The NMCCA, finding no prejudicial error in Sgt Maurice J. Lewis' assignments of error, affirmed his findings and sentence. Opinion here.
Sgt Lewis was convicted of three specifications of failure to obey a lawful order, one specification of sexual assault by causing bodily harm, one specification of assault consummated by a battery, and one specification of indecent viewing. Appellant asserts on appeal that the evidence is legally and factually insufficient to support the convictions for sexual assault, assault consummated by a battery, and indecent viewing. The court found no prejudicial error and affirmed the convictions.
Sgt Maurice J. Lewis (Appellant) worked with “Cpl Harris” from November 2015 through the summer of 2016. In November 2015, Cpl Harris was taking a shower in his barracks room, when Appellant walked into Cpl Harris’s barracks room uninvited, entered the bathroom and began pulling open the shower curtain. This startled Cpl Harris, who then stopped the curtain from being fully opened. However, Cpl Harris testified that from where Appellant was positioned, it was possible for Appellant to see his naked body, including his buttocks. Appellant asked to join Cpl Harris in the shower and Cpl Harris asked Appellant to leave, which Appellant then did.
In March 2016, Appellant was diagnosed as HIV-positive. Due to effective treatment, Appellant’s viral load tested at an undetectable level by mid-May. As an HIV-positive service member, Appellant was informed that “prior to engaging in any sexual acts, he was required to verbally advise any prospective sexual partner that he was HIV-positive”, including acts involving Appellant’s mouth and a bare penis.
Early in the summer of 2016, Appellant and Cpl Harris were at a party at an off-base residence where they were drinking alcohol. Cpl Harris fell asleep on the couch with his jeans on but awoke with his jeans around his ankles and Appellant’s head between his legs with his penis in Appellant’s mouth. Cpl Harris reported yelling, “Get off. What are you doing?” Appellant then stopped and Cpl Harris reportedly got up from the couch, pulled up his jeans, and left the residence. Cpl Harris made a restricted report of the incident in August 2016, and disclosed what happened to a friend, who in turn reported the allegations to NCIS. NCIS opened an investigation against Appellant who denied any consensual sexual activity with Cpl Harris. Cpl Harris testified at trial that “he did not consent to Appellant placing his penis in Appellant’s mouth; that he did not allow Appellant to do it; that he would not have consented” and that he first found out about Appellant’s HIV-positive status when told by his Victim’s Legal Counsel after the investigation began. Cpl Harris also testified that had he known about Appellant’s HIV-positive status that would make his denial of consent “absolute.”
The issue raised by Appellant was whether the evidence is legally and factually sufficient to support his convictions for (1) assault consummated by a battery, (2) sexual assault by bodily harm, and (3) indecent viewing.
Finding no prejudicial error, the court affirmed the convictions.
In evaluating legal sufficiency, the court must decide whether, “considering the evidence in the light most favorable to the prosecution, a reasonable fact-finder could have found all the essential elements beyond a reasonable doubt.” In determining the factual sufficiency, the court was required to make an independent determination as to whether, “after weighing the evidence in the record of trial and making allowances for not having observed the witnesses, we are convinced of the appellant’s guilt beyond a reasonable doubt.”
The court found this case analogous to Gutierrez, an aggravated assault case for causing grievous bodily harm, where CAAF found that despite “virtually zero risk of transmission,” sexual conduct without disclosing HIV-positive status constituted offensive touching to which the sexual partners “did not provide meaningful informed consent.” Bound by the precedent of a superior court, the court found that a reasonable fact-finder could have found all the essential elements beyond a reasonable doubt and therefore, the evidence was legally sufficient to support the conviction. After considering the evidence in the record of trial, the court was also convinced of Appellant’s guilt beyond a reasonable doubt, finding the evidence factually sufficient.
2. Sexual Assault by Bodily Harm
For the offense of sexual assault by bodily harm under UCMJ art. 120(b)(1)(B), the Government was required to prove that (1) Appellant caused penetration of his mouth with Cpl Harris’s penis; and (2) Appellant did so by causing bodily harm to Cpl Harris. Under art. 120, “bodily harm” is defined as “any offensive touching of another, however slight, including any nonconsensual sexual act” and “[l]ack of consent may be inferred based on the circumstances of the offense.” Appellant argues that Cpl Harris’s testimony was the only evidence presented at trial to prove lack of consent and should not be considered legally and factually sufficient.
For the specification of sexual assault, the Government presented a theory of general lack of consent, as well as lack of informed consent since Cpl Harris was not aware of Appellant’s HIV status when the sexual act occurred. The court was convinced that Appellant committed the sexual act without Cpl Harris’s consent beyond a reasonable doubt under either theory. Citing only evidence brought forward by the victim himself, the court found that Cpl Harris’s testimony, along with “the generally corroborative evidence presented at trial,” was sufficient to determine that the act was generally nonconsensual. In addition, the court found that Appellant’s commission of the sexual act without first informing Cpl Harris of his HIV status constitutes “an offensive touching to which [Cpl Harris] did not provide meaningful informed consent,” as establish by the CAAF in Gutierrez and Forbes, and therefore, Appellant’s conduct satisfied both elements of sexual assault by bodily harm based on this theory as well. Overall, the court found that after weighing the evidence in the record of trial, the evidence was legally and factually sufficient.
In footnote 15, the court additionally considered whether the “failure to inform” theory unreasonably multiplied the sexual assault specification when charged in addition to the assault consummated by a battery specification since convictions for both specifications would rely on proving the same sexual act and the same failure to disclose Appellant’s HIV status occurred. The court found, however, that under the tests for assessing multiplicity set out by the CAAF in Armstrong, the assault consummated by a battery specification “directly charged Appellant with failing to inform Mr. Harris of his HIV status and thus facially requires proof of an element that the [other sexual assault] specification…does not; hence, the specifications are not multiplicious.”
3. Indecent Viewing
In order to convict Appellant of indecent viewing under UCMJ art. 120c(d)(2), the Government was required to prove that Appellant (1) knowingly and wrongfully viewed the private area of Cpl Harris, (2) that such viewing occurred without the consent of Cpl Harris, and (3) under circumstances in which Cpl Harris had a reasonable expectation of privacy. Despite Appellant’s argument that the only evidence presented at trial by the Government was the testimony of the victim, the court again found that this evidence was enough to convince them of Appellant’s guilt beyond a reasonable doubt. Recounting only Cpl Harris’s testimony of the incident, and determining that Cpl Harris had a “reasonable expectation of privacy in his own shower,” the court determined that the evidence was legally and factually sufficient to support a conviction of indecent viewing.