          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201500177
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.
                            MARVIN C. DIAS
          Logistics Specialist Second Class (E-5), U.S. Navy
                               Appellant
                       _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

     Military Judge: Captain Robert E. Blazewick, JAGC, USN.
 Convening Authority: Commander, Navy Region Southeast, Naval
                    Air Station, Jacksonville, FL.
Staff Judge Advocate’s Recommendatio n: Commander Nell O. Evans,
                             JAGC, USN.
     For Appellant: Lieutenant Doug R. Ottenwess, JAGC, USN.
For Appellee: Commander Serajul F. Ali, JAGC, USN; Major Cory A.
                            Carver, USMC.
                       _________________________

                          Decided 31 August 2017
                          _________________________

 Before HUTCHISON, FULTON, and RUSSELL, Appellate Military Judges
                     _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________
   PER CURIAM:

    A military judge, sitting as a general court-martial, convicted the
appellant, pursuant to his pleas, of: one specification each of conspiracy to
steal and sell military property; disrespect toward a commissioned officer;
disobeying a commissioned officer; disobeying a noncommissioned officer; four
specifications of violation of a lawful general order; and one specification each
                        United States v. Dias, No. 201500177


of sale of military property and theft of military property, in violation of
Articles 81, 89, 90, 91, 92, 108, and 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 881, 889, 890, 891, 892, 908, and 921. The military
judge also convicted the appellant, contrary to his pleas, of: one specification
of sexual assault; two specifications of abusive sexual contact; two
specifications of assault consummated by a battery; and one specification of
indecent language, in violation of Articles 120, 128, and 134, UCMJ, 10
U.S.C. §§ 920, 928, and 934. The military judge sentenced the appellant to
reduction to pay grade E-1, 50 months’ confinement, and a dishonorable
discharge.
    This case is before us a second time. We previously found that the staff
judge advocate’s recommendation and the convening authority’s action
contained error, and we returned the record for new post-trial processing.
United States v. Dias, No. 201500177, 2015 CCA LEXIS 536, unpublished op.
(N-M. Ct. Crim. App. 30 Nov 2015) (per curiam). The new post-trial
processing is now complete, and we have conducted our review under Article
66, UCMJ.
    The appellant has assigned two errors: first, that the military judge erred
by admitting text messages as excited utterances; and, second, that the
appellant received ineffective assistance of counsel because his trial defense
counsel stipulated to the expected testimony of a witness against him. We
find that the findings and sentence are correct in law and fact and that no
error materially prejudiced the substantial rights of the appellant. Arts. 59(a)
and 66(c), UCMJ.
                                 I. BACKGROUND
    Both assignments of error pertain to the appellant’s conviction for
sexually assaulting Seaman (SN) KB in a barracks room while the appellant
and SN KB were conducting room inspections together. According to SN KB’s
testimony, during the room inspections, the appellant told SN KB that he
wanted in her “cookie,”1 and later touched her on the buttocks twice during
the inspections. SN KB told the appellant to stop. While still inspecting the
final room, the appellant approached SN KB from behind and placed one
hand up SN KB’s shirt and the other hand into her pants between her legs.
The appellant and SN KB ended up on a bed and, although SN KB repeatedly
told the appellant that she did not want to have sex with him, the appellant
had sexual intercourse with her anyway.
   After the assault, SN KB returned to her barracks room in the same
building. She called her mother and then, within ten or fifteen minutes of


   1   Record at 384.

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                       United States v. Dias, No. 201500177


having been assaulted, began a series of text messages to her friend, SN DR.
These text messages, in which SN KB tells her friend that the appellant had
sex with her after she told him to leave her alone, were admitted by the
military judge as excited utterances over the appellant’s objection.
   At trial, defense counsel stipulated to the expected testimony of SN KB’s
roommate. In the stipulation, the parties agreed that the roommate, had she
been called, would have testified that on the day of the assault, SN KB came
to the laundry room where the roommate was washing her clothes.
According to the stipulated testimony, SN KB told the roommate, ‘“I don’t
want to tell anyone, you have to promise not to tell anyone,’ and then said
that [the appellant] forced her to have sex.”2 The stipulated testimony also
indicates that a third Sailor who had also been inspecting rooms saw the
appellant touching SN KB’s buttocks. This information tended to contradict
the in-court testimony of this third Sailor, who testified that he saw the
appellant touch SN KB on her side, but did not see him touch her buttocks.
The appellant now claims that his counsel were ineffective by stipulating to
the roommate’s expected testimony.
                                     II. DISCUSSION
A. Admission of the text messages
    The appellant argues that the military judge erred by admitting the text
messages SN KB sent to her friend after the assault. The government, in the
face of a defense objection, told the military judge that the texts were excited
utterances, and therefore admissible as an exception to the bar on hearsay.
The military judge admitted the texts without performing any on-the-record
analysis of their admissibility.
    Decisions of a military judge to admit or exclude evidence are reviewed for
abuse of discretion. United States v. Eslinger, 70 M.J. 193, 197 (C.A.A.F.
2011). In reviewing evidentiary rulings under this standard, we typically
review the military judge’s findings of fact under a clearly erroneous
standard, and his conclusions of law de novo. United States v. Owens, 51 M.J.
204, 209 (C.A.A.F. 1999). Where, as here, the military judge does not make
his findings on the record, we give less deference to the military judge. See
generally United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (military
judges who fail to articulate MILITARY RULE OF EVIDENCE 403 balancing test
findings on the record receive less deference on review).
  Out-of-court statements may be admissible as excited utterances if they
meet the three-prong test established by United States v. Arnold:



   2   Prosecution Exhibit (PE) 1.

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         (1) the statement must be spontaneous, excited, or
         impulsive rather than the product of reflection and
         deliberation;
         (2) the event prompting the utterance must be
         startling, and;
         (3) the declarant must be under the stress of
         excitement caused by the event.
25 M.J. 129, 132 (C.M.A. 1987).
    Applying these factors, we conclude that the military judge did not err in
admitting the text messages. First, we find that the text messages were
impulsive, and not the product of reflection and deliberation. SN KB testified
that when she went back to her room after the assault she was upset,
confused, and crying. She called her mother and then wrote the texts. The
text messages began at 10:06 am. According to SN KB’s testimony, the first
text was sent within fifteen minutes of the sexual assault. SN KB’s self-
described emotional state—her confusion, her crying, and her initial impulse
to go to her room, call her mother, and then text a friend—support a finding
that the text messages were spontaneous, excited, and impulsive rather than
the product of reflection and deliberation.
   The second prong is easily met. The event that prompted the utterance
was startling; it was the sexual assault itself.
    The third prong is also met. The messages themselves indicate that SN
KB had just been sexually assaulted, that she had hit and scratched her
attacker; that at the time of the texts she was “terrified” to say anything; and
that she was “in so much pain . . . it’s crazy.”3 We have no trouble concluding
that SN KB was under the stress and excitement of the assault when she
composed these text messages. The military judge therefore did not err by
admitting them.
   The appellant correctly points out that there was an apparent break in
the text communications at issue here—a break sufficiently long that SN
KB’s phone provided a fresh time stamp of 12:28 pm when the conversation
resumed. Even if we were to find that there was an insufficient foundation to
admit these later texts as excited utterances, the error would be harmless.
SN KB had already made it clear in her earlier texts that she had been
sexually assaulted during the room inspection.




   3   PE 2 at 4.

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B. Ineffective assistance of counsel
   The appellant claims that his counsel were ineffective because they
entered into a stipulation of expected testimony. We disagree.
   The Sixth Amendment entitles criminal defendants to representation that
does not fall “below an objective standard of reasonableness” in light of
“prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 688
(1984).
    We apply Strickland’s two-prong test to determine whether counsel
rendered ineffective representation. To prevail on a claim of 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, 361-62 (C.A.A.F. 2010) (citing
Strickland, 466 U.S. at 687) (additional citation omitted). “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 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).
    Importantly to this case, “strategic choices made by trial defense counsel
are ‘virtually unchallengeable’ after thorough investigation of the law and the
facts relevant to the plausible options.” United States v. Akbar, 74 M.J. 364,
371 (C.A.A.F. 2015) (quoting Strickland, 466 U.S. at 690-91).
   As discussed, the parties stipulated that the appellant’s roommate, had
she been called, would have testified that SN KB met her in the laundry
room the day of the assault, and told her that the appellant had sexually
assaulted her. The appellant argues that this decision represents a lapse in
representation so significant that it meets the requirements of Strickland.
     Both lead and assistant trial defense counsel have submitted affidavits
concerning their decision to stipulate to the expected testimony. The
affidavits make clear that counsel entered into the stipulation for tactical
reasons. The lead counsel, Commander JS, believed that the live testimony of
the appellant’s roommate would have been more damaging than the
stipulation. By stipulating to the roommate’s testimony, the defense limited
the scope of the testimony, and avoided the introduction of additional
testimony about SN KB’s demeanor following the assault—testimony that, in
counsel’s view, would have been quite damaging.

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    Additionally, the stipulation presented information that tended to
impeach SN KB’s testimony that the third Sailor conducting inspections with
the SN KB and the appellant witnessed some of the initial inappropriate
physical contact. In the stipulation, the defense preserved the roommate’s
expected testimony that SN KB stated that this third Sailor saw the
appellant touching SN KB during the room inspections, but did nothing to
stop it. Defense counsel hoped to contradict this statement by SN KB and
were partially successful at this during the trial. But this strategy depended,
of course, on being able to present SN KB’s statement as preserved in her
roommate’s stipulation.
    In short, the trial defense counsel viewed the stipulation of expected
testimony as a means of excluding potentially damaging testimony and
preserving helpful testimony. This tactical decision is not so unreasonable as
to represent a departure from the reasonable exercise of professional
judgment expected of attorneys. We therefore find that the appellant has not
met the first prong of the Strickland test.
                              III. CONCLUSION
   The findings and sentence are affirmed.


                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




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