CAAF grants review in HIV assault case

We previously discussed the Coast Guard Court's opinion in United States v. Upham here. CAAF has now granted review of two interesting issues in the case:

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.

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.

United States v. Upham, __ M.J. ___, No. 07-0322/CG (C.A.A.F. Aug. 16, 2007).