## Facts

- Robert Richardson knew for more than a decade that he was infected with HIV.
- Richardson had sexual intercourse with two individuals, M.K. and E.Z.
- The State charged Richardson with two counts of exposing another to a life-threatening communicable disease.
- At the preliminary hearing, the State presented evidence that M.K. and E.Z. did not know Richardson had HIV, that Richardson told one partner he had no sexually transmitted diseases, and that Richardson did not use a condom.
- Richardson waived a jury trial, and the case proceeded to a bench trial.
- At trial, Richardson admitted he knew he had HIV and admitted having sex with M.K. and E.Z.
- Richardson argued that he did not intend to expose either partner to HIV and offered medical testimony about HIV transmission.
- The prosecution did not introduce at trial the evidence it had presented at the preliminary hearing concerning nondisclosure and the partners’ lack of knowledge.
- The trial court found Richardson guilty on both counts, and Richardson appealed.

## Issues

1. In a bench trial, may the trial court rely on evidence presented at a preliminary hearing but not introduced at trial to supply missing proof of an element of the charged offense?
2. If not, was the evidence admitted at trial sufficient to prove beyond a reasonable doubt that the partners lacked knowledge of Richardson’s HIV status (and thus did not give informed consent), as required for conviction?

## Decision

- The appellate court reversed Richardson’s convictions.
- The court held that a conviction must be based on evidence admitted at trial; the trial judge could not fill gaps in the State’s proof by relying on preliminary-hearing evidence that was not introduced at the bench trial.
- Without the preliminary-hearing proof, the State’s trial evidence did not establish all required elements—particularly that M.K. and E.Z. lacked knowledge of Richardson’s HIV status and therefore did not give informed consent.
- Because the evidence admitted at trial was insufficient, the convictions could not stand, and the case was returned to the trial court for entry of relief consistent with reversal for insufficient evidence.

## Legal Principles

- A criminal conviction—whether after a jury trial or a bench trial—must rest on evidence admitted at trial; prior-hearing evidence is not part of the trial record unless introduced (or otherwise made part of the evidentiary record by an accepted procedure).
- On appellate review for sufficiency of the evidence, the court considers only evidence properly admitted at trial, viewed in the light most favorable to the prosecution.
- The State must prove each element of the offense beyond a reasonable doubt, including any element requiring that the exposed person lacked knowledge of the defendant’s communicable disease status (i.e., no informed consent).
- When the State’s trial proof is legally insufficient, reversal is required and retrial is generally barred.

## Conclusion

State v. Richardson reversed two HIV-exposure convictions because the State did not present at the bench trial the evidence needed to prove nondisclosure and the partners’ lack of knowledge, and the trial court could not rely on preliminary-hearing evidence that was never introduced at trial to supply that missing element.


State v. Richardson, 209 P.3d 696 (2009)