              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                             No. ACM 39115
                         ________________________

                           UNITED STATES
                               Appellee
                                     v.
                        Carlos R. CASSANO
             Senior Airman (E-4), U.S. Air Force, Appellant
                         ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Decided 13 December 2017
                         ________________________

Military Judge: Brendon K. Tukey.
Approved sentence: Dishonorable discharge, confinement for 4 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 31 March 2016 by GCM convened at Luke Air Force Base,
Arizona.
For Appellant: Major Jarett F. Merk, USAF; Lance J. Wood, Esquire.
For Appellee: Lieutenant Colonel G. Matt Osborn, USAF; Major Mary
Ellen Payne, USAF; Gerald R. Bruce, Esquire.
Before DREW, MAYBERRY, and DENNIS, Appellate Military Judges.
Chief Judge DREW delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge DENNIS joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

DREW, Chief Judge:
   A military judge siting as a general court martial convicted Appellant,
contrary to his pleas, of sexually assaulting Airman First Class (E-3) (A1C)
JE, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10
                     United States v. Cassano, No. ACM 39115


U.S.C. § 920; and of physically assaulting1 A1C JE by pinning her against a
wall and forcibly kissing her, in violation of Article 128, UCMJ, 10 U.S.C. §
928. 2 The military judge sentenced Appellant to a dishonorable discharge,
confinement for four years, and reduction to E-1. The convening authority
approved the adjudged sentence.
    Appellant raises two assignments of error (AOEs): (1) whether the evi-
dence was legally and factually sufficient to prove that Appellant sexually
assaulted A1C JE, and (2) whether the military judge and convening authori-
ty abused their discretion in denying a Defense request for a post-trial ses-
sion under Article 39(a), UCMJ, 10 U.S.C. § 839(a). As to AOE 1, Appellant
contends that A1C JE either consented to his sexual acts or that he honestly
and reasonably believed that she consented. Regarding AOE 2, Appellant
sought the post-trial session to introduce testimony about a statement that
A1C JE purportedly said nine months before the sexual and physical assault
and over two years before the trial. We find that the evidence is both legally
and factually sufficient and that neither the military judge nor the convening
authority abused his discretion in denying the post-trial session, as the in-
formation the Defense sought to introduce after the trial did not qualify as
newly discovered evidence. We find no prejudicial error and affirm.

                                  I. BACKGROUND
    The events that gave rise to Appellant’s court-martial occurred during a
single incident in November of 2014. Up until several months prior to the in-
cident, Appellant and A1C JE had an on–again and off–again dating rela-
tionship. The relationship spanned eight months and they broke up several
times over its course, though the break-ups typically lasted only a few days
before they were back together again. Until the end, each break-up was insti-
gated by Appellant. When the relationship finally terminated, in July or Au-
gust of 2014, it was A1C JE who ended it.
    Appellant had a history of inpatient drug treatment and clinical depres-
sion that was apparently brought on by being estranged from his wife and
young son. His mixed emotions regarding his strained relationship with his
wife and his strong desire to be reunited with his son played a prominent
part in his multiple break-ups with A1C JE. Over the course of their relation-


1   Assault consummated by a battery.
2 The military judge acquitted Appellant of divers wrongful use of cocaine, in viola-
tion of Article 112a, UCMJ, 10 U.S.C. § 912a, and of communicating a threat, in vio-
lation of Article 134, UCMJ, 10 U.S.C. § 934.




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                  United States v. Cassano, No. ACM 39115


ship, A1C JE became aware of Appellant’s multiple suicidal ideations and one
possible attempt. She also knew that two members of his immediate family
had attempted suicide in the past.
    After Appellant and A1C JE broke up, they avoided each other at work
and off duty. However, at a weekend afternoon football game in November
2014, they ran into each other and had a brief conversation, followed by some
short text messages. Much later in the day, Appellant texted A1C JE and led
her to believe that he was seriously contemplating suicide. One of his texts
indicated that he was drinking alcohol with his friends and they were trying
to keep him from shooting himself. He said that one of his friends “literally
grabbed the gun as I was pulling the trigger.” A1C JE knew that Appellant
kept personal firearms. While she no longer loved him, she still cared for him
as a friend. She texted that he needed to stop drinking and he needed help.
He responded that he wanted her to come to his house and sleep next to him.
She clarified that he meant just sleep and nothing else. He said yes. He then
said that he was on his way to his house but wanted to pick up more alcohol.
She said he did not need it. He asked if she was going to come over, and she
said not if he kept drinking. He said he would stop if she would come over.
She asked what would happen if she came over. He said that he would go to
sleep. She asked if that was all and he said yes. He also said he would agree
to go to a mental institution. She said she would pack a few things and come
over.
    A1C JE was terrified that if she did not agree to go to Appellant’s house,
he would harm himself. Because he had never tried to do anything against
her will in the past, she felt she could trust him. She drove herself to his
house and brought her uniform for work the next day. When she arrived, Ap-
pellant was in his car listening to music. She got into the car and they talked.
Appellant confronted her about whether she had had sexual intercourse with
a mutual friend of theirs. She eventually admitted that she had and Appel-
lant became very angry, got out of his car, punched a brick wall, kicked over a
trash can, and started pacing back and forth, muttering to himself. A1C JE
got out of the car to see if he was okay. Appellant said he was going to shoot
and kill the mutual friend and it would be A1C JE’s fault. Appellant went to
his car, opened the trunk, and took out the case for one of his firearms.
A1C JE pushed him away from the case and he let it go. He took his cell
phone, told her he was going to text the mutual friend, and went inside his
house. She followed him because she did not want to leave him while he was
angry.
    When A1C JE got into the house, Appellant continued to act in an agitat-
ed manner, pacing, talking about how he was going to retrieve his gun, in-
sulting her, and telling her how stupid she was and how she had “ruined eve-
rything.” Appellant pinned A1C JE against a wall and door with his hands

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                  United States v. Cassano, No. ACM 39115


and forcibly kissed her without her consent. This action formed the basis for
his conviction of assault consummated by a battery.
    Appellant stopped forcibly kissing A1C JE, took off his shirt, and said
that he was sorry but he had to get out his anger. He also said he forgave her
for sleeping with his friend. They sat down on the couch and she tried to calm
him down by talking. Appellant continued to try to kiss her but she resisted.
He said he wanted to talk with her like they used to, which was while partial-
ly unclothed. He tried to take off her clothes. She resisted and said no but
eventually took off her shirt. They sat at opposite ends of the couch and
talked. A1C JE did not leave Appellant’s house because she was still afraid of
what he might do to himself if she did. They went upstairs to the master bed-
room. She thought if she could get Appellant to sleep, everything would be
over.
    A1C JE laid down on Appellant’s bed, hoping that he would lay down and
go to sleep. At first, he did lay down next to her, but then he got on top of her
and started kissing her again. He then took off her underwear, forcibly pene-
trated her vulva and mouth with his penis, and digitally penetrated her anus,
all without her consent. Throughout the incident, A1C JE told Appellant “no”
and begged him to stop. Every time she would try to fight and push away
from him, Appellant would use more force. Towards the end of the assault,
Appellant asked her if he could ejaculate inside her. A1C JE said yes because
she wanted the assault to end and, based on their past consensual sexual ac-
tivity, she knew that he would ejaculate faster if he did it inside her.
    Appellant told A1C JE to go to the bathroom and clean herself. He
watched as she did. Appellant got back into bed and she did too. She was
scared and wanted to stay alive. She lay on the bed, not touching Appellant,
and waited for him to fall asleep. She laid awake and waited for the alarm
clock to go off so she could get up and go to work. In the morning, she took a
shower and tried to act like everything was normal because she did not want
Appellant to think something bad had happened.
    At work, A1C JE texted Appellant, trying to prompt him to respond and
explain why he did what he did. Over the course of the next three days, she
told coworkers and supervisors what had happened, but one supervisor tried
to convince her that she was just regretting having had consensual sex with
Appellant. She also talked to her mother and sister about the sexual assault.
On the third day after the assault, she spoke with the Sexual Assault Re-
sponse Coordinator (SARC) and then submitted to a sexual assault forensic
examination.




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                  United States v. Cassano, No. ACM 39115


                                II. DISCUSSION
A. Legal and Factual Sufficiency
    Appellant asserts that A1C JE’s actions in voluntarily going to his house,
partially disrobing, getting into his bed, and allowing him to ejaculate inside
her renders the evidence legally and factually insufficient to prove that he is
guilty of sexual assault. In Appellant’s view, the Prosecution did not meet its
burden of proof to establish that Appellant’s sexual acts were without
A1C JE’s consent. Further, Appellant contends, even if the evidence was suf-
ficient to prove A1C JE did not consent, it failed to overcome Appellant’s hon-
est and reasonable mistake of fact that she did. We disagree.
    Article 66(c), UCMJ, requires that we conduct a plenary review of the rec-
ord and affirm only such findings of guilty and the sentence or such part or
amount of the sentence as we find are correct in law and fact and determine,
on the basis of the entire record, should be approved. United States v. Swift,
76 M.J. 210, 216 (C.A.A.F. 2017). “A complete Article 66, UCMJ, review is a
‘substantial right’ of an accused.” Id. (quoting United States v. Jenkins, 60
M.J. 27, 30 (C.A.A.F. 2004)). We review both legal and factual sufficiency de
novo. United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017).
    “The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id.
(quoting United States v. Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014)). The
term “reasonable doubt” does not mean that the evidence must be free from
conflict. United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017)
(citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)). “[I]n resolv-
ing questions of legal sufficiency, we are bound to draw every reasonable in-
ference from the evidence of record in favor of the prosecution.” Id. (quoting
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)).
    Our assessment of factual sufficiency is limited to the evidence presented
at trial. Wheeler, 76 M.J. at 568 (citing United States v. Dykes, 38 M.J. 270,
272 (C.M.A. 1993)). We “cannot find as fact any allegations of which the ac-
cused was found not guilty at trial.” Rosario, 76 M.J. at 117. However, as an
accused is “generally acquitted of offenses, not of specific facts” when “the
same evidence is offered at trial to support two different offenses, [we are] not
necessarily precluded from considering the evidence that was introduced in
support of the charge for which the appellant was acquitted when conducting
[our] legal and factual sufficiency review of the charge for which the appel-
lant was convicted.” Id. (emphasis added).
   The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed


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                  United States v. Cassano, No. ACM 39115


the witnesses, [we are] convinced of appellant’s guilt beyond a reasonable
doubt.” Rosario, 76 M.J. at 117 (quoting United States v. Oliver, 70 M.J. 64,
68 (C.A.A.F. 2011)). In conducting this unique appellate role, we take “a
fresh, impartial look at the evidence,” applying “neither a presumption of in-
nocence nor a presumption of guilt” to “make [our] own independent determi-
nation as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.” United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). As with legal sufficiency, the term “reasonable doubt” “does
not mean that the evidence must be free of conflict.” United States v. Gal-
chick, 52 M.J. 815, 818 (A.F. Ct. Crim. App. 2000).
    After taking a fresh, impartial look at the evidence—determining whether
the evidence established that A1C JE did not consent to Appellant’s sexual
acts and that Appellant was not honestly and reasonably mistaken, and mak-
ing allowances for not having personally observed the witnesses—we are con-
vinced of Appellant’s guilt beyond a reasonable doubt. In addition, having re-
viewed the entire record, we are convinced beyond a reasonable doubt of Ap-
pellant’s guilt of the sexual assault offense.
B. Newly Discovered Evidence
    Approximately a week after the close of Appellant’s trial, one of his
friends, whom he first met while they were both undergoing inpatient drug
treatment, provided the Defense with an affidavit. The affidavit indicated
that A1C JE, who was at the time in the midst of her prior dating relation-
ship with Appellant, visited Appellant during his treatment. During one of
those visits in January 2014, the friend indicated that A1C JE told him “[i]f
[Appellant] ever left me I would ruin his life.”
    Three weeks after the trial, and before the record of trial had been au-
thenticated, the Defense filed the affidavit with the military judge in a mo-
tion for a post-trial hearing to consider whether the military judge should
grant a new trial based on newly discovered evidence. The military judge de-
nied the motion, concluding that the contents of the affidavit failed to satisfy
the requirements for a new trial and, as such, a post-trial hearing was unnec-
essary. In his clemency submissions to the convening authority, Appellant, on
the same basis he raised with the military judge, requested that the conven-
ing authority order a rehearing or, in the alternative, a post-trial hearing.
The convening authority declined to do either.
    The military judge or the convening authority may direct an Article 39(a)
post-trial session. Rule for Courts-Martial (R.C.M.) 1102(a). Upon the motion
of either party, or sua sponte, the military judge may call a post-trial Article
39(a) session to resolve any matter that arises after trial and that substan-
tially affects the legal sufficiency of any finding of guilty or the sentence.
R.C.M. 1102(b)(2).

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                  United States v. Cassano, No. ACM 39115


     Whenever the military judge or the convening authority denies a request
for a post-trial 39(a) session to inquire into matters that purportedly would
give rise to a new trial, we review the denial for an abuse of discretion. Unit-
ed States v. Meghdadi, 60 M.J. 438, 441 (C.A.A.F. 2005). In denying a petition
for new trial or a request for a post-trial 39(a) session to consider a request
for a new trial, a military judge abuses his discretion “if the findings of fact
upon which he predicates his ruling are not supported by evidence of record;
if incorrect legal principles were used by him in deciding this motion; or if his
application of the correct legal principles to the facts of a particular case is
clearly unreasonable.” Id. (quoting United States v. Williams, 37 M.J. 352,
356 (C.M.A. 1993)).
    “[R]equests for a new trial, and thus rehearings and reopenings of trial
proceedings, are generally disfavored. Relief is granted only if a manifest in-
justice would result absent a new trial, rehearing, or reopening based on prof-
fered newly discovered evidence.” Id. In order for an appellant to be entitled
to a post-trial Article 39(a) session to present evidence in support of a request
for a new trial based on newly discovered evidence, he must make three spe-
cific showings:
       First, that the evidence was discovered since the trial. Second,
       that the evidence is not such that it would have been discov-
       ered by the appellant at the time of trial in the exercise of due
       diligence. And third, that the newly discovered evidence, if con-
       sidered by a court-martial in the light of all other pertinent ev-
       idence, would probably produce a substantially more favorable
       result for appellant.
Williams, 37 M.J. at 356 (quotations and citations omitted).
    The military judge made written findings of fact and conclusions of law in
denying Appellant’s request for a post-trial 39(a) session. The military judge
assumed for purposes of his ruling that the author of the affidavit, if called to
testify in a post-trial session, would testify consistent with the affidavit. The
military judge further assumed, for purposes of the motion, that the contents
of the affidavit are accurate and truthful. We accept the military judge’s as-
sumptions for purposes of our review.
   The military judge determined that the evidence was not discovered after
the trial and was known by Appellant well before trial. The military judge’s
conclusion is well supported by the contents of the affidavit and we adopt it
as our own. The military judge points out that the fact that Appellant had
knowledge of the evidence clearly establishes that it would have been and in-
deed was discovered by Appellant at the time of the trial, regardless of
whether his trial defense counsel were aware of it. We agree. Finally, in his
written findings, the military judge—the factfinder in this judge-alone trial—

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                  United States v. Cassano, No. ACM 39115


found A1C JE “to be a credible and compelling witness.” The military judge
concluded that, while the evidence might have been helpful to the Defense in
casting A1C JE in a poor light, “it is clear that this evidence, in light of all
other pertinent evidence, would not have produced a substantially more fa-
vorable result for the accused.” It was A1C JE who ended the relationship
with Appellant. The judge did not abuse his discretion in concluding that
statement she made months before Appellant assaulted her, regarding what
she would do if he ever left her, would not have produced a substantially more
favorable result.
    Neither the military judge nor the convening authority abused his discre-
tion in denying Appellant a post-trial session to introduce evidence that
would not have established a basis for a new trial.

                              III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED.


                 FOR THE COURT


                 KATHLEEN M. POTTER
                 Acting Clerk of the Court




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