William Cassara - United States v. Boese

For Appellant: William E. Cassara, Esquire; Major Sean S. Park, JA; Captain Charles A. Kuhfahl, Jr., JA (on brief); Captain Lonnie J. McAllister II, JA.

For Appellee: Lieutenant Colonel Theresa A. Gallagher, JA; Major William J. Nelson, JA; Captain Magdalena A. Przytulska, JA (on brief).

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of assault with intent to inflict grievous bodily harm (three specifications),* in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for three years, forfeiture of all pay and allowances, and reduction to Private E1. The convening authority approved only so much of the sentence as provides for a bad-conduct discharge, confinement for three years, and reduction to Private E1. The convening authority credited appellant with two days of confinement credit against the sentence to confinement.

This case is before the court for review pursuant to Article 66, UCMJ. We have considered the record of trial, appellant’s assignments of error, the matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the government’s reply thereto. Appellant alleges that the evidence is legally and factually insufficient to support the convictions. The government concedes that the evidence is insufficient to support convictions to Specifications 3 and 4 of the Charge. We agree with the government’s concession and will grant appropriate relief in our decretal paragraph.

This court will affirm only those findings of guilty that it finds to be correct in law and fact. UCMJ art. 66(c). The test for legal sufficiency is whether, considering the evidence in the light most favorable to the government, a rational fact finder could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When applying this test, we are bound to draw every reasonable inference from the record in favor of the prosecution. United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991). The test for factual sufficiency is whether, after weighing the evidence of record and making allowances for not having personally observed the witnesses, we are convinced of appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

We agree with the government and find that the evidence is factually insufficient to support convictions of Specifications 3 and 4. After reviewing the testimony and applying the above tests for both factual and legal sufficiency, we find that the evidence is not factually sufficient to sustain convictions to Specifications 3 and 4, beyond a reasonable doubt. However, we find that the evidence is legally and factually sufficient to support a conviction of Specification 2 of the Charge and the Charge.

In order to properly reassess the sentence for the remaining conviction of assault with intent to inflict grievous bodily harm, we must “assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) (quoting United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)). This means that we must determine, absent the military judge’s erroneous finding of guilty to Specifications 3 and 4, that appellant would have received a sentence of at least a certain severity solely for the conviction of Specification 2. Id. at 308. Under the facts of this case, we “cannot reliably determine what sentence would have been imposed at the trial level” for one assault conviction as opposed to three. See id. at 307.

Accordingly, the findings of guilty of Specifications 3 and 4 of the Charge are set aside and those specifications are dismissed. The remaining findings of guilty to Specification 2 of the Charge and the Charge are affirmed. The sentence is set

aside. A sentence rehearing is authorized. After the convening authority has taken his action, the record will be resubmitted to this court for review consistent with our responsibilities under Article 66, UCMJ.

* At trial, appellant was found not guilty of Specification 1 of the Charge, alleging:

In that Specialist Seth E. Boese, U.S. Army did, at Fort Polk, Louisiana, on or about 25 September 2001, unlawfully strike Master [S.B.B.], a child under the age of 16 years, in the head with his hand.

Appellant was found guilty of the following specifications of the Charge:

Specification 2: In that Specialist Seth E. Boese, U.S. Army, did, at Fort Polk, Louisiana, on or about 10 October 2001, unlawfully commit an assault upon Master [S.B.B.], by striking his head and did thereby intentionally inflict grievous bodily harm upon him, to wit: a fractured skull.

Specification 3: In that Specialist Seth E. Boese, U.S. Army, did, at Fort Polk, Louisiana, on or about 21 January 2002, unlawfully commit an assault upon Master [S.B.B.], by bending his arm and did thereby intentionally inflict grievous bodily harm on him, to wit: a fractured humerus.

Specification 4: In that Specialist Seth E. Boese, U.S. Army, did, at Fort Polk, Louisiana, on or about 21 January 2002, unlawfully commit an assault upon Master [S.B.B.], by whipping his legs around and did thereby intentionally inflict grievous bodily harm on him, to wit: metaphyseal corner fractures of both femurs.