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 adjudged 19 January 2011 by GCM convened at McConnell Air 

Force Base, Kansas. Military Judge: William C. Muldoon (sitting alone).

Approved Sentence: 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; Captain 

Luke D. Wilson; and Kevin Barry 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

Appellate 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; aggravated assault; and adultery, in violation of Articles 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 forfeiture of all pay and allowances, 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 his 
2 ACM 37913 (rem)

counsel’s refusal of “free expert assistance that would 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 terminal 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 

appellant 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. Gutierrez, 

No. 13-0522/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 an additional review and 

consideration of the above issue. Id.

In light of Ryder v. United States, 515 U.S. 177 (1995), and United States v. 

Carpenter, 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 and the sentence as approved.

Background

The appellant was diagnosed 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 medicine requirements outlined in 

Air Force Instruction 48-135, Human Immunodeficiency Virus Program, ¶ 3.5 

(12 May 2004) (incorporating Change 1, 7 August 2006). The order required the 

appellant to inform his sexual partners of his HIV status and use proper 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 occasions, 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 denied 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 

properly prepare to challenge the Government’s case because “they did not consult an 
3 ACM 37913 (rem)

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 ineffective 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 expert to assist the 

trial defense team, and the expert actively participated in pretrial interviews of the 

Government’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 

activity 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 expert 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 failed 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 Government’s expert testified that based on the appellant’s “viral loads,” the 

level 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 

exposures” to “somewhere between 10 and 20 [] per 10,000 encounters” at the “high-

 

1 U.S. CONST. amend. VI.
4 ACM 37913 (rem)

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 also testified that condoms effectively prevent transmission “97 to 98 percent of the 

time”; however, 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 

transmission 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 with 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.” Another victim, DC, described that she and the appellant discussed 

sexually transmitted diseases. She 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. She testified that she trusted he was honest with her 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 or 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 aggravated 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 infection need only be “more than merely a fanciful, 

speculative, 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 upheld 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, “‘Where the magnitude of the harm is great,
5 ACM 37913 (rem)

there may be an aggravated assault, 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 aggravated assault. We review issues of legal and factual 

sufficiency 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 factual 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) (quoting 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, an expense that does not include other necessary medical treatments. The 

required 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 magnitude 

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 questioned 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” percent chance of infection.
6 ACM 37913 (rem)

adultery charge, that holding was expressly limited to the application of the testimonial 

privilege: “[F]or the purposes of [Mil. R. Evid.] 504(c)(2)(A), adultery is a crime against 

the person 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 establish 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 Article 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)). See also

Rule for Courts-Martial 307(c)(3).

In the case 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. 

Humphries, 71 M.J. 209, 211 (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 specification under 

plain error requires close review of the record: “Mindful that in the plain error context 

the defective specification alone is insufficient to constitute substantial 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 the 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 extra-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 she 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.
7 ACM 37913 (rem)

At the conclusion of the Government’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 extramarital sexual conduct. The Government 

responded by expressly arguing the terminal elements in opposition to the defense 

motion.

Trial defense counsel capitalized on the presentation of this evidence negating the 

terminal element during his closing argument. Trial defense counsel expressly argued the 

lack of evidence on the terminal element. He argued the Government failed to present 

evidence beyond a reasonable doubt on the terminal element of conduct prejudicial to 

good order and discipline and service discrediting. After quoting from the Military 

Judges’ Benchbook4on the definition of conduct prejudicial to good order and discipline, 

he argued: “There 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 expressly 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 States 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 both 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 (2003), 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 interest 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.”). But 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).
8 ACM 37913 (rem)

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 HIVpositive. A person cannot consent 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 outside 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 conduct 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 adjoining 

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 the 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 appellant 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 Article 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 

not 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, and no error 

materially prejudicial to the substantial rights of the appellant occurred.5 Articles 59(a) 

 

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

completion 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 appellant’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, we 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 negative 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.
9 ACM 37913 (rem)

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