UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          TOZZI, CAMPANELLA, CELTNIEKS
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                      v.
                 Lieutenant Colonel KENNETH A.R. PINKELA
                        United States Army, Appellant

                                  ARMY 20120649

             Headquarters, U.S. Army Military District of Washington
              Denise R. Lind and Michael J. Hargis, Military Judges
    Lieutenant Colonel Brian A. Hughes, Acting Staff Judge Advocate (pretrial)
           Colonel Corey L. Bradley, Staff Judge Advocate (post-trial)


For Appellant: Philip D. Cave, Esq.; Captain Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major John Choike, JA; Captain Timothy C. Erickson, JA (on brief).


                                 14 November 2014
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------
Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of willful disobedience of a superior
commissioned officer, one specification of abusive sexual contact, one specification
of aggravated assault, one specification of conduct unbecoming an officer, and one
specification of reckless endangerment in violation of Articles 90, 120, 128, 133,
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 928, 920, 933, 934
(2006) [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a dismissal and confinement for one year.

      Appellant’s case is now before this court for review pursuant to Article 66,
UCMJ. Of appellant’s five assignments of error, one warrants discussion, but none
warrant relief. 1 In particular, the evidence is factually sufficient regarding


1
 Appellant’s personal submissions made pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982) are without merit.
PINKELA—ARMY 20120649

appellant’s conviction for assault with a means or force likely to produce death or
grievous bodily harm. 2

                                   BACKGROUND

      Appellant was diagnosed as HIV-positive in 2006. In late 2008, appellant
became involved in a mentoring relationship with First Lieutenant (1LT) CH. First
Lieutenant CH visited appellant in late December 2008 at appellant’s home in
Arlington, Virginia. Prior to the visit, 1LT CH told appellant he would not have sex
with him if appellant was HIV-positive. First Lieutenant CH testified that on 28
December 2008, appellant sexually assaulted him in appellant’s home by inserting a
metal shower enema known as a “shower shot” into his anus against his will in
preparation for anal intercourse, causing rectal bleeding.

       Immediately following this incident, appellant and 1LT CH engaged in
consensual anal intercourse with appellant penetrating the anus of 1LT CH with his
penis. Before the intercourse, 1LT CH asked appellant if he would wear a condom.
Appellant stated he didn’t do that and offered to provide test results showing he was
not HIV-positive. At that point 1LT CH trusted appellant’s word and consented to
unprotected anal intercourse. During the intercourse, appellant told 1LT CH to sniff
a substance referred to as “poppers” to help relax, which he did. First Lieutenant
CH testified that the sex was very painful. Chat logs in evidence in this case contain
an entry from appellant that he did not ejaculate during anal intercourse with 1LT
CH. First Lieutenant CH subsequently tested positive for the HIV virus.

       An expert witness for the government, Dr. Z, examined appellant’s medical
records and determined that he had no doubt appellant was HIV positive in 2008,
and that appellant had a “pretty significant viral load” in August of 2007, and
“pretty much the same number” in May of 2009. Additionally, appellant’s treating
physician, Dr. D, testified that she began treating appellant in 2006 to have his first
HIV evaluation done, and that appellant never disputed his HIV diagnosis. Doctor

2
  Appellant’s clemency submission raised two legal errors: first, a claim that the
evidence does not support the convictions and, second, a claim that his due process
rights were violated by a speedy trial violation. The addendum to the staff judge
advocate’s recommendation identified these alleged errors, but did not acknowledge
whether corrective action on the findings or sentence should be taken regarding
these alleged legal errors. This omission of whether corrective action is warranted
is error. See Rule for Courts-Martial 1106(d)(4). However, we need not remand for
a new recommendation and action because we have examined those underlying
claims and find that neither claim warrants relief. Therefore, it is not foreseeable
these alleged legal errors would have led to a favorable recommendation or to
corrective action by the convening authority. See United States v. Hill, 27 M.J. 293,
297 (C.M.A. 1988).


                                           2
PINKELA—ARMY 20120649

(Lieutenant Colonel) O, a defense witness qualified as an expert in HIV testing,
treatment, and diagnosis, testified that based upon his review of literature
identifying the per act rate of transmission of HIV, “the general picture that’s given
is that HIV is hard to get in sexual transmission settings. So, for instance, there was
one paper that I reviewed that estimated based on several different studies of meta-
analysis indicated that per act that the rate of transmission was 1.4 percent for HIV.”

                              LAW AND DISCUSSION

       Article 66(c), UCMJ, requires this court to conduct a de novo review of the
factual sufficiency of the case. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citing United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)).
The review “involves a fresh, impartial look at the evidence, giving no deference to
the decision of the trial court on factual sufficiency beyond the admonition in
Article 66(c), UCMJ, to take into account the fact that the trial court saw and heard
the witnesses.” Id. This court “applies neither a presumption of innocence nor a
presumption of guilt,” but “must make its own independent determination as to
whether the evidence constitutes proof of each required element beyond a reasonable
doubt.” Id.

       Article 128(b), UCMJ, provides in relevant part: “Any person subject to this
chapter who—(1) commits an assault with a dangerous weapon or a means or force
likely to produce death or grievous bodily harm . . . is guilty of aggravated assault . .
. .” The predecessor to our superior court has expressly stated that the term “‘likely’
in the phrase ‘likely to produce death or grievous bodily harm’” does not involve
“nice calculations of statistical probability.” United States v. Joseph, 37 M.J. 392,
396 (C.M.A. 1993). “[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
[grievous] 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 (citing United States v. Johnson, 30 M.J. 53, 57 (C.M.A. 1990)) (emphasis
added). Moreover, “[w]here the magnitude of harm is great, there may be an
aggravated assault, even though the risk of harm is statistically low.” United States
v. Dacus, 66 M.J. 235, 240 (C.A.A.F. 2008) (quoting United States v. Weatherspoon,
49 M.J. 209, 211 (C.A.A.F. 1998)).

       In this case, the evidence established that appellant engaged in unprotected
anal intercourse with 1LT CH while appellant was HIV-positive. Expert testimony
adduced that appellant’s viral load was “pretty significant” and that there was a 1.4
percent per act sexual transmission rate of HIV. The probability of infection under
these facts is “more than merely a fanciful, speculative, or remote possibility.” Id.
Accordingly, we are convinced that the evidence is factually sufficient to support
appellant’s conviction for aggravated assault.




                                           3
PINKELA—ARMY 20120649

                                  CONCLUSION

      On consideration of the entire record, the matters submitted pursuant to
Grostefon, and the assigned errors, the findings and sentence as approved by the
convening authority are AFFIRMED.



                                      FOR
                                      FOR THE
                                          THE COURT:
                                              COURT:




                                      MALCOLM H. SQUIRES, JR.
                                      MALCOLM H. SQUIRES, JR.
                                      Clerk of Court
                                      Clerk of Court




                                         4
