UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-8501

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MYRON R. BELL,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

( June 4, 1993 )

Before POLITZ, Chief Judge, HIGGINBOTHAM and WIENER, Circuit

Judges.

POLITZ, Chief Judge:

Myron Bell appeals his convictions and sentences for

aggravated sexual abuse of a child, in violation of 18 U.S.C.

§ 2241(c), and causing bodily injury to a child, in violation of

18 U.S.C. § 13 and Tex. Penal Code § 22.04(a)(4). Finding no

reversible error, we affirm.

Background

In December 1990, Bell, a soldier stationed at Fort Hood,
 

1 Bell does not dispute that he had sole custody of the

baby during his wife's absence that day, except for a brief period

after which he concedes that she had no apparent injuries.

2

Texas, met his future wife, Veronica Jean, a nurse also stationed

at Fort Hood. The two married in March 1991, and thereafter lived

together in officer housing on the base. The previous October Mrs.

Bell had given birth to a baby girl. Immediately following her

birth the baby suffered episodes of constipation. From time to

time, in response to such episodes, Mrs. Bell used a technique

called "digital extraction" to induce a bowel movement. Digital

extraction involved insertion of a suppository or small piece of

soap just inside the baby's anus, using the small finger. By April

1991, the baby's constipation problem had substantially diminished.

In June 1991 Mrs. Bell was assigned to the evening shift at

the base hospital, working from 2:45 p.m. to 11 p.m. When working

she usually left her baby at a child care center or with a friend.

On June 24, 1991, however, she left the child in her husband's

care. Before she left for work that day the baby had a normal

bowel movement. The child had no bruises or other abnormal marks

on her body.1 The following morning the baby behaved strangely,

struggling and screaming when her mother attempted to move her legs

to change her diaper. Mrs. Bell noticed for the first time

swelling and bruising on the baby's bottom and thighs and took her

to the hospital. Examining physicians concluded that sexual abuse

had caused the baby's injuries.

In response to an initial inquiry by authorities Bell denied
 

2 Congress has defined this jurisdiction as including

"[a]ny lands reserved or acquired for the use of the United States,

and under the exclusive or concurrent jurisdiction thereof, or any

place purchased or otherwise acquired by the United States by

consent of the legislature of the State in which the same shall be,

for the erection of a fort, magazine, arsenal, dockyard, or other

needful building." 18 U.S.C. § 7(3).

3

any knowledge of the baby's injuries or their origin. Three days

later, in a second interview Bell stated that the baby's injuries

resulted from an attempt at digital extraction in response to an

episode of constipation. At the time of his arrest in March 1992,

Bell added to this explanation the inadvertent placement of keys

and a metal barbell pin on the baby's car seat while the infant was

in his custody.

The grand jury indicted Bell for aggravated sexual abuse of a

child under 18 U.S.C. § 2241(c) and intentionally causing bodily

injury to a child under 18 U.S.C. § 13 and Tex. Penal Code

§ 22.04(a)(4). Bell unsuccessfully moved for judgment of acquittal

after the government's case-in-chief and again at the close of

evidence. The jury found Bell guilty on both counts, and the trial

court sentenced him to concurrent 120- and 135-month terms of

imprisonment, concurrent five-year supervised release terms, and

the statutory assessments. Bell timely appealed.

Analysis

Bell initially challenges the government's proof that the

offense in this case occurred within the "special maritime and

territorial jurisdiction of the United States," as required by

18 U.S.C. §§ 13, 2241(c).2 While this jurisdictional element is
 

3 United States v. Benson, 495 F.2d 475 (5th Cir.), cert.

denied, 419 U.S. 1035 (1974).

 

4 United States v. Bowers, 660 F.2d 527 (5th Cir. Unit B

Sept. 1981).

 

5 Bell claims that because they testified only to knowledge

gained from third persons and maps of untested accuracy, the two

witnesses presented by the government on this issue could not give

competent testimony regarding jurisdiction. In this connection,

Bell suggests that the government's failure to produce maps or

other documentation in response to a general motion for discovery

and inspection prevented him from properly investigating the

jurisdictional issue.

 

6 United States v. Colon-Padilla, 770 F.2d 1328 (5th Cir.

1985) (citing United States v. McDonald, 456 U.S. 1 (1982); United

States v. McRae, 593 F.2d 700 (5t Cir.), cert. denied, 444 U.S. 862

(1979)); Bowers; Benson (district court could have taken judicial

notice that crime committed on military base fell within special

territorial jurisdiction of United States).

4

essential in prosecutions under section 13 and section 2241(c),3

the government need prove it only by a preponderance of the

evidence.4 Bell concedes that any offense in the instant case took

place within the boundaries of Fort Hood, but argues that the

federal government does not exercise "exclusive or concurrent

jurisdiction," as required by 18 U.S.C. § 7(3), over all property

on every military base. Thus, Bell asserts that the government had

to demonstrate its special jurisdiction over the housing complex in

which this crime took place.5 We, however, have repeatedly

recognized crimes committed within the confines of federal military

reservations as falling within the special territorial jurisdiction

of the United States.6 This assignment is devoid of merit.
 

7 United States v. Garner, 581 F.2d 481 (5th Cir. 1978).

 

8 Glasser v. United States, 315 U.S. 60 (1942).

 

9 Jackson v. Virginia, 443 U.S. 307 (1979).

 

10 E.g., United States v. Heath, 970 F.2d 1397 (5th Cir.

1992) cert. denied, 113 S.Ct. 1643 (1993).

 

11 18 U.S.C. § 2245(2) defines the term "sexual act" for the

purposes of this case.

5

Bell next challenges the sufficiency of the evidence

supporting his convictions. Mindful that weight and credibility

assessments lie within the exclusive province of the jury,7 in

considering this claim we must view the evidence and draw all

reasonable inferences most favorable to the verdict.8 If the

evidence so viewed would permit a rational jury to find all

elements of the crime beyond a reasonable doubt, we must affirm the

conviction.9 The evidence need not exclude all hypotheses of

innocence.10 In order to convict Bell under 18 U.S.C. § 2241(c),

the government had to prove that he knowingly engaged in a sexual

act11 with a person who had not yet attained the age of 12 years.

Under 18 U.S.C. § 13 and Tex. Penal Code § 22.04(a)(4), the

government must demonstrate that the defendant "intentionally,

knowingly, recklessly, or with criminal negligence . . . cause[d]

to a [person 14 years of age or younger] . . . bodily injury."

The two physicians who examined the infant on June 25, 1991

testified that her injuries could have resulted only from sexual
 

12 Bell suggests that due to inconsistencies regarding the

positioning and direction of bruises on the baby's body, testimony

by the government's expert witnesses cannot support a conviction.

We disagree. Minor divergence between the testimony of Dr. Hines

and that of Dr. Noel, while it might have affected the weight

accorded by the jury to the government's case, did not render their

statements "facially insubstantial or incredible" so as to fall

short of constitutional sufficiency requirements. See United

States v. Greenwood, 974 F.2d 1449, 1458 (5th Cir. 1992) cert.

denied, 1993 WL 38583 (U.S. May 17, 1993).

 

13 We note, among other things, testimony that when Veronica

Bell indicated intent to change the baby after her June 24 shift,

Bell, in contrast to his usual aversion to changing diapers,

indicated that he already had done so. Testimony also reflected

that he voluntarily did so again on the morning of June 25, just

before Mrs. Bell discovered the baby's injuries. We further note

the contrast between testimony that Bell found the digital

extraction technique disgusting, refusing even to watch his wife

perform it, and his later claim that the baby's injuries resulted

from his attempt at the procedure. Finally, inconsistent

statements which Bell made to investigating authorities regarding

the source of the baby's injuries supports the inference of guilt.

6

abuse.12 Other government evidence corroborated that testimony.13

Although Bell presented expert testimony that the baby's injuries

could have resulted from causes other than sexual abuse, including

an unskilled attempt at digital extraction, and testified to such

an event, the jury was entitled to discredit that evidence. The

record amply supports inferences that Bell sexually abused and

intentionally caused bodily injury to the baby. The evidence

sufficiently supports the verdicts.

Bell finally claims that the district court erroneously

sentenced him under U.S.S.G. § 2A2.2 on the bodily injury count.

In applying section 2A2.2, the district court relied on a finding

that Bell injured his victim with intent to commit another felony
 

14 See U.S.S.G. § 2A2.2, cmt. 1 (guideline applicable to

assault involving intent to commit another felony).

7

-- the sexual assault.14 Relying on his claim that insufficient

evidence supported the aggravated sexual assault conviction, Bell

asserts that the district court should have sentenced him under

U.S.S.G. § 2A2.3 on the second count. Because we find Bell's

conviction under 18 U.S.C. § 2241(c) fully supported by the record,

this assignment of error necessarily founders.

The convictions and sentences are AFFIRMED.