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State v. Jones4/14/2000
va in the transmission of is unclear" (citation and internal quotation marks omitted)). But see State v. Bird, 692 N.E.2d 1013, 1016 (Ohio 1998) (affirming no contest plea of HIV-infected defendant who spat in police officer's face because plea made it unnecessary to decide whether HIV could be transmitted by saliva). To the contrary, the authorities all involve batteries with bodily waste from known carriers of communicable disease. See, e.g., Weeks v. State, 834 S.W.2d 559, 562-65 (Tx. Ct. App. 1992) (sustaining attempted murder conviction of HIV-infected inmate who spat into face of guard); Commonwealth v. Brown, 605 A.2d 429 430-31 (Pa. Super. Ct. 1992) (sustaining aggravated assault conviction against inmate with HIV and hepatitis who flung fecal material into guard's mouth). Neither case before us contains evidence that the accused carried any communicable disease. We will not assume as a matter of law that one has been battered by a harmful disease unless supported by the evidence, especially in the absence of clear legislative intent to make such unsubstantiated apprehension a felony.
CONCLUSION
We hold that a reasonable jury could find that spitting or throwing urine upon a peace officer comes within the purview of battery upon a peace officer. However, when there is evidence to support a defendant's position that his challenge to an officer's authority was not meaningful, nor actually threatened an officer's safety, and the defendant so requests, then the jury must be instructed, using those terms taken from the Supreme Court's opinion in Padilla. Therefore, we reinstate Jones' indictment and reverse Cordova's conviction, and we remand for a new trial for Cordova with a jury instruction that conforms with this opinion.
IT IS SO ORDERED.
RICHARD C. BOSSON, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
M. CHRISTINA ARMIJO, Judge
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