Two trials and several appeals later, Wallace L. Dixon remains convicted of murder in conjunction with the deaths of two young Emporians who lived at the Eastgate Plaza apartment complex here.
The Kansas Supreme Court affirmed Dixon’s conviction and overturned the conviction of Robert W. Richardson II, who had been charged with intentionally exposing two women to the HIV virus he carries.
The court handed down the decisions mid-morning on Friday.
The two women exposed to the virus testified at Richardson’s preliminary hearing.
The Court opinion noted that, other than stipulations of certain facts by the prosecution and the defense, the bench trial later consisted entirely of testimony from two medical doctors, Dr. Christopher Penn for the prosecution and Dr. Clifton Jones for the defense.
“The testimony of both doctors concentrated on whether HIV may be transmitted when a viral load level is low or undetectable and the effect of the virus on an infected individual’s lifestyle,” Kansas Supreme Court Judge Lee A. Johnson wrote in the court’s opinion on the case.
Richardson’s “viral load” test in February 2005 had revealed 11,700 parts per millileter, considered a “medium level of the virus.” A new medication was prescribed and Richard’s viral load test in November 2005, after the incidents of sexual intercourse, had dropped significantly.
“The result was a viral load level of less than the minimum which could be measured, i.e., less than 50 parts per milliliter,” Johnson wrote.
Richardson’s defense had said that the prosecution had failed to establish that HIV is always a life-threatening disease; that he had actually exposed the victims because of lack of evidence that bodily fluids were exchanged during intercourse; or that he had the specific intent to expose his sexual partners to HIV.
One of the victims read a statement at Richardson’s sentencing, saying that she had asked Richardson about sexually transmitted diseases and that he had said he had none, though he had been aware for years that he carried HIV.
Johnson wrote that in addition to the general intent requirement that almost always is in place, some crimes require an additional, specific intent. In this case, the law states it is unlawful for someone who knows he or she is infected with a life-threatening communicable disease to knowingly “engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease.”
The state Supreme Court found that the statute creates a “specific intent crime. The State was required to prove that Richardson, knowing he was infected with HIV, intentionally engaged in sexual intercourse ... with the specific intent to expose them to HIV.”
Johnson wrote that the state presented evidence at the preliminary hearing from the two women involved with Richardson to establish that Richardson had HIV when they had sex with him, that he did not use a condom, and that he had falsely represented to one of the women that he was free from sexually transmitted diseases.
“These are prime examples of proven circumstances that could support an inference that Richardson intended to expose (the women) to HIV,” Johnson wrote. “Inexplicably, the State chose not to present any of this information at trial, and those facts were not included in the parties’ stipulation.”
Johnson wrote that the evidence was insufficient to support the convictions, prompting the justices to reverse both cases.
The court affirmed the conviction of Wallace L. Dixon, who had been convicted twice on two counts of felony murder and other charges resulting from an explosion at an Eastgate Plaza apartment in Emporia. The explosion in July 2001 and the subsequent fire killed Dana Hudson, 19, and her 13-month-old son, Gabriel, who lived in a nearby apartment.
Dixon had been convicted in Lyon County District Court and, when he requested for a retrial was granted, was tried again and convicted by a jury in Saline County.
On the appeal of the second trial, the Supreme Court rejected Dixon’s challenges, which were:
— Refusal to grant a mistrial because a witness altered his opinion on the stand.
— Refusal to grant a mistrial because a juror saw Dixon in shackles.
— Refusal to give instructions on certain lesser included offenses.
— Refusal to give a unanimity instruction regarding the underlying crime for the burglary charges.
— Adequacy of instructions to the jurors.
— Admission of evidence that Dixon’s mother attempted to obstruct investigation of the explosion.
A decision on Dixon’s appeal has been expected since Oct. 17.
Dixon had been sentenced in June 2002, after the first conviction, to two life terms with no possibility of parole for 20 years on the murder charges. He also was found guilty of aggravated battery, burglary, felony criminal damage to property and misdemeanor theft.The first jury acquitted him of aggravated arson, aggravated assault and two counts of aggravated battery.
Dixon appealed the verdicts and was granted a new trial, as well as a change of venue.
Jurors in Salina, where the trial was held, then convicted Wallace of two counts of felony murder in February 2006.
The trial was prosecuted by Lyon County Attorney Marc Goodman, assisted by two attorneys from the Kansas Attorney General’s office.
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