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

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

3

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

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

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

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

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

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

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

10

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

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

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

13

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

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

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

16

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

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

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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.