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