United States v. Dacus , 2008 CAAF LEXIS 574 ( 2008 )

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(unpublished).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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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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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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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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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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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).
2
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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.
3