U.S. v. Napier,NMCCA 200300805, 2005 WL 1473959 (N-M. Ct. Crim. App. 2005)

This is a U.S. Navy-Marine Corps Court of Criminal Appeals decision reviewing a service member's conviction of four counts of "assault with a means likely to produce grievous bodily harm" by engaging in sexual intercourse without a condom, for which he was sentenced to three years confinement, total forfeiture of pay and allowances, a pay grade reduction, and dishonorable discharge. The court dismissed the first count of aggravated assault because of inconsistent facts, but affirmed all others.

Napier, an HIV positive man, had sex with a female sailor on four occasions. The pair used a condom during only the first sexual encounter. Though the defendant claimed that he informed the woman of his diagnosis after the first time they had sex, she testified that she did not learn he had HIV until after the fourth occasion. Napier pleaded guilty to all four counts, but appealed his convictions due to his lack of intent to harm. He also claimed his attorney misinformed him of the maximum punishment. Though the highest sentence available was 12 years of confinement and Napier ultimately received three years, his counsel told him that the most he would serve was six months.

The U.S. Navy-Marine Corps Court of Criminal Appeals noted that even when a defendant enters a guilty plea, the presiding judge must inquire into the facts. Accordingly, the court dismissed the first count of aggravated assault because the judge conducted only a bare bones inquiry, neglecting to determine whether the defendant believed that using a condom adequately protected his partner from HIV. However, the court rejected the appellant's assignments of error, explaining that under the statute, aggravated assault does not require specific intent or a result of actual harm. Proof that the accused knowingly and willingly exposed someone to the risk of infection is enough to convict. Furthermore, the court examined the circumstances around Napier's plea deal, and found that his initial misunderstanding about the maximum sentence did not affect his guilty plea.