           UNITED STATES, Appellant and Cross-Appellee

                                    v.

                  Daniel J. DATAVS, Senior Airman
           U.S. Air Force, Appellee and Cross-Appellant

                              No. 12-5001

                         Crim. App. No. 37537

       United States Court of Appeals for the Armed Forces

                        Argued October 9, 2012

                      Decided December 14, 2012

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and COX, S.J., joined.


                                 Counsel

For Appellant and Cross-Appellee: Captain Tyson D. Kindness
(argued); Colonel Don M. Christensen; Lieutenant Colonel
Christopher T. Smith, and Gerald R. Bruce, Esq. (on brief);
Lieutenant Colonel Linell A. Letendre.

For Appellee and Cross-Appellant:        Major Michael S. Kerr
(argued).


Military Judge:   Grant L. Kratz



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Datavs, 12-5001/AF	


     Judge RYAN delivered the opinion of the Court.

     Contrary to his pleas, a panel of officer and enlisted

members sitting as a general court-martial convicted Appellee of

one specification of making a false official statement and two

specifications of forcible sodomy, violations of Articles 107

and 125, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 907, 925 (2006).   The adjudged and approved sentence provided

for a dishonorable discharge, forfeiture of all pay and

allowances, and reduction to E-1.

     The United States Air Force Court of Criminal Appeals

(AFCCA) affirmed the findings and the sentence as approved by

the convening authority, except for the forfeiture of all pay

and allowances, of which the court affirmed a forfeiture of

“$933.00 of [Appellee’s] pay for two months.”    United States v.

Datavs, 70 M.J. 595, 605 (A.F. Ct. Crim. App. 2011).    Despite

this favorable ruling, the Judge Advocate General of the Air

Force (TJAG), on certification under Article 67(a)(2), UCMJ, 10

U.S.C. § 867(a)(2) (2006), asked us to hold that the AFCCA

misapplied Strickland v. Washington, 466 U.S. 668 (1984), and

Harrington v. Richter, 131 S. Ct. 770 (2011), in determining

that trial defense counsel’s performance was ineffective.1    On



																																																								
1
     On February 10, 2012, TJAG requested that action be taken with
respect to the following issue:


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United States v. Datavs, 12-5001/AF	


April 18, 2012, we granted Appellee’s cross-petition to

determine the following issue:

             WHETHER [APPELLEE] RECEIVED INEFFECTIVE ASSISTANCE OF
             COUNSEL WHEN DEFENSE COUNSEL FAILED TO OBTAIN AN EXPERT
             CONSULTANT IN THE FIELD OF SEXUAL ASSAULT EXAMINATIONS,
             FAILED TO MAKE CHALLENGES FOR CAUSE AGAINST TWO PANEL
             MEMBERS WHO WERE BASE VICTIM ADVOCATES, AND FAILED TO
             PROPERLY IMPEACH S.M.F. USING HER PERSONAL TELEPHONE
             RECORDS.2

             Insofar as there was no error that materially prejudiced a

substantial right of Appellee, see Article 59(a), UCMJ, 10

U.S.C. § 859(a) (2006), the decision of the United States Air

Force Court of Criminal Appeals is affirmed.

                                                                            I.         FACTS

             The morning of June 15, 2008, Appellee and SF, a civilian,

engaged in consensual vaginal intercourse.3                                                                               SF alleged that,

following the vaginal intercourse, Appellee forced her to engage

in both oral sodomy and anal sodomy.                                                                    Later that day, SF was

examined by Burton, a certified Sexual Assault Nurse Examiner

(SANE Burton).

																																																																																																																																																																																			
             WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS INCORRECTLY
             APPLIED THE STANDARD OF LAW UNDER STRICKLAND v. WASHINGTON,
             466 U.S. 668 (1984) AND HARRINGTON v. RICHTER, 131 S. CT.
             770 (2011), WHEN EVALUATING WHETHER TRIAL DEFENSE COUNSEL
             WAS INEFFECTIVE FOR NOT SEEKING EXPERT ASSISTANCE DURING
             TRIAL AFTER THE GOVERNMENT’S EXPERT WITNESS TESTIFIED.
2
  United States v. Datavs, 71 M.J. 301 (C.A.A.F. 2012) (order
granting review).	
3
  For a more complete factual history, see Datavs, 70 M.J. at
596-97.

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United States v. Datavs, 12-5001/AF	


      Prior to trial, trial defense counsel and assistant trial

defense counsel interviewed SANE Burton on three separate

occasions and observed her testimony at the Article 32, UCMJ, 10

U.S.C. § 832 (2006), hearing.   SANE Burton discussed the

findings she had made during her vaginal and anal examination of

SF.   SANE Burton indicated that the trauma to SF’s vagina was

“some of the worst she had ever seen,” and “that the sexual

encounter that caused the [vaginal] trauma must have been very

painful.”   SANE Burton described SF’s anal trauma as

“considerable,” but did not indicate a willingness to testify

about the likely level of pain, and agreed that a “first-time

experience with anal sex, a single insertion of the penis, or

even a partial insertion of the penis” could have been the cause

of the anal trauma she observed.

      On July 28, 2008, during an interview with civilian and OSI

investigators, Appellee responded to SF’s allegation of forced

anal sex by stating that “it may have slipped in,” but that it

wasn’t anal sex.   Subsequently, Appellee submitted a written

statement in which he admitted that he and SF engaged in

consensual anal sodomy.

      Charges were referred to a general court-martial on March

2, 2009.    During voir dire, two panel members identified

themselves as base victim advocates, who had received training

on how to deal with victims of alleged sexual abuse.    Both

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United States v. Datavs, 12-5001/AF	


members stated they had not acted as victim advocates as of the

time of the trial and affirmed their impartiality and ability to

decide the case solely on the evidence and military judge’s

instructions.   Defense counsel did not challenge the inclusion

of either member on the panel.

     Prior to trial, defense counsel requested that the

convening authority appoint a SANE to assist the defense in

responding to SANE Burton’s anticipated testimony.      After the

convening authority denied the request, defense counsel

submitted a motion to compel production of a SANE.      However, to

avoid the potential spillover effect from SANE Burton’s vivid

and prejudicial description of SF’s vaginal injuries, and

because the defense strategy was to establish that SANE Burton’s

assessment of the anal trauma was inconclusive as to whether it

was the result of consensual or nonconsensual activity, defense

counsel withdrew the motion in exchange for the Government’s

representation that it intended “to only offer portions of the

SANE Examination that relate[] to injuries to the anus and not

to any injuries to the vaginal area.”

     The trial defense counsel asserted that SANE Burton

testified about the anal injuries in “surprisingly more

provocative and aggressive ways” than she had in her previous

descriptions to defense counsel.       SANE Burton also stated that,

although it was “physically possible” for SF’s anal injuries to

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United States v. Datavs, 12-5001/AF	


have occurred during consensual intercourse, “[t]he injuries

were . . . consistent with [SF]’s statement of forced anal

penetration.”

     Rather than renew the motion for the appointment of a

defense expert to assist in responding to SANE Burton’s

testimony, defense counsel proceeded with cross-examination

without consulting a SANE expert.    On cross, SANE Burton

admitted, consistent with her pretrial statements and Article

32, UCMJ, testimony, that it was “medically possible” for the

anal trauma to have been caused by a single or partial insertion

of the penis, and also admitted that she could not determine if

the trauma was caused by “consensual or unconsensual activity.”

     The general court-martial convicted Appellee of one

specification of false official statement and two specifications

of forcible sodomy.   Following his conviction, Appellee’s family

hired a certified SANE, SANE O’Neal, to review SANE Burton’s

examination and testimony, and to report her own conclusions.

SANE O’Neal was critical of both SANE Burton’s examination

procedures and some of her general conclusions.   But, like SANE

Burton, SANE O’Neal concluded that:    (1) some force is necessary

to perform anal sex, see Datavs, 70 M.J. at 601; (2) SF

sustained some anal injuries; and (3) it was possible that all

the injuries described in SANE Burton’s testimony could have

occurred as a result of either consensual or nonconsensual anal

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United States v. Datavs, 12-5001/AF	


sex.   The AFCCA granted Appellee’s motion to submit an affidavit

from SANE O’Neal containing her report.     Appellant’s Motion to

Submit Documents at 1, Datavs, 70 M.J. 595 (A.F. Ct. Crim. App.

2011) (No. ACM 37537).

                          II.   AFCCA DECISION

       Before the AFCCA, as relevant to the issues raised before

this Court, Appellee alleged that defense counsel were

constitutionally ineffective because they:       (1) failed to obtain

an expert consultant in the field of sexual assault examinations

after the Government’s expert witness testified; (2) failed to

admit telephone records to impeach SF’s testimony that she made

no attempt to contact Appellee after their encounter on June 15,

2008; and (3) failed to make challenges for cause against two

panel members who were base victim advocates.      The AFCCA granted

two Government motions to submit documents, permitting trial

defense counsel and assistant trial defense counsel to provide

affidavits and supplemental affidavits that responded to each of

Appellee’s ineffectiveness claims.

       After considering the defense counsel’s affidavits, the

record of trial, and SANE O’Neal’s report, the AFCCA held that

(2) and (3) of Appellee’s ineffectiveness claim fell “well

within the professional norms expected of able defense counsel.”

Datavs, 70 M.J. at 602.    Defense counsel’s decisions not to

admit telephone records to impeach SF’s testimony in order to

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United States v. Datavs, 12-5001/AF	


avoid the risk that the Government would use the records to

locate SF’s former boyfriend –- a potential witness with whom SF

discussed details of the sexual encounter that were consistent

with her allegations -- and not to challenge two panel members

who were base victim advocates because defense counsel believed

they were favorable members, were reasonable.   See Strickland,

466 U.S. at 690 (“[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable . . . .”).

     The AFCCA concluded, however, with respect to (1) of

Appellee’s ineffectiveness claim, that following SANE Burton’s

testimony, defense counsel performed deficiently in proceeding

with cross-examination without expert assistance.   Datavs, 70

M.J. at 600.   The court then tested for substantial prejudice.

Id. at 601-02.   Upon comparing SANE Burton’s testimony to SANE

O’Neal’s report, the court determined that defense counsel’s

error was nonprejudicial.   Id. at 602.

                         III.   DISCUSSION

                                 A.

     To establish ineffective assistance of counsel, “an

appellant must demonstrate both (1) that his counsel’s

performance was deficient, and (2) that this deficiency resulted

in prejudice.”   United States v. Green, 68 M.J. 360, 361

(C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687).    In

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United States v. Datavs, 12-5001/AF	


reviewing for ineffectiveness, the Court “looks at the questions

of deficient performance and prejudice de novo.”   United States

v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008).

     With respect to Strickland’s first prong, courts “must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.”     466 U.S.

at 689; see also Harrington, 131 S. Ct. at 788 (“Even under de

novo review, the standard for judging counsel’s representation

is a most deferential one.”).

     As to the second prong, a challenger must demonstrate “a

reasonable probability that, but for counsel’s [deficient

performance] the result of the proceeding would have been

different.”   Strickland, 466 U.S. at 694.   “[T]he question is

whether there is a reasonable probability that, absent the

errors, the factfinder would have had a reasonable doubt

respecting guilt.”   Id. at 695.   “It is not enough to show that

the errors had some conceivable effect on the outcome . . . .”

Harrington, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at

693 (internal quotations omitted)).    Instead, “[a] reasonable

probability is a probability sufficient to undermine confidence

in the outcome.”   Strickland, 466 U.S. at 694; see also

Harrington, 131 S. Ct. at 787-88 (“Counsel’s errors must be so

serious as to deprive the defendant of a fair trial, a trial




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United States v. Datavs, 12-5001/AF	


whose result is reliable.” (quoting Strickland, 466 U.S. at 687

(internal quotations omitted))).

                                B.

     With respect to Appellee’s ineffective assistance of

counsel claims related to defense counsel’s failure to impeach a

single statement of SF through her telephone records and failure

to challenge two members for cause, we agree with the AFCCA’s

determination that defense counsel acted “well within the

professional norms expected of able defense counsel.”   Datavs,

70 M.J. at 602.

     Defense counsel do not perform deficiently when they make a

strategic decision to accept a risk or forego a potential

benefit, where it is objectively reasonable to do so.   See

United States v. Gooch, 69 M.J. 353, 362-63 (C.A.A.F. 2011)

(holding that it was not deficient performance to decide not to

have the military judge dismiss a specification and risk a

mistrial where counsel had strategic reasons for keeping the

assembled panel); United States v. Stephenson, 33 M.J. 79, 80

(C.M.A. 1991) (concluding that it was not deficient performance

to decline to call a character witness at a sentencing hearing

in order to avoid harmful rebuttal evidence).

     Here, defense counsel determined that the members in

question possessed characteristics that made them more likely to

be persuaded by the defense’s theory of the case, and, during

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United States v. Datavs, 12-5001/AF	


voir dire, both members affirmed their impartiality and ability

to decide the case solely on the evidence and instructions.

Likewise, in not admitting SF’s telephone records, defense

counsel avoided alerting Government counsel to the existence of

and contact information for SF’s boyfriend, who was known to

have information that would be damaging to the defense.    For

these reasons, we hold that defense counsel’s strategic choices

fell within the bounds of reasonable performance.

                                C.

     When reviewing ineffectiveness claims, “a court need not

determine whether counsel’s performance was deficient before

examining the prejudice suffered by the defendant.”    Strickland,

466 U.S. at 697.   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.”   Id.

     Appellee argues that defense counsel’s decisions to cross-

examine SANE Burton without consulting with a SANE expert and

not to counter SANE Burton’s testimony with a defense SANE

expert resulted in his conviction.     We are not persuaded.   We

agree with the AFCCA that Appellee has not demonstrated that

there is a reasonable probability that, if SANE O’Neal had been

consulted at trial, prior to cross-examination of SANE Burton,

or had been called during the defense’s case, the panel members

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United States v. Datavs, 12-5001/AF	


would have harbored a reasonable doubt respecting guilt.    See

Strickland, 466 U.S. at 694.

     Appellee’s written statement admits that he intentionally

engaged in anal sodomy with SF, and the only contested issues

with regard to his conviction for forcible anal sodomy were

whether the sodomy occurred by force and without SF’s consent.

SANE Burton testified that SF’s anal injuries were “consistent

with [SF’s] statement of forced anal penetration,” but that it

was “physically possible” that the injuries were caused by

consensual intercourse.    On cross-examination, SANE Burton

admitted that she could not conclude whether the anal trauma was

caused by “consensual or unconsensual activity.”   SANE Burton

also admitted that it was “medically possible” for SF’s anal

trauma to have been caused by a single, or partial insertion of

the penis, and that there is the “potential for injury” any time

a penis enters the anus.   Further, she conceded that her opinion

did not take into account whether the subjects of her prior

examinations were experienced with anal sex or whether they had

prepared their bodies prior to engaging in anal sex.   Thus, SANE

Burton’s testimony, taken as a whole, was inconclusive as to

whether the sodomy occurred by force and without SF’s consent.

     Appellee fails to demonstrate a sufficient “delta” between

the probative weight of SANE Burton’s testimony following

defense counsel’s unassisted cross-examination and the probative

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United States v. Datavs, 12-5001/AF	


weight of that testimony had defense counsel either (1) cross-

examined SANE Burton with the benefit of expert assistance, or

(2) countered with testimony from a defense expert.   Compare

Boyle v. McKune, 544 F.3d 1132, 1138-39 (10th Cir. 2008)

(holding that any deficiency associated with defense counsel’s

“failure to interview and call to the stand any expert

witnesses” was nonprejudicial where the appellant did not

demonstrate “that medical experts could have reached a

conclusion regarding consent contrary to the conclusions reached

by the [government’s experts]” and defense counsel “elicited

from the government’s expert nurse witnesses that it was

possible the injuries on [the victims] could have stemmed from

consensual vaginal sex, lack of lubrication, and even the re-

aggravation of a previous injury”), with Caro v. Woodford, 280

F.3d 1247, 1256-58 (9th Cir. 2002) (holding that trial counsel’s

failure to investigate and present evidence of brain damage was

prejudicial error where three separate expert witnesses

testified at an evidentiary hearing that they would have

concluded that petitioner suffered from brain damage).    See also

Amos v. Renico, 683 F.3d 720, 733 (6th Cir. 2012) (concluding

that “trial counsel’s failure to investigate and call expert

witnesses did not work to [appellant’s] actual and substantial

disadvantage” where the expert scientists who authored the

“articles that [appellant] claims counsel should have discovered

                                13
United States v. Datavs, 12-5001/AF	


would not have contradicted [the government expert’s]

testimony”); Villegas v. Yates, No. CV 08-02073-JFW (VBK), 2009

U.S. Dist. LEXIS 102503, at *16, *23-*25, 2009 WL 3668625, at

*4-*7 (C.D. Cal. Oct. 30, 2009) (concluding that the

“[p]etitioner has failed to demonstrate that counsel’s trial

strategy was unreasonable or prejudicial” in “fail[ing] to

present an . . . expert witness to counter the prosecution

witness” where the expert submitted a sworn declaration that

“accepts -- or does not deny -- that [the victim] sustained

injuries and, moreover, admits that it is just as likely that

such injuries were incurred during non-consensual as consensual

sex”).

     Like SANE Burton’s testimony, SANE O’Neal’s report, taken

as a whole, concludes that:   (1) some amount of force is

required to engage in consensual or nonconsensual anal sex; (2)

SF sustained some anal injuries; and (3) all of the injuries

could have occurred as a result of consensual or nonconsensual

anal sex.   Thus, while critical of SANE Burton’s examination

procedures and some of her general conclusions, SANE O’Neal’s

report is substantially consistent with SANE Burton’s testimony

with regard to the issues of force and consent.

     Appellee has not demonstrated that the assistance or

testimony of a SANE expert would have substantially undermined

the force of SANE Burton’s testimony, taken as a whole, with

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United States v. Datavs, 12-5001/AF	


regard to the issues of force and consent -- let alone offered

anything close to a definitive conclusion that the anal sodomy

was consensual.   Thus, Appellee’s conviction would still have

hinged on whether the members found SF’s testimony that she did

not consent credible in light of Appellee’s statement that SF

had consented.    When viewed cumulatively with Appellee’s

contradictory statements as to whether he and SF had even

engaged in anal sodomy and his conviction for making a false

official statement to the police, there is no “reasonable

probability” that the panel would have arrived at a different

outcome after hearing SANE O’Neal’s testimony.   Thus, we hold

that defense counsel’s decision to forego expert assistance and

testimony is not “sufficient to undermine confidence in the

outcome” of Appellee’s court-martial, and did not prejudice his

defense.    See Strickland, 466 U.S. at 694.

                                      D.

     With respect to Appellant’s request that we revisit the

AFCCA’s determination that defense counsel’s failure to seek

production of a SANE expert following SANE Burton’s testimony

was not “within the bounds of reasonable performance expected

from competent counsel,”   Datavs, 70 M.J. at 600, we note that

the AFCCA also concluded that there was no prejudice from that

decision.   Id. at 602.




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United States v. Datavs, 12-5001/AF	


       To the extent that the AFCCA’s decision might be read to

say that counsel’s performance is per se deficient by failing to

counteract an adverse expert’s unexpected testimony with an

expert witness of their own, that would be an erroneous

statement of the law.   Harrington, 131 S. Ct. at 791

(“Strickland does not enact Newton’s third law for the

presentation of evidence, requiring for every prosecution expert

an equal and opposite expert from the defense.   In many

instances cross-examination will be sufficient to expose defects

in an expert’s presentation.”); Strickland, 466 U.S. at 689

(“There are countless ways to provide effective assistance in

any given case.   Even the best criminal defense attorneys would

not defend a particular client in the same way.”).

       Since we conclude that Appellee was not prejudiced by any

alleged error, see supra Part III.C., we do not reach the

question whether defense counsel’s decision not to renew the

defense motion for expert assistance in fact constituted

deficient performance in this case.    See Strickland, 466 U.S. at

697.   Appellant won below on the absence of prejudice, and we

agree with the AFCCA that there is no prejudice.   See United

States v. Gilley, 14 C.M.A. 226, 226-27, 34 C.M.R. 6, 6-7 (1963)

(holding the questions presented moot because “[p]ractically

speaking, any action which we might take with respect to the

certified issues would not materially alter the situation

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United States v. Datavs, 12-5001/AF	


presented with respect either to the accused or the

Government”); see also United States v. McIvor, 21 C.M.A. 156,

158, 44 C.M.R. 210, 212 (1972) (holding the certified questions

moot because resolution of the issue would not “result in a

material alteration of the relationship of the parties”); United

States v. Aletky, 15 C.M.A. 536, 536-37, 37 C.M.R. 156, 156-57

(1967) (holding the certified question moot because the accused

had been separated from the service).

                          IV.   DECISION

     Accordingly, insofar as there was no error that materially

prejudiced a substantial right of Appellee, see Article 59(a),

UCMJ, 10 U.S.C. § 859(a) (2006), the decision of the United

States Air Force Court of Criminal Appeals is affirmed.




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