U.S. v. Dacus, 66 M.J. 235

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. if an accused sets up a matter inconsistent with his plea at any time during a proceeding on the plea, the military judge must either resolve the apparent inconsistency or reject the plea

Core Criminal Law Subjects: Crimes: Article 128 - Assault Pre-2019 offenses

1. the four elements of assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm under Article 128(b)(1), UCMJ, are: (1) that the accused attempted to do, offered to do, or did bodily harm to a certain person; (2) that the accused did so with a certain weapon, means, or force; (3) that the attempt, offer, or bodily harm was done with unlawful force or violence; and (4) that the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm
2. in the context of the aggravated assault offense, the MCM explains that when the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm, it may be inferred that the means or force is “likely” to produce that result; the concept of likelihood has two prongs: (1) the risk of harm and (2) the magnitude of the harm; in evaluating risk of the harm, the risk of death or grievous bodily harm must be more than merely a fanciful, speculative, or remote possibility; in evaluating the magnitude of the harm, the consequence of death or grievous bodily harm must be at least probable and not just possible; in other words, death or grievous bodily harm would be a natural and probable consequence of your acts; the likelihood of death or grievous bodily harm is determined by measuring both prongs, not just the statistical risk of harm; where the magnitude of the harm is great, there may be an aggravated assault, even though the risk of harm is statistically low
3. in HIV aggravated assault cases, the word, “likely,” is not construed as involving nice calculations of statistical probability; the question is not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body; the probability of infection need only be more than merely a fanciful, speculative, or remote possibility
4. statements made by appellant during the providence inquiry that he wore a condom with one woman and barely penetrated her and evidence he introduced at sentencing that due to his low viral load, the risk of his transmitting HIV was extremely low were not in substantial conflict with his pleas of guilty to two specifications of aggravated assault based on his having sexual intercourse with two women without informing them of his HIV-positive status; despite appellant’s claim that his statements and the sentencing evidence substantially conflicted with the risk and magnitude prongs of the likelihood element of aggravated assault, the record revealed no conflict; first, as to the magnitude of harm, both appellant’s statements and his sentencing evidence confirmed that if HIV were transmitted by sexual intercourse, death or grievous bodily harm was a natural and probable consequence; and second, although the risk of transmitting the virus was low on account of appellant’s low viral load and therefore arguably “remote,” the risk was certainly more than fanciful or speculative, as both appellant’s statements and the sentencing evidence confirmed that transmission of the virus during sexual intercourse was possible, even if a condom were worn; the likelihood of death or grievous bodily harm is determined by measuring both prongs, not just the statistical risk of harm; where the magnitude of the harm is great, there may be an aggravated assault, even though the risk of harm is statistically low; while the risk here may have been low, the magnitude of harm was significant; as such, there is no substantial conflict in the record with his pleas

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. in the context of the aggravated assault offense, the MCM explains that when the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm, it may be inferred that the means or force is “likely” to produce that result

Trial Stages: Merits: Guilty Pleas

1. if an accused sets up a matter inconsistent with his plea at any time during a proceeding on the plea, the military judge must either resolve the apparent inconsistency or reject the plea
2. statements made by appellant during the providence inquiry that he wore a condom with one woman and barely penetrated her and evidence he introduced at sentencing that due to his low viral load, the risk of his transmitting HIV was extremely low were not in substantial conflict with his pleas of guilty to two specifications of aggravated assault based on his having sexual intercourse with two women without informing them of his HIV-positive status; despite appellant’s claim that his statements and the sentencing evidence substantially conflicted with the risk and magnitude prongs of the likelihood element of aggravated assault, the record revealed no conflict; first, as to the magnitude of harm, both appellant’s statements and his sentencing evidence confirmed that if HIV were transmitted by sexual intercourse, death or grievous bodily harm was a natural and probable consequence; and second, although the risk of transmitting the virus was low on account of appellant’s low viral load and therefore arguably “remote,” the risk was certainly more than fanciful or speculative, as both appellant’s statements and the sentencing evidence confirmed that transmission of the virus during sexual intercourse was possible, even if a condom were worn; the likelihood of death or grievous bodily harm is determined by measuring both prongs, not just the statistical risk of harm; where the magnitude of the harm is great, there may be an aggravated assault, even though the risk of harm is statistically low; while the risk here may have been low, the magnitude of harm was significant; as such, there is no substantial conflict in the record with his pleas

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s decision to accept or reject a guilty plea for abuse of discretion
2. once a military judge has accepted a plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence of record; the mere possibility of such a conflict is not enough to overturn the plea on appeal