UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.
Technical Sergeant DAVID J. A. GUTIERREZ

United States Air Force

ACM 37913 (rem)

25 February 2014

Sentence a djudged 19 January 2011 by G CM convened at McConnell Air Force Base, Kansa s . Military Judge: William C. Muldoon (sitting alone).

Approved S entence: Dishonorable discharge, confinement for 8 years, forfeiture of all pay and allowances, and reduction to E

- 1

. Appellate Counsel for the Appellant: Major Daniel E. Schoeni; Capta in Luke D. Wilson; and Kevin Ba rry McDermott, Esquire

. Appellate Counsel for the United States: Colonel Don M. Christensen ; Lieutenant Colonel Linell A. Letendre ; Major Brian C. Mason; and Gerald R. Bruce, Esquire

.

Before

ORR , HARNEY, and MITCHELL App ellate Military Judges

UPON REMAND

This opinion is subject to editorial correction before final release

.

PER CURIAM :
A general court

- martial composed of a military judge sitting alone convicted the appellant

, contrary to his pleas

, of failing to obey a lawful order ; committing indecent acts; ag gravated assault ; and adultery, in violation of Article s 92, 120, 128, and 134, UCMJ, 10 U

. S

. C

. §§ 892, 920, 928

, 934. The court sentenced him to a dishonorable discharge, confinement for 8 years, total forfeitu re of all pay and allowance s, and reduction to E

- 1. The convening authority approved the adjudged sentence. The appellant assigns as error that he received ineffective assistance of counsel based on hisACM 37913 (rem) 2 counsel ’ s refusal of “ free expert assistance that w ould have provided a valid defense ” to the aggravated assault charge. He also argues the evidence is insufficient to support the findings of guilty of aggravated assault and adultery; the adultery specifications fail to state an offense by omitting the te rminal element ; and his conviction of indecent acts violates his constitutional rights.

On 21 March 2013 , we affirmed the findings and sentence in this case

. United States v. Gutierrez , ACM 37913 (A.F. Ct. Crim. App. 21 March 2013 ) (unpub. op

. ). The
app ellant filed a petition for review with the Court of Appeals for the Armed Forces. On 4 December 2013, that Court granted the appellant ’ s petition for review on the issue of whether this Court’s original panel was properly constituted

. United States v. G utierrez
, No. 13

- 0 522 /AF (Daily Journal 4 December 2013 ). In the same order, our superior court set aside our decision and remanded the case to this Court for a n additional review and

con sideration of the above issue. Id.

I n light of Ryder v. United Sta tes , 515 U.S. 177 (1995), and United States v. Carpen ter , 37 M.J. 291 (C.M.A. 1993), vacated , 515 U.S. 1138 (1995), we have reconsidered our earlier decision with a properly constituted panel. Consistent with our earlier decision, we affirm the findings a nd the sentence as approved.

Background

The appellant was diag nosed as testing positive for the Human Immunodeficiency Virus (HIV) in 2007. Upon reassignment to McConnell Air Force Base, Kansas, his commander gave him an order to follow the preventive m edicine requirements outlined in Air F orce Instruction 48

- 135, Human Immunodeficiency Virus Program

, ¶ 3.5 (12 May 2004) (incorporating Change 1, 7 August 2006) . The order requir ed the appellant to inform his sexual partners of his HIV status and us e pro per methods to prevent transfer of body fluids during sexual contact. He and his spouse continued to engage in group sexual activities with other consenting adults. He did not inform these other sexual partners of his HIV

- positive status and, on some occ asions, did not use proper methods to prevent the transfer of body fluids during sexual contact. None of the appellant ’ s sexual partners had tested positive for HIV at the time of trial.

Ineffective Assistance of Counsel

The appellant argues he was deni ed effective assistance of counsel by his trial defense counsel ’ s refusal to accept an offer of free expert assistance from the Office of Medical and Scientific Justice, an organization described by the appellant as providing free assistance to defendants facing HIV

- related charges. In support of his argument the appellant claims

, “ Without the benefit of an expert ’ s review of the evidence, trial defense counsel were flying blind. ” The appellant argues his trial defense counsel failed to
pro perly prepare t o challenge the G overnment ’ s case because “ they did not consult anACM 37913 (rem) 3 HIV expert as they should have. ” Affidavits by both trial defense counsel

, submitted in response to the ineffective assistance claim

, state that the defense team did, in fact, consult with an HIV expert appointed and paid for by the convening authority.

We review claims of ineffective assistance of counsel de novo. United States v. Sales , 56 M.J. 255, 258 (C.A.A.F. 2002) (citing United States v. Wiley

, 47 M.J. 158, 159 (C.A.A.F. 1997)). Service members have a fundamental right to the effective assistance of counsel at trial by courts

- martial. United States v. Davis

, 60 M.J. 469, 473 (C.A.A.F. 2005) (citing United States v. Knight , 53 M.J. 340, 342 (C.A.A.F. 2000)). Claims of ineffect ive assistance of counsel are reviewed by applying the two

- prong test set forth by the Supreme Court in Strickland v. Washington

, 466 U.S. 668, 687 (1984). Under Strickland , an appellant must demonstrate: (1) a deficiency in counsel ’ s performance that is “ so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment, ” 1 and (2) that the deficient performance prejudiced the defense through errors “ so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. ” Id

. The appellant bears the heavy burden of establishing that his trial defense counsel was ineffective. See United States v. Garcia , 59 M.J. 447, 450 (C.A.A.F. 2004). The law presumes counsel to be competent, and we will not second

- guess a trial defense counsel ’ s strategic or tactical decisions. Garcia

, 59 M.J. at 450.

The record clearly rebuts the appellant ’ s claim that his trial attorneys proceeded without expert assistance. The convening authority appointed an HIV exper t to assist the trial defense team, and the expert actively participated in pretrial interviews of the G overnment ’ s expert who, as a result of challenges by the defense expert, modified her opinions concerning the likelihood of transmission during various forms of sexual activ ity in favor of the appellant

. A voucher shows payment to the named defense consultant for over 16 hours of consultation and records review. The specific error claimed by the appellant that his trial attorneys proceeded without exper t assistance is simply incorrect. Rather, the appellant ’ s argument is essentially a request to try the case again with a different expert. Having considered the record of trial and the post

- trial submissions of counsel, we find that the appellant has fai led to meet his burden of showing that his counsel were in any way deficient under the standards of Strickland

.

Sufficiency of the Evidence to Prove Aggravated Assault

The G overnment ’s expert testified that based on the appellant ’ s “ viral loads ,” the le vel of HIV virus in his blood, he was capable of transmitting the virus during the charged time period. The expert testified that the likelihood of transmission during unprotected vaginal intercourse was “ somewhere between 1 and 10 per 10,000

e xposures ” t o “ somewhere between 10 and 20 [] per 10,000 encounters ” at the “ high

-

1 U.S. C ONST . amend. VI.ACM 37913 (rem) 4 end .” On cross

- examination, she agreed that the risk of transmission during unprotected vaginal intercourse was very small, “ roughly 1 in 10,000 to 1 in 100,000 per sexual act. ” She al so testified that condoms effectively prevent transmission “ 97 to 98 percent of the time ” ; h owever, there is “ always a risk ” whenever a male with HIV has sexual intercourse with a female. The appellant argues that this relatively low probability of
transm ission of the disease renders the evidence insufficient to support the findings of guilty of assault by a means likely to produce death or grievous bodily harm.

The sexual partners of the appellant perceived the risk to be of sufficient concern that they would not have engaged in sexual intercourse with him had the appellant been truthful when asked about sexually transmitted diseases. The appellant had unprotected vaginal sexual intercourse with VW on four occasions and engaged in unprotected oral sex wi th her on one occasion . Prior to the first time they engaged in sexual intercourse, VW was concerned about sexually transmitted diseases and she “ asked him up front if he was clean

, ” which he claimed he was

. When asked if she would have engaged in sexual contact with him if he had been truthful in telling her that he knew he had tested positive for the HIV virus, she answered

, “ No, because I watched a brother die from AIDS. No, I wouldn ’ t have. ” A nother victim, DC

, described that she and the appellant d iscussed sexually transmitted diseases . S he told him that she has “ a brother with AIDS and that [she] wanted to be safe because [she] know [s] what it does

, ” but he did not tell her he was HIV positive. S he testified that she trusted he was honest with he r because he was in the military . DC also would not have engaged in sexual activity with him if he had told her he had tested positive for HIV. The appellant also did not tell PT that he was HIV positive before they engaged in vaginal sexual intercourse. When asked if she would have had sex with him if she knew he was HIV

- positive, PT replied

, “ [A] bsolutely not. ”

For conviction of the charged aggravated assaults

, the evidence must show the means used to commit the assault was “ likely ” to produce death o r grievous bodily harm. Manual for Courts

- Martial

, United States

, Part IV, ¶ 54

. b

. (4)(a) (2008 ed. )

. In United States v. Joseph , 37 M

. J

. 392, 397 (C

. M

. A

. 1993), the predecessor to our superior court interpreted the word “ likely ” in the context of an aggr avated assault prosecution based on HIV infection as “ 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 infec tion need only be “ more than merely a fanciful,
spec ulative, or remote possibility. ” Id . at 397 (citation and internal quotation marks omitted)

. The Court reaffirmed this view in United States v. Dacus , 66 M

. J

. 235 (C

. A

. A

. F

. 2008), where the majority uphe ld a guilty plea conviction to aggravated assault based on HIV infection despite expert testimony in sentencing that transmission of the virus was “ very unlikely. ” The Court noted, “ ‘ W here the magnitude of the harm is great,ACM 37913 (rem) 5 there may be an aggravated ass ault, even though the risk of harm is statistically low. ’ ” Id

. at 240 (quoting United States v. Weatherspoon , 49 M

. J . 209, 211 (C

. A

. A

. F

. 1998) ). 2

With this background

, we turn to whether the evidence is sufficient to support the findings of guilty of ag gravated assault. We review issues of legal and factual

s ufficiency de novo. United States v. Washington

, 57 M.J. 394, 399 (C.A.A.F. 2002).

“ The test for legal sufficiency of the evidence is ‘ whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt. ’ ” United States v. Humpherys

, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner
, 25 M.J. 324 (C.M.A. 1987)

. “ The test for fa ctual sufficiency is whether, after weighing the evidence

. . . and making allowances for not having personally observed the witnesses, [ we are ] convinced of the [ appellant ] ’ s guilt beyond a reasonable doubt. ” United States v. Reed , 54 M.J. 37, 41 (C.A.A. F. 2000) (quo ting Turner , 25 M.J. at 325 ) (internal quotation marks omitted)

. Although the expert testified the likelihood of transmission was low, she testified the disease has no cure and without medical intervention an infected person will die of AIDS. The medical intervention is significant requiring “ a lifelong commitment to taking the pills every day ” with an average expense of $1,700 to $1,800 each month for the medication , a n expense that does not include other necessary medical treatments. The

r equired medicines are not without their own risk as they have “ side effects and toxicities. ” Thus, while the likelihood of transmission is low, the likelihood of death or serious bodily harm resulting from infection is quite high. Given the extreme magni tude of potential harm and applying the standards of Joseph and Weatherspoon , the military judge sitting as the trier of fact could have found all the essential elements beyond a reasonable doubt. 3 Applying these same standards to the evidence and making allowances for not having observed the witnesses, we also are convinced of the appellant ’ s guilt beyond a reasonable doubt.

Consent as a Defense to Adultery

The appellant next argues that the evidence is legally and factually insufficient to support the finding of guilty of adultery because the appellant ’ s wife consented to and participated in the adulterous conduct. Relying on United States v. Taylor

, 64 M

. J . 416 (C

. A

. A

. F

. 2007), he argues that the crime of adultery requires a victim spouse and that a spouse who consents is not a victim. While Taylor involved an

2 In a concurring opinion, our superior court has question ed the continued application of United States v. Joseph

, 37 M

. J

. 392 (C

. M

. A

. 1993), and similar cases

, under the current state of scientific evidence regarding HIV and AIDS. United States v. Dacus , 66 M

. J

. 235 , 240 n.1 (C

. A

. A

. F

. 2008) (Ryan, J., concurring) . The majority opinion nevertheless approved of the military judge ’ s use of the United States v. Weatherspoon

, 49 M

. J . 209 (C

. A

. A

. F

. 1998)

, standard in discussing the elements of aggravated assault based on HIV infection. Dacus
, 66 M.J. at 238

- 39

. 3 The military judge found the appellant not guilty of aggravated assault based on protected oral sex which, as the expert testified, carried a “ zero ” perce nt chance of infection.ACM 37913 (rem) 6 adultery charge, th at holding was expressly limited to the application of the testimonial privilege: “ [F] or the purpose s of [Mil. R. Evid.] 504(c)(2)(A), adultery is a crime against the pers on of the other spouse. ” Id . at 420. The majority acknowledges the dissenting view that adultery is not a crime against the person or property of the spouse

, but strictly construes the testimonial privilege to permit testimony by the spouse as a victim. Id

. Taylor did not establi sh that consent is a defense to an adultery charge. Evaluating the legal and factual sufficiency of the evidence under Humpherys and Reed discussed above, we find the evidence sufficient to support the conviction of adultery.

Failure to State an Offense

Although not challenged at trial, the appellant argues on appeal that the adultery specification fails to state an offense because it does not expressly or by necessary implication allege the terminal element required for an Ar ticle 134 , UCMJ, offense. Whether a charge and specification state an offense is a question of law that we review de

novo. United States v. Crafter , 64 M.J. 209, 211 (C.A.A.F. 2006). “ A specification states an offense if it alleges, either expressly or by [necessary] implication, every element of the offense, so as to give the accused notice and protection against double jeopardy. ” Id . (citing United States v. Dear , 40 M.J. 196, 197 (C.M.A. 1994))

. S ee also Rule for Courts

- Martial 307(c)(3).

In the ca se of a litigated Article 134 , UCMJ, specification that does not allege the terminal element

, and was not challenged at trial, the failure to allege the terminal element is plain and obvious error which is forfeited rather than waived. United States v. Hu mphries , 71 M

. J

. 209, 21 1 (C

. A

. A

. F . 2012). The remedy, if any, depends on “ whether the defective specification resulted in material prejudice to [the appellant’s] substantial right to notice. ” Id. at 215. The prejudice analysis of a defective specificat ion under plain error requires close review of the record: “ Mindful that in the plain error context the defective specification alone is insufficient to constitute substantia l prejudice to a material right we look to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted. ” Id . at 215

- 16 (citations and internal quotation marks omitted)

.

Here
, trial defense counsel specifically offered evidence to rebut t he terminal element that his actions brought discredit to the armed forces

. During cross

- examination of VW, trial defense counsel asked her if she knew the appellant ’ s wife, if she knew he was married, if she thought less of him because he engaged in extr a

- marital sexual activity, and if the actions of the appellant made her “ reflect negatively on him or the United States Air Force. ” Trial defense counsel also cross

- examined DS on this issue. Based on trial defense counsel ’ s questions, DS admitted that s he knew he was married and in the military when she had sexual intercourse with him. Trial defense counsel also asked if she thought less of the Air Force because of him.ACM 37913 (rem) 7 At the conclusion of the G overnment ’ s case , trial defense counsel moved to dismiss several specifications under the Article 134 , UCMJ, adultery charge

, based on the
spouse ’ s consent to the appellant ’ s extramarit al sexual conduct. The G overnment responded by expressly arguing the terminal element s in opp osition to the defense motion.

T r ial defense counsel capitalized on the presentation of this evidence negating the terminal element during his closing argument. T rial defense counsel expressly argued the lack of evidence on the terminal element. He argued the Government failed to presen t evidence beyond a reasonable doubt on the terminal element of conduct prejudicial to good order and discipline and service discrediting. After quoting from the M ilitary J udges ’ B enchbook 4 on the definition of conduct prejudicial to goo d order and discip line, he argued : “ T here has been absolutely no evidence presented in this courtroom over the last day and a half of any effect

-- any measurable obvious divisive effect on anybody in the military or any unit in the military. ” Trial defense counsel expressl y argued that the prosecution failed to prove the adultery was “ service discrediting ” by arguing that he had elicited testimony from the witnesses that they did not think any less of him or the Air Force based on the appellant ’ s lifestyle.

In United Stat es v. Tunstall , 72 M.J. 191, 197 (C.A.A.F

. 2013), our superior court upheld an adultery charge that was lacking the terminal element “ where evidence in the trial record indicate [d] that the defense introduced evidence for the specific purpose of negating b oth theories of the terminal element of Article 134, UCMJ, and further argued that the government had not proven either terminal element during its closing argument. ” We find Tunstall to be directly applicable to this case. Thus we similarly conclude the appellant “ has not met his burden to demonstrate material prejudice to a substantial right, as he did defend himself, despite the Government ’ s error. ” Id.

Constitutionality of the Indecent Acts Conviction

Relying on Lawrence v. Texas , 539 U

. S

. 558 (200 3), the appellant argues that his conviction of indecent acts by engaging in sexual intercourse and sodomy in the presence of others violates his constitutionally protected liberty interests. In Lawrence , the Court held that individuals have a liberty int erest that protects consensual “ private sexual conduct. ” Id

. at 578

. See also Planned Parenthood v. Casey , 505 U.S. 833, 847 (1992) ( “ It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. ” ). Bu t this liberty interest is subject to certain delineated exceptions

, which include “ persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. ” Lawrence , 539 U.S. at 578

.

4 Department of the Army Pamphlet 27

- 9, Military Judges ’ Benchbook , ¶ 3

- 62

- 1, Note 2 (1 January 2010).ACM 37913 (rem) 8 Here, the appellant ’ s sexual acts with others during the charged time period also constituted an aggravated assault on victims who testified that they would not have consented to engage in sexual acts with the appellant had they known he was HIV

positive. A person cannot conse nt to an act that is likely to result in death or grievous bodily harm. United States v. Bygrave , 46 M

. J

. 491 , 493 (C

. A

. A

. F

. 1997) (quoting United States v. Outhier , 45 M.J. 326, 330 (C.A.A.F. 1997 ) ) . Therefore

, the appellant ’ s conduct clearly falls outs ide the ambit of constitutional protection provided by Lawrence

. See United States v. Marcum , 60 M

. J

. 198 (C

. A

. A

. F

. 2004) (applying Lawrence in the military context includes application of factors identified by the Supreme Court which remove sexual conduc t from constitutional protection)

.

Furthermore , the appellant ’ s sexual activity was not private. The appellant engaged in sexual intercourse and oral sex with DC while his wife was in the adjo ining room with the door open. His wife knew that he and DC were engaging in sexual activity. Twice, the appellant had sexual intercourse with DS while her husband and the appellant ’ s wife were in the same room. HD witnessed sexual intercourse between the appellant and two other adults , VW and CL

. RD witnessed t he appellant have sexual intercourse with VW in “ [m]ultiple places. Mostly hotel rooms, in his own home, at different various parties, in hot tubs. ” BW saw the appellan t have sexual intercourse in a hot tub with CL. PT engaged in sexual intercourse with the appellant while her husband and the appellant ’ s wife were in the same hotel room. “ The commission of sexual acts in the presence of a third party has been held to be sufficiently ‘ open and notorious ’ to constitute an indecent act, punishable under Art icle 134 , UCMJ. ” United States v. Goings , 72 M.J. 202, 206 (C.A.A.F. 2013)

. It is disingenuous for the appellant to now claim that his activity with his sexual partners is constitutionally protected as consensual private activity, when the activity was

n ot private and when his partners would not have consensually engaged in sexual activity with him but for his fraudulent misrepresentations to them regarding his health status.

Conclusion

The approved findings and sentence are correct in law and fact

, an d no error materially prejudicial to the substantial rights of the appellant occurred. 5 Article s 59(a)

5 We note the overall delay of over 18 months between the time the case was docketed with this Court and

co mpletion of our first review is facially unreasonable. Because the delay is facially unreasonable, we examine the four factors set forth in Barker v. Wingo , 407 U.S. 514, 530 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) the app ellant ’ s assertion of the right to timely review and appeal; and (4) prejudice. United States v. Moreno , 63 M.J. 129, 135

- 36 (C.A.A.F. 2006). When we assume error, but are able to directly conclude that any error was harmless beyond a reasonable doubt, w e do not need to engage in a separate analysis of each factor. See United States v. Allison , 63 M.J. 365, 370 (C.A.A.F. 2006). This approach is appropriate in the appellant ’ s case. The post

- trial record contains no evidence that the delay has had any n egative impact on the appellant. Having considered the totality of the circumstances and the entire record, we conclude that any denial of the appellant ’ s right to speedy post

- trial review and appeal was harmless beyond a reasonable doubt.ACM 37913 (rem) 9 and 66(c), UCMJ , 10 U.S.C. §§ 859(a), 866(c) ; Reed

, 54 M. J. at 41 . Accordingly, the approved findings and sentence are

AFFIRMED

.

FOR THE COURT

STEVEN LUCAS Clerk of the Court