virginia, supra.

[6, 7]  2.  Appellant contends the trial court erred in denying
him a continuance as to trial for aggravated assault, thereby
denying him effective assistance of counsel and procedural due
process.  We find no reversible error in the circumstances of
this case.  Appellant clearly did know, as shown by the filing of
his own motions in limine prior to being indicted for aggravated
assault, that the issues at trial might encompass the AIDS virus.
Appellant was granted a two-day continuance.  He has not
suggested any evidence or witness or any matter whatsoever which
he could have produced in defense if he had had more "time to
prepare."  Mere shortness of time does not by itself show a
denial of the rights of the accused, and mere shortness of time
will not reflect an abuse of the trial court's discretion in
denying a continuance, where the case is not convoluted and is
without a large number of intricate defenses.  Tucker v. State,
172 Ga.App. 86, 321 S.E.2d 817. This case involves serious
issues, but they are not intricate or convoluted, and appellant
has not suggested any manner in which he could have defended more
adroitly if he had had more time. In fact, the testimony of the
expert witness was as much in appellant's favor as not, and
appellant relied upon it heavily to prove his defense both below
and here, i.e., that his bite was not a deadly weapon.

Appellant contends he had no time to subpoena expert witnesses in
his behalf, but inasmuch as the issue in the case is not whether
his bite was a deadly weapon, but rests upon the question of his
intent, appellant could not have helped his case by producing a
dozen experts to say his bite was not a deadly weapon.  See OCGA
16621(a)(1); Thadd supra; Wright, supra. In any event, defense
counsel's examination of the expert witness was thorough, showing
no lack of familiarity with the subject.  If there is anything
exculpatory appellant could have done with more time, he has not
suggested it here or on motion for new trial, as is his duty.
Appellant has the burden on appeal to show not merely error, but
harm, and he has not done this. Osborne v. State, 193 Ga.App.
276, 387 S.E.2d 383; see Willis v. State, 193 Ga. App. 659, 388
S.E.2d 869.

[8]  3.  The trial court did not err in denying appellants'
motions for severance of trial of the offenses of affray and
obstruction, from the aggravated assault charges made against
Greg Scroggins. The record shows there were no antagonistic
defenses among the issues, and appellants have asserted none; the
number of defendants did not create confusion as to the evidence
and law applicable to each defendant; and no evidence prejudicial
to the misdemeanor defendants was admitted against Greg
Scroggins.  See Stephens v. State, 170 Ga.App. 267, 268, 316
S.E.2d 847, as to the standards and the trial court's discretion
for granting motions to sever trial.

We reject the assertion that the AIDS issue relevant to appellant
Greg Scroggins operated to the prejudice of the remaining
defendants.  There is no evidence or suggestion in the record
that any of the other defendants is infected with the AIDS virus,
and the jury was given enough information from the expert witness
to prevent any conclusion that their mere association with
appellant made them liable to have the virus.

[9]  4.  Appellants  contend  the  trial court erred
prejudicially in denying Greg Scroggins' motion in limine seeking
to prohibit the State from making any reference to issues of
homosexuality. Any relevance in the State's question whether Greg
Scroggins and Paul Murray had a sexual relationship would be
limited to a showing that a particular emotional relationship ex
isted such as exists among many other persons engaged in domestic
disputes, which might have affected the conduct of those
particular appellants in their commission of the offenses of
affray and obstruction of an officer. As to relevance of evidence
in questionable cases, see Baker v. State, 246 Ga. 317, 319, 271
S.E.2d 360. Even assuming error in the denial of the motion in
limine, no harm was done to any appellant, since the hospital
nurse denied Scroggins told her he was homosexual and since
Murray testified their relationship was platonic only.  As for
the suggestion that the raising of the issue of homosexuality
discriminates against homosexuals or against persons with the
AIDS virus or who associate with infected persons, the jury was
well advised by the expert, and we can take judicial notice, that
the disease itself is no respecter of persons and does not
discriminate, so any suggestion of sexual preference was harmless
as a matter of fact.  There was no evidence as to how Greg
Scroggins contracted the disease and, as to any of the offenses,
we fail to see what it matters. And, the evidence did not tend to
place any appellant's character in issue. Rollins v. State, 164
Ga.App. 452, 453, 297 S.E.2d 352.

5.  Appellants Greg Scroggins and Paul Murray moved for directed
verdicts of acquittal as to affray, on grounds the indictments
alleged a fight occurred at the convenience store whereas the
evidence shows there was no fight at the store. The trial court
did not err in denying these motions. As to the standard for
directing a verdict of acquittal in a criminal case, see OCGA  17-
91. The evidence did not demand a finding that Scroggins and
Murray did not engage in a fight with another person 'In and
about" the convenience store as to the indictment alleged.  There
was no fatal variance in the indictment and proof justifying
acquittals.  OCGA  17-91(a); see Henry v. State, 154 Ga.App. 120,
267 S.E.2d 653; Ingram v. State, 137  Ga.App. 412, 224 S.E.2d
527.

[10]  6.  Appellants contend the trial court erred in granting
the State's ex parte motion to subpoena the expert witness, Dr.
Rimland; erred in allowing evidence upon the release of
confidential AIDS information in violation of OCGA  24-97; and
erred in denying appellants' motion for new trial.

We find no error.  Prior to the State's efforts to subpoena the
expert witness and obtain information as to Scroggins' having the
HIV virus, or AIDS, the appellant on September 25 filed his own
motion in limine asserting that the State, in the affray and
obstruction counts then pending, would attempt to introduce
evidence or "otherwise leave the jury with the impression that he
has tested positive for the HIV virus and to make references to
his current medical condition," which he asserted was irrelevant
and would place his character in evidence.

OCGA  24-9-i0, which governs in this case (see OCGA  24-
947(s)(1)(B)), provides that the privilege of a patient in any
medical information "shall be waived to the extent that the
patient places his care and treatment or the nature and extent of
his injuries at- issue in any civil or criminal proceeding."
Appellant placed "at issue" the issue of AIDS in this case by his
conduct in committing an act which is inextricably linked to the
question of his having AIDS, or where his having the virus is the
gravamen of the prosecution. Accordingly, the statute as to
disclosure of confidential AIDS information ( 24-947) was not
available to appellant in this case as to any indicted charge, in
the first instance, since Scroggins no longer had any
confidential right in it.

Moreover, we must conclude on its face that OCGA  24-9-47 was
never intended to be a shield in a prosecution for criminal
conduct  involving  the  AIDS  disease. OCGA  24-9-47(t) does not
require notice to a defendant of the State's ex parte request for
disclosure of AIDS information In connection with a prosecution
for the alleged commission of reckless conduct under  subsection
(c)  of  Code  Section 16-5-60."  OCGA  24-9-47(t)(1)(A). This
provision proves an overriding policy to facilitate prosecution
of HIV infected persons for criminal conduct with potential for
endangering any member of society.  We think obviously the
legislature's failure in this directive to include prosecutions
for a crime of willful conduct, as in this case, by a person with
the AIDS disease of HIV virus, was an oversight.

7.  In view of our ruling in Division 6, infra, the denial of
Greg Scroggins' motion to seal the record concerning any confiden
tial AIDS information was not error.

[11]  8.  We find no error in the trial court's denial of
appellants Greg Scroggins' and Paul Murray's motions for
supersedeas bond.  Appellants were not denied the opportunity for
hearing on this issue. There was evidence of record to support
the trial court's findings pursuant to Birge v. State, 238 Ga.
88, 230 S.E.2d 895. The burden to present sufficient evidence
authorizing a stay of execution and release on bond is upon the
defendant, following conviction for a crime (Pressel v. State,
161 Ga.App. 488, 287 S.E.2d 780); and, the trial court's decision
is one of discretion, and we will not find abuse of it if there
is any evidence to support it.  Cooper v. State, 178 Ga.App. 709,
716717, 345 S.E.2d 606. There was evidence supporting the trial
court's denial of supersedeas bond as to both Greg Scroggins and
Paul Murray; therefore, we find no error.

Accordingly, we find no cause to reverse any of these convictions
upon any enumeration of error raised by any appellant.

Judgments affirmed.



BANKE, P.J., and COOPER, J., concur.

/* P.J. means either presiding or pusine (lower) justice not
pajamas as one reader recently asked. */