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

                               No. ACM 38867
                           ________________________

                             UNITED STATES
                                    Appellee
                                       v.
                         Thomas E. PARKS, Jr.
                   Senior Airman, U.S. Air Force, Appellant
                           ________________________

           Appeal from the United States Air Force Trial Judiciary
                         Decided 15 February 2017
                           ________________________

Military Judge: Mark W. Milam.
Approved sentence: Dishonorable discharge, confinement for 6 months, forfei-
ture of all pay and allowances, and reduction to E-1. Sentence adjudged 30
January 2015 by GCM convened at Joint Base San Antonio–Lackland, Texas.
For Appellant: Major Jeffrey A. Davis, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire.
Before DUBRISKE, HARDING, and C. BROWN, Appellate Military Judges.
Judge HARDING delivered the opinion of the Court, in which Senior Judge
DUBRISKE and Judge C. BROWN joined.
                           ________________________

This is an unpublished opinion and, as such, does not serve as prece-
       dent under AFCCA Rule of Practice and Procedure 18.4.
                     ________________________
HARDING, Judge:
    Officer members sitting as a general court-martial convicted Appellant,
contrary to his plea, of a single Charge and Specification of rape in violation of
Article 120, UCMJ, 10 U.S.C. § 920. The adjudged and approved sentence was
a dishonorable discharge, confinement for six months, forfeiture of all pay and
allowances, and reduction to the grade of E-1.
                    United States v. Parks, No. ACM 38867


    Appellant asserts four assignments of error: (1) Whether the evidence was
legally and factually sufficient to prove beyond a reasonable doubt that Appel-
lant raped Senior Airman (SrA) JS; (2) Whether the military judge abused his
discretion when he admitted SrA JS’s hearsay statements to a sexual assault
nurse examiner (SANE); (3) Whether trial counsel made improper arguments
during findings; and (4) Whether the Government’s violation of the 120-day
post-trial processing standard for convening authority’s action warrants mean-
ingful relief pursuant to United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).
We find no prejudicial error and affirm.

                                I. BACKGROUND
     The victim in this case, SrA JS, and Appellant worked together in a mail
center at Joint Base San Antonio-Lackland, Texas. Over time, they developed
a friendship as part of a group of co-workers who socialized outside the work-
place. The relationship evolved into what SrA JS described as “friends with
benefits”—meaning, she explained, that she and Appellant would maintain an
ongoing sexual relationship without any commitment. They agreed not to tell
anybody else about their sexual relationship but that each would tell the other
if they began dating someone else.
    The relationship between Appellant and the victim continued in this man-
ner until SrA JS, while deployed, discovered that Appellant had been engaged
in an on-and-off dating relationship with another Airman, Airman (Amn) CG.
Contrary to an agreed-upon term of their “friends with benefits” arrangement,
Appellant had not informed SrA JS about his dating relationship with this
other Airman. Further, SrA JS knew this other Airman and had considered
her a friend.
    Despite this, the “friends with benefits” relationship resumed within a
month of SrA JS’s return from deployment. While SrA JS had hoped that her
relationship with Appellant would evolve to a committed boyfriend-girlfriend
relationship, it never did.
    Late in the evening on 1 December 2013, while SrA JS’s roommate, Amn
BG, was out of town on leave, Appellant visited SrA JS at her off-base apart-
ment. While lying in bed together, SrA JS told Appellant about a recent medi-
cal test result and the anxiety she felt about it. SrA JS testified Appellant told
her to be quiet and that he just wanted to have sex. She further testified that
even though she did not want to have sex with him, she and Appellant did have
sex.
   Two days later, Appellant called SrA JS and asked to come over to her
apartment again and talk. SrA JS agreed, but expressly told him that they
were not going to have sex. Appellant called SrA JS two more times while en
route to the apartment to ask what exit to take. On each occasion, SrA JS told

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                    United States v. Parks, No. ACM 38867


him what exit to take and reiterated that they were not going to have sex that
night. Once Appellant arrived, he told her about a death in his family and a
planned trip for the funeral. Appellant also brought up SrA JS’s medical test,
telling her he had talked to a friend who worked in the medical career field
about it.
    After talking on the couch in the living room, SrA JS went to her bedroom
and lay down on her bed. Appellant followed her and also lay down on the bed.
Appellant then grabbed her arm to pull her closer, put his arm around her
waist, and then began to pull her sweat pants off. As Appellant was grabbing
her sweat pants, she attempted to fight him off by pushing his hands away and
told him no. She then accidently hit Appellant in the face. Despite her re-
sistance, Appellant was able to remove her sweat pants and underwear. SrA
JS testified that Appellant then got on top of her, used his leg to separate her
legs apart, and pinned her down by placing his hands on the biceps of her arms.
She further testified that she was squeezing her legs together “because [she]
didn’t want to have sex” but that Appellant was successful in pushing her legs
apart. Once her legs were apart, Appellant penetrated her vagina with his pe-
nis. SrA JS testified that once Appellant had penetrated her, she shouted at
him, scratched him, and bit him in order to get him off of her. SrA JS eventually
crawled off the bed, grabbed her baseball bat, and told Appellant that if he
touched her again she would hit him with it. Appellant then moved away from
SrA JS.
    Even after SrA JS wielded the bat, Appellant repeatedly attempted to ini-
tiate sexual contact with her. In response to his continued advances, SrA JS
went to her bathroom and later brandished a pocket knife. SrA JS next dialed
her sister’s phone number but no one answered. Appellant again attempted to
remove SrA JS’s pants and underwear and this time she responded by dialing
911 on her phone and showing Appellant without actually placing a call. At
some point, SrA JS went to the room of her roommate, Amn BG, and locked
the door to keep the Appellant out. Appellant responded by knocking loudly on
the door and eventually convinced SrA JS to come out to talk.
    They briefly discussed SrA JS’s medical issue and then SrA JS decided the
Appellant needed to leave. She went to her room to retrieve Appellant’s slip-
pers, threw his slippers into the living room, shut her bedroom door, and got
back into bed. Appellant responded by coming into the room and stating in an
aggravated tone that “no one tells [him] when to leave.” Appellant then got
back into bed with SrA JS and attempted to grab her. SrA JS responded by
calling her roommate, Amn BG. SrA JS told Amn BG that Appellant was at
their apartment and would not leave. Overhearing this conversation, Appel-
lant got off the bed, put on his clothes, and told SrA JS that she had ruined his



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                    United States v. Parks, No. ACM 38867


career. Appellant then threw SrA JS’s purse against the closet and her pillow
against a vase sitting on a windowsill.
    Soon after the call to Amn BG, Appellant left the apartment. During a sub-
sequent phone call minutes later, SrA JS told Amn BG about what had hap-
pened in the apartment, specifically that Appellant had forced her down on her
mattress, pulled her pants off, and forced her to have sex with him. Although
SrA JS was initially reluctant to report a sexual assault, Amn BG called the
Sexual Assault Response Coordinator (SARC) hotline to report the sexual as-
sault and was referred to a victim advocate. A victim advocate was dispatched
to SrA JS’s apartment and, along with another Airman, they escorted SrA JS
to a medical clinic where a SANE exam was completed.

                                II. DISCUSSION

A. Factual and Legal Sufficiency.
    We review issues of factual and legal sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). Our assessment of legal and factual sufficiency is limited to
the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.
1993). The test for factual sufficiency is “whether, after weighing the evidence
in the record of trial and making allowances for not having personally observed
the witnesses, [this court is] convinced of [Appellant]’s guilt beyond a reasona-
ble doubt.” United States v. Turner, 25 M.J. 324, 325 (C.A.A.F. 1987); see also
United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000). In conducting this unique
appellate role, we take “a fresh, impartial look at the evidence,” applying “nei-
ther 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.” Washington, 57 M.J. at
399.
   The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.”
Turner, 25 M.J. at 324; see also United States v. Humpherys, 57 M.J. 83, 94
(C.A.A.F. 2002). The term reasonable doubt does not mean that the evidence
must be free from conflict. 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.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).
    The Specification of the Charge alleges Appellant raped SrA JS in violation
of Article 120, UCMJ, 10 U.S.C. § 920. To sustain a conviction for rape, the
prosecution was required to prove: (1) that Appellant committed a sexual act


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                   United States v. Parks, No. ACM 38867


upon SrA JS by causing penetration of her vulva with his penis; and (2) that
Appellant did so by using unlawful force. “Unlawful force” means an act of force
done without legal justification or excuse. “Force” means the use of a weapon;
the use of such physical strength or violence as is sufficient to overcome, re-
strain, or injure a person; or inflicting physical harm sufficient to coerce or
compel submission by the alleged victim. Article 120(g)(5-6), UCMJ, 10 U.S.C.
§ 920(g)(5-6).
    The primary evidence supporting the rape conviction came from SrA JS’s
testimony that Appellant penetrated her vagina with his penis and that just
prior to the sexual act, Appellant pulled off her pants and underwear, pinned
her arms down, and pried her legs open with his legs despite the fact that she
was squeezing her legs together. Her testimony established that through his
use of physical strength, Appellant had both restrained (pinning down her
arms) and overcome (prying her legs apart) SrA JS. Additionally, phone rec-
ords corroborated SrA JS’s testimony about the multiple phone calls made to
and from her phone number that night. Amn BG testified to the distress in SrA
JS’s voice as she described how Appellant would not leave the apartment. She
also relayed what SrA JS had told her about Appellant forcing her to have sex
with him. Finally, evidence of Appellant’s fresh physical injuries corroborated
SrA JS’s testimony about her efforts at resistance.
    At trial, Appellant argued that SrA JS had a motive to fabricate the claim
of rape because she was angry at Appellant over his past relationship with
Amn CG, his failure to listen to her medical concerns on 1 December 2013, and
because their relationship had not evolved into a long-term one as she had
hoped. Trial defense counsel through cross-examination also implied that SrA
JS fabricated the claim of rape in order to get an expedited transfer from Joint
Base San Antonio to Joint Base Lewis–McChord near her family. Notwith-
standing these arguments attacking the credibility of SrA JS, the testimony
and supporting evidence clearly show Appellant committed the alleged act and
prove the elements of the offense as charged. We find there is sufficient evi-
dence to convince a rational trier of fact beyond a reasonable doubt that the
Appellant is guilty of the offense of rape and that the evidence is, therefore,
legally sufficient. Furthermore, after our independent review of the record and
making allowances for not personally observing the witnesses, we are our-
selves convinced beyond a reasonable doubt.

B. Admission of Victim’s Statements to the Sexual Assault Nurse Ex-
aminer (SANE) under Mil. R. Evid. 803(4)
   Appellant next avers that the military judge abused his discretion when he
admitted SrA JS’s hearsay statements to the SANE, Ms. KC, as statements
made for the purposes of medical diagnosis or treatment. While we agree that


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                   United States v. Parks, No. ACM 38867


the military judge did abuse his discretion in admitting these statements un-
der Mil. R. Evid. 803(4), we nonetheless conclude they were admissible as prior
consistent statements under Mil. R. Evid. 801(d)(1) and thus the error was
harmless. Further, we find that the statements did not have a substantial in-
fluence on the findings.
    We review a military judge’s decision to admit evidence for an abuse of dis-
cretion. United States v. Donaldson, 58 M.J. 477, 482 (C.A.A.F. 2003). “An
abuse of discretion occurs when a military judge either erroneously applies the
law or clearly errs in making his or her findings of fact.” Id. (quoting Humph-
erys, 57 M.J. at 90). Statements offered as exceptions to the hearsay rule under
Mil. R. Evid. 803(4) are admissible if two conditions are met: “First the state-
ments must be made for the purposes of ‘medical diagnosis or treatment’; and,
second, the patient must make the statement ‘with some expectation of receiv-
ing medical benefit for the medical diagnosis or treatment that is being
sought.’” United States v. Edens, 31 M.J. 267, 269 (C.M.A. 1990) (quoting
United States v. Deland, 22 M.J. 70, 75 (C.M.A. 1986)).
   In a session held outside the members’ presence under Article 39(a), UCMJ,
10 U.S.C. § 839(a), and prior to the SANE, Ms. KC, testifying before the mem-
bers, the military judge heard her testimony about the examination of SrA JS.
Counsel for both sides argued to what extent the purpose of receiving the state-
ments were for medical diagnosis and treatment versus for the collection of
evidence. The military judge overruled the defense hearsay objection finding
that Ms. KC received information from SrA JS for the purpose of medical treat-
ment and diagnosis. Specifically the military judge stated:
       All right. I am going to overrule the objection of the defense, and
       I will state some of my basis for that. Ms. [KC] stated that she
       conducts her examination for medical treatment and diagnosis
       and she gets information from the patient, obtains history, and
       she says that this information and history can be used for foren-
       sic purposes, but primarily it’s used for medical diagnosis and
       treatment. Although the ER doctor does treat the patient, in this
       case [SrA JS], that ER doctor does it for trauma valuation and
       not for the treatment and diagnosis that Ms. [KC] does. I also
       don’t think it matters that she can prescribe medication, as was
       alluded to by the defense through your questioning. That is not
       one of the requirements; that the person has to be a doctor. In
       fact, I think the rule potentially is broad enough that it contem-
       plates non-medical personnel being able to fit under this excep-
       tion. So that was a little drawn out. I just needed to kind of un-
       derstand the issue better, but I am overruling the exception --
       excuse me. I am overruling the objection of defense.


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                    United States v. Parks, No. ACM 38867


    While the military judge properly focused on and made a determination
regarding the purpose for which the statements were being elicited by the
SANE, it does not appear to us that he made a determination as to the second
prong of the Edens test that “the patient must make the statement with some
expectation of receiving medical benefit for the medical diagnosis or treatment
that is being sought.” “While both requirements must be met, the ‘critical ques-
tion [in this inquiry] is whether [the patient] had some expectation of treat-
ment when she talked to the caregivers.’” Donaldson, 58 M.J. at 485 (quoting
United States v. Haner, 49 M.J. 72, 76 (C.A.A.F. 1998)). “The key factor in de-
termining whether a particular statement is embraced by the medical-treat-
ment exception is the state of mind or motive of the patient in giving the infor-
mation to the physician and the expectation or perception of the patient that if
he or she gives truthful information, it will help him or her to be healed.” Id.
(internal quotation marks and citations omitted). As the military judge failed
to consider the “critical question” regarding the expectations of SrA JS, his
decision to admit the evidence was influenced by an incomplete and, therefore,
erroneous view of the law.
     Further, direct evidence from SrA JS contradicts a subjective expectation
of medical benefit. Asked during direct examination why she was going to the
clinic at that point, SrA JS responded she “going for [her] SANE exam” and
that it is was Amn BG who said she should get the exam. SrA JS did not ex-
press any concern over injury, pregnancy, or the possibility of a sexually trans-
mitted disease as a reason for her seeking the forensic medical examination.
In fact when asked during cross-examination whether “it [was] important to
give the nurse an accurate recollection of what happened because the purpose
of it [was] to collect evidence,” SrA JS replied “yes.” (Emphasis added).
    In their brief, the Government cites United States v. Cucuzzella, 66 M.J. 57
(C.A.A.F. 2008), and correctly points out that a patient’s expectation of receiv-
ing medical treatment may be established solely by the testimony of the treat-
ing medical professional and may be based other circumstantial evidence even
when a patient has claimed an alternative purpose. The military judge in
Cuccuzzella however, in contrast to the military judge in this case, made a
finding pursuant to the second prong of the Edens test that the declarant made
a statement to a counselor with the expectation of receiving treatment. Fur-
ther, in Cuccuzzella, the declarant had, prior to the date of the statement in
question, already established a client-counselor relationship with the witness.
Finally, the declarant testified that she believed the witness was “somebody to
provide counseling.” Id. at 61. In that case, the court found that the military
judge’s finding was not clearly erroneous. Id. at 62.
   In contrast, here, the military judge made no finding as to SrA JS’s state of
mind with regard to receiving medical benefit or treatment, SrA JS agreed in


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                    United States v. Parks, No. ACM 38867


her testimony that the purpose of the examination was to collect evidence, and
the greater context of the visit to the clinic and subsequent activity that morn-
ing was to report a claim of sexual assault. Given the lack of a finding regard-
ing SrA JS’s expectation for treatment and that the greater weight of the rec-
ord tends to show SrA JS was simply engaged in reporting a sexual assault in
accord with the recommendations of others, we find that the military judge
abused his discretion in admitting the statements made by SrA JS to the SANE
under Mil. R. Evid. 803(4).
    Although we have found that it was error in this case to admit the state-
ments of SrA JS to the SANE under the hearsay exception for statements made
for medical diagnosis or treatment, we nonetheless conclude that such error
was harmless as the statements were properly admissible as prior consistent
statements. A prior consistent statement is not hearsay if it is “offered to rebut
an express or implied charge against the declarant of recent fabrication or im-
proper influence or motive.” Mil. R. Evid. 801(d)(1)(B).
   Military courts have:
       consistently interpreted the rule to require that a prior state-
       ment, admitted as substantive evidence, precede any motive to
       fabricate or improper influence that it is offered to rebut. Where
       multiple motives to fabricate or multiple improper influences are
       asserted, the statement need not precede all such motives or in-
       ferences, but only the one it is offered to rebut.
United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998). During cross-exami-
nation, defense counsel questioned SrA JS about her permanent change of sta-
tion move from Joint Base San Antonio to Joint Base Lewis–McChord near
Seattle, Washington, and how that was connected to her claim of sexual as-
sault. The implication made was that SrA JS had fabricated the sexual assault
claim in order to be eligible to request a humanitarian transfer as a victim of
sexual assault. The record, however, supports a finding that SrA JS was not
aware of this specific program for sexual assault victims until after she was
examined by the SANE. Lacking knowledge of the program when she made her
statement about the sexual assault to the SANE, the statement preceded the
motive to fabricate in order to effect a transfer to another military installation.
    Further, even were we to assume that SrA JS’s statement to the SANE was
not admissible under any rule or theory, we nonetheless determine the admis-
sion of the statement was harmless. A finding or sentence of a court-martial
may not be held incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused. Article 59(a)




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                     United States v. Parks, No. ACM 38867


UCMJ, 10 U.S.C. § 859. For a non-constitutional error 1 such as this one, the
Government has the burden of demonstrating that “the error did not have a
substantial influence on the findings.” United States v. McCollum, 58 M.J. 323,
342 (C.A.A.F. 2003). We evaluate whether erroneous admission of Government
evidence is harmless using a four-part test, weighing: (1) the strength of the
Government’s case, (2) the strength of the Defense’s case, (3) the materiality of
the evidence in question, and (4) the quality of the evidence in question. United
States v. Berry, 61 M.J. 91, 98 (C.A.A.F. 2005).
    As discussed in our legal and factual sufficiency analysis, the Government’s
case was strong, especially considering the victim’s contemporaneous report of
the sexual assault to her roommate, subsequent report to law enforcement, as
well the phone records that corroborated multiple details of her testimony. The
Defense’s case consisted primarily of a proffered motive to fabricate rooted in
revenge to quell SrA JS’s anger over the state of her relationship with Appel-
lant and to point out a number of minor inconsistencies in her prior statements.
The evidence in question was a relatively brief account of the sexual assault
and was cumulative with SrA JS’s testimony at trial as well the testimony of
Amn BG. Further, it was not the only evidence of a fresh complaint of sexual
assault. For these reasons, our review of the record shows the statements made
to the SANE were of marginal value and that any error did not did not have a
substantial influence on the findings.

C. Trial Counsel’s Findings Argument.
    Appellant next asserts trial counsel made improper argument during find-
ings. Specifically six arguments, none of which were objected to by trial defense
counsel, are alleged to have been improper: (1) mischaracterizing a prior un-
charged sexual act between Appellant and victim as a rape and the Appellant
as a rapist; (2) offering commentary on the “truth or falsity or credibility” of
testimony; (3) engaging in a personal attack upon Appellant calculated to in-
flame the passions of the members; (4) arguing facts not in evidence; (5) testi-
fying during argument; and (6) mispresenting evidence coupled with misstat-
ing the law.
   Improper argument is a question of law that is reviewed de novo. United
States v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011). Because there was no objection


1 To the extent that the “statements were made under circumstances which would lead
an objective witness reasonably to believe that the statement would be available for
use at a later trial” and thus testimonial under Crawford v. Washington, 541 U.S. 36
(2004), we note that the declarant, SrA JS, testified at trial. Therefore, Appellee was
afforded an opportunity for cross examination and the Confrontation Clause was sat-
isfied.


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                    United States v. Parks, No. ACM 38867


at trial, we review the propriety of trial counsel’s argument for plain error.
United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013). To prevail under a
plain error analysis, Appellant must show “(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right.”
United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) (quoting United
States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). In assessing prejudice, we eval-
uate the cumulative impact of any prosecutorial misconduct on Appellant’s
substantial rights and the fairness and integrity of his trial. We do so by bal-
ancing three factors: (1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the weight of the evidence supporting
the conviction. United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005).

   1. Mischaracterizing a Prior Uncharged Sexual Act Between Appel-
   lant and Victim as a Rape and the Appellant as a Rapist
    Trial defense counsel exhaustively cross-examined SrA JS on the sexual
encounter between her and Appellant that occurred on 1 December 2013 in
order to point out her prior inconsistent statements about that event. SrA JS
had made prior out-of-court statements describing the incident as consensual
because she gave in to having sex with Appellant, but by the time of trial be-
lieved it to be nonconsensual. In an effort to explain the inconsistency in these
statements of SrA JS, trial counsel made an analogy to the typical hapless in-
vestor in a Ponzi scheme, who only after he learns that his financial advisor
has cheated others, realizes that he too may have been taken advantage of.
The primary point to be made is that events often take on additional meaning
with the passage of time, subsequent events, and critical hindsight. This was
a proper attempt to explain inconsistent statements by a witness regarding
whether she believed a past sexual act was consensual or not in light of a sub-
sequent sexual act with the same person that she firmly believed was noncon-
sensual. Therefore it was not an improper attempt by the prosecutor to prove
and argue that the prior sexual act was rape, that Appellant was a rapist, and
was therefore guilty of the charged offense. We find no error with this argu-
ment, plain or otherwise.

   2. Offering Commentary on the “Truth or Falsity or Credibility” of
   Testimony
   The assertion that trial counsel engaged in improper vouching of SrA JS is
based on the same part of the argument just discussed. Improper vouching oc-
curs when the trial counsel places the prestige of the Government behind a
witness through personal assurances of the witness’s veracity. Fletcher, 62
M.J. at 180. After arguing the Ponzi scheme analogy, trial counsel argued es-
sentially that the prior inconsistent statements were “not lying” but “a young



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                     United States v. Parks, No. ACM 38867


woman trying to make sense of what happened to her.” This was an appropri-
ate argument in response to the attack on the witness’s credibility. It was not
an example of improper vouching and did not rise to the level of plain error.

    3. Personal Attack upon the Appellant Calculated to Inflame the
    Members
    Appellant next asserts that trial counsel personally attacked Appellant and
inflamed the members by stating Appellant was using SrA JS for sex and treat-
ing her like a “piece of meat.” A well-chosen metaphor is not only a highly use-
ful literary device, but a powerful arrow in the trial advocate’s quiver. With a
few short words, the metaphor that hits its mark surely stings the party oppo-
nent and likewise leaves an indelible impression on the fact-finder. In com-
municating sexual objectification of one by another, the expression “treat an-
other as a piece of meat” accomplishes that end. It is well established that while
a prosecutor “may strike hard blows, he is not at liberty to strike foul ones. It
is as much his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just
one.” United States v. Frey, 73 M.J. 246, 248 (C.A.A.F. 2014) (quoting Berger v.
United States, 295 U.S. 78, 88 (1935)). The question here is whether this was
merely a hard blow or foul. We find it was not obviously foul.
     Context matters. 2 Immediately preceding the use of the metaphor at issue,
trial counsel was addressing one of the defense-asserted motives to fabricate
and attacks on the credibility of SrA JS—that she was angry over a lack of
attention from Appellant. Trial counsel then highlighted that of 59 calls be-
tween Appellant and SrA JS, Appellant had initiated 54 of those calls, the im-
plication being that SrA JS was not seeking attention from Appellant at that
time. Trial counsel then characterized those calls as Appellant’s treatment of
SrA JS as “a piece of meat.” Whether one assertion neatly followed from the
other is hard to say, but in the starkest of terms, a “friends with benefits” re-
lationship, as it was between Appellant and SrA JS in this case, could be ar-
gued as a mutual agreement between two people to treat each other as a “piece
of meat” for the express purpose of mutual sexual gratification. In any event,
this dynamic of the relationship between Appellant and the victim was most
assuredly relevant on the issue as to whether Appellant committed the sexual
act by unlawful force. And even were we to assume that the metaphor was an
improper personal attack or unduly inflammatory, we do not find the one-time
use in the entirety of the argument so obviously improper as to merit relief in

2 “Argument by a trial counsel must be viewed within the context of the entire court-
martial. The focus of our inquiry should not be on words in isolation but on the argu-
ment as ‘viewed in context.’” United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000)
(quoting United States v. Young, 470 U.S. 1, 16 (1985)).


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                    United States v. Parks, No. ACM 38867


the absence of an objection from counsel. Thus, while trial counsel’s use of the
metaphor was perhaps a flaming arrow, it does not rise to the level of plain
error.

   4. Arguing Facts Not in Evidence
    The military judge admitted evidence of past consensual sex acts between
Appellant and SrA JS that included what may be characterized as “rough sex.”
SrA JS testified that during those consensual “rough sex” encounters, Appel-
lant was the aggressor engaged in hair pulling, slapping and choking. In his
argument, trial counsel pointed out during those consensual “rough sex” ses-
sions, Appellant was the one exhibiting the controlling behaviors. Trial counsel
further argued that during the charged incident, SrA JS fought back in con-
trast to the consensual “rough sex.” The characterization of Appellant as the
one exerting control during consensual rough sex was a fair inference from the
evidence. Trial counsel identified SrA JS’s fighting back and attempt to assert
control as a key difference on the charged occasion that negated both consent
and any mistake of fact by Appellant. This was proper argument.

   5. Testifying During Argument
    Appellant argues that it was improper for trial counsel, when commenting
on SrA JS’s description of how the rape occurred, to state “that’s how rapes
occur, that’s exactly how rapes occur,” and to argue what was common sense
and knowledge of human nature. “As case law and the Military Judge’s Bench-
book have long recognized, members are expected to use their common sense
in assessing the credibility of testimony as well as other evidence presented at
trial.” Frey, 73 M.J. at 250. Appellant’s claim is essentially that trial counsel’s
argument went beyond common knowledge and sense and crossed over to ei-
ther trial counsel testifying or arguing facts not in evidence. We disagree based
on the facts of this case.

   6. Misrepresentation of Evidence Coupled with a Misstatement of
   Law
    Finally, Appellant argues that trial counsel misrepresented the testimony
of Ms. KC during his argument and further exacerbated that error by misstat-
ing the military judge’s instruction regarding a statement made for medical
diagnosis or treatment. While Appellant is correct that trial counsel did not
provide a verbatim recollection of what Ms. KC testified to with regard to what
SrA JS told her about the sexual assault, he did provide a substantially accu-
rate summary of the key details.




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                    United States v. Parks, No. ACM 38867


    Without objection from trial defense counsel, the military judge provided
the court members the following evidentiary instruction regarding the hearsay
statement made by SrA JS to Ms. KC:
       There has been evidence that Senior Airman JS made the state-
       ments concerning the alleged offense to Ms. KC during a sexual
       assault forensic examination. The law recognizes that a patient
       seeking diagnosis or treatment from a medical professional has
       an incentive to be truthful because if she believes that by telling
       the truth that she will facilitate the medical provider’s task of
       medical diagnosis and/or treatment. Whether the statement was
       made or related to medical diagnosis and treatment is for you to
       decide. The significance, if any, to be attached to such state-
       ments are matters for your determination -- I’m sorry, for deter-
       mination by you.
    Appellant argues trial counsel’s characterization of the military judge’s in-
struction as “[t]hat’s the law telling you when someone says something to a
medical provider you can take that statement for the truth of what’s being said”
was a misstatement of the law. Contrary to Appellant’s contention, this is an
accurate statement of the law. It is another way of saying that the testimony
can be used for substantive purposes. To be sure, the evidence was not admit-
ted subject to a limited purpose other than its truth. It was offered for the truth
of the matter asserted and admitted by the military judge under the medical
treatment exception to hearsay rule. And although we found that admission
per that exception to be in error, we concluded that the statement was none-
theless admissible as a prior consistent statement. In both instances, the evi-
dence may be considered for substantive purposes. As such, this argument, to
which trial defense counsel did not object, was not plain error and did not prej-
udice Appellant.

D. Post-trial Processing Delay; 177 Days to Convening Authority Ac-
tion
    Finally, Appellant argues that he should receive day-for-day confinement
credit in the amount of 57 days due to an unreasonable post-trial delay. In this
case, the convening authority took action 177 days after the announcement of
sentence and the end of trial. There is a presumption of unreasonable post-trial
delay when the convening authority does not take action within 120 days of
trial. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Appellant,
however, does not alleged a due process violation, but urges this court to exer-
cise its power under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to grant relief for
the post-trial delay in this case. United States v. Tardif, 57 M.J. 219, 224




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                      United States v. Parks, No. ACM 38867


(C.A.A.F. 2002). In making our assessment, we are guided by factors enumer-
ated in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d,
75 M.J. 264 (C.A.A.F. 2016), with no single factor being dispositive. 3 In their
explanation of the reasons for the delay, the Government proffers that most of
the delay occurred during the transcription of the proceedings and that the
installation court reporters were already tasked with five other general court-
martial proceedings to transcribe at the time Appellant’s trial. Within a week
of the trial, a request for external court reporter assistance was made. The
Government also notes that by the time Appellant had submitted his clemency
request, there were new legal personnel who appropriately took additional
time to familiarize themselves with the case prior to preparing and signing the
addendum to the Staff Judge Advocate Recommendation. We find no evidence
of bad faith or gross indifference to the post-trial processing of this case. Hav-
ing considered and weighed all the Gay factors, we conclude no extraordinary
exercise of our Article 66(c), UCMJ, authority is warranted.

                                   III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror 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 approved find-
ings and sentence are AFFIRMED.


                    FOR THE COURT



                    KURT J. BRUBAKER
                    Clerk of the Court


3   These factors include: (1) How long the delay exceeded the standards set forth in
Moreno; (2) What reasons, if any, the Government set forth for the delay, and whether
there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) Keeping in mind that our goal under Tardif is not to analyze
for prejudice, whether there is nonetheless some evidence of harm (either to the appel-
lant or institutionally) caused by the delay; (4) Whether the delay has lessened the
disciplinary effect of any particular aspect of the sentence, and is relief consistent with
the dual goals of justice and good order and discipline; (5) Whether there is any evi-
dence of institutional neglect concerning timely post-trial processing, either across the
service or at a particular installation; and (6) Given the passage of time, whether this
court can provide meaningful relief in this particular situation.




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