UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4639

ANGELA LATRELL WATKINS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4658

CRAIG ALAN WATKINS,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-97-6)

Submitted: July 28, 1998

Decided: August 13, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Andrew M. Sacks, SACKS & SACKS, Norfolk, Virginia; Robert B.
Rae, RAE, FORBES, & HALL, P.C., Virginia Beach, Virginia, for
Appellants. Helen F. Fahey, United States Attorney, Janet S. Reincke,
Assistant United States Attorney, Timothy MacDonnell, Special
Assistant United States Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In these consolidated appeals, Angela Latrell Watkins ("Angela")
appeals her jury conviction of felony child abuse in violation of Va.
Code Ann. § 18.2-371.1 (Michie 1996), as assimilated by 18 U.S.C.
§ 13 (1994) (No. 97-4639), and her husband, Craig Alan Watkins
("Craig"), appeals his jury conviction of misdemeanor simple assault
in violation of 18 U.S.C.A. § 113(a)(5) (West Supp. 1998). Because
we find no error in these convictions, we affirm.

In April 1996, a military magistrate granted Army criminal investi-
gators permission to search the home shared by Craig, then a staff ser-
geant in the Army, his wife Angela, and Angela's six-year-old son
Alex McLeod ("McLeod") at Fort Eustis, Virginia. The basis for the
search was evidence of abuse of McLeod obtained during an inter-
view and physical examination of him by Army personnel after he
complained to his schoolteacher that he had "a sore rear end." The
investigators expected the search to reveal various implements used
to beat McLeod, including a device capable of inflicting a loop-
shaped wound.

During both the original search and a second search after reauthor-
ization by the military magistrate, investigators obtained several

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wooden "sticks," as well as a curling iron cord, all of which, accord-
ing to McLeod's statements to Army personnel, had been used by
Craig and Angela to beat him. Based on this evidence, McLeod's
statements, and the evidence obtained from physical examinations,
Army prosecutors filed charges against Craig and Angela. In January
1997, a federal grand jury in Newport News, Virginia, indicted both
Craig and Angela with one count of assault with a dangerous weapon
in violation of 18 U.S.C. § 113(a)(3), and Angela with one count of
felony child abuse in violation of Va. Code Ann.§ 18.2-371.1, as
assimilated by 18 U.S.C. § 13.

Both Angela and Craig filed various pre-trial motions. Relevant to
this appeal, each filed motions to suppress evidence obtained during
searches of their home on the ground that those searches were
improperly authorized. The district court denied both motions.

At trial, the court heard extensive testimony regarding the allega-
tions of abuse, and the jury found Angela not guilty of assault with
a dangerous weapon but guilty of felony child abuse and Craig not
guilty of assault with a dangerous weapon but guilty of misdemeanor
simple assault. Both Angela and Craig subsequently filed motions for
acquittal, which the district court denied in separate memorandum
opinions. The court sentenced Angela to five years probation, 180
days of electronic monitoring, and required her to pay a fine; the court
sentenced Craig to one to three years of probation, 180 days of elec-
tronic monitoring, and required him to pay a fine. Both Angela and
Craig appealed, and their appeals were consolidated. Angela and
Craig raise six arguments: three pertaining to Angela only; two per-
taining to Craig only; and one pertaining to both Angela and Craig.
We consider each in turn.

Angela asserts three arguments regarding her conviction for felony
child abuse. First, like Craig, Angela argues that the evidence pre-
sented at trial was insufficient to support her conviction. Second,
Angela contends that she should be given a new trial because the
prosecution "constructively amended"1 the indictment against her dur-
ing the trial. Third, Angela argues that the jury's verdict was "an
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1 Appellant's Br. at 3.

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inconsistent verdict which cannot stand."2 We disagree with all three
arguments.

With regard to Angela's sufficiency claim, we must sustain a jury
verdict "if there is substantial evidence, taking the view most favor-
able to the Government, to support it."3 We are satisfied that, based
on the evidence presented, a reasonable jury could have found that
Angela committed felony child abuse when the evidence is consid-
ered in the light most favorable to the prosecution. There was suffi-
cient evidence that McLeod had been abused. Further, Craig testified
that the wounds on McLeod were the result of beatings by Angela,4
and McLeod himself testified that Angela beat him with "sticks,"5 and
the curling iron cord.6

In addition, we disagree with Angela's argument that Va. Code
Ann. § 18.2-371.1 requires, or the indictment against her alleged, a
pattern of willful acts or omissions amounting to abuse. The statute
requires only a "willful act or omission in the care of [a] child [that]
was so gross, wanton and culpable as to show a reckless disregard for
human life."7 As we find the evidence supports the jury's verdict that
Angela committed acts contemplated by this statute, we refuse to dis-
turb her conviction on this ground.

Next, Angela asserts that the trial court erred in not granting her a
new trial on the ground that the prosecution "constructively amended"
its indictment against her during trial. Angela bases this argument on
her contention that the prosecution originally focused its case of abuse
on alleged acts of abuse by Angela, only to shift that focus to alleged
omissions of parental duty by Angela at the end of trial. We review
the district court's denial of a new trial for abuse of discretion,8 and
find none.
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2 Id.
3 Glasser v. United States, 315 U.S. 60, 80 (1942).
4 J.A. at 567.
5 Id. at 241.
6 Id. at 245.
7 Va. Code Ann. § 18.2-371.1 (Michie 1996).
8 See United States v. Arrington , 757 F.2d 1484, 1486 (4th Cir. 1985).

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As Angela herself concedes,9"constructive amendment" in viola-
tion of the grand jury clause of the Fifth Amendment occurs only
when the prosecution or the court broadens the possible grounds of
conviction from those asserted in the indictment. 10 Here, the portion
of the indictment referring to Angela clearly cited both "culpable acts
and omissions" in violation of the relevant statute.11 We are satisfied
that this allegation encompassed the specific acts for which Angela
was convicted.

Thus, we fail to see how the shift in focus alleged by Angela con-
stituted a "constructive amendment" of the indictment. As both "acts
and omissions" were mentioned in the indictment, the court was
within its discretion in determining that no "constructive amendment"
took place, and therefore did not abuse that discretion in denying
Angela's motion for a new trial. Accordingly, we decline to grant
Angela a new trial on this ground.

We are also unpersuaded by Angela's argument that the verdict in
the district court was inconsistent and thus invalid. Angela bases this
argument on her contention that, as she was found not guilty of
assault with a deadly weapon, she could not have been guilty of fel-
ony child abuse.

However, we are satisfied that assault with a deadly weapon, or
even simple assault, is not a sine qua non for the crime of child abuse
under the Virginia statute. Rather, the conduct prohibited by § 18.2-
371.1 does not appear to require an assault. In fact, Virginia has a sep-
arate statute that prohibits assault and battery against a family or
household member.12 In addition, we are also mindful that there is no
categorical requirement that jury verdicts must be consistent in order
to be upheld.13 Therefore, we decline to grant Angela a new trial on
this ground.
_________________________________________________________________
9 Appellant's Br. at 23.
10 United States v. Williams, 106 F.3d 1173, 1176 (4th Cir.) (citing
United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994)), cert. denied,
___ U.S. ___, 66 U.S.L.W. 3257 (U.S. Oct. 6, 1997) (No. 96-9412).
11 J.A. at 22.
12 See VA. CODE ANN. § 18.2-57.2 (Michie 1996).
13 See United States v. Powell, 469 U.S. 57, 65 (1984).

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The two arguments that regard Craig are substantively the same.
First, Craig asserts that there was insufficient evidence presented at
trial to convict him of simple assault. Second, Craig asserts that the
court erred in denying his motion for judgment of acquittal. In
reviewing a challenge to the sufficiency of the evidence to support a
conviction, we must assess whether "any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt." United States v. Johnson, 55 F.3d 976, 979 (4th Cir. 1995)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Moreover,
the evidence is construed in the light most favorable to the Govern-
ment. See id.

We are satisfied that there is ample evidence from which, when
construed in the light most favorable to the Government, the jury
could have reasonably concluded Craig committed simple assault
against McLeod. Two physicians who examined McLeod testified
that he had been physically abused. A qualified expert in child abuse
testified that, based on his examination of photographs of McLeod, he
was of the opinion that McLeod had been abused. 14 McLeod himself
testified as to abuse at the hands of Craig,15 and photos of McLeod's
injuries and the items obtained during the search of Craig's home
were admitted into evidence.

Therefore, we find the evidence sufficient to support the jury ver-
dict. We find no error in the district court's denial of Craig's motion
for judgment of acquittal. Accordingly, we will not disturb Craig's
conviction on these grounds.

Finally, both Craig and Angela contend the court erred in denying
their motions to suppress evidence obtained during the two searches
of their home by Army criminal investigators. Specifically, they
assert it was error for the military magistrate to authorize the searches
without a sworn affidavit regarding the existence of probable cause.
We disagree.

As the Supreme Court has held on a number of occasions, congres-
_________________________________________________________________
14 See J.A. at 399-410.

15 Id. at 241-44.

                     6
sional action regarding the administration of the armed forces is enti-
tled to the greatest deference, even when it seems to conflict with
well-established rights under the Constitution. 16 Here, Craig and
Angela's argument challenges 10 U.S.C. § 836 (1994) and Military R.
Evid. 315, which allow the determination of probable cause by a mili-
tary commander, military judge, or military magistrate on various
grounds without the requirement of a sworn statement by the appli-
cant for the search authorization. Such searches are valid under mili-
tary law and are not unreasonable under the Constitution.17

Therefore, we find no error in the district court's conclusion that
the authorization for the searches in question did not violate the
Fourth Amendment. Accordingly, we affirm the district court's denial
of Craig and Angela's motions to suppress the evidence seized in the
searches.

Based on the foregoing, we affirm both convictions. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid in the decisional process.

AFFIRMED
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16 See, e.g., Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
17 See United States v. Chapman , 954 F.2d 1352, 1369 (7th Cir. 1992);
United States v. Grisby, 335 F.2d 652, 656 (4th Cir. 1964).

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