                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2585
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                                   James White, Jr.

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

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

                            Submitted: February 12, 2015
                                Filed: July 23, 2015
                                  ____________

Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges.
                        ____________

GRUENDER, Circuit Judge.

       A jury found James White, Jr., guilty of assault resulting in serious bodily
injury in Indian country in connection with injuries suffered by his ten-month old son,
A.W. See 18 U.S.C. §§ 113(a)(6), 1151, 1153(a). The district court then granted
White’s motion for judgment of acquittal, concluding that no reasonable juror could
find beyond a reasonable doubt that White intentionally assaulted A.W. during a ten-
minute period when the two were alone. The Government appeals. We reverse and
remand with instructions to reinstate the jury’s guilty verdict. See United States v.
Boesen, 491 F.3d 852, 853 (8th Cir. 2007).

I.    Background

       On August 30, 2013, ten-month old A.W. lived with his mother, Cheryl
Maxwell; his father, James White, Jr.; his brother, X.W.; and his three half-siblings,
L.S., J.S., and J.L.S. At A.W.’s five-month check-up with his pediatrician, A.W. had
been a “perfectly healthy, thriving infant.” And at his nine-month visit, A.W. had
been developing normally and meeting all age-appropriate milestones.

      That changed on August 30, 2013. A.W. spent that day at home with Maxwell,
White, X.W., L.S., and J.S. L.S. and J.S. played inside and outside of the house, and
A.W. and X.W. stayed inside with Maxwell and White. Maxwell testified that she
“always” kept A.W. with her. The only time before dinner on August 30 that
Maxwell could not account for A.W. was when she showered. Maxwell observed that
A.W. acted normally throughout the day; he was, as she put it, his “usual self.” He
was not fussy and did not “cry out” at any time. Around 5:00 p.m., the family ate
dinner together. Maxwell made hamburger and rice soup, which everyone, including
A.W., ate. During dinner, A.W. continued to act normally. He was not fussy or
crying, and he did not appear to be ill. After dinner, A.W. became tired, and White
told Maxwell that he would put A.W. to bed.

      Maxwell decided to walk to her cousin’s house to get a ride to the store. She
took X.W., L.S., and J.S. with her, leaving A.W. alone with White. Maxwell testified
that nothing seemed out of the ordinary when she left. Maxwell and the other
children returned approximately ten minutes later. White met them at the door with
A.W. in his arms and told Maxwell that A.W. was choking. When Maxwell saw
A.W., his eyes were “rolled back,” and he had “a little bit of rice coming out of his

                                         -2-
mouth and a little bit out of his nose.” White told her that he had found a cigarette
filter in A.W.’s mouth. Maxwell called 9-1-1 as White performed CPR.

       Officer Guadalupe Ybarra and Officer Dana Lyons responded to the 9-1-1 call.
White told Officer Ybarra that A.W. was choking, but White “didn’t know if it was
a cigarette butt or the hamburger . . . that [A.W.] had been fed earlier.” When Officer
Lyons arrived, White stated that A.W. was eating hamburger and rice and that “all of
a sudden [A.W.] started choking and he stopped breathing.” White further explained
that he had tried to “get the object out of [A.W.’s] throat.” The officers looked for
choking hazards on the floor. They saw none. Officer Ybarra instead observed that
the home was fairly clean. Maxwell confirmed that she recently had cleaned the
house. The officers also checked what they could see of A.W.’s body for injuries.
Neither officer saw any bruising, including on A.W.’s ears. While they waited for an
ambulance to arrive, Officer Lyons performed back thrusts on A.W., and White gave
him rescue breaths.

       Maxwell accompanied A.W. to the local hospital, where he was seen by Dr.
Randall Fryer. Dr. Fryer immediately requested a helicopter to take A.W. to a
hospital that could provide more care. Dr. Fryer observed that A.W. was seizing, was
breathing irregularly, had unequal pupils, and had extensor posturing, which means
that his arm was extended and stiff. Extensor posturing, Dr. Fryer explained, can
indicate an injury at the deepest part of the brain. Dr. Fryer feared that A.W. was
going to die.

       In examining A.W., Dr. Fryer noticed a “yellowish brown” bruise on A.W.’s
forehead, which Dr. Fryer thought was an old bruise. Maxwell stated that the bruise
came from a sibling throwing something that struck A.W. Dr. Fryer also observed
almost symmetrical bruising near the base of A.W.’s ears. Dr. Fryer estimated that
this bruising was hours or minutes old based upon its color. Maxwell reported that
the bruising on A.W.’s right ear was from a fall the day before. Based upon the

                                         -3-
seriousness of A.W.’s condition, the symmetry of the bruising at the base of his ears,
his extensor posturing, his low neurological score, and his non-responsiveness, Dr.
Fryer believed that A.W. had been “shaken.”

      A.W. was taken to Sanford Medical Center in Fargo, North Dakota. After
seeing the trauma team, A.W. was seen by Dr. Kenneth Gheen, a pediatric critical-
care physician. When Dr. Gheen examined A.W., he noted “obvious bruising” on
A.W.’s head. Dr. Gheen also reviewed A.W.’s CT scan from the emergency room,
which showed a brain hemorrhage and a “little bit” of swelling.

       A.W.’s medical team in Fargo also included Dr. Adam Jackson, a
neurosurgeon. From his review of A.W.’s CT scans, Dr. Jackson saw acute blood
between the lobes of A.W.’s brain as well as between the skull and the brain on the
right side of A.W.’s head. Dr. Jackson testified that acute blood is deposited between
three hours and three days of a CT scan. Dr. Jackson characterized the acute blood
on A.W.’s brain as a subdural hematoma. According to Dr. Jackson, “in a young
child, a spontaneous subdural hematoma is exceedingly rare, even in the literature,
and so the most likely explanation is trauma.” Dr. Jackson explained that although
blood on the brain can collect slowly, that usually happens in older adults.

       After reviewing A.W.’s MRI and examining him, Dr. Jackson also concluded
that A.W. had an underlying brain injury as opposed to mere pressure on his brain.
According to Dr. Jackson, A.W.’s MRI showed a lack of blood flow to part of his
brain, which “can be from cortical injury or pressure on the brain. And in this case,
from cortical injury.” Dr. Jackson gave two reasons for this conclusion. First, a child
A.W.’s age still has an anterior fontanel, the “baby soft spot,” that can be felt to
determine pressure in the head. In A.W.’s case, the anterior fontanel was not tense,
meaning that the pressure in his head was not high. Second, Dr. Jackson explained
that A.W.’s CT scan showed patterns that did not indicate high pressure.



                                         -4-
       Dr. Arne Graff, a child-abuse specialist, also became involved in A.W.’s care.
Dr. Graff spoke with Maxwell and White, examined A.W., and reviewed A.W.’s
medical records. Dr. Graff concluded that his “best estimate” of and the “most likely”
cause of A.W.’s condition is what is known as a rotational or an acceleration-
deceleration injury. This type of non-accidental trauma, Dr. Graff recounted, used to
be known as shaken baby syndrome. Although Dr. Graff acknowledged that an
impact injury can accompany an acceleration-deceleration injury, he explained that
doctors now know that “there is an acceleration and a quick deceleration [of the head]
that then results in a tear in vessels and can result in . . . eye injuries and can result in
brain injury, nerve injury.” If an acceleration-deceleration injury is significant
enough, “the person, particularly in kids under the age of two, . . . they stop breathing
and they lapse into unconsciousness almost immediately.”

        Dr. Graff explained why a non-accidental acceleration-deceleration injury was
the most likely cause of A.W.’s condition. Dr. Graff observed that A.W. had bleeding
on the back walls of his eyes, known as retinal hemorrhaging. This bleeding
infiltrated multiple layers of A.W.’s eyes. According to Dr. Graff, even children who
fall “a couple stories out of a window and hit the sidewalk or something” exhibit
limited, dot-and-blot hemorrhaging. By contrast, when blood permeates multiple
layers of a child’s eyes, there are only a few potential causes. One explanation can
be high-velocity car accidents, but even then, only about four percent of children
suffer retinal hemorrhaging like A.W.’s. Another cause, according to Dr. Graff, can
be acceleration and deceleration of the head. In A.W.’s case, with no family history
or reported accident that could have caused this condition, Dr. Graff found the retinal
hemorrhaging to indicate an acceleration-deceleration injury.

      Dr. Graff similarly concluded that A.W.’s subdural hematoma suggested that
an acceleration-deceleration injury caused A.W.’s condition. According to Dr. Graff,
with an acceleration-deceleration injury, the resulting subdural hematoma tends to be
a “very thin layered” subdural hematoma that extends over the curvature of the brain,

                                            -5-
between the lobes of the brain, or in the base of the brain. Dr. Graff testified that
A.W.’s subdural hematoma fit this pattern. Dr. Graff contrasted A.W.’s subdural
hematoma with that found in a child who merely hits his head. With such an impact
injury, a context subdural hematoma can occur “right at the point of impact.” Dr.
Graff also noted the presence of bruising inside of A.W.’s ears. Dr. Graff could not
determine when this bruising occurred, but he explained that bruising inside of
someone’s ears, particularly for a child who could not yet stand on his own, can
suggest an inflicted injury.

       Dr. Graff’s conclusion that an acceleration-deceleration injury was the most
likely cause of A.W.’s condition also took into account conversations with Maxwell
and White, both of whom raised concerns about Maxwell’s eight-year old son, J.S.
Maxwell told the jury about several incidents involving J.S., including that she saw
him “throwing a little cat up in the air” and that he may have been present or played
a role in the death of dogs who were thrown against a tree. J.S. also knocked out
another child’s teeth and threw rocks at children. And a social worker testified that,
sometime after A.W. was taken to the hospital, J.S.’s sister L.S. had teased him about
hurting his younger brother.

        Maxwell and White informed Dr. Graff about two specific incidents involving
J.S. and A.W., one of which had occurred one or two weeks earlier. A.W. had been
in his “Johnny Jumper,” a chair suspended from the doorframe, and J.S.“wound it up
a little bit and let it twirl.” As a result, A.W. hit his head on the doorjamb. Maxwell
told Dr. Graff that A.W. had been “perfectly fine” since that time. Moreover, Dr.
Graff testified that this incident would not cause injuries as severe as A.W.’s. Dr.
Graff also learned about a recent incident where J.S. threw a toy that hit A.W. on the
forehead. This act left a small bruise, which Dr. Graff characterized as simple trauma
to the skin. Dr. Graff also testified that White raised general concerns about J.S.,
including about him “potentially choking the infant and dragging him around.” But
White did not suggest that any such incident had occurred on August 30.

                                         -6-
      Maxwell and White also told Dr. Graff about an incident in which White
accidentally dropped A.W. while getting him out of the bathtub. This happened one
day or so before A.W. was rushed to the hospital. White reported that A.W. hit his
chin on the bathtub and that the fall left bruises on A.W.’s chin and shoulder.

       These incidents aside, Maxwell told Dr. Graff that A.W. had behaved normally
on August 30. Dr. Graff concluded that none of these previous incidents could have
caused A.W.’s condition. Dr. Graff testified that, with the extent of A.W.’s injuries,
he would expect that “there would have been a change in the infant noticed by the
parents.” According to Dr. Graff, “[t]he fact that [A.W.] was reported to be down in
that brief period of time when he’s been doing perfectly fine, then I would expect that
whatever caused that injury had to occur just prior to him going down.”

        The jury also learned about White’s behavior after the incident. Maxwell
testified that White came to Fargo after A.W. was taken there, arriving after midnight
on August 31. However, White went to a hotel, not the hospital, even though the two
were adjacent. This prompted an argument between White and Maxwell. As
Maxwell put it, “I wanted him to go over there right away to talk to the doctor, but
he was tired.” Maxwell testified that White came to the hospital around noon. White
did not speak with Dr. Graff until about 9:00 p.m. When the two spoke, White
informed Dr. Graff that A.W.’s symptoms began after he was moved from his high
chair to a car seat and given a bottle.

      At trial, White offered the testimony of Dr. Jonathan Arden, a forensic
pathologist. Dr. Arden did not speak to A.W.’s doctors or his parents. Dr. Arden
concluded that a blunt-impact injury—something striking A.W.’s head or A.W.’s
head striking something else—caused A.W.’s condition. And Dr. Arden
hypothesized that an incident similar to the “Johnny Jumper” incident involving A.W.
could lead to such a blunt-impact injury. Dr. Arden also testified that A.W.’s blunt-
impact injury could have occurred well before he exhibited symptoms, most likely

                                         -7-
several hours before. This was so, Dr. Arden explained, because A.W. did not have
a direct brain injury. According to Dr. Arden, A.W. only suffered a secondary brain
injury, meaning that the injury to his brain was caused by pressure from his subdural
hematoma. That said, Dr. Arden acknowledged that “[i]f you do have a direct brain
injury and you can demonstrate it, that’s different. Many of those cases do have rapid
development of symptoms.”

       A.W. ultimately survived. After leaving Sanford Medical Center in mid-
September 2013, A.W. was placed into a therapeutic foster home for medically fragile
children. With regard to his long-term prognosis, Dr. Jackson explained that “[t]he
brain does not regenerate itself, and so injury to [the] brain results in permanent
injury, and that can lead to paralysis. It can lead to cognitive deficits depending on
the location [of the injury to the brain].”

       After hearing this and other evidence, the jury found White guilty of assault
resulting in serious bodily injury in Indian country. Although the district court had
denied White’s motion for judgment of acquittal at the close of the Government’s
case, the district court granted his post-verdict motion, finding that “justice requires
an acquittal.” The Government appeals.

II.   Discussion

       The only issue before us is whether the Government presented sufficient
evidence for a reasonable jury to convict White. The crime with which White was
charged has four elements: “(1) an intentional assault that (2) results in serious bodily
injury, committed (3) by an Indian and (4) within Indian Country.” United States v.
Stymiest, 581 F.3d 759, 766 (8th Cir. 2009). The district court found that no
reasonable jury could conclude that White intentionally assaulted A.W. We focus our
analysis on that issue.



                                          -8-
       We review the district court’s grant of a judgment of acquittal de novo,
applying the same standards as the district court. United States v. Santana, 524 F.3d
851, 853 (8th Cir. 2008); Boesen, 491 F.3d at 855. We therefore do not weigh the
evidence or assess the credibility of witnesses; that is the province of the jury. United
States v. Johnson, 474 F.3d 1044, 1048 (8th Cir. 2007). Instead, we view the
evidence in the light most favorable to the jury’s verdict and give it the benefit of all
reasonable inferences. Id. The Government’s case need not rule out every reasonable
hypothesis except guilt, Boesen, 491 F.3d at 858; rather, drawing all reasonable
inferences in favor of the verdict, there must be “an interpretation of the evidence that
would allow a reasonable minded jury to find the defendant[] guilty beyond a
reasonable doubt,” id. at 856 (alteration in original) (quoting United States v.
Oberhauser, 284 F.3d 827, 829 (8th Cir. 2002)). This strict standard permits
overturning a jury’s guilty verdict only if no reasonable jury could find the defendant
guilty beyond a reasonable doubt. Id. at 855. Furthermore, a “verdict may be based
in whole or in part on circumstantial evidence.” United States v. Anderson, 78 F.3d
420, 422 (8th Cir. 1996); see also United States v. Iron Hawk, 612 F.3d 1031, 1036
(8th Cir. 2010) (finding that “the lack of direct evidence demonstrating [the
defendant] assaulted [the victim] is not dispositive”).

       Applying this standard here, we cannot agree with the district court that no
reasonable jury could find beyond a reasonable doubt that White intentionally
assaulted A.W. We begin with the fact that White was alone with A.W. for the ten-
minute period during which A.W.’s symptoms were first noticed. Maxwell, who
spent almost all of that day with A.W., described his behavior before and during
dinner as normal. Yet something changed during the ten minutes that White was
alone with A.W. A.W. went from being his “usual self” to being in critical condition.
By the time A.W. made it to the local emergency room, his condition was dire enough
that his treating physician feared that he was going to die. This sudden and drastic
change in A.W.’s condition during the ten minutes that White and A.W. were alone
provides some circumstantial evidence of White’s guilt.

                                          -9-
       The Government also presented medical evidence about A.W.’s injuries that
would allow a reasonable jury to conclude that A.W. was intentionally injured
immediately before his condition became apparent. In particular, Dr. Jackson
described how A.W.’s CT scans showed acute blood on his brain that had been
deposited there between three hours and three days earlier.1 Dr. Jackson also
provided a reasonable basis to infer that A.W. had suffered trauma to his brain,
explaining that “in a young child, a spontaneous subdural hematoma is exceedingly
rare, even in the literature, and so the most likely explanation is trauma.”

        Dr. Graff provided specifics about what may have caused A.W.’s condition.
Dr. Graff testified that a non-accidental acceleration-deceleration or rotational injury
was his “best estimate” of and the “most likely” cause of A.W.’s condition. Dr. Graff
explained that this type of non-accidental trauma formerly was known as shaken baby
syndrome. Dr. Fryer corroborated Dr. Graff’s ultimate conclusion, telling the jury
that, based upon A.W.’s symptoms, he believed that A.W. had been “shaken.”
According to Dr. Graff, when this type of trauma occurs, the resulting subdural
hematoma looks like A.W.’s did. Dr. Graff also relied on the presence of bleeding
on the back of A.W.’s eyes. This bleeding permeated multiple layers of A.W.’s eyes,
a fact that Dr. Graff found to be telling because the potential causes for such an injury
to a child generally are limited to high-velocity car accidents and acceleration-


      1
       In filings under Federal Rule of Appellate Procedure 28(j), White and the
Government dispute whether A.W.’s initial CT scans in Fargo were taken within three
hours of when White was alone with A.W., thus placing A.W.’s injuries within the
window of time established by Dr. Jackson. It appears that the jury was not presented
with evidence about exactly when A.W.’s initial CT scans were taken other than that
they occurred shortly after A.W. arrived in Fargo. For this reason, the Government
moved to supplement the record with date- and time-stamped copies of these initial
CT scans. The Government admits that the jury did not consider this evidence and
offers no reason why it could not have been presented at trial. We thus deny the
Government’s motion to supplement the record. See United States v. Sykes, 356 F.3d
863, 865 (8th Cir. 2004).

                                          -10-
deceleration injuries. A reasonable jury could find this testimony to be significant,
especially because we can find no suggestion in the record that A.W. had been in a
car accident of any kind. Dr. Graff also noted the presence of bruising inside of
A.W.’s ears, which was “very concerning for some type of inflicted injury since no
other medical causes or accidents have been provided.”

       Dr. Graff also provided testimony about the potential timing of A.W.’s injuries.
In particular, Dr. Graff learned of three specific incidents involving A.W.—the
“Johnny Jumper” incident, the toy-throwing incident, and the bath-tub incident—but
ruled them out as a potential cause of A.W.’s condition. Dr. Graff did so for two
reasons. First, he concluded that none of these incidents could explain the severity
of A.W.’s injuries. And second, Dr. Graff learned that A.W.’s mood and sleeping and
eating patterns had not changed before he was rushed to hospital. Dr. Graff told the
jury that if A.W. had been injured sometime earlier in the day on August 30, he would
expect that Maxwell and White would have noticed a change in A.W. Dr. Graff thus
concluded that because A.W. “was reported to be down in that brief period of time
when he’d been doing perfectly fine . . . I would expect that whatever caused that
injury had to occur just prior to him going down.” (emphasis added). A reasonable
jury could find this conclusion to be fully consistent with an acceleration-deceleration
injury because, as Dr. Graff testified, if such an injury is significant enough, the
victim, particularly someone under the age of two, “stop[s] breathing and . . . lapse[s]
into unconsciousness almost immediately.”

      In light of the sudden and drastic change in A.W.’s condition while he was
alone with White, a reasonable jury could conclude from the testimony of Drs. Graff
Fryer, and Jackson that A.W. suffered a non-accidental acceleration-deceleration
injury during that time. As the district court correctly recognized, the medical
testimony “certainly supports an inference that the event causing A.W.’s injuries
occurred immediately before White observed the symptoms.”



                                         -11-
       However, the district court discounted Dr. Graff’s testimony about an
acceleration-deceleration injury as too uncertain. The court analogized to one of our
cases where an expert witness testified that a child’s injury “would have been
immediately symptomatic, which means that the injury must have occurred shortly
before [the child] was found unresponsive and comatose.” United States v. Brown,
360 F.3d 828, 831 (8th Cir. 2004) (emphasis added). Dr. Graff’s testimony, the
district court emphasized, “is not as certain or strong as the timing testimony in
Brown.” Merely comparing similar cases was not an error, but we have cautioned
that “[p]rior cases are instructive but are seldom if ever controlling” because of the
fact-intensiveness of sufficiency challenges. United States v. Marquez, 462 F.3d 826,
829 (8th Cir. 2006). For example, in Brown, the defendant actually stipulated that the
victim’s injuries were the result of shaken baby syndrome, something that did not
occur here, and the victim in Brown suffered a different combination of injuries than
did A.W. 360 F.3d at 830 n.2 & 831. We also note that, in other child-injury cases,
we have found sufficient evidence based in part upon expert testimony that was quite
similar to Dr. Graff’s. See United States v. Red Bird, 450 F.3d 789, 791-93 (8th Cir.
2006); Iron Hawk, 612 F.3d at 1034-35, 1037; see also Cavazos v. Smith, 565 U.S.
---,132 S. Ct. 2, 6-7 (2011) (per curiam) (finding that a court was “plainly wrong” to
grant a writ of habeas corpus based upon the sufficiency of the evidence where “[t]he
State’s experts, whom the jury was entitled to believe, opined that the physical
evidence was consistent with, and best explained by, death from sudden tearing of the
brainstem caused by shaking”). Consequently, although a comparison to a prior case
can be helpful, the ultimate determination of whether sufficient evidence exists to
support the verdict must be based upon the evidence presented to the jury.

      White directs us to the expert testimony of Dr. Arden, who tied A.W.’s
condition to a blunt-impact injury that could have occurred well before any symptoms
were noticed. But the jury was entitled to discredit Dr. Arden’s conclusion as
inconsistent with the Government’s evidence, especially Dr. Graff’s testimony. See
Iron Hawk, 612 F.3d at 1037. Furthermore, Dr. Arden actually gave the jury a reason

                                        -12-
to disbelieve his testimony. He acknowledged that his conclusion about the delayed
presentation of A.W.’s symptoms would change if A.W. had a direct brain injury. To
quote Dr. Arden, “a direct brain injury can cause a child to become symptomatic very
rapidly.” Dr. Arden contrasted a direct brain injury with secondary damage to the
brain from the pressure of a subdural hematoma. There was ample evidence for a
reasonable jury to conclude that A.W. had a direct brain injury rather than a
secondary brain injury. First, Dr. Fryer explained that A.W.’s extensor posturing
shortly after the incident could indicate an injury at the deepest part of the brain. And
second, and more importantly, Dr. Jackson, A.W.’s treating neurosurgeon, testified
that “[i]n the situation here, there is an underlying brain injury.” Dr. Jackson
specifically contrasted A.W.’s underlying brain injury with pressure on the brain and
gave two reasons why the pressure in A.W.’s head was not high. For these reasons,
a reasonable jury could reject Dr. Arden’s testimony and even find that it supports
White’s guilt.

       Other circumstantial evidence also supports the jury’s verdict. Dr. Fryer
observed bruising that was almost symmetrical at the base of A.W.’s ears. Dr. Fryer
opined that this bruising was fresh and was consistent with an injury that occurred
hours or minutes earlier. By the time A.W. made it to Fargo, Dr. Gheen observed
“obvious bruising” on A.W.’s head, and Dr. Graff noted bruising in A.W.’s ears.
Although Dr. Graff could not opine about when this bruising occurred, he told the
jury that it can suggest an inflicted injury. These observations by A.W.’s physicians
take on more meaning when paired with Officer Ybarra’s and Officer Lyons’s
testimony that they checked A.W. for injuries upon arriving at his home and did not
see any bruises on his ears. This evidence would permit a reasonable jury to infer that
the bruising in and around A.W.’s ears was recent because it became visible during
the short period of time between when A.W. was examined at the house and when he
was examined by his doctors.




                                          -13-
       White’s explanations of what happened during the ten minutes he was alone
with A.W. provide further circumstantial evidence of guilt. When Maxwell first
learned of A.W.’s condition, White told her that he had found a cigarette filter in
A.W.’s mouth. But White then told Officer Ybarra that A.W. could be choking on
a cigarette butt or on food. And at trial, neither officer mentioned learning from
White that he actually had removed a choking hazard from A.W.’s mouth. This
variance in White’s story about whether he removed something from A.W.’s mouth
is magnified by the fact that none of the experts at trial posited choking as a potential
cause of A.W.’s injuries and the fact that the officers did not see any choking hazards
on the floor at the house. White’s statements about what happened during the ten
minutes that he was alone with A.W. contain another inconsistency. When the
officers arrived at the house, White told Officer Lyons that A.W. was “eating
hamburger, rice, and all of a sudden [he] started choking and he stopped breathing.”
Yet, when White spoke with Dr. Graff, White recalled things somewhat differently,
stating that A.W.’s symptoms began after being moved from his high chair to his car
seat and after being given a bottle. These variances in White’s story could be
explained by the stress that this episode put on White. But that was an argument for
the jury to field, not a court reviewing a motion for judgment of acquittal. At this
juncture, we must make every reasonable inference in favor of the verdict. Id. at
1036. Doing so, we conclude that the variances in White’s story support an inference
that he “was seeking to develop an explanation to cover up [his] own misconduct in
causing injury to [A.W.].” See Red Bird, 450 F.3d at 793.

       A reasonable jury also could find White’s behavior after the incident to be
further circumstantial evidence of guilt. After A.W. was airlifted to Fargo, White
traveled to the hospital there, arriving after midnight on August 31. However, White
did not immediately go to the hospital. This prompted an argument between White
and Maxwell. Maxwell explained that “I wanted [White] to go over there right away
to talk to the doctor, but he was tired.” Even though the hotel where White stayed
was adjacent to the hospital, he did not come to the hospital until around noon on

                                          -14-
August 31. And White did not speak with Dr. Graff until around 9:00 p.m., even
though Dr. Graff had “made [himself] available.” A reasonable jury could make
different inferences from White’s failure to rush to his injured son’s side and his
delay in speaking with Dr. Graff, the child-abuse specialist. White could have been
too tired to come to the hospital, as he told Maxwell. However, a reasonable jury also
could interpret White’s actions as a lack of concern for A.W. or unease about being
questioned by a child-abuse specialist. At this juncture, we must assume the latter.
See id.

       Taken together, this evidence was sufficient for a reasonable jury to conclude
beyond a reasonable doubt that White intentionally assaulted A.W. during the ten
minutes that they were alone. In reaching a contrary conclusion, the district court
erred by weighing the evidence. In particular, the court reasoned that White’s defense
that J.S. could have injured A.W. was “much stronger” than the defenses offered in our
previous infant-injury cases and that Dr. Arden’s testimony “[f]urther strengthen[ed]”
White’s defense. The district court ultimately reasoned that, in light of White’s
defense, it would require “too much speculation” to find White guilty. But the court’s
task was not to appraise the strength of White’s defense against perceived weaknesses
in the Government’s case. See Johnson, 474 F.3d at 1048. That ultimate issue
belonged to the jury. The court merely had to ask whether, “drawing all reasonable
inferences in favor of the verdict, there is an interpretation of the evidence that would
allow a reasonable minded jury to find the defendant[] guilty beyond a reasonable
doubt.” Boesen, 491 F.3d at 856 (alteration in original) (quoting Oberhauser, 284
F.3d at 829).

       Even considering White’s defense about J.S., a reasonable jury could find that
White intentionally assaulted A.W. In addition to the evidence discussed above, the
Government’s evidence undermined any real possibility that J.S. had an opportunity
to injure A.W. on August 30. Maxwell testified that A.W. was “always” with her; the
only time she could not account for A.W. before dinner on August 30 was when she

                                          -15-
showered. Maxwell, moreover, did not hear A.W. “cry out” at any time, and A.W.
behaved normally until Maxwell left with J.S. and the other children. Viewing the
evidence in the light most favorable to the verdict, a reasonable jury could reject
White’s defense in favor of a finding of guilt beyond a reasonable doubt. The district
court reached the opposite conclusion, reasoning that “[t]he most the jury could have
concluded from [Maxwell’s] testimony is that during the periods of time which
Maxwell actually observed A.W., J.S. did not inflict any injuries upon him.” Not only
did this conclusion fail to view the evidence in the light most favorable to the verdict,
but the district court also overlooked the rule that the evidence need not rule out every
reasonable hypothesis except guilt. See id. at 858 (“[O]ne possible innocent
explanation for the government’s evidence does not preclude a reasonable jury from
rejecting the exculpatory hypothesis in favor of guilt beyond a reasonable doubt.”
(quoting Johnson, 474 F.3d at 1050)). To survive White’s sufficiency challenge, the
Government was not required to account for every moment of J.S.’s day. Rather, the
Government merely had to present enough evidence, viewed most favorably to the
verdict, for a reasonable jury to find beyond a reasonable doubt that White
intentionally assaulted A.W. See id.

       White concedes that the district court weighed the evidence but argues that it
was proper for the court to do so. As support, White directs us to our statement that
“[w]here the government’s evidence is equally strong to infer innocence as to infer
guilt, the verdict must be one of not guilty and the court has a duty to direct an
acquittal.” United States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996) (quoting United
States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971)). The Government responds by
citing our statement that “[i]f the evidence rationally supports two conflicting
hypotheses, the reviewing court will not disturb the conviction.” United States v.
Baker, 98 F.3d 330, 338 (8th Cir. 1996) (quoting United States v. Burks, 934 F.2d 148,
151 (8th Cir. 1991)). Several panels of this court have grappled with the arguable
tension between Davis and Baker, going so far as to label it a “legal swamp.” United



                                          -16-
States v. Williams, 647 F.3d 855, 861 & n.6 (8th Cir. 2011). We have harmonized
these two lines of cases by concluding that “Davis refers only to the government’s
evidence, while Baker refers to all of the evidence, including that presented by the
defense.” Boesen, 491 F.3d at 857 (collecting cases); Williams, 647 F.3d at 861.
Consequently, even Davis does not permit a freewheeling weighing of the
Government’s case against White’s defense. Rather, “[k]ey to Davis is its focus on
‘the government’s evidence’ being equivocal.” Williams, 647 F.3d at 861.

       We have no hesitation concluding that, under Davis, the balance of the
Government’s case against White favored guilt. The Government’s case did contain
evidence about J.S., including testimony about his previous behavior and testimony
that his sister had teased him about hurting his younger brother. But, as exhaustively
discussed above, the Government’s case also contained evidence that a reasonable jury
could find to be powerful evidence of White’s guilt as well as evidence that J.S. did
not injure A.W. on August 30. For these reasons, it cannot be said that the
Government’s evidence of guilt and innocence was in equipoise. Indeed, the district
court agreed with this conclusion at the close of the Government’s case, finding that
“at least on the basis of the Government’s case . . . there is evidence from which a
reasonable jury could conclude that the Defendant is guilty.” Consequently, even if
the narrow rule from Davis is considered here, it is of no help to White.

       In sum, a reasonable jury could conclude that White intentionally assaulted
A.W. The district court’s contrary conclusion rested on its weighing of the evidence.
But a court reviewing a motion for judgment of acquittal is not a thirteenth juror with
a veto. See United States v. Porter, 409 F.3d 910, 915 (8th Cir. 2005). For the
reasons discussed above, we conclude that it was an error to grant White’s motion for
judgment of acquittal.




                                         -17-
III.   Conclusion

       We reverse the district court’s judgment and remand with instructions to
reinstate the jury’s verdict.

KELLY, Circuit Judge, dissenting.

       Upon review of a judgment of acquittal, a jury’s verdict may be reversed only
if “no reasonable jury could have found the defendant guilty beyond a reasonable
doubt.” United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004) (quoting
United States v. Frank, 354 F.3d 910, 916 (8th Cir. 2004)). As the court states, in
conducting this review we view all evidence in the light most favorable to the
government and accept all reasonable inferences in support of the jury’s verdict.
United States v. Boesen, 491 F.3d 852, 855–56 (8th Cir. 2007). Though this is a strict
standard that requires a great deal of deference to the jury’s fact-finding, it still
requires that there be “an interpretation of the evidence that would allow a reasonable
minded jury to find the defendant[] guilty beyond a reasonable doubt.” Id. at 856
(alteration in original) (emphasis added) (quoting United States v. Oberhauser, 284
F.3d 827, 829 (8th Cir. 2002)). It is therefore not enough to find that a reasonable jury
could believe a particular fact to be true based on the evidence presented. Rather, the
evidence must be sufficient to allow the jury to find all elements of the offense beyond
a reasonable doubt.

       This too is a strict standard. As the jury in this case was instructed, beyond a
reasonable doubt requires “proof of such convincing character that a reasonable person
would not hesitate to rely and act upon it in the most important of his or her own
affairs.” Tr. at 523; see EIGHTH CIR. MODEL JURY INSTRUCTIONS 12.02 (rev. 2014).
Reasonable doubt is “a doubt based upon reason and common sense,” and is “the kind
of doubt that would make a reasonable person hesitate to act” in the most important



                                          -18-
of their own affairs. United States v. Knight, 547 F.2d 75, 77 (8th Cir. 1976). This
high standard of proof corresponds to the extraordinarily high stakes of a criminal
prosecution, and is “bottomed on a fundamental value judgment of our society that it
is far worse to convict an innocent man than to let a guilty man go free.” In re
Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).

       Despite proper instruction on this critical standard, a “jury may occasionally
convict even when it can be said that no rational trier of fact could find guilt beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 317 (1979). I believe that to
be the case here. In order to conclude that White was guilty of assaulting A.W., the
jury would have had to find that White suddenly, inexplicably, and intentionally shook
A.W. during the short 10-minute period that they were alone together on the night of
August 30, 2013. The jury would have had to find that both the type of injury A.W.
suffered and the timing of that injury meant that the injury must have been inflicted
by White in that 10-minute period. The jury would have to arrive at this conclusion
despite the fact that circumstantial evidence identified other possible causes of the
injury to A.W. The jury would also have had to conclude that White assaulted A.W.
despite the uncontroverted evidence that White had no history of violent behavior
toward his two children and three step-children.

       As the district court noted, a jury’s verdict should be overturned if there is a lack
of proof beyond a reasonable doubt of even one element of the charged offense.
United States v. Frausto, 616 F.3d 767, 772 (8th Cir. 2010). Here, the only evidence
that White assaulted A.W. is circumstantial, and the jury’s conclusion that White
intentionally assaulted A.W. requires an inference without a sufficient evidentiary
basis. A reasonable jury could believe that White may have assaulted his son,
probably assaulted his son, or even very likely assaulted his son. But to find White
guilty, the jury must find beyond a reasonable doubt that White intentionally
committed the assault. Even construing all the medical and other circumstantial



                                           -19-
evidence in favor of the jury’s verdict, I believe that no reasonable jury could conclude
beyond a reasonable doubt that White intentionally assaulted A.W.

      Both this court and the district court have carefully and conscientiously
reviewed the evidence in this very sad case. There is no doubt that this is a close case,
and that the jury was required to make a series of difficult decisions with regard to the
credibility and weight of the evidence. Viewing all the evidence in the light most
favorable to the jury’s verdict and drawing all favorable inferences in favor of the
verdict, however, I agree with the district court: I cannot conclude that a reasonable
jury could have found White guilty beyond a reasonable doubt. Accordingly, I
respectfully dissent.
                        ______________________________




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