Witnesses: Airman never said he was HIV-positive

[January 19, 2011]  WICHITA, Kan. (AP) -- Several people who participated in swinger and partner-swapping events with an Air Force sergeant and his wife say they never would have had sex with the man had he told them he was HIV-positive.

But Tech. Sgt. David Gutierrez repeatedly denied he was infected, and was encouraged by his wife to carry on with his promiscuous lifestyle, several witnesses testified during the first day of the airman's court martial at McConnell Air Force Base in Wichita.

"I watched a brother die of AIDS. It wouldn't have happened," a Topeka woman testified Tuesday about her decision to have unprotected sex with Gutierrez on multiple occasions. She said she had asked him whether he had any sexually transmitted diseases and he assured her he "was clean."

The Associated Press is not naming the airman's sexual partners because they are alleged victims of a sexually-based crime. Gutierrez is charged with 10 counts of aggravated assault -- one count for each sexual partner -- and with violating his squadron commander's order to notify partners about his HIV status and use condoms. He also is charged with multiple indecent acts, for having sex in front of others, and nine counts of adultery. He has pleaded not guilty to all charges.

The Topeka woman was one of several witnesses to testify that Gutierrez's wife also was an active swinger and at times set up partner swaps.

"She was talking about opening a bed-and-breakfast for swingers," the woman said. "She was all for it."

During opening statements, defense attorney Capt. Aaron Mannes had asked the judge to note the conduct of Gutierriez's wife when considering the adultery charges. When it came time to cross examine the prosecution witnesses, defense attorneys emphasized that none of them had been infected with HIV and that during many of the encounters they described, Gutierrez either used a condom or did not ejaculate.

Prosecutors are expected Wednesday to call a physician who specializes in treating HIV and AIDS patients as they wrap up their case.

On Tuesday, a Wichita man who said he participated in swinger events with the couple also testified that Gutierrez flatly denied being HIV positive.

"What he did was wrong," the man said.

A Wichita woman testified that she and her partner met Gutierrez on an adult website and later had dinner at his house, where she said the airman's wife asked the couple, "Do you want to have dessert or do you want to play?"

Gutierrez's wife is not in the military and has not been charged with any crime.

Capt. Sam Kidd, who is prosecuting the case, said during opening statements that the government has a legitimate interest in protecting the community from service members spreading a life-threatening disease. Gutierrez's commander, Maj. Christopher Hague, testified that after learning about the airman's HIV status, he personally gave Gutierrez a written order in October 2009 requiring him to use condoms and notify his sexual partners of his HIV status before engaging in sex.

Under military law, Gutierrez, who is stationed at McConnell base with the 22nd Maintenance Operations Squadron.could face more than 53 years in prison if convicted on all charges. Other penalties include a dishonorable discharge, forfeiture of pay and reduction in rank.

[Associated Press; By ROXANA HEGEMAN]

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