United States v. Forbes

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600357
_________________________
UNITED STATES OF AMERICA
Appellee
v.
LAMAR A. FORBES
Aviation Maintenance Administrationman Second Class (E-5),
U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Heather Partridge, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, Virginia.
Staff Judge Advocate’s Recommendation: Commander Mary B.
Pohanka, JAGC, USN.
For Appellant: Mr. James S. Trieschmann, Jr., Esq.; Lieutenant
Commander William L. Geraty, JAGC, USN.
For Appellee: Captain Brian L. Farrell, USMC; Lie utenant James
M. Belforti, JAGC, USN.
_________________________
Decided 24 April 2018
_________________________
Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges
_________________________
PUBLISHED OPINION OF THE COURT
________________________
HUTCHISON, Senior Judge:
A military judge sitting as a general court-martial convicted the appellant,
pursuant to his pleas, of one specification of making a false official statement,
four specifications of sexual assault, four specifications of assault
consummated by a battery, and one specification of the assimilated Virginia
law of infected sexual battery, in violation of Articles 107, 120, 128, and 134,
United States v. Forbes, No. 201600357
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 920, 928, and 934
(2012). Following the military judge’s findings and pursuant to a pretrial
agreement (PTA), the government withdrew the assault consummated by a
battery charge and specifications, and one of the sexual assault specifications.1
The convening authority (CA) approved the adjudged sentence of eight years’
confinement, reduction to paygrade E-1, and a dishonorable discharge.
The appellant raises six assignments of error (AOE), the first four of which
are related to his sexual assault convictions:2
(1) the military judge abused her discretion by accepting the appellant’s
guilty pleas to Specifications 1, 3, and 4 of Charge II because she failed to
address and inform the appellant of well-settled precedent involving consent
obtained by fraud;
(2) Specifications 1, 3, and 4 of Charge II fail to state an offense;
(3) Specifications 1, 3, and 4 of Charge II are legally insufficient where the
appellant had consensual sex with his partners without informing them that
he was Human Immunodeficiency Virus (HIV) positive;3
(4) if Articles 120(b) and 128(a),4 UCMJ, require affirmative disclosure of
HIV before sexual intercourse, then the term “bodily harm” is
unconstitutionally vague;
1The withdrawn specifications were dismissed without prejudice following
announcement of the sentence. See Record at 147.
2 In his brief the appellant erroneously refers to Specifications 1, 2, and 4 of Charge
II in AOEs (1) – (3). Appellant’s Brief of 27 Mar 2017 (emphasis added). Specification
2 of Charge II was withdrawn after the military judge entered findings and dismissed
without prejudice upon announcement of the sentence. See Record at 147. The
appellant remains convicted of Specifications 1, 3, and 4 of Charge II.
3The appellant entered unconditional guilty pleas to Specifications 1, 3, and 4 of
Charge II. See Record at 90; Appellate Exhibit (AE) XXIII. Therefore, “the question
presented ‘must be analyzed in terms of providence of his plea, not sufficiency of the
evidence.’” United States v. Smith, 60 M.J. 985, 986 (N-M. Ct. Crim. App. 2004)
(quoting United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)). Our analysis of
the appellant’s first AOE addresses the providence of the plea, and renders this AOE
moot.
4The appellant incorrectly refers to Article 128(b)(2), UCMJ, in his brief. See
Appellant’s Brief at 17. The appellant was convicted of a violation of Article 128(a),
assault consummated by a battery, which also contains the term “bodily harm.”
MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.), Part IV, ¶ 54.a(a).
2
United States v. Forbes, No. 201600357
(5) the military judge erred in finding that a preliminary hearing officer’s
(PHO’s) investigation cured an initial review officer’s (IRO’s) partiality for
purposes of Rule for Courts-Martial (R.C.M.) 305(k)5 credit; and
(6) the appellant’s sentence is inappropriately severe and is
disproportionate to cases involving the same conduct.
After careful consideration of the record of trial and the parties’ pleadings,
we conclude the findings and sentence are correct in law and fact, and that no
error materially prejudiced the substantial rights of the appellant. Arts. 59(a)
and 66(c), UCMJ.
I. BACKGROUND
In February 2012, the appellant tested positive for HIV and was counseled
several times by medical providers to refrain from engaging in sexual activity
without first advising any prospective sexual partner that he carried HIV.
From July 2013 to June 2015, however, the appellant engaged in unprotected
sexual intercourse with four different women without telling any of the women
that he was HIV-positive. Each of the women consented to intercourse with the
appellant, but did so without knowledge of his positive HIV status. When
interviewed by Naval Criminal Investigative Service (NCIS) agents concerning
his sexual activity, the appellant made a false official statement, indicating
that he only had sex with three women since testing positive for HIV in 2012.6
Following his interview with NCIS, the appellant was ordered into pretrial
confinement. The military judge denied the appellant’s motion for release from
pretrial confinement but granted him R.C.M. 305(k) confinement credit after
concluding that the IRO failed to comply with the procedural requirements of
R.C.M. 305(i)(2)(D)7 and abused his discretion by simply ratifying the
command’s confinement decision.8 The military judge awarded the appellant
two additional days credit for each day of pretrial confinement from the time
the appellant was placed into pretrial confinement until completion of the
Article 32, UCMJ, PHO’s report—132 days credit.
The appellant entered into a PTA with the CA and entered unconditional
guilty pleas to all charges and specifications. During the providence inquiry
5RULE FOR COURTS-MARTIAL 305(k), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.).
6 Prosecution Exhibit (PE) 4; AE XXVI at 18.
7R.C.M. 305(i)(2)(D) requires that the IRO’s findings and conclusions “be set forth
in a written memorandum.” The IRO’s letter “was not dated, was not signed, did not
indicate which articles [he] believed the Accused had violated, and did not indicate any
basis for continued pretrial confinement.” AE VI at 2.
8 See AE VI at 3-4.
3
United States v. Forbes, No. 201600357
the appellant admitted that he intentionally hid his HIV status from his sexual
partners and that he lied to NCIS.
We address the remaining relevant facts in the discussion.
II. DISCUSSION
A. Sexual assault
This is a case of first impression. Neither the parties nor we have identified
a precedent for convicting a service member of sexual assault for failing to
inform a sexual partner of his HIV status before engaging in an otherwise-
consensual sexual act. That is not to say, however, that conduct such as the
appellant’s has gone unpunished in the military; there is much precedent for
convicting service members for similar conduct. Our superior court first
examined crimes related to HIV-exposure in two cases decided on the same day
in 1989. In United States v. Womack, the Court of Military Appeals (CMA)
upheld a conviction for violating an order to inform all present and future
sexual partners of the member’s infection. 29 M.J. 88, 89 (C.M.A. 1989). In
United States v. Stewart, the CMA affirmed a guilty plea for aggravated
assault where the appellant wrongfully engaged in sexual intercourse “while
knowing he was infected with [HIV] and knowing that said virus can be
sexually transmitted[.]” 29 M.J. 92, 93 (C.M.A. 1989). Since these two cases,
the most common methods of charging HIV-related misconduct under the
UCMJ have included aggravated assault under Article 128, or violation of a
“safe-sex” order under Article 90 or Article 92, UCMJ.9
However, a recent decision by the Court of Appeals for the Armed Forces
(CAAF) has called into question the validity of charging HIV-related cases as
aggravated assaults and, more importantly, has given rise to the charging
scheme employed in this case. In United States v. Gutierrez, the CAAF ruled
that simply engaging in unprotected sexual intercourse was not sufficient to
sustain Gutierrez’s conviction for assault with means or force likely to produce
death or grievous bodily harm. 74 M.J. 61, 63 (C.A.A.F. 2015). According to
expert testimony, exposure to the risk of HIV transmission was remote—at
most a 1-in-500 chance—and unlikely to produce death or grievous bodily
harm. Id. But the CAAF affirmed a conviction for the lesser included offense of
assault consummated by a battery. The CAAF explained that “[t]he offense of
assault consummated by battery requires that the accused ‘did bodily harm,’”
id. at 68 (quoting MCM, Part IV, ¶ 54.b.(2)), and that “bodily harm” is simply
9 See Derek J. Brostek, Prosecuting an HIV-Related Crime in a Military Court-
Martial: A Primer, 2009 Army Law. 29, 29; see also United States v. Johnson, 30 M.J.
53, 56 (C.M.A. 1990) (“it is now beyond cavil that it is permissible under the Code to
charge aggravated assault, where the means alleged as likely to produce death or
grievous bodily harm is HIV.” (citations omitted)).
4
United States v. Forbes, No. 201600357
“any offensive touching of another, however slight.” Id. (quoting MCM Part IV,
¶ 54.c.(1)(a)). Therefore, Gutierrez’s conduct—engaging in otherwise-
consensual sexual activity without telling his partners that he had HIV—
included an “offensive touching to which his sexual partners did not provide
meaningful informed consent” because “‘[w]ithout disclosure of HIV status
there cannot be a true consent.’” Id. (quoting R. v. Cuerrier, [1998] 2 S.C.
371, 372 (Can.)).
Here, in explicit reliance on the CAAF’s holding in Gutierrez, the
government charged the appellant with both assault consummated by battery
in violation of Article 128(a), UCMJ, and sexual assault by bodily harm in
violation of Article 120(b)(1)(B), UCMJ. In a bench memorandum, the trial
counsel explained that since “failure to disclose an accused’s HIV status
constituted an offensive touching because the accused’s partners did not
provide informed meaningful consent, ‘the appropriate charges would be either
1) sexual assault by bodily harm; or 2) assault consummated by battery.’”10
Against this historical and procedural backdrop, we examine each of the
appellant’s claims.
1. Providence of the appellant’s pleas
We review a military judge’s acceptance of a guilty plea for an abuse of
discretion, reversing only if the “record shows a substantial basis in law or fact
for questioning the plea.” United States v. Moon, 73 M.J. 382, 386 (C.A.A.F.
2014) (citation omitted). There is a substantial basis in law to question a guilty
plea if the appellant has “pled guilty to conduct that was not criminal.” United
States v. Ferguson, 68 M.J. 431, 433 (C.A.A.F. 2010). Likewise, a military judge
abuses her discretion if she accepts an appellant’s guilty plea based upon “an
erroneous view of the law.” United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F.
2012) (citation omitted). “The providence of a plea is based not only on the
accused’s understanding and recitation of the factual history of the crime, but
also on an understanding of how the law relates to those facts.” Moon, 73 M.J.
at 386 (citations and internal quotation marks omitted).
The appellant argues that there is a substantial basis in law to question
the guilty plea because the military judge relied exclusively on Gutierrez—
which in turn relied on “only a Canadian case”—in defining consent as an
element of sexual assault.11 In doing so, the appellant contends, the military
judge ignored “years of well-settled precedent and case law . . . recogniz[ing]
10 AE XVIII at 3 (quoting United States v. Herrmann, 75 M.J. 672, 678 n.1 (A. Ct.
Crim. App. 2016) (Wolfe, J., concurring in the result)) (additional citation omitted),
aff’d, 76 M.J. 432 (C.A.A.F. 2017), cert. denied, 138 S. Ct. 487 (2017).
11 Appellant’s Brief at 7.
5
United States v. Forbes, No. 201600357
the distinction between fraud in the inducement and fraud in the factum.”12
We disagree.
First, we reject the appellant’s suggestion that the CAAF’s holding in
Gutierrez is rooted only in Canadian law. The concept that an “offensive
touching” includes sexual activity with someone who is unaware of their
partner’s HIV status is also rooted in military case law. In United States v.
Joseph, after first analyzing the Manual for Courts-Martial’s definition of
bodily harm, the CMA concluded that there was “no reason why a factfinder
[could not] rationally find it to be an ‘offensive touching’ when a knowingly
HIV-infected person has sexual intercourse with another, without first
informing his sex partner of his illness[.]” 37 M.J. 392, 395 (C.M.A. 1993). The
CMA further recognized that “‘informed consent’ can convert what might
otherwise be an offensive touching into a non-offensive touching.” Id. at 396
n.5.
Since Joseph, military courts have reinforced this interpretation of
offensive touching. In United States v. Dacus, the CAAF affirmed an
aggravated assault conviction where the appellant stipulated that the “act of
sexual intercourse while HIV-positive without informing [his partner]
constitute[d] an offensive touching with another.” 66 M.J. 235, 236 (C.A.A.F.
2008). Our court similarly had “no difficulty in concluding that the military
judge . . . could find an assault consummated by a battery—an offensive
touching having occurred when the appellant, knowing that he was HIV-
infected, engaged in sexual intercourse with [his partner] without first
informing her of his illness[.]” United States v. Klauck, No. 9501422, 1996 CCA
LEXIS 509, at *5, unpublished op. (N-M. Ct. Crim. App. 21 Jun 1996), aff’d 47
M.J. 24 (C.A.A.F. 1997).
Indeed, a line of assault and aggravated assault cases that came after
Joseph used this same formulation to establish the bodily harm element of the
offense. See e.g., United States v. Upham, 66 M.J. 83, 87 (C.A.A.F. 2008)
(affirming assault consummated by a battery conviction as a lesser included
offense of aggravated assault after concluding that the accused committed an
offensive touching when he engaged in unprotected sex without informing his
partner of his HIV status); United States v. Tootle, No. 9801945, 2005 CCA
LEXIS 371, at *15, unpublished op. (N-M. Ct. Crim. App. 30 Nov 2005) (“‘It is
well settled that an HIV-positive soldier can be convicted of assault under
Article 128, UCMJ, for engaging in unwarned, unprotected sexual
intercourse.’” (citations omitted)), aff’d, 64 M.J. 176 (C.A.A.F. 2006).
We recognize, of course, that Gutierrez expressly overruled Joseph. But the
CAAF’s concern in Gutierrez was the Joseph court’s aggravated assault
12 Id. at 8 (citation omitted).
6
United States v. Forbes, No. 201600357
analysis. In Gutierrez, the CAAF found that the critical question in
determining whether there was a means or force likely to produce death or
grievous bodily injury, was the risk of exposure to HIV rather than the
“likelihood of the virus causing death or serious bodily harm if it invades the
victim’s body.” Joseph, 37 M.J. at 397. So while the CAAF rejected Joseph’s
aggravated assault analysis, it did not change its legal conclusion that sexual
activity by an HIV-positive person without informing his or her partner
constitutes an offensive touching.
Second, the fact that the CAAF did not tie its rationale in Gutierrez to
traditional fraud analysis is of no import. As a service court of criminal appeals,
we do not have the discretion to depart from the CAAF’s precedent. “[I]f a
precedent of [a superior court] has direct application in a case, yet appears to
rest on reasons rejected in some other line of decisions, the [lower courts]
should follow the case which directly controls, leaving [the superior court] the
prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203,
237 (1997) (internal quotation marks and citation omitted). Thus, the CAAF’s
holding in Gutierrez—that an HIV-positive individual commits an offensive
touching, and therefore bodily harm, when he engages in sexual intercourse
without first informing his partner of his HIV status—is binding on this court
and on the military judge who accepted the appellant’s guilty pleas. Indeed,
the only difference between Gutierrez and this case is that, here, a “sexual act”
is an additional element.
Therefore, the military judge would have abused her discretion here only if
applying Gutierrez to a sexual assault case represented an “erroneous view of
the law.” Weeks, 71 M.J. at 46.
To resolve whether the military judge properly relied on Gutierrez in
accepting the appellant’s pleas to sexual assault, we first look to the appellant’s
providence inquiry to ensure the military judge properly apprised the
appellant regarding the “nature of the charges brought against him[,]”
including the elements and definitions of sexual assault by bodily harm. United
States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008). For each sexual assault
specification, the military judge advised the appellant that the elements were:
1) that he committed a sexual act, to wit: penetrating his sexual partner’s vulva
with his penis; 2) that he did so by causing bodily harm, to wit: penetrating her
vulva with his penis without previously informing her that he carried HIV; and
3) that he did so without her consent.13
Next, consistent with the statutory definition of bodily harm contained in
Article 120(g)(3), UCMJ,14 the military judge defined bodily harm as “any
13 See Record at 97-99.
14 10 U.S.C. § 920(g)(3).
7
United States v. Forbes, No. 201600357
offensive touch[ing] of another, however slight, including any nonconsensual
sexual act or nonconsensual sexual contact.”15 She then defined consent,
consistent with the statutory definition contained in Article 120(g)(8), UCMJ,16
as “a freely given agreement to the conduct at issue by a competent person.”17
These definitions provided the appellant with a clear and correct
understanding of the legal definitions underlying his sexual assault offenses.
In addition to these statutory definitions, the military judge informed the
appellant that Gutierrez held “a person who is unaware of the HIV status of
her sexual partner cannot provide meaningful, informed consent . . . .”18 After
hearing the elements of the offenses and the applicable definitions, the
appellant chose to plead guilty and admitted that his conduct—with each of
the three women named in the specifications—amounted to an offensive
touching and that the women did not provide meaningful, informed consent
because he did not tell them that he was HIV-positive.
Although we recognize that in Gutierrez, the CAAF was affirming an
Article 128, UCMJ, conviction, we see no reason why the CAAF’s holding is not
equally applicable in an Article 120(b)(1)(B), UCMJ, case. First, we see no
distinction between “bodily harm” as defined by statute in Article 120(g)(3),
UCMJ, and the Manual’s definition of “bodily harm” as it relates to Article 128,
UCMJ.19 Both require an “offensive touching,” and the CAAF has concluded
that sexual intercourse without informing your partner that you are HIV-
positive constitutes an “offensive touching.” Thus, the military judge was
bound by the CAAF’s ruling in Gutierrez, and was not therefore laboring under
an erroneous view of the law when she accepted the appellant’s plea based
upon his admission that he had sexual intercourse with three women without
telling them that he was HIV-positive.20
15 Record at 100.
16 10 U.S.C. § 920(g)(8).
17 Record at 100.
18 Id. at 103.
19 See MCM, Part IV, ¶ 54.c.(1)(a) (“Bodily harm means any offensive touching of
another, however slight.”). Likewise, we interpret the word “includ[ing]” in Article
120(g)(3)’s definition of “bodily harm” to mean “includ[ing] but is not limited to[.]” See
10 U.S.C. § 101(f)(4) (“Rules of construction In this title --(4) ‘includes’ means ‘includes
but is not limited to’”). See also 2016 MCM, R.C.M. 103, Discussion.
20 We make no distinction between the appellant’s failure to inform his sexual
partners that he was HIV-positive and any affirmative statement denying that he was
HIV-positive or intimating that he was not HIV-positive. Gutierrez does not address
the situation where an HIV-positive individual engages in sexual activity after denying
his positive status. It is enough, under Gutierrez, that the appellant simply did not tell
his partners that he was HIV-positive.
8
United States v. Forbes, No. 201600357
Second, the CAAF found that an individual who was not informed of her
sexual partner’s positive HIV-status could not provide “meaningful, informed
consent” because “[w]ithout disclosure of HIV status there cannot be a true
consent.” Gutierrez, 74 M.J. at 68 (emphasis added) (citation and internal
quotation marks omitted). Although the term “consent” is defined by statute in
Article 120(g)(8), UCMJ, the military judge’s application of Gutierrez is
consistent with the statutory definition. There is no reason to conclude
“consent” means anything different in the context of an assault consummated
by a battery than it does for a sexual assault.
We conclude, therefore, that the CAAF’s holding in Gutierrez applies here,
where the appellant pleaded guilty to sexual assault by bodily harm. Since the
military judge correctly applied this binding case law and the appellant
admitted each element of every offense, there is no substantial basis in law or
fact to question the appellant’s guilty pleas.
2. Failure to state an 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
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)).
The statutory elements of sexual assault by bodily harm are: 1) a person
commits a sexual act upon another person; and 2) the person did so by causing
bodily harm to that other person.21 Sexual act is defined as “contact between
the penis and the vulva or anus or mouth, and for purposes of this
subparagraph contact involving the penis occurs upon penetration, however
slight[.]”22 And, as we note above, bodily harm is defined as “any offensive
touching of another, however slight, including any nonconsensual sexual act
or nonconsensual sexual contact.”23
The appellant asserts that Specifications 1, 3, and 4 of Charge II fail to
state an offense because the charged sex acts with each of the women were
consensual and therefore not offensive. Rather, “[w]hat was offensive was the
exposure, however slight, to HIV.”24 The appellant maintains that the
specifications do not contain the essential elements of the offense because they
21 Article 120(b)(1)(B), UCMJ; 10 U.S.C. § 920(b)(1)(B).
22 Article 120(g)(1)(A), UCMJ; 10 U.S.C. § 920(g)(1)(A).
23 Article 120(g)(3), UCMJ; 10 U.S.C. § 920(g)(3).
24 Appellant’s Brief at 11.
9
United States v. Forbes, No. 201600357
do not allege a sexual act that “would legally constitute an offensive
touching.”25 Again, we disagree.
Each of the sexual assault specifications to which the appellant pleaded
guilty expressly alleged both the offensive acts—penetration of the vulva with
the appellant’s penis—and the “bodily harm”—engaging in such acts without
previously informing his partners that he carries HIV. As we noted above, the
CAAF has determined that an HIV-positive service member commits an
“offensive touching” when he performs a sexual act on a partner without
informing the partner of his HIV-status. Gutierrez, 74 M.J. at 68. Therefore,
contrary to the appellant’s assertion, the specifications do allege a sexual act
that would constitute an offensive touching because each expressly alleges as
bodily harm that the appellant engaged in a sexual act without previously
informing his partners that he carried HIV. The specifications expressly allege
every element of the offense and “clearly placed [the appellant] on notice of
that against which he had to defend.” United States v. Rauscher, 71 M.J. 225,
226-27 (C.A.A.F. 2012). Therefore, we conclude that Specifications 1, 3, and 4
of Charge II state an offense.
3. Constitutionality of Article 120(b)(1)(B) and 128(a)
The appellant next contends that Articles 120(b)(1)(B) and 128(a), UCMJ,
are unconstitutionally vague if, as the CAAF found in Gutierrez, failure to
disclose HIV-status to a sexual partner constitutes an “offensive touching”
because there is no way for a person of common intelligence to determine what
exactly they should disclose to a sexual partner. The appellant argues that
such a broad understanding of “offensive touching” would require individuals
to disclose any disease or ailment, or else risk committing a bodily harm.
The constitutionality of a statute is a question of law, which we review de
novo. United States v. Disney, 62 M.J. 46, 48 (C.A.A.F. 2005). Due process
requires a person have fair notice that an act is forbidden and subject to
criminal sanctions before he can be prosecuted for it. United States v. Vaughan,
58 M.J. 29, 31 (C.A.A.F. 2003). “Void for vagueness simply means that criminal
responsibility should not attach where one could not reasonably understand
that his or her contemplated conduct is proscribed.” Parker v. Levy, 417 U.S.
733, 757 (1974) (citation and internal quotation marks omitted). Rather, laws
must “give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited so that he may act accordingly.” Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972). We look to multiple sources to find fair
notice, including “the MCM, federal law, state law, military case law,
military custom and usage, and military regulations.” Vaughan, 58 M.J. at 31
(citations omitted). In assessing a vagueness challenge, “a statute must of
25 Id. at 12.
10
United States v. Forbes, No. 201600357
necessity be examined in light of the conduct with which the defendant is
charged.” Levy, 417 U.S. at 757 (citation and internal quotation marks
omitted).
We conclude that the appellant had actual knowledge and was on fair
notice that his conduct was prohibited. Article 120(b)(1)(B), UCMJ, prohibits a
service member from committing “a sexual act upon another person by causing
bodily harm to that other person.”26 Likewise, the relevant portion of Article
128(a), UCMJ, prohibits committing bodily harm to a certain person and that
the bodily harm was done with unlawful force or violence.27 As we noted above,
bodily harm is defined as an offensive touching, and over two decades of
military case law have determined that an HIV-positive service member
commits an offensive touching when he commits a sexual act without
informing his sexual partner about his HIV status. See e.g. Gutierrez, 74 M.J.
at 68; Dacus, 66 M.J. at 236; Upham, 66 M.J. at 87; Joseph, 37 M.J. at 395.
Consequently, the appellant was on notice and reasonably understood that his
conduct was prohibited.
As for the appellant’s concern that our application of Gutierrez might give
rise to a host of sexual assault prosecutions for service members who fail to
disclose other ailments, such as the human papillomavirus—or even the
common cold—we need not determine here what other conditions, if any, would
vitiate consent if not revealed to a sexual partner. First, as we noted above,
Gutierrez simply reaffirmed the long-standing precedent that failure to
disclose HIV-status to a sexual partner constituted an “offensive touching.”
Whether the failure to disclose other ailments to a sexual partner constitutes
an offensive touching was not before the court in Gutierrez and is not before us
in this case. Second, “irrespective of whether a statute could be read to be vague
in some other hypothetical case, an appellant has no standing to challenge the
facial validity of a statute that clearly applies to his conduct.” United States v.
Corcoran, No. 201400074, 2014 CCA LEXIS 901, at *24, unpublished op. (N-
M. Ct. Crim. App. 23 Dec 2014) (citing United States v. McGuinness, 35 M.J.
149, 152 (C.M.A. 1992)). Since the appellant’s conduct was clearly prohibited
by Articles 120(b)(1)(B) and 128(a), UCMJ, he lacks standing to claim these
statutes are facially void for vagueness.
26 10 U.S.C. § 920(b)(1)(B).
27 MCM, Part IV, ¶ 54.b.(2).
11
United States v. Forbes, No. 201600357
B. R.C.M. 305(k) credit
The appellant argues that the military judge erred when she failed to grant
additional R.C.M. 305(k) credit for the period following issuance of the PHO’s
report until she ruled on the appellant’s motion for release from pretrial
confinement. The appellant contends that since the PHO’s duties did not
include determining or recommending whether continued confinement was
necessary, his report could not have satisfied the requirements of R.C.M. 305.
The government contends that the appellant expressly waived his right to
additional administrative confinement credit under R.C.M. 305(k). We agree.
“Waiver is different from forfeiture. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the ‘intentional relinquishment
or abandonment of a known right.’” United States v. Olano, 507 U.S. 725, 733
(1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (additional
citations omitted). When an appellant “intentionally waives a known right at
trial, it is extinguished and may not be raised on appeal.” United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (citations omitted). Administrative
credit under R.C.M. 305(k) can be waived.
In the PTA, the appellant specifically agreed “to waive all motions except
those that are otherwise non-waivable[.]”28 The military judge asked the
appellant if he discussed this waiver provision with his defense counsel, and
the appellant acknowledged that he did. Finally, following the military judge’s
findings, when asked whether the appellant had been subject to any illegal
pretrial confinement and specifically referencing the litigated R.C.M. 305(k)
ruling, the trial defense counsel responded, “I don’t contest your ruling on that
one.”29 Therefore, we conclude the appellant intentionally relinquished his
right to raise these issues on appeal and we need not reach the issue of whether
the military judged erred in failing to grant additional confinement credit
under R.C.M. 305(k). We have also considered whether we should exercise our
authority to consider the appellant’s claim under Article 66(c), UCMJ, in spite
of the appellant’s waiver. See United States v. Chin, 75 M.J. 220 (C.A.A.F.
2016). Given the facts and circumstances presented here, we decline to do so.
C. Inappropriately severe and disparate sentence
Finally, the appellant claims that his sentence to eight years’ confinement
is both disparate, when compared to other closely related cases, and
inappropriately severe. We disagree.
28 AE XXIII at 4.
29 Record at 149.
12
United States v. Forbes, No. 201600357
An appellant seeking relief for a disparately severe sentence “bears the
burden of demonstrating that any cited cases are closely-related to his or her
case and that the sentences are highly disparate.” United States v. Lacy, 50
M.J. 286, 288 (C.A.A.F. 1999) (internal quotation marks omitted). If the
appellant shows both that his case is “closely related” and his sentence is
“highly disparate,” then the burden shifts to the government to show there is
“a rational basis for the disparity.” Id.; see also United States v. Durant, 55
M.J. 258, 262-63 (C.A.A.F. 2001). Cases are “closely related” when they
“involve offenses that are similar in both nature and seriousness or which arise
from a common scheme or design.” United States v. Kelly, 40 M.J. 558, 570
(N.M.C.M.R. 1994).
The appellant cites four separate cases30 that he believes are “closely
related” in support of his claim that his sentence to eight years’ confinement is
disparately severe. These cases were convened by four different convening
authorities, from two different services, spanning a period of 10 years. These
cases do not constitute closely related offenses. The appellant cannot identify
any “close relationship” between his case and the other four, except to show
that, like his case, all involve a servicemember engaging in sexual activity
without first informing his sexual partner that he was HIV-positive. Far from
being “co-actors” or “servicemembers involved in a common or parallel
scheme,” the appellant’s offenses and those committed by the other four
servicemembers took place at different times, at different commands, in
different parts of the world, and involved unrelated sexual partners under
differing factual circumstances. Lacy, 50 M.J. at 288. Therefore, we find no
“direct nexus” between the appellant’s misconduct and that of his proposed
30 See United States v. Stevens, No. 201300116, 2013 CCA LEXIS 913, unpublished
op. (N-M. Ct. Crim. App. 31 Oct 2013) (servicemember convicted of three specifications
of assault consummated by a battery in violation of Article 128, UCMJ, was sentenced
to confinement for 18 months for engaging in unwarned and unprotected sexual acts
with three individuals) (per curiam); United States v. Herndon, No. 201000066, 2010
CCA LEXIS 478, unpublished op. (N-M. Ct. Crim. App. 15 Jun 2010) (servicemember
convicted of aggravated assault in violation of Article 128, UCMJ, was sentenced to 15
months’ confinement for engaging in sexual acts without informing his sexual partners
of his HIV-positive status) (per curiam); United States v. Napier, No. 200300805, 2005
CCA LEXIS 189, unpublished op. (N-M. Ct. Crim. App. 22 Jun 2005) (servicemember
convicted of four specifications of Article 128, UCMJ, was sentenced to, among other
things, four years of confinement for engaging in unprotected sexual intercourse
without first informing his sexual partner of his HIV-positive status); United States v.
Gutierrez, No. 37913, 2015 CCA LEXIS 525, unpublished op. (A.F. Ct. Crim. App. 23
Nov 2015) (in light of the CAAF’s holding discussed supra, the Air Force Court of
Criminal Appeals affirmed a sentence of six years’ confinement for the
servicemember’s convictions for assault consummated by a battery in violation of
Article 128, UCMJ).
13
United States v. Forbes, No. 201600357
comparison cases, especially when considering the appellant pleaded guilty to
sexual assault, in violation of Article 120, UCMJ, rather than aggravated
assault or assault consummated by a battery, in violation of Article 128,
UCMJ—as did those servicemembers in the cases cited by the appellant. Id.
Even assuming, arguendo, that the appellant was able to meet his burden
to demonstrate that the cited cases were “closely related,” we conclude he has
not shown that his sentence is “highly disparate.” The test for whether a
sentence is highly disparate “is not limited to a narrow comparison of the
relative numerical values of the sentences at issue, but also may include
consideration of the disparity in relation to the potential maximum
punishment.” Lacy, 50 M.J. at 289. The appellant alleges that among the cases
he cites as “closely related,” Stevens is most like the appellant’s and represents
“the same fact pattern as the present case.”31 Airman Stevens engaged in
sexual activity with three different women, including two other Sailors, while
he was HIV-positive. He was convicted, pursuant to his pleas, of three
specifications of violating an order not to engage in sexual activity without first
informing his partners that he was HIV-positive, in violation of Article 92,
UCMJ,32 and three specifications of assault consummated by a battery, in
violation of Article 128, UCMJ. Stevens, 2013 CCA LEXIS 913, at *1-3. Based
on these convictions, Stevens faced a maximum punishment of three years’
confinement, and was sentenced to 18 months confinement—one half the
maximum authorized for the offenses to which he pleaded guilty. The
appellant, conversely, was convicted of three specifications of sexual assault,
one specification of committing an infected sexual battery in violation of
Virginia law, and one specification of making a false official statement. The
appellant faced a maximum sentence of 96 years confinement, yet was
sentenced to only eight years. Therefore, we conclude that any difference in the
confinement awarded the appellant did not produce sentences that were
“highly disparate.”
We next consider whether the appellant’s sentence to eight years’
confinement is inappropriately severe. We review sentence appropriateness de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). This court “may
affirm only . . . the sentence or such part or amount of the sentence, as it . . .
determines, on the basis of the entire record, should be approved.” Art. 66(c),
UCMJ. “Sentence appropriateness involves the judicial function of assuring
that justice is done and that the accused gets the punishment he deserves.”
United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires our
“individualized consideration of the particular accused on the basis of the
31 Appellant’s Brief at 27.
32 10 U.S.C. § 892.
14
United States v. Forbes, No. 201600357
nature and seriousness of the offense and the character of the offender.” United
States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal
quotations marks omitted). While we have significant discretion in
determining sentence appropriateness, we do not engage in acts of clemency.
United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
The appellant deliberately put four different women at risk of contracting
HIV. One of these women, LK, informed the appellant that she was taking
medication that weakened her immune system as a result of a recent kidney
transplant. The appellant assured her that he “wouldn’t do anything to . . .
jeopardize it”, yet had sex with her anyway without disclosing his status.33
Another women, AS, disclosed to the appellant that she had a family member
that was HIV-positive, and discussed getting tested with the appellant prior to
engaging in intercourse with him. But the appellant “informed her that [he]
was clean, when [he] was in fact HIV-positive.”34 These two situations betray
the callousness and deceit of the appellant, and are particularly aggravating.
Additionally, the appellant brazenly continued to have frequent, unprotected
sexual intercourse with two of the women despite knowing he was actively
being investigated by NCIS.
Having given individualized consideration to the nature and seriousness of
the appellant’s crimes, as well as the evidence submitted in extenuation and
mitigation, we conclude the sentence is not inappropriately severe and is
appropriate for the appellant and his offenses. Snelling, 14 M.J. at 268. We
also note that the appellant specifically bargained for a PTA that allowed for
the approval of the sentence of which he now complains.35 Granting sentence
relief at this point would be to engage in clemency, which is the sole prerogative
of the CA. Healy, 26 M.J. at 395-96.
III. CONCLUSION
The findings and sentence are affirmed.
Judge FULTON and Judge SAYEGH concur.
For the Court
R.H. TROIDL
Clerk of Court
33 Record at 222.
34 PE 14 at 3.
35 See AE XXIV at 1.
15