United States v. Gutierrez

UNITED STATES, Appellee

v.

David J. A. GUTIERREZ, Technical Sergeant
U.S. Air Force, Appellant

No. 13-0522

Crim. App. No. 37913

United States Court of Appeals for the Armed Forces

Argued December 9, 2014

Decided February 23, 2015

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.

Counsel

For Appellant: Kevin Barry McDermott, Esq. (argued); Captain
Michael A. Schrama (on brief).

For Appellee: Major Brian C. Mason, (argued); Lieutenant
Colonel Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).

Amicus Curiae for Appellant: Lieutenant Colonel Jonathan F.
Potter, Captain Aaron R. Inkenbrandt, and Captain Amanda R.
McNeil (on brief) – Army Defense Appellate Division.

Military Judge: William C. Muldoon Jr.

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gutierrez, No. 13-0522/AF

Chief Judge BAKER delivered the opinion of the Court.

Contrary to his pleas, a military judge sitting as a

general court-martial convicted Appellant of offenses including

aggravated assault, in violation of Article 128, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 928 (2012). He was

sentenced to confinement for eight years, a dishonorable

discharge, forfeiture of all pay and allowances, and reduction

to the lowest enlisted grade. The convening authority approved

the sentence as adjudged, and the United States Air Force Court

of Criminal Appeals (CCA) affirmed. United States v. Gutierrez,

(Gutierrez I), No. ACM 37913, 2013 CCA LEXIS 1014, at *14, 2013

WL 1319443, at *4, (A.F. Ct. Crim. App. Mar. 21, 2013) (per

curiam). This Court granted review based on the improper

appointment of a CCA judge, 1 and remanded the case. Gutierrez

(Gutierrez II), 73 M.J. 128 (C.A.A.F. 2013). The CCA again

affirmed. Gutierrez (Gutierrez III), No. ACM 37913 (rem), 2014

CCA LEXIS 110, at *19, 2014 WL 842651, at *4 (A.F. Ct. Crim.

App. Feb. 25, 2014) (per curiam). We then granted Appellant’s

petition to review his conviction for aggravated assault:

I. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO FIND
BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED
ASSAULT LIKELY TO RESULT IN GRIEVOUS BODILY HARM. 2

1
See United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014).
2
We also granted for review issues concerning Appellant’s
conviction for adultery, and the appellate delay that occurred
in this case:

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Appellant’s conviction for aggravated assault stems from

his failure to disclose that he had human immunodeficiency virus

(HIV) prior to engaging in otherwise consensual sexual activity

with multiple partners. Reviewing the evidence in a light most

favorable to the prosecution, the expert testimony presented in

this case reflects that at most, Appellant had a 1-in-500 chance

to transmit HIV to some of his partners. There is no evidence

in the record to indicate that Appellant actually transmitted

HIV.

Under Article 128, UCMJ, 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.” Article

128(b)(1), UCMJ. Applying a plain English definition of

“likely,” as well as this Court’s 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

II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND
BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED
ADULTERY.

III. WHETHER THE FACIALLY UNREASONABLE DELAY IN POST-TRIAL
PROCESSING DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT
TO SPEEDY REVIEW, PURSUANT TO UNITED STATES v. MORENO,
63 M.J. 129 (C.A.A.F. 2006).

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harm.” Id. As a result, we reverse Appellant’s conviction for

aggravated assault, and affirm the lesser included offense (LIO)

of assault consummated by battery.

BACKGROUND

Appellant and his wife participated in what trial testimony

described as the “swinger[s’]” lifestyle, wherein they engaged

in group sexual activities with other couples and individuals.

These couples and individuals were civilians whom Appellant

generally met over the Internet, and the sexual activity

occurred at off-base meetings and parties organized for that

purpose.

While stationed at Aviano Air Base, Italy in 2007,

Appellant tested positive for HIV. In 2009, Appellant was

ordered by his commanding officer to, among other things,

“verbally inform sexual partners that [he is] HIV positive” and

“use proper methods to prevent the transfer of body fluids

during sexual relations, including the use of condoms providing

an adequate barrier for HIV (e.g. latex).” Despite having

received this order, Appellant did not inform his sexual

partners of his HIV-positive status and, in some instances, did

not use a condom.

Two of Appellant’s sexual partners testified at trial that

they trusted his word that he did not have any sexually

transmitted diseases because he was a member of the military.

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When asked at trial whether they would have engaged in sexual

activity with Appellant had they known of his HIV-positive

status, Appellant’s sexual partners responded in the negative.

HD, one of Appellant’s sexual partners, testified that in

February 2010, her boyfriend found a document indicating that

Appellant had tested positive for HIV. HD knew that Appellant

and his wife planned to attend an upcoming swingers’ party, and

informed the party’s organizer of her discovery. The organizer

told HD that he would address the issue with Appellant as a

rumor, and would allow Appellant and his wife into the party

only if they could produce documentation proving that Appellant

did not have HIV. In HD’s recollection, Appellant and his wife

did not attend the party.

HD also informed RD -- HD’s ex-husband and a participant in

the swingers’ lifestyle -- of her discovery. RD testified that,

“for protection purposes,” he began to disseminate this

information among the swingers’ community, and confronted

Appellant. Appellant denied to RD that he was HIV positive.

Eventually, the staff judge advocate at McConnell Air Force

Base contacted the Air Force Office of Special Investigations

(AFOSI) to discuss Appellant’s conduct. AFOSI interviewed

Appellant’s wife, who provided information regarding his

participation in the swingers’ lifestyle and his HIV-positive

status. Based on this information, AFOSI “looked at [the case]

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as an aggravated assault.” AFOSI investigated the matter and

eventually apprehended Appellant.

Appellant was charged with aggravated assault. The charges

encompassed protected oral sex, unprotected oral sex, protected

vaginal sex, and unprotected vaginal sex. At trial, the

Government’s medical expert, Dr. Donna Sweet, testified that to

transmit HIV, “there has to be some seminal -- some fluid of

some type.” According to Dr. Sweet, the risk of Appellant

transmitting HIV during protected oral sex was “zero,” and the

risk of transmission during unprotected oral sex was “almost

zero as well.” As to the risk of HIV transmission during

protected vaginal sex, Dr. Sweet testified that, when used

properly, condoms protect against the transmission of bodily

fluids “97 to 98 percent of the time.” On the risk of HIV

transmission during unprotected vaginal sex, Dr. Sweet testified

that:

[I]t is difficult data to come up with. It’s difficult to
have a lot of evidence. But the quote is that it is
somewhere between 10 and 20 positives per 10,000
encounters. That’s sort of the high-end. There are other
people that would say 1 out of 10,000 to 1 out of 100,000
given encounters. . . . [I]f you [have sex] two or three
nights a week then you’ve got a lot of exposure even though
it’s a relatively low risk. . . . But somewhere between 1
and 10 per 10,000 exposures would become infected.

During closing argument, the defense argued that “when you

actually apply the elements of aggravated assault and the

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testimony of Dr. Sweet regarding the actual low risk of

transmission in these cases, you will see that he is not guilty

[of] aggravated assault[].” The military judge then acquitted

Appellant of aggravated assault insofar as the specifications

alleged protected oral sex. As a result, Appellant was

convicted of aggravated assault encompassing unprotected oral

sex, protected vaginal sex, and unprotected vaginal sex.

On appeal, the CCA looked to this Court’s 1993 decision in

United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), to conclude

that “the military judge sitting as the trier of fact could have

found all the essential elements beyond a reasonable doubt.”

Gutierrez III, 2014 CCA LEXIS 110, at *11, 2014 WL 842651, at

*3. The Government now argues that we should affirm the

conviction for aggravated assault under Joseph, because

according to that precedent, “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.” Joseph, 37 M.J. at 397 (citation and

internal quotation marks omitted). Appellant, joined by the

Army Defense Appellate Division acting as amicus curiae,

responds that we cannot affirm an aggravated assault conviction

given the low risk of HIV transmission detailed in the

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Government expert’s testimony, which is not “likely” to result

in grievous bodily harm under Article 128, UCMJ.

DISCUSSION

“[I]n 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.’”

United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Further, in

resolving questions of legal sufficiency, we are bound to draw

every reasonable inference from the evidence of record in favor

of the prosecution.” United States v. Barner, 56 M.J. 131, 134

(C.A.A.F. 2001) (citations omitted).

Article 128, UCMJ, defines aggravated assault:

(a) Any person subject to this chapter who attempts
or offers with unlawful force or violence to do
bodily harm to another person, whether or not the
attempt or offer is consummated, is guilty of assault
. . . .

(b) Any person subject to this chapter who ––

(1) commits an assault with a dangerous weapon
or other means or force likely to produce death
or grievous bodily harm . . . .

is guilty of aggravated assault and shall be punished
as a court-martial may direct.

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The question in this case is not whether HIV, if

contracted, is likely to inflict grievous bodily harm. Dr.

Sweet testified that, if HIV is left untreated, “the natural

history is death within the first 12 to 15 years.” She

testified that HIV can cut an individual’s life short even with

treatment, and that treatment requires taking antiretroviral

drugs “religiously” and maintaining a healthy lifestyle. The

infliction of such a disease meets any reasonable definition of

“likely” to inflict grievous bodily harm. Appellant has not

argued otherwise.

The critical question in this case, however, is whether

exposure to the risk of HIV transmission is “likely” to produce

death or grievous bodily harm. 3 Put another way, “[h]ow likely

is ‘likely?’” United States v. Johnson, 30 M.J. 53, 57 (C.M.A.

1990) (citation omitted). In the area of assault through

exposure to HIV, our Court “repeatedly has held that the risk of

harm need only be ‘more than merely a fanciful, speculative, or

remote possibility.’” United States v. Weatherspoon, 49 M.J.

209, 211 (C.A.A.F. 1998) (quoting United States v. Klauck, 47

M.J. 24, 25 (C.A.A.F. 1997); Joseph, 37 M.J. at 396–97; Johnson,

3
At the threshold, Appellant contends in his brief that he has
never been validly diagnosed with HIV, and submits post-trial
affidavits challenging his diagnosis. Appellant did not
challenge the fact of his HIV diagnosis at trial, and is not
entitled to relitigate an essential fact of the case before this
Court, which is limited to reviewing “matters of law.” Article
67(c), UCMJ, 10 U.S.C. § 867(c) (2012).

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United States v. Gutierrez, No. 13-0522/AF

30 M.J. at 57)). We do not believe that this statement is

consistent with the statutory language of Article 128, UCMJ, as

generally applied in the context of Article 128, UCMJ.

There are at least two problems with this Court’s prior

analysis in Joseph. First, the Joseph court focused exclusively

on the likelihood that death or grievous bodily harm would occur

in the event of transmission, without consideration of whether

the risk of transmission was itself likely. 37 M.J. at 396-97.

But this Court’s case law “does not state that because the

magnitude of the harm from AIDS is great, the risk of harm does

not matter.” United States v. Dacus, 66 M.J. 235, 240 (C.A.A.F.

2008) (Ryan, J., with whom Baker, J., joined, concurring). As

one commentator has noted, “Joseph ignores the fact that it is

not the weapon that must likely cause great harm, but rather the

manner in which it is used must be likely to cause the resulting

harm.” Ari E. Waldman, Exceptions: The Criminal Law’s

Illogical Approach to HIV-Related Aggravated Assaults, 18 Va. J.

Soc. Pol’y & L. 550, 591 (2011). We agree. See United States

v. Vigil, 3 C.M.A. 474, 476-77, 13 C.M.R. 30, 32-33 (1953) (“The

crucial question is whether [the weapon’s] use, under the

circumstances of the case, is likely to result in death or

grievous bodily harm.”).

Second, Joseph adopted a definition of “likely” that

appears to be sui generis to HIV cases and is not derived from

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the statute itself. “Likely” is not defined in Article 128,

UCMJ. But nowhere in the UCMJ, in the dictionary, or in case

law, is “likely” defined as “more than merely a fanciful,

speculative, or remote possibility” as it is in HIV cases.

See, e.g., United States v. Outhier, 42 M.J. 626, 635 (N-M. Ct.

Crim. App. 1995) (DeCicco, J., concurring in part and dissenting

in part) (“[T]he standard announced in Joseph and Johnson

defining a ‘means likely’ should not be extended to this [non-

HIV] case.”).

It must be correct that “[t]here is only one standard:

Whether the means used [in the assault] were ‘likely to produce

death or grievous bodily harm.’” Outhier, 45 M.J. 326, 328

(C.A.A.F. 1996). More fundamentally, criminal defendants

charged under a statute are entitled to equal application of

that statute, because the principle of “‘equality before the law

. . . gives to the humblest, the poorest, the most despised

[person] the same rights and the same protection before the law

as it gives to the most powerful, the most wealthy, or the most

haughty.’” Jones v. Helms, 452 U.S. 412, 424 n.23 (1981)

(quoting Cong. Globe, 39th Cong., 1st Sess. 2766 (1866)

(statement of Sen. Howard)).

Thus, “likely” must mean the same thing in an Article 128,

UCMJ, prosecution for an aggravated assault involving HIV

transmission as it does in any other prosecution under the

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United States v. Gutierrez, No. 13-0522/AF

statute. In determining whether grievous bodily harm is likely,

therefore, one conception is whether grievous bodily harm is the

“‘natural and probable consequence’” of an act. Weatherspoon,

49 M.J. at 211 (quoting Manual for Courts-Martial, United States

pt. IV, para. 54c(4)(a)(ii) (MCM)). The ultimate standard,

however, remains whether -- in plain English -- the charged

conduct was “likely” to bring about grievous bodily harm. As

related to this case, the question is: was grievous bodily harm

the likely consequence of Appellant’s sexual activity?

As to unprotected oral sex, the expert testimony in this

case is that the risk of HIV transmission was “almost zero.”

According to Dr. Sweet’s testimony, 4 that risk does “[n]ot

really” change in the case of ejaculation. There should be no

question that a risk of “almost zero” does not clear any

reasonable threshold of probability, including under the rubric

this Court has heretofore applied in HIV-exposure cases, which

required that the risk must be more than “fanciful, speculative,

or remote.” Joseph, 37 M.J. at 397 (citation and internal

quotation marks omitted). Appellant’s conviction for aggravated

assault, to wit, engaging in unprotected oral sex without

disclosing his HIV-positive status, is legally insufficient

4
We note that Dr. Sweet’s testimony is consistent with
information on HIV transmission risk published by the Centers
for Disease Control. See Centers for Disease Control and
Prevention, http://www.cdc.gov/hiv/policies/law/risk.html (last
updated July 1, 2014).

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because no rational trier of fact could conclude that his

conduct was likely to cause grievous bodily harm. Jackson, 443

U.S. at 319.

In the case of protected vaginal sex, we have previously

concluded that “[t]he fact that a male uses a condom during

sexual intercourse is not a defense to [aggravated] assault.”

Klauck, 47 M.J. at 25. That conclusion does not, however,

answer the question presented, which is whether Appellant’s

conduct was likely to inflict grievous bodily harm. 5 The expert

testimony in this case makes clear that condom use protects

against the transmission of bodily fluids in ninety-seven to

ninety-eight percent of cases, and that any HIV transmission

risk only obtains in the transmission of bodily fluids.

Further, Dr. Sweet, the Government’s expert witness, agreed with

trial defense counsel that the risk of HIV transmission in the

case of protected vaginal sex was only “remotely possible,”

meaning the conviction cannot be sustained even under Joseph.

Appellant’s conviction for aggravated assault by protected

vaginal sex is legally insufficient, and Klauck is expressly

overruled.

5
Arguing from Klauck, 47 M.J. at 26, the Government asserts that
we should disregard the efficacy of condom use because condoms
are not infallible, and condoms must be used properly to combat
sexually transmitted disease. Nothing in the record suggests
that the condoms Appellant used were defective or improperly
employed, and so no basis exists to question the utility of
condoms in this case.

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Turning to unprotected vaginal sex, Dr. Sweet’s testimony

put the maximal risk at 20 out of 10,000, which equates to 1 in

500. She described this figure as the “high-end” statistic, and

appears to have concluded in her own assessment that “between 1

and 10 per 10,000 exposures would become infected.” 6 In any

event, accepting the high-end statistic of 1-in-500 exposures

resulting in HIV transmission from unprotected vaginal

intercourse consistent with our obligation to construe the

evidence in the light most favorable to the prosecution under

Jackson, we conclude that HIV transmission is 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 under Jackson.

That Appellant’s conviction for aggravated assault is

legally insufficient does not mean that Appellant’s conduct is

beyond the reach of military criminal law. Unlike several other

jurisdictions that have created statutory crimes of HIV

nondisclosure, Congress has not criminalized HIV nondisclosure

6
This Court is cognizant that the experts in these cases are
dealing in magnitudes of probability, not mathematical
certainty. The legal question in all aggravated assault cases
remains whether the infliction of grievous bodily harm is
“likely” to come about.

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in the UCMJ. Thus, prosecutors have relied on generally

applicable punitive articles to litigate these cases. See Derek

J. Brostek, Prosecuting an HIV-Related Crime in a Military

Court-Martial: A Primer, Army Law., Sept. 2009, at 29 (“The

most common methods of charging HIV-related misconduct under the

UCMJ are aggravated assault under Article 128, violation of a

‘safe-sex’ order under Article 90 or 92, and conduct that is

prejudicial to good order and discipline and/or service

discrediting under Article 134.”) (footnotes omitted). There is

nothing improper regarding the government’s reliance on

generally applicable statutes to prosecute criminal conduct, but

in cases involving HIV exposure, the government will be held to

its burden of proving every element of the charged offense in

the same manner that is required in other cases invoking the

same statute. As Judge Wiss wrote in his separate opinion in

Joseph:

[W]hen the Government comes before a court of law and tries
to fit a round peg of conduct into a square hole of a
punitive statutory provision, it is not the proper function
of the court to reshape the hole so that it will accept the
peg and, in the process, distort the hole’s character.
Rather, it is the proper limit of the court’s function to
consider whether the hole -- politically determined --
already is large enough so that the peg fits within it.

37 M.J. at 402 (Wiss, J., concurring in the result).

Judge Wiss’s concern that the law should not adopt a sui

generis standard in cases involving HIV exposure should have

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governed in Joseph, and similar concerns guide our decision

today. On this record, the Government failed to prove that any

of Appellant’s acts were “likely” to transmit HIV, i.e., that

HIV transmission was “likely” in the sense of applying plain

English in the context of the facts and circumstances presented

in this case. Thus, Appellant’s conviction must be reversed as

to each specification of aggravated assault.

In the place of aggravated assault, the Government urged

this Court at oral argument to affirm offenses of attempted

aggravated assault. The Government has not proven the elements

of that offense. An attempt requires “specific intent to commit

[the] offense,” Article 80(a), UCMJ, 10 U.S.C. § 880(a) (2012).

Thus, 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. No evidence of specific

intent to inflict grievous bodily harm was presented in this

case.

The question remains whether the evidence is legally

sufficient to affirm a lesser included offense of assault. The

offense of assault consummated by battery requires that the

accused “did bodily harm.” MCM pt. IV, para. 54.b.(2). “‘Bodily

harm’ means any offensive touching of another, however slight.”

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MCM pt. IV, para. 54.c.(1)(a). Here, Appellant’s conduct

included an offensive touching to which his sexual partners did

not provide meaningful informed consent. See R. v. Cuerrier,

[1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV

status there cannot be a true consent.”). He is therefore

guilty of assault consummated by battery, and we affirm that

offense as a lesser included offense of aggravated assault. See

United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011)

(“Article 79, UCMJ, [10 U.S.C. § 879 (2012)] provides the

statutory authority . . . for an appellate court to affirm . . .

an LIO.”).

CONCLUSION

We expressly overrule United States v. Joseph, 37 M.J. 392

(C.M.A. 1993), and hold that Appellant’s conviction for

aggravated assault is legally insufficient. 7 The decision of the

7
The conviction for adultery is legally sufficient, and
affirmed. 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. MCM pt. IV, para. 62.b. 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. For these same reasons,
Appellant’s conduct falls outside of the constitutional liberty
interest recognized in Lawrence v. Texas, 539 U.S. 558 (2003),
and applied to the military justice system through United States
v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). The participation of
Appellant’s wife in the offense is immaterial to the question

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United States Air Force Court of Criminal Appeals is reversed as

to the allegations of aggravated assault set forth in Charge III

and its specifications. Accordingly, Charge III and its

specifications are affirmed only as to the lesser included

offense of assault consummated by battery. The lower court’s

decision as to the remaining charges and specifications is

affirmed, but its decision as to the sentence is reversed. The

record of trial is returned to the Judge Advocate General of the

Air Force for remand to the lower court for its determination to

either reassess the sentence or to set aside the sentence and

order a rehearing. On remand, the CCA shall also consider

whether Appellant’s due process rights were violated by the

facially unreasonable appellate delay that occurred in this

case. See United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

presented, which is whether the Government presented legally
sufficient evidence at trial to sustain the conviction.

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