U.S. v. Sorey, NMCCA9901186, 2004 WL 49093

This is a United States Navy-Marine Corps Court of Criminal Appeals decision that examines whether a military trial judge appropriately convicted an HIV-positive man of aggravated assault for failing to disclose his status before sexual intercourse. The appeals court affirmed the military judge's decision, including the sentence.

The appeal concerns an evidentiary issue of whether the appellant made a statement of fact that could be rebutted, or whether he merely expressed an opinion that could not be rebutted. Because the court determined the trial judge in the case did not perform the required evidentiary balancing test, the appeals court reviewed the facts de novo (anew). In its own review of the facts, the appeals court ultimately concluded that the appellant's unsworn statement expressed a statement of fact, which was properly rebutted by the government. Thus, the court found that the evidence was properly admitted.