UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 39115

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UNITED STATES

Appellee

v.

Carlos R. CASSANO

Senior Airman (E-4), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 13 December 2017

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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.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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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 
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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 evidence was legally and factually sufficient to prove that Appellant sexually 

assaulted A1C JE, and (2) whether the military judge and convening authority abused their discretion in denying a Defense request for a post-trial session 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 information 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 incident, Appellant and A1C JE had an on–again and off–again dating relationship. 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 instigated by Appellant. When the relationship finally terminated, in July or August of 2014, it was A1C JE who ended it. 

Appellant had a history of inpatient drug treatment and clinical depression 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 violation of Article 112a, UCMJ, 10 U.S.C. § 912a, and of communicating a threat, in violation of Article 134, UCMJ, 10 U.S.C. § 934. 
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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, Appellant 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 Appellant 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 agitated manner, pacing, talking about how he was going to retrieve his gun, insulting her, and telling her how stupid she was and how she had “ruined everything.” Appellant pinned A1C JE against a wall and door with his hands 
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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 partially 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 bedroom. 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 penetrated 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 activity, 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 Response Coordinator (SARC) and then submitted to a sexual assault forensic 

examination.
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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 sufficient to prove A1C JE did not consent, it failed to overcome Appellant’s honest and reasonable mistake of fact that she did. We disagree.

Article 66(c), UCMJ, requires that we conduct a plenary review of the record 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 resolving questions of legal sufficiency, we are bound to draw every reasonable inference 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 accused 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 appellant 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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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 innocence nor a presumption of guilt” to “make [our] own independent determination 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. Galchick, 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 making allowances for not having personally observed the witnesses—we are convinced of Appellant’s guilt beyond a reasonable doubt. In addition, having reviewed the entire record, we are convinced beyond a reasonable doubt of Appellant’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 relationship 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 authenticated, the Defense filed the affidavit with the military judge in a motion for a post-trial hearing to consider whether the military judge should 

grant a new trial based on newly discovered evidence. The military judge denied 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 unnecessary. In his clemency submissions to the convening authority, Appellant, on 

the same basis he raised with the military judge, requested that the convening 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 substantially affects the legal sufficiency of any finding of guilty or the sentence. 

R.C.M. 1102(b)(2).
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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. United 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 injustice would result absent a new trial, rehearing, or reopening based on proffered 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 specific showings:

First, that the evidence was discovered since the trial. Second, 

that the evidence is not such that it would have been discovered by the appellant at the time of trial in the exercise of due 

diligence. And third, that the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, 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 assumptions 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 indeed 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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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 favorable 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 discretion 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