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

STAFF SERGEANT (E-6), U.S. MARINE CORPS

NMCCA 201400250

SPECIAL COURT-MARTIAL

Sentence Adjudged: 10 January 2014.

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 Recommendation: 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

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OPINION OF THE COURT 

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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 Military 
2

Justice, 10 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 waived for six months all automatic forfeitures. 

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

evidence is legally and factually insufficient to support the 

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

defense requests for a witness; (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 counsel that the victim’s 

injuries would have to be nonaccidental without 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 essential 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 

materially 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 daughters, 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 normally 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 Article 134, UCMJ. 

2 We have considered assignments 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 the 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 Beaufort 

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

was “unresponsive, seizuring 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 within 

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 out 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 Marshal’s Office which 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. Washington, 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, 32 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 personally 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 appellant did bodily harm to GS;

(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) That GS was a child under the age of 16

 years. 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (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 produce 

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

elements sufficient. Instead, the appellant claims the 

Government offered no direct evidence that he caused these 

injuries to GS. Specifically, the appellant argues that another 

person 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 circumstantial 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. However, the 

expert witnesses varied on the timeframe during which the 

injuries 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 more 
5

specific, testifying that the injuries likely occurred between 

1500-1900 hours on 23 December 2011. Finally, Dr. Hebra, 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 injuries 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 argues that since the experts differed as 

to when the injuries were caused, and since the Government 

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 appellant 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 Government 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. Dutton

The appellant next avers that the military judge erred when 

he failed to suppress the testimony of Ms. Dutton, a Family 

Advocacy Counselor, because Ms. Dutton failed to inform the 

appellant of his Article 31(b), UCMJ, rights prior to 

questioning him. 

 

6 The appellant was also convicted of making a false official 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 guilty to making 

a false official statement. 
6

In February 2012, the appellant was notified by his company 

first sergeant that he “had to go see Ms. Dutton.”7 Ms. Dutton

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

 The appellant arranged an 

appointment to see Ms. Dutton and arrived at that appointment 

unescorted. At her meeting with the appellant, Ms. Dutton

explained the IDC process, that she was gathering information 

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

did not need to provide information. The appellant chose to 

participate and made statements to Ms. Dutton that the 

Government 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 Government to subpoena

this information. Ms. Dutton then testified that the appellant 

found GS to be an 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

Article 31(b) warnings were not provided, we review the military

judge's findings of fact on a clearly erroneous standard and

conclusions of law de novo. United States v. Cohen, 63 M.J. 45, 

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

Article 31(b), UCMJ, states:

No person subject to this chapter may interrogate, or 

request any statement from an accused or a person 

suspected 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 evidence 

against him in a trial by court-martial. 

 

7

 Record at 141. 

8

 Id. at 160. 

9

 Id. at 514. 
7

“Thus, Article 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 turns on whether Ms. Dutton was a

“person subject to the code.” Under MILITARY RULE OF EVIDENCE

305(b)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (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 Government 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 factors that Ms. Dutton 

waited to conduct her assessment until after the NCIS 

investigation was completed; that she did 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 military judge’s findings of 

fact and they are not clearly erroneous. 

Nor do we find his legal conclusions erroneous. The Court

of Appeals for 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. Penn, 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 197-98. 
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

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

Representative (FAR) should have provided Article 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). 

The facts of this 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 to 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 were not

provided to the Government, and that Ms. Dutton even refused to

disclose the appellant’s statements when sought by the

Government. Under these circumstances, we cannot conclude that

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

enforcement.’” 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 motions to

suppress Ms. Dutton’s testimony.

Burden of Persuasion Shift

Next, the 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 accused 
9

. . . never wanted [GS]” was plain error.13 

Absent plain error, failure to object to improper findings 

argument waives the objection. RULE FOR COURTS-MARTIAL 919(c), 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (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 it 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 Government may comment on the failure of a defendant

to refute Government evidence 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 comment 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 appellate 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). 

During his closing argument, appellant’s defense counsel 

argued that the Government offered no motive for appellant to 

injure GS: 

 

13 Record at 662. The appellant also claims that “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 Appellant to rebut these 

opinions by testifying.” Appellant’s Brief 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

They’ve tried to say that it was the holiday period and 

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

financial issues, 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 concern 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 response” doctrine were inapplicable, as the 

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

contradict the Government’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. 1977)). 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 counsel’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 Record at 661. 

15 Id. at 662. 

16 Mrs. Dyas, who testified for the Government, 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. 447, 450 

(C.A.A.F. 2004). 

The second prong requires a showing of prejudice 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.” United 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 different 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 defense

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 performance 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 followed.’” 

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 appellant alleges his counsel were ineffective for 

failing to object to inadmissible testimony and for failing 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 from 

treating nurses that the appellant’s history about GS seemed 

“rehearsed” and 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 

abused 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 their 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) they 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 trial 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.” 

United 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 suffered 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 therapists 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 wrong with 

[GS].

 

Record 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 The defense objected to the trial counsel asking a nurse whether “the 

bruises that you saw in [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 that the Government 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 Strickland. The

Government’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 were “nonaccidental.”23

Concurring that GS’ injuries were caused 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 “outside of a motor

vehicle setting.” 25

The defense experts reached the same conclusions. 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

establish 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 failed. 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 that 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, regarding trial 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 654. Instead, defense counsel argued that the 

medical evidence indicated that GS was injured prior to the appellant taking 

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 appellant 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 government witnesses that [GS’s] injuries appeared to be nonaccidental[.]” 

Appellant’s Brief 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 

immediately started offering explanations. She immediately 

started identifying the source of some of these bruisings, 

explaining these bruisings as being attributable [to being] 

developmentally 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 GS; 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 between injury and symptoms, 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 been 

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 result would have been

different.” Quick, 59 M.J. at 387. 

 

 Conclusion

The findings and the sentence as approved by the convening 

authority are affirmed.

Senior Judge FISCHER and Judge MCDONALD concur.

 

For the Court

R.H. TROIDL

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 Sergeant Dyas was on the range from sun up to sun down. 

Record at 661.