       UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                              CAMPANELLA, HERRING, PENLAND
                                  Appellate Military Judges

                                 UNITED STATES, Appellee
                                              v.
                                 Specialist ADRIAN E. SOSA
                                United States Army, Appellant

                                         ARMY 20140869

                            Headquarters, 7th Infantry Division
                            Samuel A Schubert, Military Judge
                      Colonel Robert F. Resnick, Staff Judge Advocate

For Appellant: Captain Joshua G. Grubaugh, JA (argued); Colonel Mary J. Bradley,
JA; Lieutenant Colonel Jonathan F. Potter, JA; Captain [sic] Christopher D.
Coleman, JA; Captain J. David Hammond, JA (on brief); Major Christopher D.
Coleman, JA; Captain Joshua G. Grubaugh, JA (on reply brief).

For Appellee: Captain Tara O’Brien Goble, JA (argued); Colonel Mark H.
Sydenham, JA; Lieutenant Colonel A. G. Courie III, JA; Captain Tara E. O’Brien,
JA (on brief); Major Michael E. Korte, JA.


                                         28 October 2016

                                    ----------------------------------
                                     MEMORANDUM OPINION
                                    ----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of two specifications of willful disobedience of a
superior commissioned officer and one specification of aggravated assault, in
violation of Articles 90 and 128, Uniform Code of Military Justice, 10 U.S.C. §§
890, 928 (2012) [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a bad-conduct discharge, confinement for twelve months,
forfeiture of all pay and allowances, and reduction to the grade of E-1.

       We review this case under Article 66(c), UCMJ. 1 Appellant assigns three
errors that merit discussion and relief. For reasons discussed below, we hold: the

1
    We heard oral argument in this case on 21 September 2016.
SOSA—ARMY 20140869

evidence was legally and factually insufficient with respect to the aggravated assault
conviction; under the facts of this case, the military judge erred in denying the
defense motion to exclude evidence regarding the victim’s Human
Immunodeficiency Virus (HIV) diagnosis; and, the military judge erred in
instructing the panel regarding the risk of harm in the context of a “means likely”
aggravated assault.

       We have considered the matters personally raised by appellant under United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). They lack merit.

                                  BACKGROUND

       On 8 August 2012, preventive medicine officials at Joint Base Lewis-
McChord notified appellant’s company commander that appellant had tested positive
for HIV. That same day, the commander took appellant to the preventive medicine
office, where appellant was personally informed of this diagnosis. The commander
also personally counseled appellant that day, ordering him to inform any future sex
partners of his HIV status before engaging in sexual intercourse and to use condoms
when engaging in sexual intercourse with future partners.

       Specialist (SPC) SS, the victim in this case, testified he engaged in sexual
intercourse with appellant approximately five times, beginning in mid-September
2012 and ending in early October 2012. Specialist SS testified he asked appellant if
he was “clean,” and appellant indicated he was. According to SPC SS, appellant did
not disclose his HIV status until several months after they had become sexually
involved. Specialist SS testified the intercourse consisted of appellant placing his
penis in and ejaculating in SPC SS’s anus. On three occasions, the intercourse
occurred in appellant’s barracks room. Appellant used a condom on these three
occasions. On one of these occasions, however, the condom broke. On two other
occasions, intercourse occurred in appellant’s shower and a condom was not used on
either occasion.

        Before trial, defense counsel moved the military judge to exclude evidence
that SPC SS tested positive for HIV eight months after his last sexual encounter with
appellant. Citing Military Rule of Evidence [hereinafter Mil. R. Evid.] 402, the
military judge summarily denied the defense motion; he also ruled under Mil. R.
Evid. 412 that, if government counsel presented evidence of SPC SS’s HIV-positive
status, 2 defense counsel could present evidence regarding his sexual activity with
another partner, MB, in order to show appellant was not the source of SPC SS’s
virus.


2
 The military judge described SPC SS’s HIV-positive status as “marginally
relevant.”
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SOSA—ARMY 20140869

      Specialist SS testified he tested negative for HIV in September 2012 as part of
predeployment processing, but he began experiencing fatigue and nausea after
deploying to Afghanistan in November 2012. During redeployment processing in
June 2013, he tested positive for HIV. Specialist SS testified he confronted
appellant afterward, and appellant said he had hoped SPC SS did not contract HIV
from him; he also testified appellant later apologized for transmitting HIV to him.
On cross-examination, SPC SS testified he also had a sexual relationship with MB,
his domestic partner, which ended in February 2013.

       Special Agent (SA) NB testified as a government witness. In May 2014,
appellant told SA NB he engaged in sexual intercourse with SPC SS in June and July
2012. He described appellant as “evasive,” however, when pressed with focused
questioning about whether he and SPC SS engaged in intercourse after appellant’s
August 2012 HIV-positive result. Appellant ultimately said yes. When asked if his
relationship with SPC SS continued until shortly before his deployment into
September and October 2012, appellant nodded his head. On cross-examination, SA
NB acknowledged interviewing SPC SS and learning therefrom that MB may have
been the source of his HIV infection.

       Doctor SP testified as a government expert in the field of “laboratory HIV
diagnosis.” Before so recognizing her, the military judge asked about her
qualifications, and Dr. SP responded, inter alia, “I am not a physician. I classify
specimens.” She described in detail the procedures used to confirm the presence of
the virus in appellant’s blood sample, the results of which the defense did not
dispute. However, over defense objection that such testimony was beyond the scope
of her expertise, Dr. SP was allowed to describe possible ways HIV might be
transmitted, including sexual intercourse. When asked whether anal intercourse,
including ejaculation, “could . . . lead to a transmission event,” she responded, “[i]f
there were virus in the semen and a breach in the actual integrity of the membrane,
yes.”

       Following brief cross-examination, the military judge asked whether “viral
loads have anything to do with the strength of an ability for transmission?” Dr. SP
said, inter alia:

             And what we know is that the higher the viral loads, there
             is more likely--there is the potential, I would say, the
             potential for a transmission event. Some individuals, and
             this is not my area of expertise, would give you a one in X
             number chance. And I would not do that. I would just say
             that those with viremia have a higher propensity or
             potential to transmit.


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SOSA—ARMY 20140869

      Trial counsel followed up on this line of questioning by asking Dr. SP to
describe appellant’s viral load. She testified it was “15,988 copies.” 3 Asked
whether that was high or low, Dr. SP said:

               I consider high viral loads--most people consider--well,
               laboratorians, let me say, laboratorians consider a high
               viral load where we are going to raise our hand at 10,000
               copies. It is now by [World Health Organization]
               considered 1000 copies. That will initiate a change in
               therapy.

       Asked by government counsel whether appellant’s viral load could affect his
“ability to transmit the virus,” Dr. SP said appellant “certainly could transmit the
virus at that level.”

      A panel member then asked whether a person with HIV could have
unprotected sex without transmitting the virus, and Dr. SP responded:

               Yes, sir. The epidemiological literature actually would
               give a 1 in, I believe the current is 256 colloidal events. I
               mean, yes you can--but it would also be dependent on a
               multiplicity of factors of which we have no knowledge.
               Was a there a breech in the skin? What was the viral
               load? Et cetera. But it is certainly possible. We have
               discordant couple research which actually confirms that.
               One partner is infected, the other partner is uninfected.
               And we know from research on those couples that it is
               possible without protection although they are encouraged
               to use barrier protection, that on an interval number of
               times that you could have sexual intercourse and not have
               a transmission event. So it is, certainly it is possible.

     Before submitting the case to the panel for deliberation, the military judge
instructed them on the elements of the charged offenses. Regarding aggravated
assault, the military judge said, inter alia:

               The likelihood of death or grievous bodily harm is
               determined by measuring two factors. Those factors are;
               one, the risk of the harm and two, the magnitude of the
               harm. In evaluating the risk of the harm, the risk of death



3
    The witness did not explain, nor do we understand, what she meant by “copies.”
                                            4
SOSA—ARMY 20140869

          or grievous bodily harm must be more than merely a
          fanciful, speculative, or remote possibility.

          [...]

          Where the magnitude of the harm is great, you may find
          that an aggravated assault exists even though the risk of
          harm is statistically low. For example, if someone fires a
          rifle bullet into a crowd and a bystander in the crowd is
          shot, then to constitute an aggravated assault, the risk of
          harm of hitting that person need only be more than merely
          a fanciful, speculative, or remote possibility since the
          magnitude of harm which the bullet is likely to inflict on
          that person is great if it hits the person.

    During closing argument, government counsel said:

          [H]ope is not a prophylactic, it is not a means of
          preventing the spread of a public health threat. In this
          case, a public health threat so serious that it warrants its
          own regulation as to what procedures should be followed
          when a soldier’s determined to have that illness. These
          procedures, this regulation, all these things are designed to
          prevent precisely the situation with which this court is
          faced today. The uncontrolled transfer of the HIV virus to
          an unknowing Soldier before that Soldier deploys to a
          hostile fire zone.

          [. . .]

          Now, there’s been a lot of testimony about [SPC SS] being
          HIV positive, but I want you to note that it is not required
          for the government to prove that transmission ever
          occurred in order for a crime to be completed in this case,
          because we’re talking about is this unlawful exposure
          without informing your partner. And, in fact, [Dr. SP]
          testified that you can [have] many such exposure events
          without a transmission occurring. However, on the
          flipside, in a case like today where you have direct
          evidence of a transmission, members, that’s pretty darn
          good evidence that an exposure did, in fact, take place.

          [. . .]

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SOSA—ARMY 20140869

             And I also want to touch on means or force likely to
             produce grievous bodily harm. Now, because we come in
             and we sit down in a panel box does not mean that we
             have to check our common sense at the door. We all have
             certain knowledge about the world an about how things
             work in the world. And I ask you to apply that knowledge
             in addition to applying the testimony that you heard today.
             If you hear testimony that someone is shot, you don’t need
             someone else to come up and tell you that that’s going to
             cause grievous bodily harm. We have the common
             knowledge required to come to that conclusion. This is no
             different just because instead of a bullet we have a virus.

       After the panel found appellant guilty of all charges and specifications, the
parties presented their pre-sentencing cases. The government called NS, SPC SS’s
husband, who described HIV’s effects on SPC SS. Specialist SS was then recalled
and also described the virus’s effects. Government counsel focused on SPC SS’s
HIV-positive status during sentencing argument, saying inter alia:

             Specialist Sosa gave a potentially fatal disease to [SPC
             SS].

             [. . .]

             In this case HIV is spread. You’ve heard the
             consequences of HIV today. And as you know, [SPC SS]
             is HIV positive.

             [. . .]

             Although that was not the purpose of this court-martial,
             there is extremely strong circumstantial evidence, that
             Specialist Sosa gave [SPC SS] the virus through his
             reckless actions.

             [. . .]

             He knew of the dangers of spreading HIV and he knew he
             could have easily transferred it, the disease, through his
             sexual intercourse, but he did it anyway.

             [. . .]


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SOSA—ARMY 20140869

             The United States and the United States Army lost two
             Soldiers as a result of [appellant’s] actions, [SPC SS] and
             Specialist Sosa.

             [. . .]

             Now, most importantly you need to think about [SPC SS],
             the victim of his aggravated assault. Now, the government
             concedes that this is 2014 and not 1994, not 1984, there is
             treatment for HIV, but the treatment has consequences,
             and we’ve heard about those consequences today. We
             heard from the consequences that [SPC SS] experience[s]
             just right now; diarrhea, pain, terror, fear. There is
             treatment, but there is no cure, there is no cure right now,
             there’s a lifetime of medication with side effects, doctors
             check ins for three to four months for the rest of his life,
             the social stigma, the expenses, and I’m going to go back
             to it again, the fear, the uncertainty, the unknown, to
             having to check every single day and be aware every
             single day. It’s that fear that [SPC SS] will transfer the
             disease to his husband or another innocent bystander, or
             that it’ll take his life.

             Now, beyond that fear, you’ve heard today that [SPC SS]
             wants to have a biological child, there’s a 50 percent
             chance that child’s going to get HIV as w[e]ll. Specialist
             Sosa took that away from him. He had no right to take
             that away from him. It’s a burden that Specialist Sosa
             had, and it’s now a burden that [SPC SS] involuntarily has
             to bear from now on, all because Specialist Sosa chose not
             to disclose his status.

                                   DISCUSSION

                          A. Legal and Factual Sufficiency

       In accordance with Article 66(c), UCMJ, 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 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. Turner, 25 M.J.
324, 324 (C.M.A. 1987) (internal citations omitted); see also United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of legal

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SOSA—ARMY 20140869

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). The test for factual sufficiency is “whether, after weighing the
evidence in the record of trial and making allowances for not having personally
observed the witnesses, [we] are [ourselves] convinced of the accused’s guilt beyond
a reasonable doubt.” Turner, 25 M.J. at 325.

       Our superior court’s decision in United States v. Gutierrez, 74 M.J. 61
(C.A.A.F. 2015) controls the result here. In Gutierrez, our superior court assessed
as legally insufficient a “means likely” aggravated assault conviction in which an
HIV-positive servicemember engaged in sexual activity with persons unaware of his
medical condition. The evidence in that case established at most—during acts of
unprotected sexual intercourse—a 1-in-500 chance that Gutierrez would transmit the
virus. Id. at 63. Our superior court concluded that a 1-in-500 transmission risk was
insufficient to establish the appellant engaged in conduct likely to inflict grievous
bodily harm or death. Id.

       Dr. SP’s testimony constitutes the only evidence before us regarding the
scientific analysis regarding risk of harm. We find Dr. SP’s testimony describing a
1-in-256 chance of HIV transmission to be fundamentally unreliable and outside the
scope of her expertise as a laboratorian. Moments earlier she testified “this is not
my area of expertise,” regarding HIV transmission risk. We hold the military judge
erred by allowing this testimony.

       Even if we assume Dr. SP was qualified to render such expert testimony, no
rational factfinder could conclude therefrom that appellant’s conduct constituted a
“means likely” to inflict grievous bodily harm or death. Id. at 66.

                       B. Evidence of SPC SS’s HIV infection

       We review a military judge’s decision regarding admissibility of evidence for
an abuse of discretion. United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F.
2015). However, we accord less deference to a trial judge’s decision when he does
not articulate his reasoning for it. United States v. Manns, 54 M.J. 164, 166
(C.A.A.F. 2000).

       The government posits that appellant’s aggravated assault conviction is
legally and factually sufficient, because the fact that appellant transmitted HIV to




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SOSA—ARMY 20140869

SPC SS can be considered in determining the risk of harm. We decline to adopt such
circular reasoning and disagree with the underlying premise. 4

        We know SPC SS acquired HIV. However, assuming this fact was relevant,
we agree with the military judge that its probative value was, at most, marginal.
Against this slight probative value, we find substantial risks to appellant’s right to a
fair trial, where the government did not prove he caused SPC SS’s HIV infection.

        Indeed, defense counsel’s concern about this information came to fruition, for
a virtual mini-trial developed, featuring multiple proposed inquiries from the panel
focused on whether appellant actually transmitted the virus to SPC SS. Lest we
doubt that this case veered from its legally relevant course, we consider the
following passage from government counsel’s closing argument as conclusive proof
that it did so:

               These procedures, this regulation, all these things are
               designed to prevent precisely the situation with which this
               court is faced today. The uncontrolled transfer of the HIV
               virus to an unknowing Soldier before that Soldier deploys
               to a hostile fire zone. 5

(Emphasis added.).

      Balancing the interests under Mil. R. Evid. 403, we conclude the military
judge abused his discretion in denying the defense motion to exclude evidence of
SPC SS’s HIV infection, for any probative value therein was substantially
outweighed by the danger of unfair prejudice and confusion of the issues.

                                  C. Instructional Error

      The instructions regarding aggravated assault were incorrect, because the
panel was informed “the risk of death or grievous bodily harm must be more than
merely a fanciful, speculative, or remote possibility.” Our superior court has held


4
  The government’s appellate brief argues the court-martial established beyond a
reasonable doubt that appellant was the source of SPC SS’s HIV infection.
Considering the absence of forensic evidence regarding any relation between
appellant’s and SPC SS’s viral infections, we reject this view. Contrast State v.
Schmidt, 99-1412 (La. App. 3 Cir. 7/26/2000), 771 So.2d 131, cert. denied, sub nom
Louisiana v. Schmidt, 535 U.S. 905 (2002).
5
    Trial counsel later argued the case included “direct evidence of a transmission.”

                                             9
SOSA—ARMY 20140869

such a definition of risk is erroneous. Gutierrez, 74 M.J. at 66. In another case
where the pre-Gutierrez instruction was given and the appellant challenged the
sufficiency of the evidence, this court twice upheld the finding of guilty to
aggravated assault, the second time using the new standard post-Gutierrez. United
States v. Pinkela, ARMY 20120649, 2015 CCA LEXIS 254, at *5 (Army Ct. Crim.
App. 11 Jun. 2015) (summ. disp.). The facts in Pinkela were more egregious than
both Gutierrez and this case. The accused, who had a significant viral load, had
unprotected anal intercourse with the victim after causing rectal bleeding by
inserting a metal shower enema into the victim’s anus against his will. Id. at 4.
Despite this court’s application of the new standard post-Gutierrez, our superior
court returned the case to this court a third time after issuing an order affirming only
the lesser-included offense of assault consummated by battery. United States v.
Pinkela, ARMY 20120649, 2016 CCA LEXIS 8, at *2 (Army Ct. Crim. App. 7 Jan.
2016) (summ. disp.).

       The question of whether appellant’s misconduct was “likely” to grievously
injure SPC SS was a matter of significant dispute. The instructional error amounted
to a denial of due process, because it incorrectly described an element of aggravated
assault in a manner that reduced the government’s burden of proof. United States v.
Tauala, 75 M.J. 752, 756 (Army Ct. Crim. App. 2016). Therefore, we must assess
whether this constitutional error was harmless beyond a reasonable doubt. Id. We
conclude the error resulted in prejudice, for we cannot be confident under the facts
and circumstances that the error did not contribute to the panel’s finding appellant
guilty of Specification 1 of Charge I.

                                   CONCLUSION

      We AFFIRM only so much of the finding of guilty of Specification 1 of
Charge I as finds:

             [appellant] did, at or near Joint Base Lewis-McChord,
             Washington on divers occasions between on or about 5
             September 2012 and 30 October 2012, commit an assault
             upon Private First Class SS by engaging in unprotected
             sexual acts and sexual contact with the said Private First
             Class SS, while knowingly infected with HIV.

      The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and

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SOSA—ARMY 20140869

United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We AFFIRM only so much of
the sentence as provides for a bad-conduct discharge.

       All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the findings and sentence set aside by our decision, are
ordered restored. See UCMJ arts. 58b(c), and 75(a).

      Senior Judge CAMPANELLA and Judge HERRING concur.

                                       FOR THE COURT:
                                       FOR THE COURT:



                                       JOHN P. TAITT
                                       JOHN P.
                                       Acting   TAITT
                                              Clerk of Court
                                       Acting Clerk of Court




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