                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-3019
                          ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                Roderick Arlyn Sayers

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                       for the District of Minnesota - St. Paul
                                   ____________

                               Submitted: June 13, 2014
                                Filed: August 22, 2014
                                    [Unpublished]
                                    ____________

Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
                           ____________

PER CURIAM.

      A jury found Roderick Sayers guilty of assault resulting in serious bodily injury
in Indian country, a violation of 18 U.S.C. §§ 113(a)(6), 1151, and 1153(a). The
district court1 sentenced Sayers to an above-guidelines sentence of 43 months’
imprisonment Sayers challenges his conviction and sentence. For the reasons
described below, we affirm.

       During Sayers’s trial, Harold Donnell (“Harold”) testified that, on the evening
of November 25, 2011, he followed his daughter, Jill Donnell (“Jill”), in his vehicle
as she drove another vehicle to Sayers’s residence. Jill parked her vehicle in front of
Sayers’s residence, and Harold parked his vehicle beside Jill’s vehicle—directly in
front of the front door of Sayers’s residence. From his vehicle, Harold watched Jill
walk to the front door and saw Sayers appear there. Harold then saw Jill’s head “go
back” and saw Sayers close the front door. Harold exited his vehicle as Jill
“stagger[ed]” toward him. As she did, Jill told him, “Dad, he hit me in the mouth. He
knocked my teeth out.” Harold saw blood on Jill’s face. Harold helped Jill into his
vehicle and drove to the hospital, calling 911 on the way. Harold explained that Jill
later had surgery to repair the damage to her mouth.

       The jury also heard testimony from the hospital nurse who triaged Jill on
November 25. The nurse testified that Jill complained of being assaulted and of an
injury to her mouth that was causing her extreme pain. A police sergeant also testified
about the events of November 25. The sergeant spoke with Jill that evening and
observed that Jill had swelling and blood around her mouth, that one of her teeth was
“pushed back,” and that she had a laceration on her gum. The sergeant also spoke
with Sayers that evening, and Sayers stated that his actions toward Jill were self-
defense. After arresting Sayers, the sergeant observed that Sayers had a small cut on
a knuckle of his left hand.




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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       The jury convicted Sayers of assault resulting in serious bodily injury. At
Sayers’s sentencing hearing, the district court calculated an advisory sentencing
guidelines range of 30 to 37 months’ imprisonment. After considering the factors set
forth in 18 U.S.C. § 3553(a), the district court decided to vary upward and imposed
a sentence of 43 months’ imprisonment. Sayers appeals both his conviction and
sentence.

       Sayers first argues that the jury lacked sufficient evidence to find that he
assaulted Jill. “We review de novo a district court’s denial of a motion for judgment
of acquittal, viewing the evidence in the light most favorable to the verdict and
drawing all reasonable inferences in its favor.” United States v. Vore, 743 F.3d 1175,
1180 (8th Cir. 2014). Sayers asserts that Harold’s trial testimony was undermined by
“many contradictions.” However, “[t]he jury has the responsibility of resolving
conflicts or contradictions in testimony, and we resolve any credibility issues in favor
of the verdict.” United States v. Jenkins, --- F.3d ---, 2014 WL 3408842, at *2 (8th
Cir. July 15, 2014) (quoting United States v. Wanna, 744 F.3d 584, 588 (8th Cir.
2014)). Moreover, Harold’s testimony was consistent with that of the hospital nurse
and the police sergeant. Sayers also contends that the evidence against him was
legally insufficient because no witness testified that he actually struck Jill. This
contention is without merit. The testimony of an eyewitness to an assault is not
necessary to establish a defendant’s guilt beyond a reasonable doubt. See United
States v. Iron Hawk, 612 F.3d 1031, 1036 (8th Cir. 2010) (“[T]he lack of direct
evidence demonstrating [the defendant] assaulted [the victim] is not dispositive.”).
In any event, Harold testified that he saw Jill with Sayers and that, after seeing Jill’s
head “go back,” Jill “stagger[ed]” toward Harold and said, “Dad, he hit me in the
mouth. He knocked my teeth out.” Moreover, when a police sergeant questioned
Sayers about the incident shortly thereafter, Sayers did not deny involvement, instead
stating that he acted in self-defense. The sergeant also observed an injury on a
knuckle of Sayers’s left hand. This evidence is more than sufficient for a reasonable
jury to find that Sayers assaulted Jill.

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       Sayers next argues that the Government committed prosecutorial misconduct
by improperly shifting the burden of proof during its closing argument. To obtain
relief for prosecutorial misconduct, Sayers must show that “(1) the prosecutor’s
remarks were improper, and (2) such remarks prejudiced the defendant’s rights in
obtaining a fair trial.” United States v. Crumley, 528 F.3d 1053, 1064 (8th Cir. 2008)
(quoting United States v. King, 36 F.3d 728, 733 (8th Cir. 1994)). Sayers objects to
the following statement from the Government’s closing argument: “But what is proof
beyond a reasonable doubt? It is where you can turn to your fellow juror and say this
is why I think this, that this Defendant is not guilty.” Because Sayers did not object
to this portion of the Government’s closing argument, we review this issue for plain
error. See id. Under this standard, Sayers “must show that the district court made an
obvious error, that there is a reasonable probability that the error affected the outcome,
and that failure to correct the error would seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” United States v. M.R.M., 513 F.3d 866,
870 (8th Cir. 2008).

       The district court did not commit an obvious error here. Although the
complained-of statement, taken out of context, may appear inartful, it did not shift the
burden of proof to Sayers. Immediately before making the statement, the Government
clearly explained that it bears the burden of proving Sayers’s guilt. Furthermore, after
closing arguments, the district court correctly instructed the jury on the burden of
proof. See United States v. Bentley, 561 F.3d 803, 810 (8th Cir. 2009) (finding that
jury instruction regarding burden of proof supported conclusion that prosecutor’s
statements did not shift burden of proof to defendant); see also Crumley, 528 F.3d at
1065-66 (finding that jury instruction regarding burden of proof along with defense
counsel’s statement that the jury should adhere to the jury instructions cured error by
prosecutor in describing burden of proof). Under these circumstances, we discern no
obvious error on the part of the district court.




                                           -4-
       Lastly, Sayers argues that his sentence is substantively unreasonable. We
review the substantive reasonableness of a sentence “under a deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “A district court
abuses its discretion and imposes an unreasonable sentence when it fails to consider
a relevant and significant factor, gives significant weight to an irrelevant or improper
factor, or considers the appropriate factors but commits a clear error of judgment in
weighing those factors.” United States v. Robison, --- F.3d ---, 2014 WL 3562789,
at *2 (8th Cir. July 21, 2014) (quoting United States v. Kreitinger, 576 F.3d 500, 503
(8th Cir. 2009)). In imposing Sayers’s sentence, the district court expressly
considered the factors set forth in 18 U.S.C. § 3553(a) and concluded that an upward
variance of six months was appropriate, noting in particular Sayers’s criminal history
and the likelihood that he would recidivate. Having reviewed Sayers’s criminal
history, which includes numerous tribal court convictions for which he did not receive
criminal-history points, see USSG § 4A1.2(i), we discern no abuse of discretion in this
decision. See United States v. Jones, 612 F.3d 1040, 1045 (8th Cir. 2010) (finding no
abuse of discretion where district court varied upward based in part on unscored
criminal history); see generally United States v. Barrett, 552 F.3d 724, 726 (8th Cir.
2009) (“Section 3553(a) allows courts to vary upward based on an underrepresented
criminal history or recidivism.”). Although Sayers contends that the factors set forth
in § 3553(a) actually support a downward variance or a sentence within the guidelines
range, we cannot say that the district court abused its discretion by concluding
otherwise. See United States v. Timberlake, 679 F.3d 1008, 1012-13 (8th Cir. 2012)
(explaining that district court has “substantial latitude to determine how much weight
to give the various factors under § 3553(a)” (quoting United States v. Ruelas-Mendez,
556 F.3d 655, 657 (8th Cir. 2009)).

      For the reasons described above, we affirm.
                       ______________________________




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