United States v. Parker
2016 CCA LEXIS 83
| N.M.C.C.A. | 2016Background
- Appellant Cpl. Jerry G. Parker was convicted at a general court-martial of making a false official statement, rape by unlawful force, and sexual assault on a person incapable of consenting; sentence: 3 years confinement, reduction to E‑1, forfeiture of pay, and a bad‑conduct discharge.
- Facts: after heavy drinking, victim Cpl. EM was extremely intoxicated; appellant helped him to bed, rolled him onto his back, exposed and orally contacted the victim’s penis; victim could not meaningfully resist and later described the incident as an attempted rape.
- The military judge conditionally dismissed the sexual‑assault specification (as multiplicative with rape) pending appellate review; the convening authority approved the adjudged sentence.
- Appellant raised six assignments of error including: member challenge for cause denial; legal and factual sufficiency of the rape conviction (focus on "unlawful force"); denial of a continuance; pretrial restriction tantamount to confinement; ineffective assistance for not raising confinement and Article 25 selection issues; and improper member selection under Article 25.
- The CCA reversed the rape conviction as legally and factually insufficient for lack of evidence of "unlawful force" (force sufficient to overcome the victim), revived the conditionally dismissed sexual‑assault conviction, rejected the other AOE, and reassessed/affirmed the sentence as originally adjudged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal and factual sufficiency of rape (unlawful force) | Gov: acts of rolling victim and oral contact suffice when victim was extremely intoxicated | Parker: rolling and exposing penis did not constitute force sufficient to "overcome" the victim as statutorily defined | Reversed rape conviction; evidence insufficient to prove unlawful force; sexual‑assault conviction restored |
| Pretrial restriction tantamount to confinement | Parker: restrictive conditions (escort, mustering, room restriction, no visitors) equated to confinement and warrant credit | Gov: conditions tailored for discipline and presence; not as onerous as confinement | Denied; restriction not tantamount to confinement under Mason factors |
| Continuance denial | Parker: defense needed more time after new discovery and counsel's home fire to prepare experts | Gov: judge reasonably balanced factors, case not complex, counsel prepared; trial delay prejudice to prosecution and more restriction for accused | Denied; no abuse of discretion under Miller factors |
| Improper member selection (Article 25 / nominations) | Parker: convening authority excluded/included members improperly by rank and using volunteers | Gov: nominations sought senior members; no systematic exclusion shown; volunteer language inconclusive | Denied; appellant failed to show improper exclusion or material prejudice |
| Challenge for cause of MSgt R (implied/actual bias) | Parker: MSgt R’s public interest in court‑martial results and views on disparities created implied bias for sentencing | Gov: member acknowledged ability to follow instructions and fair consideration; engaged and impartial | Denied; judge did not abuse discretion—no actual bias, and no objective implied bias |
| Ineffective assistance (failure to raise confinement and Article 25) | Parker: counsel were deficient for not litigating pretrial restriction credit and Article 25 issues | Gov: any omissions not prejudicial because claims lacked merit or were forfeited | Denied; no reasonable probability of a different outcome under Strickland |
Key Cases Cited
- United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (standard for de novo review of sufficiency)
- United States v. Humphreys, 57 M.J. 83 (C.A.A.F. 2002) (legal sufficiency test)
- United States v. Barner, 56 M.J. 131 (C.A.A.F. 2001) (drawing inferences in favor of prosecution)
- United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (factual sufficiency standard)
- United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim. App. 2014) (rolling atop a person without more insufficient for unlawful‑force rape)
- United States v. Blye, 37 M.J. 92 (C.M.A. 1993) (lawfulness of pretrial restraint conditions)
- United States v. Mason, 19 M.J. 274 (C.M.A. 1985) (pretrial restriction tantamount to confinement; day‑for‑day credit)
- United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) (continuance abuse of discretion and factors to consider)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (standards and factors for appellate sentence reassessment)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance test)