               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

     ---------------------------------------------------
                     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 Military
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).


                                      2
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.
                                   3
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

                                   4
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.


                                      5
     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.
                                 6
     “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.
                                   7
     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




                                8
. . . 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.


                                     9
      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.
                                     10
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.

                               11
     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.


                                        12
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.
                               13
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,
                                       14
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.
                                     15
