                         UNITED STATES, Appellee

                                         v.

                  Christopher M. UPHAM, Lieutenant
                     U.S. Coast Guard, Appellant

                                  No. 07-0322
                            Crim. App. No. 1235

       United States Court of Appeals for the Armed Forces

                         Argued January 14, 2008

                          Decided March 3, 2008

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel

For Appellant: Frank J. Spinner, Esq. (argued); Lieutenant
Robert M. Pirone (on brief); Lieutenant Commander Nancy J.
Truax.

For Appellee: Lieutenant Ronald B. Seely (argued); Lieutenant
Commander P. M. Flynn.



Military Judge:    Sharon Fijalka (arraignment); John W. Rolph
(trial)




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Upham, No. 07-0322/CG


    Chief Judge EFFRON delivered the opinion of the Court.

    Appellant was charged with two offenses based on engaging in

unprotected sexual intercourse with a fellow officer without

informing her that he was infected with the Human

Immunodeficiency Virus (HIV):   aggravated assault, in violation

of Article 128, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 928 (2000), and conduct unbecoming an officer and a

gentleman, in violation of Article 133, UCMJ, 10 U.S.C. § 933

(2000).   At a general court-martial composed of officer members,

Appellant entered a plea of guilty to the conduct unbecoming an

officer and a gentleman charge and contested the aggravated

assault charge.   He was convicted of both charges.   The sentence

adjudged by the court-martial and approved by the convening

authority included dismissal, confinement for nine months, and

forfeiture of all pay and allowances.

    The United States Coast Guard Court of Criminal Appeals

affirmed the conviction for conduct unbecoming an officer and a

gentleman, disapproved the conviction for aggravated assault,

affirmed a conviction for the lesser included offense of assault

consummated by a battery, reduced the period of confinement to

four months, and affirmed the balance of the sentence.   United

States v. Upham, 64 M.J. 547, 551-52 (C.G. Ct. Crim. App. 2006).

     On Appellant’s petition, we granted review of the following

issues:


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United States v. Upham, No. 07-0322/CG


     I. WHETHER THE COAST GUARD COURT OF CRIMINAL
     APPEALS ERRED IN APPLYING A CHAPMAN-TYPE
     HARMLESS-ERROR ANALYSIS AS OPPOSED TO A
     STRUCTURAL-TYPE ERROR ANALYSIS AFTER IT CONCLUDED
     THAT THE MILITARY JUDGE COMMITTED AN ERROR OF
     CONSTITUTIONAL DIMENSION WHEN HE INSTRUCTED THE
     MEMBERS THAT A PERSON WHO HAS ENGAGED IN
     UNINFORMED AND UNPROTECTED SEXUAL INTERCOURSE
     WHILE HIV POSITIVE HAS COMMITTED AN OFFENSIVE
     TOUCHING.

     II. WHETHER, AFTER THE COAST GUARD COURT OF
     CRIMINAL APPEALS SET ASIDE A CONVICTION OF THE
     GREATER OFFENSE OF AGGRAVATED ASSAULT, THE COURT
     WAS PROHIBITED FROM AFFIRMING A CONVICTION OF THE
     LESSER INCLUDED OFFENSE OF ASSAULT CONSUMMATED BY
     A BATTERY WHERE BOTH PARTIES HAD AFFIRMATIVELY
     WAIVED ANY INSTRUCTION ON THE LESSER INCLUDED
     OFFENSE AND THE MILITARY JUDGE DID NOT INSTRUCT
     THE MEMBERS ON THE LESSER INCLUDED OFFENSE.

     For the reasons set forth below, we affirm the decision of

the United States Coast Guard Court of Criminal Appeals.



                           I.   BACKGROUND

                      A.   TRIAL PROCEEDINGS

     The contested aggravated assault charge alleged that

Appellant committed “an assault upon a female by wrongfully

having unprotected vaginal intercourse with a means likely to

produce death or grievous bodily harm, to wit:   unprotected

vaginal intercourse while knowing he was infected with the Human

Immunodeficiency Virus.”   At trial, the prosecution introduced

evidence that Appellant was HIV-positive, that military

physicians informed him in writing that he could transmit the



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United States v. Upham, No. 07-0322/CG


virus through sexual contact, and that he had sexual intercourse

with CPT B on two occasions without informing her of his HIV-

positive status.   Medical testimony at trial established the

effects of HIV infection on the body and various negative side

effects of treatment, as well as the long-term prognosis for

those infected with HIV.

     Appellant testified in his own defense.     He stated that he

had been diagnosed with HIV several years earlier, that he had

been counseled in writing about the general risks of unprotected

sexual intercourse, that he twice engaged in unprotected sex

with CPT B, and that he did not inform CPT B of his HIV-positive

status.   He acknowledged that he did not have a justification or

excuse for engaging in sexual intercourse with CPT B without

informing her of his medical status.   He further acknowledged

that his actions had caused CPT B great mental anguish, stating,

“[s]he went through the entire ordeal of going to an emergency

room and getting a test and talking with an HIV doctor. . . .

she had to go through that and it’s a terrible thing.”

     In the course of his testimony, Appellant denied that he

had committed an assault with a “means likely to produce death

or grievous bodily harm.”   He testified that his “viral load,”

which refers to the number of virions per cubic milliliter in

his blood, was so low as to be “undetectable.”    He testified

that he experienced no symptoms or limitations as a result of


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United States v. Upham, No. 07-0322/CG


his HIV infection.   Appellant admitted that “there was not a

zero risk of transmission,” but testified that he did not

believe that he had exposed CPT B to a fatal disease:   “I do not

believe that she was going to be infected.”

     At the close of the evidence, the military judge discussed

proposed instructions on findings with the parties.   The

military judge asked the parties whether they wanted him to

instruct the members on the lesser included offense of assault

consummated by a battery.   Both parties agreed to waive

instruction on the lesser included offense and proceed with

instructions only on the charged offense, aggravated assault.

     The military judge instructed the members on the elements

of aggravated assault, including the two elements at issue in

the present appeal -- “offensive touching” and use of a means

“likely to produce death or grievous bodily harm.”    See Manual

for Courts-Martial, United States pt. IV, para. 54.c.(1)(a),

(4)(a) (2005 ed.) (MCM).    The military judge’s instruction

included the following:

     You are advised that a person who engages in
     unprotected sexual intercourse with another person,
     knowing that he is HIV positive, without informing his
     sexual partner that [he has] HIV and without using a
     condom has committed an offensive touching of that
     person. Also a person who willfully and deliberately
     exposes a person to seminal fluid containing HIV
     without informing that person of his HIV positive
     status and without using a condom has acted in a
     manner likely to produce death or grievous bodily
     harm.


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United States v. Upham, No. 07-0322/CG



Defense counsel objected on the grounds that “these instructions

say that [Appellant] is per se guilty of aggravated assault.”

The military judge overruled the objection, and said that the

instruction “accurately state[s] the law that exist[s] today.”

                       B.   APPELLATE CONSIDERATION

     On appeal, the Court of Criminal Appeals concluded that the

military judge erred in instructing the members on the

aggravated assault charge, holding that the instructions quoted

above on the elements of “offensive touching” and “means likely

to result in death or grievous bodily harm” improperly removed

these issues from consideration by the panel members.     Upham, 64

M.J. at 550.    The court tested these errors for prejudice, and

concluded that the error was prejudicial as to the aggravated

assault charge:   “Given the medical evidence, it is not

inconceivable that the court could have had a reasonable doubt

on whether the means employed was likely to produce death or

grievous bodily harm.”      Id.

     The court next considered whether a conviction could be

affirmed for the lesser included offense of assault consummated

by a battery.    Id.   The court first observed that the absence of

instructions on the lesser included offense at trial did not

preclude the court from considering whether a lesser included

offense could be approved on appeal.      Id.; see MCM pt. IV, para.



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United States v. Upham, No. 07-0322/CG


54.c.(1)(a), (4)(a) (setting forth “offensive touching” as an

element common to both aggravated assault and assault

consummated by a battery).    Next, the court concluded that the

erroneous instruction on “offensive touching” was not

prejudicial as to the lesser included offense on the theory that

it was “clear beyond a reasonable doubt that a rational court

would have found that Appellant committed an offensive touching

absent the [erroneous] instruction.”     Id. at 550-51.   Based on

the conclusion that the erroneous instruction was not

prejudicial as to the element of offensive touching, the court

affirmed a conviction for the lesser offense of assault

consummated by a battery.    Id. at 551.



                            II.   DISCUSSION

     On appeal to this Court, neither party has questioned the

rulings of the court below with respect to the conclusion that

the military judge provided erroneous instructions as to the

elements of “offensive touching” and “means likely to result in

death or grievous bodily harm”; nor do the parties question the

decision of the court below to disapprove the conviction for the

offense of aggravated assault.     The granted issues concern

whether the court below, in the context of those rulings and the

circumstances of this case, could approve a conviction for the

lesser included offense of assault consummated by a battery.     In


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the first granted issue, Appellant contends that the lower court

erred because the military judge’s erroneous instructions

constituted a structural error requiring reversal without

testing for harmlessness.   In the second granted issue,

Appellant contends that even if the error was not structural,

the court below was precluded from affirming a conviction for a

lesser included offense where both parties expressly waived an

instruction as to that lesser offense at trial.

     A.    EVALUATION OF CONSTITUTIONAL ERROR IN INSTRUCTIONS

     Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000), states:     “A

finding or sentence of a court-martial may not be held incorrect

on the ground of an error of law unless the error materially

prejudices the substantial rights of the accused.”   For most

constitutional errors at trial, we apply the harmless error test

set forth in Chapman v. California, 386 U.S. 18 (1967), to

determine whether the error is harmless beyond a reasonable

doubt.    See United States v. Moran, 65 M.J. 178, 187 (C.A.A.F.

2007).    We apply the Supreme Court’s structural error analysis,

requiring mandatory reversal, when the error affects “the

framework within which the trial proceeds, rather than simply an

error in the trial process itself.”   Arizona v. Fulminante, 499

U.S. 279, 310 (1991); see generally United States v. Meek, 44

M.J. 1, 6 (C.A.A.F. 1996) (discussing per se reversal rule).




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United States v. Upham, No. 07-0322/CG


     The Supreme Court has held that an instructional error as

to the elements of an offense should be tested for harmlessness,

and should not be treated as a structural error.      Neder v.

United States, 527 U.S. 1, 13-15 (1999).    In Neder, the trial

court did not instruct on materiality, an element of the charged

offense.    Id. at 6.   In the course of concluding that the

instructional error could be tested for harmlessness, the Court

observed that harmless error analysis can be applied not only to

omitted instructions, but also to instructions that are

defective because they incorrectly describe elements or presume

elements.   Id. at 9-10; see also Carella v. California, 491 U.S.

263, 266-67 (1989) (per curiam) (applying harmless error

analysis to mandatory conclusive presumption).

     In the application of the harmlessness standard in Neder,

the Supreme Court relied on two factors in concluding that the

error was harmless beyond a reasonable doubt under Chapman:        (1)

the element was uncontested; and (2) the element was supported

by overwhelming evidence.    Neder, 527 U.S. at 17.    The Court

held, “where a reviewing court concludes beyond a reasonable

doubt that the omitted element was uncontested and supported by

overwhelming evidence, such that the jury verdict would have

been the same absent the error, the erroneous instruction is

properly found to be harmless.”    Id.




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United States v. Upham, No. 07-0322/CG

     With respect to the offense of assault consummated by

battery, the instructional error in this case, like the error in

Neder, involves one element of the offense.     The military

judge’s instruction improperly directed the members to presume

the element of “offensive touching” if they found proof of

certain predicate facts.   See id. at 10.    The instruction did

not remove the burden on the Government to prove the predicate

facts beyond a reasonable doubt.     In that context, the

presumption was not so intrinsically harmful as to require

automatic reversal.   See Carella, 491 U.S. at 266; Rose v.

Clark, 478 U.S. 570, 580 (1986).     As such, the erroneous

instruction was subject to a harmlessness test under Neder.

     When an erroneous instruction raises constitutional error,

Neder requires a reviewing court to assess two factors:       whether

the matter was contested, and whether the element at issue was

established by overwhelming evidence.    In the present case, the

Court of Criminal Appeals weighed the evidence regarding the

“offensive touching” element, but did not expressly address

whether Appellant contested that element at trial.    Under the

circumstances of the present case, this is a question of law

that may be resolved by this Court.    At trial, Appellant did not

contest the element of offensive touching.    On the contrary, he

acknowledged that he had no justification for engaging in

unprotected sex with CPT B without informing her of his HIV


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United States v. Upham, No. 07-0322/CG

status, and that his actions caused her great mental anguish.

The defense contested the issues pertinent to aggravated

assault, not the offensive touching aspects of assault

consummated by a battery.    Accordingly, we may affirm the

conviction of the lesser included offense under Neder.

               B. APPROVAL OF A LESSER INCLUDED OFFENSE
             WHEN AN INSTRUCTION HAS BEEN WAIVED AT TRIAL

     Appellant contends in granted Issue II that an appellate

court cannot approve a conviction for a lesser included offense

when both parties waived an instruction on the lesser offense

and the military judge did not instruct the court-martial panel

on the lesser offense.    Under Appellant’s theory, the Government

should be bound by its waiver of the trial court’s consideration

of a lesser included offense.

     A military judge has a sua sponte duty to instruct the

members on lesser included offenses reasonably raised by the

evidence.    United States v. Miergrimado, __ M.J. __ (5-6)

(C.A.A.F. 2008); United States v. Bean, 62 M.J. 264, 266

(C.A.A.F. 2005) (citing United States v. Griffin, 50 M.J. 480,

481 (C.A.A.F. 1999)); Rule for Courts-Martial (R.C.M.)

920(e)(2).    An accused may seek to waive an instruction on

lesser included offenses and present an “all or nothing” defense

as a matter of trial tactics.    United States v. Pasha, 24 M.J.

87 (C.M.A. 1987); see also R.C.M. 920(f).    No rule prevents the



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Government from acquiescing in the defense “all or nothing”

strategy.

     On appeal, the Court of Criminal Appeals reviews the record

of trial under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000),

which provides in pertinent part:

     In a case referred to it, the Court of Criminal
     Appeals may act only with respect to the findings and
     sentence as approved by the convening authority. It
     may affirm only such findings of guilty, and the
     sentence or such part or amount of the sentence, as it
     finds correct in law and fact and determines, on the
     basis of the entire record, should be approved.

     When the Court of Criminal Appeals identifies error in the

findings, the court, like other reviewing authorities under the

UCMJ, “may approve or affirm . . . so much of the finding as

includes a lesser included offense.”   Article 59(b), UCMJ.   As

this Court has observed:

     Generally, in military jurisprudence, we have long
     recognized that an appellate court may disapprove a
     finding because proof of an essential element is
     lacking or, as a result of instructional errors
     concerning lesser-included offenses, may substitute a
     lesser-included offense for the disapproved findings.
     This is true even if the lesser-included offense was
     neither considered nor instructed upon at the trial of
     the case.

United States v. McKinley, 27 M.J. 78, 79 (C.M.A. 1988)

(citations omitted); see also United States v. Wells, 52 M.J.

126, 131-32 (C.A.A.F. 1999) (recognizing that the lower court,

on remand, may affirm a lesser offense and reassess the

sentence).


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     Appellant has not identified a case that would preclude the

Court of Criminal Appeals from exercising its statutory

authority to approve a lesser included offense under the

circumstances of this case where evidence was presented and

evaluated on the greater offense.     To the extent that any

instructions as to the elements of the lesser offense were

omitted or misstated, such errors may be evaluated for

harmlessness.   See Section II.A. supra.    Accordingly, an

erroneous instruction on the lesser included offense in the

present case does not preclude the court below from approving a

conviction for the lesser included offense if otherwise

warranted under the framework set forth in Section II.A. supra.



                          III.   DECISION

     The decision of the United States Coast Guard Court of

Criminal Appeals is affirmed.




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