U.S. v. Gutierrez, 74 M.J. 61

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

1. under Article 128, an assault includes an offensive touching; an aggravated assault includes the element that the assault was committed with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; applying a plain English definition of likely, as well appellant court precedent regarding aggravated assault outside the context of HIV, testimony that the means used to commit the assault had a 1–in-500 chance of producing death or grievous bodily harm is not legally sufficient to meet the element of likely to produce death or grievous bodily harm; as a result, appellant’s conviction for aggravated assault is reversed and the lesser included offense of assault consummated by battery is affirmed
2. in the area of assault through exposure to HIV, the CAAF has repeatedly has held that the risk of harm need only be more than merely a fanciful, speculative, or remote possibility; this statement is not consistent with the statutory language of Article 128 as generally applied in the context of Article 128, overruling United States v. Weatherspoon, 49 MJ 209, 211 (CAAF 1998), United States v. Klauck, 47 MJ 24, 25 (CAAF 1997); United States v. Joseph, 37 MJ 392, 396–97 (CMA 1993); and United States v. Johnson, 30 MJ 53, 57 (CMA 1990)
3. likely must mean the same thing in an Article 128 prosecution for an aggravated assault involving HIV transmission as it does in any other prosecution under the statute; in determining whether grievous bodily harm is likely, the ultimate standard remains whether, in plain English, the charged conduct was likely to bring about grievous bodily harm; the question is: was grievous bodily harm the likely consequence of appellant’s sexual activity?
4. as to unprotected oral sex, the expert testimony in this case was that the risk of HIV transmission was almost zero; a risk of almost zero does not clear any reasonable threshold of probability; appellant’s conviction for aggravated assault, to wit, engaging in unprotected oral sex without disclosing his HIV-positive status, was legally insufficient because no rational trier of fact could conclude that his conduct was likely to cause grievous bodily harm
5. (in the case of protected vaginal sex, the risk of HIV transmission was only remotely possible, meaning that appellant’s conviction for aggravated assault by protected vaginal sex was legally insufficient, and expressly overruling United States v. Klauk, 47 MJ 24, 25 (CAAF 1997)
6. as to unprotected vaginal sex, the maximal risk of HIV transmission was 1 in 500; accepting that statistic and consistent with the obligation to construe the evidence in the light most favorable to the prosecution, HIV transmission was not the likely consequence of unprotected vaginal sex; this is so because, in law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence; as a result, appellant’s conviction for aggravated assault by engaging in unprotected vaginal sex is legally insufficient
7. an attempted aggravated assault charge may lie when an accused knew he was infected with HIV and, using a syringe of his blood or intentionally using his body as a weapon, specifically intended to inflict grievous bodily harm as demonstrated by the evidence at trial; in this case, no evidence of specific intent to inflict grievous bodily harm was presented
8. the offense of assault consummated by battery requires that the accused did bodily harm; bodily harm means any offensive touching of another, however slight; in this case, without appellant’s disclosure of his HIV status to his sexual partners, appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent; therefore, he is guilty of assault consummated by battery, as a lesser included offense of aggravated assault

Core Criminal Law Subjects: Crimes: Article 134 - Adultery Pre-2019 offenses

1. adultery requires that the accused (1) wrongfully had sexual intercourse with a certain person; (2) that, at the time, the accused or the other person was married to someone else; and (3) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces; in this case, appellant’s conduct was wrongful because he violated his commanding officer’s order to obtain informed consent and use protection prior to engaging in sexual activity; as such, his conduct fell outside of the constitutional liberty interest recognized in Lawrence v. Texas, 539 US 558 (2003), and applied to the military justice system through United States v. Marcum, 60 MJ 198 (CAAF. 2004); the conviction for adultery is legally sufficient

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

1. in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; further, in resolving questions of legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution