Probation set in Hennepin County HIV case

A Minneapolis man convicted of exposing a sexual partner to HIV may not spend any time in prison.

Daniel James Rick, 30, was ordered to serve five years on probation, a sentence that wasn't well received by either Hennepin County prosecutors, who asked that the "psychopathic" Rick be sentenced to four years in prison, or Rick's own attorney, who maintained his client's conviction for attempted first-degree assault was unconstitutional and vowed to appeal.

Hennepin County District Judge John Stanoch, who imposed a stayed four-year sentence Monday, also agreed to withhold a six-month term in the Hennepin County workhouse until the appeal is completed. Rick currently is on probation following a conviction for third-degree criminal sexual conduct for having sex with a 15-year-old in Sherburne County when he was 28.

Stanoch acknowledged that the first HIV transmission case to go to trial raises many questions for the Minnesota Court of Appeals, including how to interpret the 16-year-old state statute under which Rick was convicted last month. According to charges, Rick met the victim at the Saloon Bar in May 2009 following an online chat. The two eventually went to Rick's home, where they had sex without using condoms. According to prosecutors, Rick did not disclose that he had tested positive for the AIDS virus, but jurors believed Rick's contention that he did share that information with the man. Rick was convicted of attempted first-degree assault because there was no proof the victim contracted the virus from Rick, who has tested positive for the virus for five years.

Hennepin County Attorney Mike Freeman was unequivocal about his disapproval Monday. "Judges have hard jobs, we have hard jobs," he said. "Rarely do we express our disappointment. We are doing so today."

Freeman said the outcome will not affect prosecution of two similar cases, in which Rick is charged with three more counts of attempted first-degree assault and third-degree criminal sexual conduct. He was charged nearly two years ago with raping a drunken man after a night out in downtown Minneapolis, transferring the virus to him. The publicity from that case led two men to come forward the next month who accused Rick of not disclosing he had the virus when he had sex with the partners he met over a website. One of the men contracted the virus, while the other did not.

Rick's attorney, Landon Ascheman, said he plans to fight the constitutionality of the statute that resulted in Rick's conviction as an interference with his right to privacy.

A vague statute?

According to statute 609.2241, a person commits a crime when transferring a communicable disease through "sexual penetration with another person without having first informed the other person" of their positive status, or by the "transfer of blood, sperm, organs or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms." A jury found Rick not guilty under the first section of the statute because jurors believed he told his partner of his status, but convicted him on the second, an interpretation Ascheman claims is overly broad and is intended to apply to medical procedures rather than sexual intercourse.

Stanoch denied Ascheman's motion to throw out the jury's verdict and find Rick not guilty or grant him a new trial because the instructions given to the jury last month were based on an interpretation contrary to what the Legislature intended when it drafted the law.

Stanoch added that Rick broke the law because he did not take practical means to prevent transmission. Rick had received counseling, including advice on how to stay safe, after he had the AIDS virus diagnosed. In not taking preventive steps, Rick failed to use "common sense," the judge said.

Ascheman said that if Rick's partners' awareness about his status did not warrant throwing out the conviction, it at least justified a lesser sentence than the state-recommended 49 months. Assistant Hennepin County Attorney Darren Borg argued that Rick has "literally dozens" of victims, but said some are afraid to come forward.

Rick, who appeared in court but elected not to say anything to the judge, citing the pending appeal, was ordered to serve 120 hours of community service. He also was ordered to get "clear, explicit consent" from any potential sex partner once he tells them he is HIV-positive.

Rick, accompanied by his mother, left the courthouse without speaking to reporters.