### UNITED STATES NAVY

- MARINE CORPS

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.A. FISCHER, K.M. MCDONALD, D.C. KING

Appellate Military Judges

UNITED STATES OF AMERICA

v.

JOSEPH A. DYAS

S TAFF S ER G EANT (E

- 6), U.S. MARINE CORPS

NMCCA 2014 00250

SPECIAL COURT

- MARTIAL

**Sentence Adjudged:** 1 0 January 201 4

. **Military Judge:** LtCol D.M. Jones , USMC

. **Convening Authority:** Commanding General, Marine Corps

Recruit Depot/Eastern Recruiting Region, Parris Island, SC

. **Staff Judge Advocate's Recommendati on:**  LtCol K.M. Navin,

USMC

. **For Appellant:** Jeffrey S. Stephens, Esq.; LT Ryan Aikin,

JAGC, USN.

**For Appellee:** Capt Cory Carver, USMC ; Capt Matthew Harris,

USMC

.

**9 April 2015** 

**---------------------------------------------------**

**OPINION OF THE COURT**

**- --------------------------------------------------** 

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

KING, Judge:

A military judge , sitting as a special court

- martial

convicted the appellant, contrary to his pleas, of one

specification of false official statement and two specifications

of aggravated assault on a child under the age of 16 , in

violation of Articles 107 and 128, Uniform Code of Military2 Justice, 1 0 U.S.C. §§ 907 and 928. 1 The court sentenced the

appellant to 180 days of confinement, reduction to pay grade E

- 1

and a bad

- conduct discharge. The convening authority approved

the sentence as adjudged , but as a matter of clemency deferred

and then waive d for six months all automatic forfeitures

.

The appellant now raises six assignments of error: (1) the

evidence is legally and factually in sufficient to support the

findings of guilt; (2) the military judge erred by denying the

defense request s for a w itness; (3) the military judge erred by

denying a motion to suppress the testimony of a Family Advocacy

Counselor; (4) the cumulative effect of numerous plain errors

denied the appellant a fair trial; (5) expert testimony

repeatedly elicited by the trial c ounsel that the victim’ s

injuries would have to be non accidental with out information

provided by the appellant or his wife impermissibly shifted the

burden of persuasion to the appellant; and (6) trial defense

counsel were ineffective for failing to call e ssential witnesses

and failing to object to inadmissible testimony.

After carefully considering the pleadings of the parties

and the record of trial, we conclude that the findings and the

sentence are correct in law and fact and that no error

materiall y prejudicial to the substantial rights of the

appellant was committed. 2 Arts. 59(a) and 66(c), UCMJ.

**Background**

On 8 September 2011, the appellant and his wife took

custody of their 20

- month

- old nephew, GS. The appellant and his

wife also had two d aughters , aged 4 and 2. On 23 December 2011,

at about 1215 hours the appellant returned home from work and

took the three children to a duck pond, Wal

- Mart

, and the

Commissary to give his wife time to herself. According to the

appellant, GS was acting no rmally while he was with the

appellant shopping. The appellant’s wife then met the appellant

so she could retrieve her wallet. Mrs. Dyas informed medical

personnel that when she saw GS at around 1600, GS was “awake [

, ]

1 The appellant was acquitted of several other specifications of battery and

aggravated assault against the same victim, as well as two specifications of

child endangerment in violation of Art icle 134, UCMJ.

2 We have considered assignm ent s of error (2) and (4) and find no error

materially prejudicial to a substantial right. United States v. Clifton , 35

M.J. 79, 81 (C.M.A. 1992).3 alert [ and ] crying for her.” 3 On th e way home, the appellant

claimed that GS fell asleep.

Arriving home at around 1700, the appellant stated that he

took a sleeping GS upstairs and placed him in his bed. GS slept

through dinner and when the appellant went upstairs he found GS

lethargic and unable to stand on his own. Mrs. Dyas had a

neighbor call 9

- 1

- 1

, and the child was transported to Be a ufort

M emorial Hospital (BMH) , arriving just before 2000 . At BMH, GS

was “unresponsive, seiz ur ing and his injuries included bruises

to both sides of the face, chin, as well as petechial

hemorrhaging [(bruising)] on the abdomen and that a CT scan

revealed his brain had shifted and there was hemorrhaging with in

his brain.” 4 Additionally, GS potentially had injuries to his

liver and his bowel. 5

When questioned , the appellant denied dropping or shaking

the child

, or doing anything that might have caused these

injuries. Mrs. Dyas informed medical personnel that GS had had

surgery on a testicle, fell down often

, bruised easily, and had

recently fallen o ut of a laundry basket and bitten off part of

his tongue. Mrs. Dyas was similarly unable to provide any

explanation for GS’ s current life

- threatening injuries. Based

upon this information, BMH personnel reported the circumstances

to the base Provost Mars hal ’s Office wh ich then contacted the

Naval Criminal Investigative Service (NCIS) . Additional facts

necessary to resolve the assignments of error are included

below.

**Legal and Factual Sufficiency**

Article 66(c), UCMJ, 10 U.S.C. § 866(c)

, requires that we

approve only those findings of guilty we determine to be correct

in both law and fact

, and we review legal and factual

sufficiency de novo

. United States v. W ashington , 57 M.J. 394,

399 (C.A.A.F. 2002)

. The test for legal sufficiency 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

. ” United

States v. Turner , 25 M.J. 324, 324

- 25 (C.M.A. 1987)

. Moreover,

“ [i]n resolving legal

- sufficiency questions, [we are] bound to

draw every reasonable inference from the evidence of record in

3 Record at 428.

4 Id. at 244

.

5 Id. at 421.4 favor of the prosecution. ” United States v. Blocker , 3 2 M.J.

281, 284 (C.M.A. 1991) (citations omitted)

.

The test for factual sufficiency is whether, after weighing

the evidence in the record of trial and making allowances for

not having pers onally observed the witnesses, we are convinced

of the appellant 's guilt beyond a reasonable doubt. Turner , 25

M.J. at 325

.

The elements of aggravated assault in this case are:

(1) That the a ppellant did bodily harm to G S;

(2) That the appellant did so with a certain weapon,

means, or force;

(3) That the means or force was unlawful;

(4) That the means or force was used in a manner

likely to produce death or grievous bodily harm;

and

(5) Tha t GS was a child under the age of 16

years.

M ANUAL FOR C OURTS

- M ARTIAL

, U NITED S TATES (2012 ed.), Part IV,

¶ 54(b)(4) (a)

.

The appellant does not take issue with the fact that GS was

injured or that the means of his injury were likely to pr oduce

death or grievous bodily harm, and we find the evidence on these

elements sufficient. Instead, the appellant claims the

G overnment offered no direct evidence that he caused these

injuries to GS. Specifically, the appellant argues that another

perso n who had access to GS prior to when appellant took the

children from the home to go shopping could have caused the

injuries to GS. For reasons discussed infra , we hold that while

no direct evidence was offered that the appellant injured GS,

the circumsta ntial evidence that he did so was both legally and

factually sufficient.

First, the trial and defense experts testified that the

injuries to GS were “acute,” meaning recent. How ever, the

expert witnesses varied on the timeframe during which the

injuri es could have been incurred . Dr. Kinsman, a pediatric

neurologist testified that the injuries happened within 24 hours

of GS arriving at the hospital and that there would have been no

delay between injury and symptoms. Dr. Fagan, a pediatric

radiologist testified that the injuries could have occurred up

to 72 hours prior to arrival at BMH . Dr. Amaya

, board certified

as a pediatrician and as a child abuse pediatrician , was more5 specific, testif ying that the injuries likely occurred between

1500

- 1900 hours on 23 December 2011. Finally, Dr. Hebr a, a

chief of pediatric surgery, testified that the injuries likely

occurred within 12 hours prior to GS arriving at the hospital.

The defense called Dr. Carter

, a pediatric radiologist who

testified that the inj uries likely occurred less than three days

prior to presentation. In addition, Dr. Martin, a pediatrician

and child abuse pediatrician

, testified that the injuries likely

occurred 3

- 48 hours prior to GS arriving at the hospital.

The appellant now argu es that since the experts differed as

to when the injuries were caused, and since the G overnment

failed to prove that the appellant had access to GS prior to

1215 on 23 December, the evidence is insufficient to prove

beyond a reasonable doubt that the appe llant was the one who

injured GS.

“Reasonable doubt .

. . does not mean the evidence must be

free from conflict.” United States v. Rankin , 63 M.J. 552, 557

(N

. M.Ct.Crim.App. 2006)

, aff'd

, 64 M.J. 348 (C.A.A.F. 2007)

(citation omitted)

. In this case, Dr. Amaya testified that the

injuries to GS occurred during the time that the appellant had

sole care of GS. In addition, the G overnment offered evidence

that GS had no symptoms of significant injury in the hours or

days before 9

- 1

- 1 was called. This, coupled with Dr. Kinsman’s

testimony that there was likely no delay between injury and the

presence of symptoms, provided ample information for the

military judge to conclude, beyond a reasonable doubt, that the

appellant caused GS’ s injuries. We concur with that finding. 6

**Testimony of Ms. D utton** 

The appellant next avers that the military judge erred when

he failed to suppress the testimony of Ms. D utton , a Fami ly

Advoca cy Counselor, because Ms. Dutton failed to inform the

appellant of his Art icle 31(b), UCMJ

, rights prior to

questioning him

.

6 The appellant was also convicted of making a false of ficial statement by

answering “no” when asked by an NCIS Agent if he knew how GS sustained his

injuries. In light of our holding that the record is legally and factually

sufficient to affirm the appellant’s convictions for aggravated assault, we

likewise find the record sufficient to support a finding of guilt y to making

a false official statement.6 In February 2012, the appellant was notified by his company

f irst s ergeant that he “had to go see Ms. D utton .” 7 Ms

. D utton

was a counselor at Marine Corps Air Station, Beaufort and

performed assessments for the Incident Determination Committee

(IDC). The purpose for her meeting with the appellant was to

conduct a “biopsychosocial assessment” of the appellant that

would be provided to the IDC. The purpose of the IDC was to

“treat and recommend therapy and education” for the Marine in

order to “provide interventions to prevent their escalation of

violence within the family. ” 8 T he appellant arranged an

appointment to see Ms. D utton and arrived at that appointment

unescorted. At her meeting with the appellant, Ms. D utton

explained the IDC process, that she wa s gathering information

for that committee’s review, and informed the appellant that he

did not need to provide info rmation. The appellant chose to

participate and made statements to Ms. D utton that the

G overnment learned of only a few days before trial. In fact,

Ms. Dutton refused to provide her notes or to disclose what the

appellant had informed her , forcing the G o vernment to subpoena

this information . Ms. Dutton then testified that the appellant

found GS to be a n added “stressor” on his family; 9 that she

believed the appellant was inconsistent in his explanations

about the events of that day ; and also that he had provided

information about the night in question that was inconsistent

with his wife’s explanations.

When there is a motion to suppress a statement because

Art icle 31(b) warnings were not provided

, we review the military

judge's findings of fact on a c learly erroneous standard and

conclusions of law de novo

. United States v. Cohen, 63 M.J. 45,

49 (C .A.A.F. 2006)

.

Art icle 31(b) , UCMJ, states:

No person subject to this chapter may interrogate, or

request any statement from an accused or a person

susp ected of an offense without first informing him of

the nature of the accusation and advising him that he

does not have to make any statement regarding the

offense of which he is accused or suspected and that

any statement made by him may be used as evidenc e

against him in a trial by court

- martial.

7 Record at 141.

8 Id. at 160.

9 Id. at 51 4

.7 “Thus, Art icle 31(b) , UCMJ, warnings are required when (1)

a person subject to the UCMJ, (2) interrogates or requests any

statement, (3) from an accused or person suspected of an

offense, and (4) the statements regard the offense of which the

person questioned is accused or suspected.” United States v.

Jones

, 73 M.J. 357, 361 (C.A.A.F. 2014) (citation and footnotes

omitted).

Resolution of this issue turn s on whether Ms. Dutton was a

“ person subject to the c ode

. ” Under M ILITARY R ULE OF E VIDENCE

305(b)(1)

, M ANUAL FOR C OURTS

- M ARTIAL

, U NITED S TATES (2012 ed.)

, such a

person “ includes a person acting as a knowing agent of a

military unit or of a person subject to the code. ” Following

pretrial litigation of this issue, the military judge found that

Ms. Dutton was not an agent of the G overnment seeking to elicit

an incriminating response from the appellant

, was not a person

subject to the UCMJ, did not obtain the appellant’s confession

through the use of coercion, and did not merge her investigation

with the investigation of law enforcement. 10 Instead, the

military judge found that Ms. Dutton’s objective was to “provide

treatment and education” to the appellant and that she was not

acting in a “law enforcement

- type function.” 11 In so finding,

the military judge found as important factor s that Ms. Dutton

waited to conduct her assessment until after the NCIS

investigation was completed; that she d id not give her notes or

reports to law enforcement; and that Ms. Dutton never

“threatened or promised [the appellant] anything.” 12 The record

provides abundant support for the m ilitary j udge’s findings of

fact and they are not clearly erroneous.

Nor do we find his legal conclusions erroneous. The Court

of Appeals f or the Armed Forces ( C.A.A.F. ) has identified “at

least two instances when civilian investigators working in

conjunction with military officials must comply with Article 31 :

‘(1) When the scope and character of the cooperative efforts

demonstrate that the two investigations merged into an

indivisible entity, and (2) when the civilian investigator acts

in furtherance of any military investigation, or in any sense as

an instrument of the military. ’” United States v. Rodriguez , 60

M.J. 239, 252 (C.A.A.F. 2004) (quoting United States v. Pe nn , 39

C.M.R. 194, 199 (C.M.A. 1969) (internal quotation marks

omitted)

.

10 Id. at 197

- 98

.

11 Id. at 192.

12 Id. at 19 7

- 98

.8 As a rule, health professionals engaged in treatment will

not fall into these categories. However, in United States v.

Brisbane , 63 M.J. 106, 108 (C.A.A.F. 2006)

, upon which the

a ppellant relies, the C.A.A.F. found that a Family Advocacy

R epresentative (FAR) should have provided Art icle 31(b), UCMJ,

warnings to the accused after a Family Advocacy committee, which

included a legal officer and a military law enforcement agent,

agreed that the FAR would conduct the initial interview of the

accused. The C.A.A.F. found that Brisbane’s command had

directed him to see the FAR

, that she worked in close

coordination with the legal office and law enforcement before

and after her questioning of the accused, that she suspected the

accused of an offense at their first meeting, that her

investigatory purpose could be seen in her first question when

she asked the appellant if he committed the crime, and that she

ultimately provided no treatment to Brisbane. Id

. at 112

- 14

.

On these facts, the C.A.A.F. concluded the actions of this

particular FAR “were more akin to an investigative agent than a

social worker.” Id

. at 113 (citation omitted).

T he facts of t his case are dissimilar to those of Brisbane

. While the appellant may have been directed to see Ms. Dutton,

the record is clear that Ms. Dutton was not coordinating with

law enforcement. In fact, the only contact Ms. Dutton had with

law enforcement was t o ensure that the law enforcement

investigation was complete before she asked to see the

appellant. We also note that the purpose of Ms. Dutton’s

assessment was to gather information to assist the IDC in

recommending treatment

, that Ms. Dutton’s notes wer e not

provided to the G overnment, and that Ms. Dutton even refused to

disclose the appellant’s statements when sought by the

G overnment

. Under these circumstances, we cannot conclude that

Ms. Dutton was acting as an “ ‘ investigative agent of law

enforcemen t. ’ ” Brisbane

, 63 M.J. at 113 (quoting United States

v. Raymond

, 38 M.J. 136, 137 (C.M.A. 1993)). As such, the

military judge did not err by denying the defense motion s to

suppress Ms. Dutton’s testimony.

**Burden of Persuasion Shift**

Next, t he defense claims that the trial counsel was

permitted to impermissibly shift the burden of persuasion to the

appellant and that trial counsel’s rebuttal argument, in which

she stated that there was “unrefuted evidence that the accused9 . . . never wanted [GS]” was p lain error. 13

Absent plain error, failure to object to improper findings

argument waives the objection. R ULE FOR C OURTS

- M ARTIAL 919(c)

,

M ANUAL FOR C OURTS

- M ARTIAL

, U NITED S TATES (2012 ed.)

. To find plain

error

, we must be convinced: (1) that there was error; (2) that

it was plain or obvious; and (3) that it materially prejudiced a

substantial right of the appellant. United States v. Sweeney,

70 M.J. 296, 304 (C.A.A.F. 2011) (citing United States v.

Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008).

While i t is well

- settled that the trial counsel may not

comment on the appellant's exercise of his constitutional

rights, see United States v. Edwards , 35 M.J. 351, 355 (C.M.A.

1992)

, the G overnment may comment on the failure of a defendant

to refute G overnment e vidence or to support his own claims

. A

“constitutional violation occurs only if either the defendant

alone has the information to contradict the government evidence

referred to or the jury ‘ naturally and necessarily ’ would

interpret the summation as comm ent on the failure of the accused

to testify. ” United States v. Carter

, 61 M.J. 30, 33 (C.A.A.F.

2005) (citations omitted).

Moreover, “under the ‘invited response’ or ‘invited reply’

doctrine, the prosecution is not prohibited from offering a

comment that provides a fair response to claims made by the

defense." Id. (citing United States v. Gilley , 56 M.J. 113,

120

- 21 (C.A.A.F. 2001))

. “ In the course of reviewing whether an

appellant was deprived of a fair trial by such comments, the

question an appel late court must resolve is whether, viewed

within the context of the entire trial

. . . defense counsel's

comments clearly invited the reply. ” United States v. Lewis , 69

M.J. 379, 384 (C.A.A.F. 2011) (citation and internal quotation

marks omitted).

Du ring his closing argument, appellant’s defense counsel

argued that the G overnment offered no motive for appellant to

injure GS:

13 Record at 662. The a ppellant also claims t hat “by eliciting expert opinion

that the injuries to GS were nonaccidental, i.e., intentional, based on

information that had been provided by Appellant, the trial counsel ...

impermissibly shifted the burden of persuasion to Appell ant to rebut these

opini ons by testifying.” Appellant ’s Br ief of 19 Nov 2014 at 29. We have

analyzed this portion of the assignment of error and find it lacks merit.

Clifton , 35 M.J. at 81.10 T hey’ve tried to say that it was the holiday period and

[GS] was dumped upon the [ appellant], there [were] some

financial iss ues, et cetera; but no motive to show you

why [the appellant] would all of a sudden flip a switch

and brutalize [GS]. 14

In rebuttal, the trial counsel replied:

The government has put on unrefuted evidence that the

[appellant] in this case never wanted the child, the

child was too much for him to handle, he was causing

financial strain on his perfect little family of four,

and he couldn’t take it. Not only that, but that he

never showed any remorse during his interview with Ms.

Dutton, never even

— any c oncern about the child’s

injuries

. . . . 15

Under these circumstances, we find the trial counsel’s rebuttal

argument a fair response to the defense challenge to proof of

motive. Accordingly, we find no error. Nor would we find error

if the “invited re sponse” doctrine were inapplicable , as the

defense could have questioned the appellant’s wife in order to

contradict the G overnment’s evidence of her husband’s motive to

injure GS

. 16

**Ineffective Assistance of Counsel**

Finally, we turn to the appellant ’s claim that trial

defense counsel were ineffective. The Sixth Amendment right to

effective assistance of counsel at trials by court

- martial is a

fundamental right of service members

. United States v. Knight

, 53 M.J. 340, 342 (C.A.A.F. 2000) (citing United States v.

Palenius , 2 M.J. 86 (C.M.A. 1 977))

. We apply the two

- prong test

set forth by the Supreme Court in Strickland v. Washington , 466

U.S. 668, 687 (1984) to determine whether counsel rendered

ineffective representation. “ The burden on each prong rests

with the appellant challenging his c ounsel ’ s performance.”

United States v. Davis , 60 M.J. 469, 473 (C.A.A.F. 2005).

The first prong requires the appellant to show that

counsel's performance fell below an objective standard of

14 R ecord at 661.

15 Id. at 662.

16 Mrs. Dyas , who testified for the G overnment, was also on the defense

witness list

, but was never called by the defense on the merits.11 reasonableness

, indicating that counsel was not functioning as

counsel within the meaning of the Sixth Amendment

. United

States v. Terlep , 57 M.J. 344, 349 (C.A.A.F. 2002)

. Our review

of counsel's performance is highly deferential and is buttressed

by a strong presumption that counsel provided adequate

representation. United States v. Garcia , 59 M.J. 4 47, 450

(C.A.A.F. 2004)

.

The second prong requires a showing of p rejudice resulting

from counsel's deficient performance. Strickland

, 466 U.S. at

687. Such prejudice must result in the denial “of a fair trial,

a trial whose result is unreliable.” U nited States v. Dewrell

, 55 M.J. 131, 133 (C.A.A.F. 2001) (citation and internal

quotation marks omitted)

. The appropriate test for this

prejudice is whether there is a reasonable probability that, but

for counsel's error, there would have been a differen t result.

United States v. Quick , 59 M.J. 383, 387 (C.A.A.F. 2004)

.

Ineffective assistance of counsel involves a mixed question

of law and fact. United States v. Anderson , 55 M.J. 198, 201

(C.A.A.F. 2001)

. The ultimate determinations of whether defe nse

counsel were deficient and whether the deficiency was

prejudicial are reviewed de novo

. Id. ; United States v.

McClain , 50 M.J. 483, 487 (C.A.A.F. 1999)

.

“ When reviewing ineffectiveness claims, ‘ a court need not

determine whether counsel ’ s performa nce was deficient before

examining the prejudice suffered by the [appellant]. ’

. . . Rather, ‘ [i]f it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be fo llowed. ’”

United States v. Datavs , 71 M.J. 420, 424

- 25 (C.A.A.F. 2012)

(quoting Strickland , 466 U.S. at 697 ). We follow that course

here.

The a ppellant alleges his counsel were ineffective for

failing to object to inadmissible testimony and for faili ng to

call essential witnesses. Regarding the inadmissible testimony,

the appellant claims his trial defense team failed to object to

the following testimony: (1) the opinion of the ambulance driver

that he believed GS had been abused; (2) the testimony f rom

treating nurses that the appellant ’ s history about GS seemed

“rehearsed” a nd that he was “fake crying” ; (3 ) the testimony of

expert witnesses that GS’ s injuries were “ nonaccidental ” ; ( 4 )

and Dr. Amaya’s profile testimony that children are more often

ab used on the holidays, in families with financial stresses, and

when the child is male and developmentally delayed.12 Regarding the failure to call witnesses, the appellant

argues that trial defense counsel were ineffective because : (1)

they abandoned thei r original defense that GS’ s injuries could

have been accidental after vowing in their opening statement to

call witnesses to offer evidence of that defense; 17 (2) that they

conceded that GS’ s injuries were “concerning for nonaccidental”

trauma; and (3) the y failed to call Mrs. Dyas to elicit

testimony that persons other than the appellant had access to GS

and thus may have caused the injuries.

We hold that the appellant has failed to demonstrate

prejudice sufficient to result in the denial of a fair tri al or

a trial whose result is unreliable. This is so for several

reasons. First, this was a judge alone trial presided over by

an experienced military judge

, who is “presumed to know the law

and to follow it, absent clear evidence to the contrary.”

Unit ed States v. Mason

, 45 M.J. 483, 484 (C.A.A.F. 1997)

(citations omitted). Therefore, to the extent the appellant

failed to object to any inadmissible evidence, we will presume

the military judge disregarded that evidence and the appellant

therefore suffer ed no prejudice from its admission. 18

Second, we are unconvinced that trial defense counsel’s

decision to abandon their theory that accidental trauma caused

17 In his opening statement, trial defense counsel said:

You will hear testimony from Francis [C], from Kristin [L], and

Susan [H]. Those are occupational the rapi sts and special

educators who observed [ GS ] . They will tell you about [ GS’ s]

slow registration; about his forward ambulation, meaning he

lead[s] with his head; his decrease in fine and gross motor

skills; and his decrease in coordination skills. You will hear

from lay witnesses, namely Staff Sergeant Christopher [M], his

wife Aimee [M]. You will hear from Sergeant [C]. You will hear

from Donna [H] who saw this for themselves

-- from a lay witness

perspective. They, too, realized that something was wron g with

[GS].

R ecord at 223. None of these witnesses were called during the findings phase

of the appellant’s court

- martial, with the exception of Aimee [M], who

testified mainly that GS had a bruise and a cut on his chin on 22 December.

18 T he defen se objected to the trial counsel asking a nurse whether “the

bruis es that you saw i n [ GS was ] consistent with the bruising that you have

seen in the past for children who came in with accidental injuries?” Record

at 297. The basis for the objection was t hat the G overn ment laid an

insufficient foundation for the testimony as well as that the testimony went

to the “ultimate issue.” Id . The military judge overruled the objection

, and we find no abuse of discretion in that ruling.13 GS’ s injuries was prejudicial, let alone sufficiently

prejudicial to warrant relief under Strick land

. The

G overnment ’s evidence that GS was injured by acute,

nonaccidental, blunt force trauma was simply overwhelming. Dr.

Fagen explained that “nonaccidental” referred to “an abnormal

force on the child or

. . . a mechanism that doesn’t fit with

the

- - appropriately with the patient’s age and their capability

of doing something to themselves [.] ” 19 Further, she testified

that the type of injury to GS’ s brain was “[m]ore likely”

associated with “nonaccidental injuries ” 20 and the result of

“ [ s ] ome type of blunt force to the left side of his face and

head.” 21 Dr. Amaya

, an expert in the field of forensic

pediatrics

, testified that GS had “sustained a blunt force

injury to his belly” 22 and head that w ere “nonaccidental.” 23

Concurring that GS’ injuries were ca used by “ nonaccidental

trauma, ” 24 Dr. Hebra opined that it was “ [ v ] irtually impossible”

for a child to generate enough energy to cause the types of

injuries GS suffered and that it was “extremely rare and unheard

of” to see a child with GS’s injuries “outs ide of a motor

vehicle setting.” 25

The defense experts reached the same conclusion s

. Dr.

Carter testified that the cause of GS’ s injuries was “blunt

force trauma” 26 and agreed that “nonaccidental trauma” was the

most likely cause of injury. 27 Similarly

, Dr. Martin

, an expert

in “child abuse pediatrics

, ” testified that GS’s injuries were

consistent with nonaccidental trauma. 28

Faced with unanimous expert opinion that GS’ s injuries were

nonaccidental, defense counsel’s decision to forego attempts to

19 Id. at 384.

20 Id.

21 Id. at 382.

22 Id. at 455

.

23 Id. at 464.

24 Id. at 578

.

25 Id. at 577

.

26 Id. at 598

.

27 Id. at 599.

28 Id. at 619

.14 es tablish otherwise was not deficient. 29 Indeed, we conclude

that efforts to utilize layperson testimony to persuade the

military judge that GS’ s injuries were caused by preexisting

medical conditions or accident prior to 23 December would

certainly have fai led. For this reason, and because the court

“ will not second

- guess the strategic or tactical decisions made

at trial by defense counsel,” United States v. Mazza , 67 M.J.

470, 475 (C.A.A.F. 2009) (internal citations and quotation marks

omitted), we hold th at the appellant has failed to establish

that he was prejudiced by counsel’s decision to decline to call

witnesses to establish accidental injury or by the concession

that GS’ s injuries were consistent with nonaccidental trauma. 30

Finally, r egarding tri al defense counsel’s decision to not

call Mrs. Dyas to establish that others “might have had access

to GS and injured him,” 31 we make three observations: (1) trial

defense counsel’s theory was that Mrs. Dyas had caused the

injuries to GS during a time frame prior to the appellant being

alone with GS; 32 (2) the appellant stated he was at work during

29 In fact, trial defense counsel eventually conceded the power of the

evidence, stating in closing argument that : “[ GS’ s ] injuries were concerning

for nonaccidental trauma, and that’s not contested, neither by the defense or

the government.” Id. at 65 4 . Instead, defense counsel argued that the

medical evidence indicated that GS was injured prior to the appellant takin g

charge of him on 23 December and therefore that Mrs. Dyas more likely than

not caused GS’ injuries. Id. at 661.

30 In his second assignment of error, the a p pellant argues that the military

judge erred in denying the motion to compel the production of a woman who had

custody of GS for one week immediately before GS went to live with the Dyas

family and again in 2013, and that this error substantially prejudiced the

appellant by “limiting his ability to rebut the voluminous medical testimony

of governmen t witnesses that [GS’ s ] injuries appeared to be nonaccidental[.]”

App ellant’s Br ief at 13. Assuming arguendo that the military judge abused

his discretion, we find no prejudice since trial defense counsel abandoned

their “accidental trauma” theory during the trial

.

31 Appellant’s Brief at 33

.

32 Trial defense counsel argued:

And who we didn’t hear much from, sir, is Mrs. Dyas, the witness

who all of the government witnesses who examined [ GS ] and all of

the government witnesses that interacted with her immediately

questioned her credibility. They all noted .

. . that she

immedia tely started offering explanations. She immediately

started identifying the source of some of these bruisings,

explaining the se bruisings as being attributable [to being]

devel opmentally delayed. Again, all of those providers

questioned the credibility of Mrs. Dyas who was giving histories,15 the morning of 23 December when GS was at home with Mrs. Dyas,

providing trial defense counsel a basis to reasonably argue that

others had access to and injured G S; and (3) as discussed supra,

the evidence indicating that GS was injured while in the

appellant’s sole care was substantial. The experts agreed that

GS’ s injuries were acute ; Dr. Kinsman testified that there would

have been no delay be tween injury and s ymptoms , and there was

ample evidence that GS was asymptomatic prior to leaving for the

day with the appellant. Therefore, the impact that any

additional testimony that Mrs. Dyas might have provided that

“others might have had access” to GS would have bee n

insignificant.

For these reasons, we are not persuaded that “ but for ” any

error on counsel’s part in abandoning their original theory,

conceding nonaccidental trauma caused GS’ s injuries, or failing

to call Mrs. Dyas as a witness “the re sult would ha ve been

different.” Quick , 59 M.J. at 387.

**Conclusion**

The findings and the sentence as approved by the co nvening

authority are affirmed.

Senior Judge FISCHER and Judge MCDONALD concur.

For the Court

R.H. TROID L

Clerk of Court

but there ’ s no history, no explanations, given by my client. And

it’s important to note who was the primary caretaker of [ GS ] when

Staff S ergeant Dyas was on the range from sun up to sun down.

R ecord at 661.