United States v. JONES

This opinion is subject to administrative correction before final disposition. Before KORN, FLINTOFT, and KISOR Appellate Military Judges _________________________ UNITED STATES Appellee v. Zabian P. JONES Corporal (E-4), U.S. Marine Corps Appellant No. 202500173 _________________________ Decided: 27 October 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judges: Adam M. King (arraignment) Cory A. Carver (motions and trial) Sentence adjudged 12 December 2024 by a general court-martial tried at Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduc- tion to E-1, confinement for 24 months, and a dishonorable discharge. For Appellant: Lieutenant Commander Marc D. Hendel, JAGC, USN For Appellee: Lieutenant Commander Phillip J. Corrigan, JAGC, USN Lieutenant K. Matthew Parker, JAGC, USN  United States v. Jones, NMCCA No. 202500173 Opinion of the Court Senior Judge FLINTOFT delivered the opinion of the Court, in which Chief Judge KORN and Senior Judge KISOR joined. _________________________ This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ FLINTOFT, Senior Judge: A military judge sitting as a general court-martial convicted Appellant, con- trary to his pleas, of one specification of domestic violence and one specification of child endangerment, in violation of Articles 128b and 119b, Uniform Code of Military Justice (UCMJ).1 Prior to sentencing, the military judge conditionally dismissed the Article 119b charge and specification, subject to reinstatement should the Article 128b conviction be set aside following appellate review. Appellant raises three assignments of error (AOEs): I. Were trial defense counsel ineffective when they failed to identify and address a culpable negligence theory of liability, failed to argue for an appropriate remedy for a substantiated Brady2 violation, and failed to introduce available evidence that Appellant’s wife caused a charged injury? II. Whether Appellant’s rights to due process and fair no- tice were violated when the alleged actus reus lacked specificity and the military judge denied Appellant’s motion to compel a bill of particulars?3 1 10 U.S.C. §§ 928b, 919b. The military judge found Appellant guilty of Article 119b and its sole specification through exceptions and substitutions. Specifically, he found Appellant guilty except for the words, “or safety or welfare,” and “was by design,” sub- stituting therefor the words “constituted culpable negligence.” Entry of Judgment. 2 Brady v. Maryland, 373 U.S. 83 (1963). 3 We have carefully considered AOE II and find it warrants neither relief nor dis- cussion beyond this footnote. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987); R.C.M. 906(b)(6) (Discussion) (the purposes of a bill of particulars are to inform 2  United States v. Jones, NMCCA No. 202500173 Opinion of the Court III. Are Appellant’s convictions factually sufficient? We find no prejudicial error and affirm. I. BACKGROUND Appellant and his wife, Private First Class (PFC) B.C., were both Marines stationed in Okinawa, Japan. In April 2023, they resided together with their two children: an 18-month-old daughter and a newborn son, B.P.J., who was one-month old. On 3 April 2023, PFC B.C. traveled with a friend to Bali, Indonesia, for an international vacation. Appellant was the sole caregiver for their children while PFC B.C. was on vacation. On 7 April 2023, Appellant and PFC B.C. spoke via a FaceTime call, during which a screenshot showed Appellant lifting B.P.J. with two hands around his rib cage.4 Later that evening, at approximately 1930, Appellant took another photo of B.P.J. Both photos depicted B.P.J. with no visible signs of injury or distress.5 On the morning of 8 April 2023, Appellant noticed B.P.J. was experiencing breathing difficulties and took him to the emergency room. Medical personnel the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable the accused to plead the acquittal or conviction in bar of another prosecution for the same offense when the specification itself is too vague and indefinite for such purposes. . . . [it] should not be used to conduct discovery of the Government’s theory of the case, to force detailed disclosure of acts underlying a charge, or to restrict the Government’s proof at trial.); R.C.M. 307(c)(3) states that a specification must allege every element of the charged offense expressly or by necessary implication. As here, a specification is sufficient if it contains the elements of the offense charged and fairly informs an accused of the charge against which he must defend and enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Therefore, a specification must: (1) allege every element of the charged offense ex- pressly or by necessary implication; and (2) protect the accused from double jeopardy. See United States v. Crafter, 64 M.J. 209 (C.A.A.F. 2006). Notably, Appellant’s defense was that none of his acts caused the injuries; thus, this underscores that even if the specification itself was too vague (and this Court does not believe it was), he still suf- fered no prejudice. 4 Pros. Ex. 37. 5 R. at 627-28, 642-43; Pros. Ex 42. 3  United States v. Jones, NMCCA No. 202500173 Opinion of the Court noted that B.P.J. was in critical condition, observing abnormal breathing pat- terns, swollen and bruised eyes, stiffness, a bulging fontanel,6 and minimal responsiveness and reactiveness.7 The attending neonatologist testified that during a chest examination, B.P.J. showed signs of pain, pulling away and gri- macing when pressure was applied to the left side of his chest.8 Although no external bruising over the ribcage was observed, later imaging revealed two left rib fractures.9 The broken ribs were acute, meaning the fractures happened recently and had not yet begun to heal, and were approximately “0 to 10 days old” as of 8 April 2023.10 In addition to the two fractured ribs, the imaging confirmed severe intracranial hemorrhaging, and the injuries were assessed to be consistent with non-accidental trauma.11 As a result, medical staff contacted law enforcement. While at the hospital, B.P.J.’s condition worsened. He had declining oxygen levels and respiratory function, necessitating intubation.12 He also experienced multiple seizures.13 Once B.P.J. was stabilized, the base hospital medical team transferred him to a Japanese children’s hospital for more advanced care. While at the base hospital, Appellant provided varying explanations to medical personnel as to the cause of B.P.J.’s injuries. Initially, he claimed that his two children were in a room together, and upon returning from the bath- room, he found B.P.J. lying face-down on the couch with his 18-month-old sis- ter nearby. Appellant was unsure what had happened, or if his daughter did something, but he noticed B.P.J.’s breathing was abnormal.14 Subsequently, he revised his story, explaining that when he returned from the bathroom, he saw his daughter jumping on the couch and was concerned she may have jumped 6 A “fontanel . . . [is] an opening in the child’s skull. . . . And the concern of a bulging fontanel, what that means is . . . [there] is increased pressure inside the headspace . . . normally, it has a soft feel to it. . . . However, with increased intracranial pressures, you can have the intracranial content . . . bulging up through and against that open- ing.” R. at 497. 7 R. at 449, 456, 459, 474, 497. 8 R. at 507. 9 R. at 732-34. 10 R. at 734-36, 901. 11 R. at 522-25, 807, 811. 12 R. at 495. 13 R. at 463. 14 R. at 451. 4  United States v. Jones, NMCCA No. 202500173 Opinion of the Court on the baby.15 This version was consistent with his initial statements to the neurosurgeon.16 However, after the neurosurgeon reviewed the imagery, he confronted Appellant, informing him the imagery did not match his explana- tions. Appellant again modified his account, explaining that when he returned to the room, B.P.J. fell off the couch.17 During his Naval Criminal Investigative Service (NCIS) interrogation the evening of 8 April, Appellant suggested to the agents that he might have caused the injuries by using excessive force when picking up his son.18 Notably, he also explained he does not remember things when he is too tired, suggesting something might have happened because he was too “sleepy” but he did not remember it.19 He also mentioned that when he gets angry, he “blacks out,” but mentioned he does not get angry with his kids.20 NCIS searched both Appellant’s and PFC B.C.’s phones. The searches re- vealed that on 9 April, the day after Appellant took B.P.J. to the hospital and was subsequently interrogated, PFC B.C. sent Appellant a link to an article after searching, “can babies recover from shaken baby syndrome.”21 Appellant responded, “wtf . . . omfg I ruined our child.”22 Appellant was subsequently charged with domestic violence and child endangerment. A week prior to trial, trial defense counsel (TDC) filed a motion requesting the military judge take judicial notice of a domestic battery arrest and subse- quent conviction of PFC B.C. During discovery, the Government provided TDC with documents indicating that PFC B.C. had been arrested in February 2016 in Las Vegas, Nevada, on a domestic battery charge that had been later dis- missed.23 However, when reviewing an online database approximately a week prior to trial, one of the TDC discovered that the charge resulted in a conviction following a plea of nolo contendere to a battery charge.24 The military judge 15 R. at 457. 16 R. at 532. 17 R. at 533. 18 Pros. Ex. 3a at 106-07. 19 Pros. Ex. 3a at 114-22, 178-80. 20 Pros. Ex. 3a at 111. 21 R. at 648; Pros. Ex. 45 at 2. 22 R. at 648; Pros. Ex. 45 at 2. 23 App. Ex. LXXI at 9-12. 24 App. Ex. LXXI at 8. 5  United States v. Jones, NMCCA No. 202500173 Opinion of the Court found this constituted Brady v. Maryland25 material and permitted TDC to use the conviction (which they did) to cross-examine Government experts to chal- lenge the foundation for their opinions and the quality of the investigative ef- forts of the NCIS agent.26 TDC were not permitted to use the conviction as propensity evidence.27 Prior to closing arguments, the military judge inquired about the lesser in- cluded offense (LIO) of culpable negligence as opposed to “by design” regarding the child endangerment charge. TDC requested additional time after closing arguments to present their position and later objected to the military judge considering the LIO.28 Before announcing findings, the military judge stated: [T]he Court was not obliged to inform the defense of the LIO be- cause the defense was on proper notice based on the fact that it was indeed an LIO. . . . This Court already articulated several cases . . . found that child endangerment by culpable negligence is a lesser included offense of child endangerment by design. . . . conducting the elements test. The only difference here is the lower mens rea, to which the defense and the accused were on notice. None of the other elements differ. . . . the mens rea mov- ing from a specific intent to a more reckless or general intent have been found to be proper LIOs.29 The military judge ultimately found Appellant guilty and issued special findings.30 After the findings but before sentencing, TDC also sought clarifica- tion from the military judge concerning the distinction between an intentional and culpable negligence mens rea as applied to the charge of domestic vio- lence.31 The military judge explained to TDC the applicability of culpable neg- ligence as a mens rea involving general intent crimes.32 During the discussion, 25 373 U.S. 83. 26 R. at 351-52. 27 R. at 349-52. 28 App. Ex. XCIV; R. at 1054. 29 R. at 1054-55. After findings, the military judge conditionally dismissed Charge II and its sole Specification without prejudice, permitting it to be restored should Charge I be set aside following appellate review. 30 App. Ex. XCVII. 31 R. at 1074-78. 32 Id. 6  United States v. Jones, NMCCA No. 202500173 Opinion of the Court TDC questioned the specification’s silence as to mens rea and articulated am- biguity and rule-of-lenity concerns. The military judge explained that an act may be intentional while the mens rea associated with the resulting harm can be based on culpable negligence. II. DISCUSSION A. TDC Were Not Ineffective. Appellant contends he was denied effective assistance of counsel because TDC: (1) failed to identify and prepare a defense against a culpable negligence theory of liability; (2) after requesting judicial notice of PFC B.C.’s domestic battery conviction, failed to support that request with case law or a theory of relevance; and (3) failed to introduce PFC B.C.’s text messages to establish she had motive and intent to cause the charged rib fractures.33 Having reviewed Appellant’s claims individually and collectively, we conclude Appellant’s TDC were not ineffective. 1. Standard of Review. We review allegations of ineffective assistance of counsel (IAC) de novo.34 To prevail on a claim of IAC, an appellant must first “show that counsel’s per- formance was deficient. This requires showing that counsel made errors so se- rious that counsel was not functioning as the ‘counsel’ guaranteed the defend- ant by the Sixth Amendment.”35 This means that an appellant “must show that counsel’s representation fell below an objective standard of reasonableness.”36 Further, judicial scrutiny of counsel’s performance must be highly deferential, and this Court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .”37 Second, an appellant “must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”38 It is not 33 Appellant’s Brief at 16. 34 United States v. Palik, 84 M.J. 284, 288 (C.A.A.F. 2024) (citing United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007)). 35 Strickland v. Washington, 466 U.S. 668, 687 (1984). 36 Id. at 688. 37 Id. at 689. 38 Id. at 687. 7  United States v. Jones, NMCCA No. 202500173 Opinion of the Court enough to show that the errors had some conceivable effect on the outcome.39 An appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine con- fidence in the outcome.”40 This familiar two-pronged approach laid out in Strickland v. Washington is not a sequential test. We need not always determine “whether counsel’s per- formance was deficient before examining the prejudice suffered by the defend- ant as a result of the alleged deficiencies. . . . If 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.”41 2. Analysis. a. Culpable Negligence Theory of Liability. Appellant argues that TDC focused exclusively on rebutting intentional abuse and were caught unprepared when the military judge addressed culpa- ble negligence under both Article 128b and Article 119b, UCMJ. He asserts that had TDC understood that culpable negligence was at issue, TDC would have elicited expert testimony demonstrating that a culpably negligent touch would have been unlikely to cause the injuries, and would not have made clos- ing arguments that focused on Appellant’s parental duty to protect his son. We disagree that TDC’s approach was ineffective. TDC’s principal theory was that Appellant did not cause B.P.J.’s injuries. TDC challenged the Government’s claimed mechanisms of injury in an effort to establish the cause and mechanism of injury could be from B.P.J.’s 18- month-old sister jumping on B.P.J., or B.P.J. falling off the couch.42 Addition- 39 Id. at 693. 40 Id. at 694. 41 Id. at 697. 42 The Defense’s expert on biomechanical engineering concluded that it is uncom- mon for severe head trauma to result from household events; however, “it’s unreason- able to exclude it as a possibility.” R. at 944-45. Additionally, the Government’s child abuse pediatrician testified, “Rib fractures are rarely the result of accidental household accidents. . . . they are very rare.” R. at 807. As it relates to the intracranial injuries and rib fractures, she further testified that it would require “more than routine care and handling of child” to cause those injuries. R. at 815-16. 8  United States v. Jones, NMCCA No. 202500173 Opinion of the Court ally, a Defense expert witness, a pediatric neurologist, testified that the intra- cranial injuries were the result of an internal circulation problem.43 Specifi- cally, he testified that the intracranial injuries stemmed from a vascular clot (or stroke) instead of from any external traumatic force. Appellant also briefly argued that his spouse, prior to departing on vacation, may have been the cause of the rib fractures.44 These theories apply equally to the charged of- fenses and the culpable negligence mens rea because they all supported TDC’s strategy to argue that Appellant was not the source of B.P.J’s injuries. Because the Defense theory was that Appellant had not caused the injuries at all, there was no reason to elicit testimony on whether culpably negligent handling could account for B.P.J.’s trauma. Nor would it have enhanced the Defense theory of a natural stroke. Even though TDC did not prepare for the culpable negligence mens rea, it was not necessary due to the much stronger argument their theory and strategy allowed for based on the facts in this case. As a result, Appellant fails to overcome the strong presumption that TDC’s conduct fell outside the wide range of reasonable professional assistance. Ac- cordingly, giving appropriate deference to TDC’s decisions to focus on a pri- mary, cohesive theory of defense supported by expert witnesses, we are not persuaded their performance fell short of “prevailing professional norms.”45 Furthermore, Appellant contends that TDC’s closing argument conceded his negligence when arguing, “[Appellant] didn’t feel guilty because he hurt his child. He felt guilty because his child was hurt when he was watching him, and as a father, it’s his duty to protect him.”46 We disagree. TDC’s argument was not an admission of domestic abuse. It was instead a reasonable argument that Appellant’s emotional statements to his wife and during his NCIS interroga- tion reflected a grieving father’s remorse for his perceived failure to safeguard his son from an unforeseeable event.47 Even if we found there to be deficient performance as a result of TDC not focusing on mens rea, Appellant suffered no prejudice. The Government’s ex- 43 “That the likelihood that [the intracranial pathologies were] caused by any kind of trauma, intentional or not, is unlikely, and it seemed more likely that it was trig- gered by an internal medical circulation problem.” R. at 904. 44 R. at 1044. 45 Strickland, 466 U.S. at 690. 46 R. at 1040. 47 R. at 1037-51. 9  United States v. Jones, NMCCA No. 202500173 Opinion of the Court perts were credible and had already testified that the injuries were incon- sistent with accidental or ordinary handling and required violent force.48 Elic- iting testimony on whether culpably negligent handling could account for such trauma would not have refuted that violent, traumatic force was applied to B.P.J., who suffered severe, life-threatening injuries while Appellant was the sole caregiver. As a result, Appellant has not demonstrated a reasonable prob- ability that the results of the trial would be different. In sum, this Court finds that TDC’s performance was neither deficient for failing to present a weaker alternative theory that would not have materially advanced their defense, nor would it have created a reasonable probability of a different result. b. PFC B.C.’s Conviction and Text Messages. We resolve the remaining two IAC allegations together. Appellant argues that TDC were ineffective for failing to introduce available evidence suggesting that PFC B.C. caused the rib fractures. Specifically, Appellant argues that af- ter requesting judicial notice of PFC B.C.’s domestic battery arrest and subse- quent conviction, TDC did not support the request with relevant case law or a clear theory of relevance. Additionally, Appellant asserts that TDC failed to introduce exculpatory text messages from PFC B.C. We find that TDC’s per- formance was not deficient, and even if it was, Appellant suffered no prejudice. As an initial matter, “[w]hen a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion . . . appellant must show that there is a reasonable probability that such a motion would have been merito- rious.”49 Here, as discussed supra, Appellant made a pretrial motion, and the military judge found the nearly eight-year-old conviction to be Brady mate- rial.50 The military judge declined to take judicial notice of the conviction but 48 One of the Government’s experts, a neuroradiologist testified, “I see injuries like this resulting from car accidents; falling from significant heights, like the top of a tall playground structure or a second-floor window; something where the body had time to accelerate before it decelerated, something where there was strong impact.” R. at 758. 49 Palik, 84 M.J. at 289 (citations omitted). 50 The Government disagreed with the military judge and the parties disputed whether this evidence constituted a Brady violation in their respective briefs; however, we need not resolve this dispute here. As discussed infra, the record does not support that PFC B.C. fractured B.P.J.’s ribs. PFC B.C. being the source of injury was briefly mentioned as a possibility during TDC’s argument, but she was not the focus of TDC’s defense strategy. As a result, TDC’s decision not to focus on her prior conviction coming in as substantive evidence was not just an objectively reasonable decision, but, even if 10  United States v. Jones, NMCCA No. 202500173 Opinion of the Court allowed TDC to use it to challenge the Government experts’ foundation and the quality of the investigative efforts of the NCIS agent.51 Appellant also argues that TDC failed to introduce exculpatory text mes- sages PFC B.C. sent to Appellant, including the message stating, “I wish you and this stupid ass baby would both f***ing die.”52 The Government contends, based on United States v. Trisler,53 that the text messages became substantive evidence when TDC quoted them during cross-examination without objection. We disagree. Although we agree with the proposition that unobjected to hear- say may be considered for its truth when it is admitted for that purpose, as in Trisler, which involved testimony conveying an out-of-court statement as proof of the value of stolen property. The questioning here, however, was different. TDC, after reading the text messages, asked the Government witnesses whether they were aware of the messages that PFC B.C. had sent. While the child abuse pediatrician was unaware of them, the NCIS agent acknowledged knowing about them and agreed that they were relevant to the investigation. In context, that questioning had to do with the effect it had on the listener as it tested the witnesses’ knowledge and investigative choices or expert founda- tions; it was not used to establish the truth of PFC B.C.’s statements or place the messages themselves in evidence. Our disagreement with the Government, however, does not suggest we be- lieve TDC’s performance was deficient. Appellant must be able to overcome the strong presumption that counsel’s conduct fell within the wide range of rea- sonable professional assistance, and reviewing courts “will not second-guess strategic or tactical decisions.”54 Moreover, “[d]efense 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.”55 TDC knew of the text messages and used their content to challenge the Government’s inves- tigation and expert testimony. TDC likewise used PFC B.C.’s prior conviction for the purposes permitted by the military judge. On this record, counsel’s de- it had come in as substantive evidence, it had no reasonable probability of affecting the military judge’s verdict. 51 R. at 344-352. 52 Appellant’s Brief at 35-36. 53 25 M.J. 611 (A.C.M.R. 1987). 54 United States v. Morgan, 37 M.J. 407, 410 (C.M.A 1993) (citations omitted). 55 United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012). 11  United States v. Jones, NMCCA No. 202500173 Opinion of the Court cision to use that information principally to expose investigative and founda- tional weaknesses, rather than to make PFC B.C. the focus of their defense, was an objectively reasonable decision that supported their primary theory. Additionally, Appellant did not establish prejudice because the evidence does not support that PFC B.C. caused the injuries. In other words, the text messages and prior conviction do not establish that PFC B.C. caused the rib fractures. Appellant places significant weight on the fact that the assessed timeframe the rib fractures could have occurred included a period prior to PFC B.C. departing on vacation. However, this Court considered the photographs taken of B.P.J. shortly before he was admitted to the hospital to be important for establishing the injury timeline, as did the military judge, as articulated in his special findings.56 These photographs do not show any signs of injury or distress.57 In fact, one image depicts Appellant holding B.P.J. by the ribs with- out any sign of discomfort. By contrast, during a hospital examination the very next day, B.P.J. pulled away and grimaced in pain when the neonatologist felt his chest.58 Furthermore, Appellant’s statements to NCIS, PFC B.C., and med- ical personnel together with B.P.J.’s condition shortly before hospitalization, and the medical findings discussed supra, substantially limit the likelihood that PFC B.C. caused any of the injuries.59 Accordingly, we find that TDC’s performance was not deficient. Even as- suming arguendo that TDC performed deficiently by failing to secure the ad- mission of PFC B.C.’s battery conviction and text messages as substantive ev- idence, Appellant has not demonstrated a reasonable probability that the re- sult of trial would be different. Under the facts of this case, PFC B.C. as a source of injury remains implausible. c. Collective Consideration. Lastly, Appellant argues these individual allegations of error, when ana- lyzed cumulatively, are prejudicial.60 We disagree. Even if this Court were to 56 App. Ex. XCVII at 7. 57 Pros. Ex. 37, 42. 58 R. at 507. 59 Appellant informed the medical treatment team at the hospital that B.P.J. was otherwise “well” prior to the injuries arising the morning of 8 April 2023. R. at 458. See also Pros. Ex. 3a at 23. 60 Appellant claims “[t]he failures will be analyzed individually, but their prejudice will be analyzed cumulatively.” Appellant’s Brief at 19. 12  United States v. Jones, NMCCA No. 202500173 Opinion of the Court assume deficiencies existed, Appellant fails to demonstrate a reasonable prob- ability that, but for any unprofessional errors by TDC, the result of the pro- ceeding would have been different based on the totality of those alleged errors. Appellant’s claim of ineffective assistance of counsel is therefore without merit. B. Appellant’s Convictions Are Factually Sufficient. Appellant alleges five deficiencies as to why the evidence is factually insuf- ficient.61 The Government challenges each deficiency and argues that, when affording appropriate deference to the fact that the military judge saw and heard the witnesses, this Court cannot be clearly convinced that Appellant’s convictions are against the weight of the evidence. 1. Standard of Review. We follow the Court of Appeals for the Armed Forces analysis in United States v. Harvey in assessing the three key components of the amended Article 66(d)(1)(B), UCMJ, factual sufficiency review: (1) an appellant’s specific show- ing of a deficiency of proof; (2) affording appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence when we weigh the evidence and determine controverted questions of fact; and (3) whether we are “clearly convinced that the finding of guilty was against the weight of the evidence.”62 2. Discussion. We assume without deciding that Appellant has made a sufficient showing of deficiencies in proof.63 Following a thorough review of the record and provid- ing appropriate deference to the military judge who saw and heard the wit- nesses as well as his extensive special findings, we find Appellant’s arguments 61 Appellant argues his “convictions are factually insufficient because: (1) Appel- lant consistently denied committing the charged offense, (2) there is a lack of evidence Appellant caused the injuries by ‘using his hand’, (3) the experts disagreed as to whether the son’s intracranial injuries were caused by natural circumstances, (4) there was conflicting expert testimony about whether the son’s intracranial injuries could have been caused by his daughter falling on the son, and (5) there was insufficient evidence that Appellant, vice the son’s mother, caused the rib injuries.” Appellant’s Brief at 17. 62 85 M.J. 127 (C.A.A.F. 2024); See also United States v. Hunt, No. 25-0257, __ M.J. __, 2026 CAAF LEXIS 661, at *7 (C.A.A.F. 2026). 63 To invoke a factual sufficiency review as to a particular finding, Appellant must only provide “a specific, reasonable, [and] nonfrivolous statement of error.” Hunt, 2026 CAAF LEXIS 661, at *7. 13  United States v. Jones, NMCCA No. 202500173 Opinion of the Court to be without merit.64 Accordingly, we are not convinced, let alone clearly con- vinced, that the finding of guilty was against the weight of the evidence. III. CONCLUSION After careful consideration of the record and briefs of appellate counsel, we have determined that the finding and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights oc- curred.65 The findings and sentence are AFFIRMED. FOR THE COURT: MARK K. JAMISON Clerk of Court 64 See App. Ex. XCVII. The military judge found the Government’s expert witnesses highly credible and much more specific and reliable in their testimony than the De- fense expert witnesses. Additionally, the military judge found: “the direct and circum- stantial evidence that the Government offered was strong and extremely credible and established the Accused’s guilt beyond a reasonable doubt with regard to establishing the source and cause of the B.P.J.’s multiple injuries.” App. Ex. XCVII at 8. This Court agrees with these findings. 65 Articles 59 & 66, UCMJ. 14