                       UNITED STATES, Appellee

                                    v.

                  Brandon M. DACUS, Staff Sergeant
                        U.S. Army, Appellant

                              No. 07-0612

                       Crim. App. No. 20050404

       United States Court of Appeals for the Armed Forces

                        Argued January 9, 2008

                          Decided May 6, 2008

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and STUCKY, J., joined. RYAN, J., filed a
separate concurring opinion, in which BAKER, J., joined.


                                 Counsel

For Appellant: Captain Patrick B. Grant (argued); Lieutenant
Colonel Steven C. Henricks and Major Teresa L. Raymond (on
brief); Major Fansu Ku.

For Appellee: Captain W. Todd Kuchenthal (argued); Colonel John
W. Miller II (on brief).

Military Judge:   Mark L. Toole


       This opinion is subject to revision before final publication.
United States v. Dacus, No. 07-0612/AR

        Judge ERDMANN delivered the opinion of the court.

        After testing positive for the Human Immunodeficiency Virus

(HIV), Staff Sergeant Brandon M. Dacus engaged in sexual

intercourse with female partners other than his wife without

informing them of his medical condition.    He was charged with

two specifications of attempted murder.    Dacus entered pleas of

not guilty to attempted murder but guilty to the lesser included

offense of aggravated assault.    He also entered pleas of guilty

to two specifications of adultery and was convicted consistent

with his pleas.    The United States Army Court of Criminal

Appeals affirmed in a summary disposition.    United States v.

Dacus, No. ARMY 20050404 (A. Ct. Crim. App. Apr. 19, 2007)

(unpublished).

        If an accused sets up a matter inconsistent with his plea

at any time during a proceeding on the plea, the military judge

must either resolve the apparent inconsistency or reject the

plea.    See United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F.

2007); Rule for Courts-Martial (R.C.M.) 910(h)(2).    We granted

review to consider whether Dacus made statements during the

providence inquiry or introduced evidence at sentencing that are

in substantial conflict with his pleas of guilty to the

aggravated assault specifications.     65 M.J. 335 (C.A.A.F. 2007).

We hold that there was no substantial conflict and affirm.




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United States v. Dacus, No. 07-0612/AR

                                 BACKGROUND

        Dacus is HIV-positive.    He was counseled by medical

personnel and ordered by his commander to inform his sexual

partners about his HIV status and to wear a condom during sexual

intercourse.     Dacus engaged in sexual intercourse with a female

partner, HG, on one occasion, during which he wore a condom.          He

also had sexual intercourse with a different female partner, CH,

approximately eleven times while not wearing a condom.        Dacus

did not inform either of the women that he was HIV-positive.

                 Stipulation of Fact and Providence Inquiry

        At Dacus’s trial, a stipulation of fact was entered into

evidence after Dacus testified that the information contained in

the stipulation was true and correct.         The stipulation of fact

specifically addressed how Dacus’s conduct met each of the

elements of aggravated assault with a means likely to cause

death or grievous bodily harm.       The stipulation provided, in

part:

        a.   The accused did bodily harm to [HG] by having sexual
             intercourse with her while the accused was in an HIV-
             positive status. This act of sexual intercourse while
             HIV-positive without informing [HG] constitutes an
             offensive touching with another.

        b.   The sexual intercourse was done by unlawful force.
             That is, the accused had the sexual intercourse without
             legal justification or excuse, and without the lawful
             consent of [HG] because the accused had not informed
             [HG] of his HIV-positive status.

        c. The natural and probable result of exposing [HG] to the
           HIV virus is death or grievous bodily harm. HIV is the


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United States v. Dacus, No. 07-0612/AR

           virus that causes AIDS, a deadly disease. By having
           sexual intercourse with [HG], the accused put her at
           risk of contracting the HIV virus. The probability of
           passing the infection was more than a mere fanciful,
           speculative, or remote possibility.

     The stipulation of fact went on to acknowledge that even

though HG consented to sexual intercourse, she would not have

consented if she had known that Dacus was HIV-positive.    The

stipulation of fact provided the same reasons to explain why

Dacus’s conduct constituted the elements of assault against CH.

     During the providence inquiry, the military judge reviewed

the elements and definitions of assault with a means likely to

produce death or grievous bodily harm with Dacus.    Dacus also

described the offenses in his own words.   He stated, in part, as

follows:

     HIV and AIDS is a bad thing. I know it. I am not
     here to dispute it and sit here and mislead you or
     anybody that is here right now. Actually I have been
     part of this since 1996; I know what I have done and I
     am willing to accept what I’ve done. HIV is bad
     because it can cause bodily harm at one point in time
     of your life. It can cause death and it could in fact
     –- it will change your whole life. And, like I said,
     I knowingly and willingly –- I did that, and I am
     willing to face what is about to happen.

     The military judge then questioned Dacus on a number of

matters.    When he asked Dacus whether he had sexual intercourse

with HG,    Dacus answered, “To a certain degree.”   He stated that

it was only a slight penetration, that his penis did not get

erect, and that he was wearing a condom.   The military judge

explained that under the law, sexual intercourse means any


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United States v. Dacus, No. 07-0612/AR

penetration, however slight, of the female sex organ by the

penis and that ejaculation was not required.   Dacus then

admitted to having sexual intercourse with HG “[a]ccording to

the letter of the law.”   Dacus also admitted to having sexual

intercourse with CH about eleven times and not wearing a condom.

       As to both women, Dacus’s testimony at trial was generally

consistent with the statements in the stipulation of fact.      The

military judge elicited from Dacus his understanding and

agreement that the women possibly could have contracted HIV

through sexual intercourse with him even if he did not ejaculate

and even if he wore a condom.   The military judge accepted his

guilty pleas and convicted him of two specifications of assault

with a means likely to produce death or grievous bodily harm.

       Testimony of Captain Mark Wallace, M.D., on Sentencing

       During the sentencing phase, the defense called Captain

Mark Wallace, M.D. (Dr. Wallace), an expert in the field of

Acquired Immune Deficiency Syndrome (AIDS) and infectious

medicine.   Dr. Wallace had personally examined Dacus on one

occasion and had reviewed his chart.   He testified that even

without treatment, Dacus was one of those rare individuals whose

immune system was able to shut down viral replication on its

own.   This resulted in Dacus having an extremely low “viral




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United States v. Dacus, No. 07-0612/AR

load.”1    Dr. Wallace testified that Dacus would probably live his

normal life span without getting ill from HIV.

        Dr. Wallace explained that the possibility of transmitting

HIV from one person to another is a function of the viral load

of the infected individual.    He testified that it was

“[u]nquestionably” possible that Dacus could transmit the virus

but the likelihood was “[e]xtremely low” due to his low viral

load.     Dr. Wallace also testified that using a condom would

reduce the risk of transmitting the virus even further.2    He went

on to discuss instances where individuals with undetectable

viral loads had sexually transmitted HIV to other individuals.

He also noted that there were a small number of cases where

pregnant women whose viral loads were kept below the level of

detection during pregnancy delivered HIV-infected children.      Dr.

Wallace’s conclusion was that “there is no question, he could

have transmitted HIV [through sexual intercourse], but that it

would be very, very unlikely.”

        On cross-examination, Dr. Wallace was asked whether an

individual infected by a person with a low viral load would also


1
  Dr. Wallace explained that “viral load” is a measure of how
much HIV virus is in the blood. He testified that while Dacus
was infected with HIV, his viral load was so low that it was not
detectable with existing technology.
2
  Dr. Wallace testified that while this was a controversial
political and medical issue, he thought the best study suggested
that using a condom would reduce the risk of transmission by
eighty to ninety-five percent.


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United States v. Dacus, No. 07-0612/AR

have a low viral load or whether that person’s disease could

progress in a totally different way.     Dr. Wallace responded that

the newly infected individual’s disease could progress in a

totally different way.    Dr. Wallace summarized by stating that

“anything could happen.   They could progress slowly, or very,

very rapidly.”

                              ANALYSIS

     We review a military judge’s decision to accept or reject a

guilty plea for abuse of discretion.     United States v. Harrow,

65 M.J. 190, 205 (C.A.A.F. 2007).     “‘Once the military judge has

accepted a plea as provident and has entered findings based on

it, an appellate court will not reverse that finding and reject

the plea unless it finds a substantial conflict between the plea

and the accused’s statements or other evidence of record.’”

Shaw, 64 M.J. at 462 (quoting United States v. Garcia, 44 M.J.

496, 498 (C.A.A.F. 1996)).   The “mere possibility” of such a

conflict is not enough to overturn the plea on appeal.    Id.

      Dacus entered pleas of guilty to two specifications of

“assault with a dangerous weapon or other means or force likely

to produce death or grievous bodily harm” under Article

128(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

928(b)(1) (2000).   The Manual for Courts-Martial lists four

elements for this offense:

     (i) That the accused attempted to do, offered to do,
     or did bodily harm to a certain person;


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United States v. Dacus, No. 07-0612/AR


     (ii) That the accused did so with a certain weapon,
     means, or force;

     (iii) That the attempt, offer, or bodily harm was
     done with unlawful force or violence; and

     (iv) That the weapon, means, or force was used in a
     manner likely to produce death or grievous bodily
     harm.

Manual for Courts-Martial, United States pt. IV, para.

54.b.(4)(a) (2005 ed.) (MCM).

     Dacus’s challenge focuses on the fourth element.    He argues

that certain portions of his testimony and the testimony of Dr.

Wallace substantially conflict with the fourth element’s

requirement that the means was used in a manner likely to

produce death or grievous bodily harm.   The MCM provides an

explanation of the word “likely” in the context of the

aggravated assault offense:   “When the natural and probable

consequence of a particular use of any means or force would be

death or grievous bodily harm, it may be inferred that the means

or force is ‘likely’ to produce that result.”   MCM pt. IV, para.

54.c.(4)(ii).

     We further discussed the fourth element in United States v.

Weatherspoon:

     The standard for determining whether an
     instrumentality is a “means likely to produce death or
     grievous bodily harm” is the same in all aggravated
     assault cases under Article 128(b)(1). The concept of
     likelihood has two prongs: (1) the risk of harm and
     (2) the magnitude of the harm. The likelihood of
     death or grievous bodily harm is determined by


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United States v. Dacus, No. 07-0612/AR

       measuring both prongs, not just the statistical risk
       of harm. Where the magnitude of the harm is great,
       there may be an aggravated assault, even though the
       risk of harm is statistically low.

49 M.J. 209, 211 (C.A.A.F. 1998) (citations omitted).    In

explaining the first prong, we relied upon the “risk of harm”

definition developed in several HIV assault cases and stated

that the “risk of harm” need only be “‘more than merely a

fanciful, speculative or remote possibility.’”   Id. (quoting

United States v. Johnson, 30 M.J. 53, 57 (C.M.A. 1990)); see

also United States v. Joseph, 37 M.J. 392, 396-97 (C.M.A. 1993);

United States v. Klauck, 47 M.J. 24, 25 (C.A.A.F. 1997).

       In Joseph, this court stated that “we do not construe the

word, ‘likely’ . . . as involving nice calculations of

statistical probability.”   37 M.J. at 396.   “[T]he 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.”     Id. at

397.   Relying on language from an earlier HIV assault case, we

concluded in Joseph that the “probability of infection need only

be ‘more than merely a fanciful, speculative, or remote

possibility.’”   Id. (quoting Johnson, 30 M.J. at 57).    This

standard was reiterated in a subsequent HIV assault case,

Klauck, 47 M.J. at 25.3


3
  Neither party has asserted or argued that this “risk of harm”
standard of “more than merely a fanciful, speculative, or remote


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United States v. Dacus, No. 07-0612/AR

     Addressing the second prong, “magnitude of harm”, we stated

in Weatherspoon:    “The test for the second prong, set out in the

Manual for Courts-Martial, is whether death or grievous bodily

harm was a natural and probable consequence.”   49 M.J. at 212.

     Consistent with Weatherspoon, the military judge explained

the concept of “likelihood” to Dacus as follows:

     [T]he likelihood of death or grievous bodily harm is
     determined by measuring two factors. Those two
     factors are: one, the risk of harm; and two, the
     magnitude of the harm. Evaluating risk of the harm,
     the risk of death or grievous bodily harm must be more
     than merely a fanciful, speculative, or remote
     possibility. In evaluating the magnitude of the harm,
     the consequence of death or grievous bodily harm must
     be at least probable and not just possible. In other
     words, death or grievous bodily harm would be a
     natural and probable consequence of your acts.

     Dacus argues that he admitted facts and introduced evidence

that are substantially inconsistent with both the risk and

magnitude prongs.   As to “risk of harm,” Dacus points to his own

testimony that during sex with HG his penis was not erect, his

penis barely penetrated HG’s vagina, and he wore a condom.     He

also points to Dr. Wallace’s testimony that due to Dacus’s low

viral road, the risk of his transmitting HIV is extremely low

and drops further when a condom is used.   Dacus argues that

taken together this evidence makes the risk of transmitting HIV

to either of the women merely fanciful, speculative, and remote.



possibility” is inconsistent with the language of Article 128,
UCMJ, and we therefore do not address that issue.


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United States v. Dacus, No. 07-0612/AR

     As to “magnitude of harm,” Dacus points to his own

testimony that it was only “possible” that both women could

contract HIV.   He also points to Dr. Wallace’s testimony that

there is a very small portion of the population who have an

immune system that can almost completely suppress the virus on

their own.   Dacus contends that this testimony substantially

conflicts with the requirement, as stated by the military judge,

that the “consequence of death or grievous bodily harm must be

at least probable and not just possible.”

     The Government responds that Dacus did not admit any facts

or introduce any evidence that was inconsistent with his pleas.

The Government contends that Dacus admitted that there was more

than a fanciful, speculative, or remote possibility that both HG

and CH were at risk for acquiring HIV and that the magnitude of

harm that both women faced was immense.   The Government also

argues that Dr. Wallace’s testimony was, in fact, consistent

with Dacus’s pleas.

     We turn first to the second prong and address the

“magnitude of harm.”   Under the facts of this case, the question

we consider is whether death or grievous bodily harm is a

natural and probable consequence if HIV were transmitted by

sexual intercourse.    See Weatherspoon, 49 M.J. at 211-12.

     Dacus’s argument that either woman might be able to

naturally suppress HIV replication is not supported by the



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United States v. Dacus, No. 07-0612/AR

record.   Dr. Wallace testified that there is a “very, very small

number of people” -- less than one percent of the population --

who have an immune system that can almost completely suppress

the virus on their own.   The record here contains no evidence

that either HG or CH are among the less than one percent of the

population who can suppress the virus without medicine.    In

contrast, Dr. Wallace explained that for “most people,” “if you

didn’t treat them, then they would probably get sick and die in

8, or 10, or 12, or 14 years.”   In fact, Dacus himself

testified:   “HIV is bad because it can cause bodily harm at one

point in time of your life.   It can cause death and it could in

fact –- it will change your whole life.”

     Dr. Wallace also testified that the manner in which the

disease progresses in an individual is not dependent on the

viral load of the person who transmitted the disease:     “So, if a

person with a [low] viral load . . . has infected somebody else,

anything could happen.    They could progress slowly, or very,

very rapidly.”   Contrary to Dacus’s argument, the evidence in

this record does not raise a substantial conflict with the

“magnitude of harm” prong.

     Turning now to the first prong, we address “risk of harm”

and consider whether risk of HIV infection is “more than merely

a fanciful, speculative, or remote possibility.”   Weatherspoon,

49 M.J. at 211; Joseph, 37 M.J. at 397.    The testimony in the



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United States v. Dacus, No. 07-0612/AR

record established that although the risk of transmitting the

virus was low and therefore arguably “remote,” the risk was

certainly more than fanciful or speculative.    Dacus admitted

that the presence of HIV in pre-ejaculate fluid makes

transmission of the virus during sexual intercourse possible,

even while wearing a condom.    This testimony is consistent with

the testimony of Dr. Wallace that “there is no question, he

could have transmitted HIV” through sexual intercourse.      While

Dr. Wallace indicated that it was “very unlikely” that Dacus

would transmit the virus on account of his low viral load, he

noted instances where individuals with viral loads similar to

Dacus’s transmitted HIV by means of sexual intercourse.

     In Weatherspoon we noted that “[t]he likelihood of death or

grievous bodily harm is determined by measuring both prongs, not

just the statistical risk of harm.     Where the magnitude of the

harm is great, there may be an aggravated assault, even though

the risk of harm is statistically low.”    49 M.J. at 211.   While

the risk here may have been low, the magnitude of harm was

significant.   As such, we conclude that neither Dacus’s nor Dr.

Wallace’s testimony was in substantial conflict with the “risk

of harm” prong.

                               DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.



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United States v. Dacus, No. 07-0612/AR


     RYAN, Judge, with whom BAKER, Judge, joins (concurring):

     The majority is correct:    the testimony of Dr. Wallace

regarding the remote likelihood and uncertain consequences of

transmission of the Human Immunodeficiency Virus (HIV) by

Appellant did not raise matters inconsistent with Appellant’s

guilty plea under our current case law.   See United States v.

Weatherspoon, 49 M.J. 209, 211 (C.A.A.F. 1998).    I write

separately on a point that Appellant chose to admit, rather than

litigate at trial, and which is thus unnecessary for the

majority opinion to address.    In my view, as a matter of first

impression, it would not appear that the statutory element --

“means or force likely to produce death or grievous bodily harm”

–- should be satisfied where the record shows that the

likelihood of death or grievous bodily harm from a particular

means is statistically remote.   See Article 128(b)(1), Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 928(b)(1) (2000).

     In this case, Dr. Wallace explained that Appellant’s low

viral load was “below the limits of what current testing

methodologies can detect.”   Based on the low viral load, Dr.

Wallace asserted that the probability of Appellant’s

transmission of HIV through unprotected sex was approximately 1

in 10,000.   He further explained that if Appellant used a

condom, the chance of transmission would diminish to 1 in

50,000.
United States v. Dacus, No. 07-0612/AR


       The majority succinctly and correctly sums up the extant

law:   “Where the magnitude of the harm is great, there may be an

aggravated assault, even though the risk of harm is

statistically low.”   Weatherspoon, 49 M.J. at 211.    No one

questions the magnitude of the harm from Acquired Immune

Deficiency Syndrome (AIDS) if it occurs.

       This test gives me pause.   Common sense seems to dictate

that an event is not “likely” for purposes of Article 128(b)(1),

UCMJ, regardless of the harm involved, if there is only a 1 in

50,000 chance of that event occurring.    And Weatherspoon does

not state that because the magnitude of the harm from AIDS is

great, the risk of harm does not matter.1    On the contrary, it

necessarily implies that there is a point where the statistical

risk of harm is so low that the statutory standard of “likely to

produce death or grievous bodily harm” is not satisfied.    See

Article 128(b)(1), UCMJ.



1
  It is no doubt true that earlier cases from this Court, and
other courts throughout the country, found that the mere fact
that one engaged in sexual activity while HIV positive
constituted a means likely to cause death or grievous bodily
harm. See, e.g., United States v. Joseph, 37 M.J. 392, 396
(C.M.A. 1993); State v. Hinkhouse, 912 P.2d 921, 924-25 (Or. Ct.
App. 1996), modified by 915 P.2d 489 (Or. Ct. App. 1996);
Mathonican v. State, 194 S.W.3d 59, 69-70 (Tex. App. 2006).
There is at least a question whether traditional notions of
aggravated assault comport with current scientific evidence
regarding HIV and AIDS. See Zita Lazzarini et al., Evaluating
the Impact of Criminal Laws on HIV Risk Behavior, 30 J.L. Med. &
Ethics 239, 242-43 (collecting HIV-specific statutes).

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United States v. Dacus, No. 07-0612/AR


       Where the floor and ceiling of statistical sufficiency are

I do not claim to know.   But at a minimum I have grave doubts

that the statutory element should be deemed satisfied where the

statistical probability of the consequence of an act is so low

as to approach being no “more than merely a fanciful,

speculative, or remote possibility.”   Weatherspoon, 49 M.J. at

211.

       Appellant pleaded guilty to the instant offenses, but I am

open to revisiting this issue in an appropriate case.




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