United States v. Upham

66 M.J. 83 (2008)

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United States v. Upham

United States Court of Appeals for the Armed Forces
66 M.J. 83 (2008)

Facts

Lieutenant Christopher M. Upham (defendant) was tried by general court-martial for aggravated assault after he had sex with a fellow officer, Captain B, without disclosing to her that he was HIV-positive. The aggravated assault charge required the United States government (plaintiff) to prove, among other things, that Upham had committed an offensive touching of Captain B and that he had acted in a manner likely to produce death or grievous bodily harm. Upham denied guilt but testified that he had, without justification, had sex with Captain B without informing her of his HIV status and that his actions had caused her great mental anguish. At the close of the evidence, the military judge offered to instruct the panel on the charged offense of aggravated assault and on the lesser included offense of assault consummated by a battery. Both charges included the common element of offensive touching. The prosecution and the defense agreed to waive the instruction on the lesser included offense, and the judge instructed the members only on the aggravated-assault charge. Upham was convicted of aggravated assault, and the finding was approved by the convening authority. On appeal, the Court of Criminal Appeals found that the aggravated-assault instruction had been erroneous. The court found that the erroneous instruction concerning offensive touch had been harmless but that the erroneous instruction concerning the likelihood of producing grievous bodily harm had been prejudicial. The court therefore disapproved Upham’s conviction for aggravated assault and substituted a conviction for assault consummated by a battery. Upham appealed.

Rule of Law

Issue

Holding and Reasoning (Effron, J.)

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