UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and 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, Esquire; Major Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Major A.G. Courie III, JA; Major John Choike, JA; Captain Scott L.
Goble, JA (on brief).


                                     11 June 2015
                              ---------------------------------
                               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, 920, 928, 933, 934
(2006) [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a dismissal and confinement for one year.

      On 14 November 2014, we affirmed the findings and sent ence in this case in a
summary disposition. United States v. Pinkela, ARMY 20120649, 2014 CCA LEXIS
852 (Army Ct. Crim. App. 14 Nov. 2014) (summ. disp.). On 22 April 2015, the
Court of Appeals for the Armed Forces granted appellant’s petition for review and
summarily vacated our earlier decision. United States v. Pinkela, __ M.J. ___
(C.A.A.F. April 22, 2015) (summ. disp.). Our superior court returned the record of
PINKELA—ARMY 20120649

trial to this court for reconsideration in light of United States v. Gutierrez, 74 M.J.
61 (C.A.A.F. 2015).

       As a result, this case is again before us for review pursuant to Article 66,
UCMJ. Appellant renews his argument that the evidence is legally and factually
insufficient to sustain his conviction for assault with a means likely to prod uce death
or grievous bodily harm. After reviewing the entire record in light of our superior
court’s holding in Gutierrez, we are convinced appellant’s conviction is legally and
factually sufficient. Appellant’s other assignments of error do not warrant relief. 1

      We recounted the relevant factual background in our earlier decision.
Pinkela, 2014 CCA LEXIS at *3-*5. 2 The crux of the issue here is whether
appellant’s engaging in unprotected anal intercourse while HIV -positive constitutes
a means likely to produce death or grievous bodily harm , as contemplated by Article
128, UCMJ.

       In Gutierrez, also an aggravated assault case involving sexual activity while
HIV-positive, our superior court stated “[t]he critical question . . . is whether
exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous
bodily harm.” 74 M.J. at 65. “It must be correct that [t]here is only one standard:
Whether the means used [in the assault] were likely to produce death or grievous
bodily harm.” Id. at 66 (quoting United States v. Outhier, 45 M.J. 326, 328
(C.A.A.F. 1996)) (internal quotation marks removed). “ The ultimate standard,
however, remains whether – in plain English – the charged conduct was ‘likely’ to
bring about grievous bodily harm. As related to this case, the question is: was
grievous bodily harm the likely consequence of Appellant ’s sexual activity?” Id.

       Our superior court held the evidence was legally insufficient to support
aggravated assault convictions in Gutierrez. The conduct in that case involved two
types of sexual behavior: 1) oral sex without using a condom and 2) vaginal sex
using a condom while appellant was HIV-positive. Id. at 66-67. The expert
testimony about the risk of HIV transmission during oral sex was “almost zero.” Id.
at 66. The expert testimony about the HIV transmission risk for vaginal sex was
only “remotely possible,” that condoms were effective 97% to 98% of the time, and
that the maximal risk of infection was 1 -in-500. Id. at 66-67.


1
 Appellant’s personal submissions made pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), do not warrant relief.
2
  Appellant correctly notes the background section in our first decision mentioned
the victim in this case, First Lieutenant (1LT) CH, tested positive for the HIV virus.
We do not consider that fact in rendering this decision. Although we might infer
1LT CH’s HIV status from chat logs admitted into evidence, we do n ot make that
inference here.


                                            2
PINKELA—ARMY 20120649

       The evidentiary posture of this case is quite different than that in Gutierrez.
An expert testified in this case that “infectivity has to do with things like viral load,
whether they have open sores, [and] the type of sex in which they’re engaged.”
Appellant had a “pretty significant” viral load and did not use a condom. First
Lieutenant CH also testified that his anus was bleeding as a result of appellant
sexually assaulting him with a “shower shot” enema into his anus in preparation for
intercourse. 3 Appellant and 1LT CH also engaged in anal intercourse, distinct from
the sexual behavior in Gutierrez. Given these facts, we distinguish appellant’s
conduct from the conduct in Gutierrez. We have made our “own independent
determination as to whether the evidence constitutes proof of each required el ement
beyond a reasonable doubt,” United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002), and are convinced it does meet that standard.

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




3
  Other expert testimony indicated that the meta -analysis of several different studies
indicated a per act rate of transmission of 1.4% for HIV. While this evidence cuts
toward a finding that HIV transmission is not likely from a single sex act, it is not
dispositive for the sex act in this case, which involve d the aggravating factors listed
above.


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