                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3579
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                                   Marcos Davila

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                       for the District of South Dakota
                                ____________

                             Submitted: May 17, 2013
                                Filed: July 2, 2013
                                  [Unpublished]
                                   __________

Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
                         ____________

PER CURIAM.

       Marcos Davila was convicted of two counts of abusive sexual contact in
violation of 18 U.S.C. §§ 1152, 2244(a)(3), 2244(a)(5), and 2246(3). The district
court1 sentenced him to 135 months’ imprisonment on count one and 24 months’
imprisonment on count two, to run concurrently. We affirm the convictions and the
sentence.

                                   I. Background

       A grand jury indicted Davila for the sexual abuse of his two minor nieces, T.O.
and S.M. The district court denied Davila’s request that the counts be severed. The
jury convicted Davila on both counts. Davila’s presentence report recommended a
two-level enhancement under United States Sentencing Guidelines (Guidelines)
§ 2A3.4(b)(3) for having custody, care, or supervisory control over T.O. and S.M.
Over Davila’s objection, the district court applied the enhancement and imposed the
earlier-described sentence. Davila appeals, arguing that the evidence presented was
insufficient to support the verdict and that the district court erred in denying his
motion to sever and in imposing the enhancement.

                                   II. Discussion

A.    Sufficiency of the Evidence

      Davila argues that the evidence at trial was insufficient to convict him either
of abusive sexual contact of T.O. as charged in count one, or of abusive sexual
contact of S.M. as charged in count two. “In reviewing for sufficiency of the
evidence, we view the evidence in the light most favorable to the verdict, and we will
‘overturn a conviction only if no reasonable jury could have concluded that the
defendant was guilty beyond a reasonable doubt on each essential element of the



      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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charge.’” United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir. 2005) (quoting
United States v. Miller, 293 F.3d 468, 470 (8th Cir. 2002)).

1.    Count One

       Davila argues that the government failed to prove that he had committed the
abusive sexual contact of T.O. See United States v. DeCoteau, 630 F.3d 1091, 1094
n.3 (8th Cir. 2011) (listing elements of abusive sexual contact). The “sexual contact”
contemplated by 18 U.S.C. § 2244 means “the intentional touching, either directly or
through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of
any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person[.]” 18 U.S.C. § 2246(3).

       T.O. testified that in July 2011, when she was eleven years old, she fell asleep
on a couch in Davila’s living room while wearing shorts and a shirt. She awoke to
find Davila rubbing the bare skin of her upper inner thigh. Davila told her that he
was trying to awaken her because she was talking in her sleep. He then turned off the
monitor on a nearby computer and left the room. T.O. testified that she had seen a
suggestive image on the computer before Davila turned it off. She also testified that
she had never asked Davila to rub her leg and that she was frightened when she
awoke while he was doing so. The jury also heard testimony from Cari Lake, who had
conducted a forensic interview of T.O. Lake testified that during the interview she
had pointed to the inner thigh of an anatomically correct drawing of a child and asked
T.O. if that was where Davila had touched her. T.O. responded that it was.

       Davila argues that this evidence was insufficient because there were
inconsistencies between T.O.’s statements during the forensic interview and her
testimony at trial and because there was no evidence that he had had the requisite
intent to commit abusive sexual contact. Davila’s concern with the alleged
inconsistencies in T.O.’s testimony is essentially a challenge to her credibility, which

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Davila’s counsel had an opportunity to challenge at trial. Credibility determinations
are the province of the jury, and the jury was free to weigh T.O.’s testimony against
her statements in the forensic interview. See United States v. Lohnes, 554 F.3d 1166,
1169 (8th Cir. 2009) (“Even inconsistent testimony as to whether the abuse occurred
may constitute sufficient evidence, because it is for the jury to resolve conflicting
evidence and make credibility determinations, determinations that are virtually
unreviewable on appeal.” (internal quotation marks and citations omitted)). Davila’s
intent argument fares no better. The jury considered the evidence that Davila reached
his hand between the legs of his sleeping eleven-year-old niece and rubbed her bare
upper inner thigh while a suggestive image was displayed on his computer. Given
the multitude of awakening techniques that do not require rubbing the bare skin of a
child’s upper inner thigh, the jury was free to reject Davila’s statement that he was
simply trying to awaken T.O. Taking the evidence in the light most favorable to the
verdict, a reasonable jury could find that Davila had the requisite intent to commit
abusive sexual contact. See United States v. Lee, 232 F.3d 653, 655 (8th Cir. 2000)
(“The absence of [evidence that the defendant had the requisite intent to commit
abusive sexual contact] is no defect in the government’s case where the contact
alleged is so clearly sexual that the jury may infer the defendant’s intent.”).

2.    Count Two

       Count two of the indictment charges Davila with engaging in the abusive
sexual contact of S.M. “[o]n or about between August 2002 and June 2003[.]” Davila
argues that the government failed to prove that he sexually abused S.M. within the
time frame alleged in the indictment. Specifically, he contends that the evidence
showed that the abuse could only have taken place in February or March of 2003 and
that he was not within the state during these months. The record belies this argument.
On direct examination, S.M. testified that sometime during the winter when she was
thirteen years old and in the eighth grade she fell asleep while babysitting at Davila’s
home and awoke to find him rubbing her vagina over her underwear. S.M. reiterated

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this testimony at the beginning of her cross examination, stating that the abuse took
place in the winter of 2003 but that she did not “know which exact month.” Towards
the end of her cross examination, after Davila’s attorney had asked her about other
issues and S.M. had again stated that the abuse took place in the winter of 2003,
Davila’s attorney stated: “And just so we’re clear, you think it was probably not
January but you think February or March of 2003?” Although S.M.’s testimony up
to that point was devoid of any statement that the abuse did not occur in January, she
responded affirmatively. To the extent that S.M.’s response to this question is
inconsistent with her earlier testimony, S.M.’s earlier testimony is nevertheless
sufficient to support the jury’s finding that Davila abused S.M. during the time frame
alleged in the indictment. See Lohnes, 554 F.3d at 1169.

B.    Joinder and Denial of Motion to Sever

       Rule 8(a) of the Federal Rules of Criminal Procedure allows a single
indictment to charge a defendant with multiple offenses if “the offenses charged . . .
are of the same or similar character[.]” We construe this rule broadly in favor of
joinder to promote judicial efficiency. See United States v. Taken Alive, 513 F.3d
899, 902 (8th Cir. 2008). Davila argues that the district court should have severed
the counts because the offenses described therein occurred almost nine years apart.
As we explained in United States v. Rodgers, 732 F.2d 625, 629 (8th Cir. 1984),
however, the time period between offenses is not considered in isolation. Instead, it
must be considered in relation to the similarity of the offenses and the possibility of
evidentiary overlap.

      Counts one and two are of the same character, and evidence of each offense
would be admissible to prove the other offense. In sexual assault and child
molestation cases, evidence that the defendant committed a similar offense “may be
considered on any matter to which it is relevant[,]” Fed. R. Evid. 413(a); 414(a),
including the defendant’s propensity to commit such offenses. United States v. Holy

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Bull, 613 F.3d 871, 873 (8th Cir. 2010). “If relevant, such evidence is admissible
unless its probative value is ‘substantially outweighed’ by one or more of the factors
enumerated in Rule 403[.]” Id. (quoting United States v. LeCompte, 131 F.3d 767,
769 (8th Cir. 1997)). Given the similarity of the victims’ ages, their relationship to
Davila, and the circumstances of the sexual assaults, the evidence of each assault
would be admissible in a trial concerning the other. See United States v. Gabe, 237
F.3d 954, 959-60 (8th Cir. 2001) (Rule 414 witness’s testimony describing sexual
abuse very similar to the abuse alleged in the indictment was probative of defendant’s
propensity to molest children in his family and was not unfairly prejudicial).
Accordingly, the time period between counts one and two did not render joinder
thereof improper.

       Davila’s argument that counts one and two should have been severed because
of the danger of undue prejudice likewise fails. “When a defendant is prejudiced by
the joinder of two charges, the court may in the exercise of its sound discretion sever
the charges and require separate trials.” United States v. Tyndall, 263 F.3d 848, 850
(8th Cir. 2001); see also Fed. R. Crim. P. 14. When, as here, evidence of one offense
would be admissible in the trial for another offense, there is no prejudice in trying the
two offenses together. Taken Alive, 513 F.3d at 903. Accordingly, the district court
did not abuse its discretion by refusing to sever the charges.

C.    Sentencing Enhancement

       Guidelines § 2A3.4(b)(3) provides for a two-level enhancement if “the victim
was in the custody, care, or supervisory control of the defendant[.]” Application Note
4 to § 2A3.4 states that “[s]ubsection (b)(3) is intended to have broad application and
is to be applied whenever the victim is entrusted to the defendant, whether
temporarily or permanently.” The district court’s determination that Davila had
custody and control over T.O. and S.M. is a factual finding that we review for clear
error. United States v. Kenyon, 481 F.3d 1054, 1072 (8th Cir. 2007).

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        Davila argues that the enhancement should not apply because it was his wife,
and not he, who made the arrangements for T.O. and S.M. to stay at the home the two
shared. The fact that Davila was not primarily responsible for arranging his nieces’
visits to his home does not preclude the application of § 2A3.4(b)(3). Davila and his
wife had been married for twenty-two years, and they shared their home with their
three children. Davila’s wife and daughter testified that they considered T.O. and
S.M. as part of their family. Moreover, T.O. and S.M. were frequent guests at the
home, and they trusted Davila enough to fall asleep there. In light of this evidence,
we find no clear error in the district court’s finding that T.O. and S.M. were under
Davila’s custody and care.

                                  III. Conclusion

      The convictions and sentence are affirmed.
                     _______________________________




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