          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
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


                                             2                              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.


                                                 3                              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,




                                             4                              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.


                                                        5                                       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.



                                             6                               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’ Benchbook4 on 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).


                                                         7                                     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 HIV-
positive. 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.


                                                          8                                        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




                                         9                           ACM 37913 (rem)
