## Facts

- Lieutenant Christopher M. Upham, a U.S. Coast Guard officer who was HIV-positive, had unprotected sexual intercourse with another officer without disclosing his HIV status.
- The government charged Upham with aggravated assault under Article 128, UCMJ, and conduct unbecoming an officer under Article 133, UCMJ.
- At a general court-martial with officer members, Upham pleaded guilty to conduct unbecoming but contested aggravated assault.
- The aggravated assault theory required proof of an offensive touching and that the act was done in a manner likely to produce death or grievous bodily harm.
- Upham testified that he had sex without disclosing his HIV status and caused the other officer mental anguish, but denied guilt of aggravated assault.
- The military judge proposed instructing on aggravated assault and the lesser included offense (LIO) of assault consummated by a battery; both parties affirmatively agreed to forgo the LIO instruction.
- The members were instructed only on aggravated assault and convicted Upham of aggravated assault and conduct unbecoming; the convening authority approved a sentence including dismissal and confinement.

## Issues

1. When an instruction defining an element is constitutionally erroneous, must the error be treated as structural (automatic reversal), or may an appellate court apply Chapman harmless-error review?
2. After setting aside a conviction for a greater offense, may a Court of Criminal Appeals affirm a lesser included offense when the members were not instructed on that LIO and both parties waived the instruction?

## Decision

- The Court of Appeals for the Armed Forces (CAAF) affirmed the service court’s judgment.
- CAAF held the constitutional instructional error was not structural and was subject to Chapman harmless-error review.
- CAAF upheld the service court’s setting aside of the aggravated assault conviction based on prejudicial error in the “likely to produce death or grievous bodily harm” instruction.
- CAAF held the service court could affirm the LIO of assault consummated by a battery despite the lack of an LIO instruction and despite the parties’ waiver.
- CAAF left undisturbed the affirmed conviction for conduct unbecoming and the service court’s reduced sentence.

## Legal Principles

- Most element-definition instructional errors, even when of constitutional dimension, are “trial errors” reviewed for harmlessness under Chapman; structural error is limited to defects that fundamentally compromise the trial’s framework.
- Under Chapman, the government must show a constitutional instructional error was harmless beyond a reasonable doubt.
- Under Article 66, UCMJ, a Court of Criminal Appeals may affirm only those findings correct in law and fact and may approve a lesser included offense supported by the record after setting aside the greater offense.
- A service court may affirm a lesser included offense not presented to members by instruction when the record proves each element beyond a reasonable doubt and the accused had notice that the lesser offense was included in the charged offense.
- A trial-level waiver of an LIO instruction does not remove the appellate court’s statutory authority and responsibility to approve findings supported by the record.

## Conclusion

CAAF approved harmless-error review for a constitutionally flawed element instruction and held that, after setting aside an aggravated assault conviction, a service appellate court may affirm an uninstructed lesser included offense supported by the record under Article 66, UCMJ, notwithstanding the parties’ waiver of an LIO instruction at trial.


United States v. Upham, 66 M.J. 83 (C.A.A.F. 2008)