              United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 97-1657
                                  ___________

United States of America,           *
                                    *
           Plaintiff-Appellee,      *
                                    * Appeal from the United States
      v.                            * District Court for the District of
                                    * South Dakota
Wallace J. Eagle, Jr.               *
                                    *
           Defendant-Appellees.     *
                               ___________

                         Submitted: October 22, 1997
                                   Filed: January 7, 1998

                                  ___________

Before BEAM and FLOYD R. GIBSON, Circuit Judges, and WEBB,1 Chief District
Judge.
                                ___________

WEBB, Chief District Judge.


      Wallace J. Eagle, Jr. appeals his jury conviction for aggravated
sexual assault, 18 U.S.C. §§ 2241(a)(1), and 1153. Eagle contends (1)
there was insufficient evidence to support his conviction, (2) the district
court2 erred by admitting the testimony of Dr.




      1
        The Honorable Rodney S. Webb, Chief United States District Judge for the
District of North Dakota, sitting by designation.
      2
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
Likness concerning an exam of the victim performed three months after the
assault,    (3) the district court erroneously applied a two point
enhancement for obstruction of justice, and (4) a downward departure was
required due to the defendant's poor health. We affirm.

I.    Background

      Wallace Eagle, Jr. lived with his father near Waubay, South Dakota.
 Their next door neighbor would often send her granddaughter over with
meals. On February 23, 1996, the granddaughter took a meal to the Eagle
household. During this visit, Eagle showed the girl magazines and videos
depicting sexual acts. He then pushed her down on the bed and took off her
clothes. According to the victim, Eagle penetrated her vagina with his
fingers, a rubber object, and his penis.

      At the time of the assault, the victim was 13 years old and had the
mental ability of a 7 year old. Eagle knew the victim from the time she
was born and knew that she was mentally handicapped.

      The day after the incident, the victim was examined by Dr. Bloom.
However,   Dr. Bloom did not use a rape kit, and did not examine the
interior of the vagina. Three months after the incident, the victim was
examined by Dr. Likness who found “remnants or tags of the hymenal
membrane,” and that the hymen “was easily distensible” or “stretchable.”
 He testified at trial that this was consistent with the history given by
the victim concerning the sexual assault.

II.    Discussion.

      Eagle first argues that there was insufficient evidence to support
the conviction on the force element of the offense. “The verdict must be
upheld if there is an interpretation of the evidence that would allow a
reasonable jury to conclude guilt




                                   -2-
beyond a reasonable doubt. Decisions regarding credibility of witnesses
are to be resolved in favor of the jury’s verdict.” United States v.
Goodlow, 105 F.3d 1203, 1206 (8th Cir. 1997) (citations omitted). “We will
reverse the jury’s verdict only if the evidence . . . is such that a
reasonable minded jury must have entertained a reasonable doubt as to the
government’s proof of one of the essential elements of the offense.” United
States v. Suppenbach, 1 F.3d 679, 682 (8th Cir. 1993) (citations omitted).

      The essential elements of aggravated sexual abuse under 18 U.S.C. §§
2241(a)(1) and 1153 are: (1) defendant is an Indian; (2) defendant caused
another to engage in a sexual act; (3) defendant used force or the threat
of force to cause an individual to engage in a sexual act; and (4) the
events occurred on Indian land. See Goodlow, 105 F. 3d at 1206.         The
defense claims that there was insufficient evidence to support a conviction
for the third element -- use of force. Sufficient force exists if the
defendant overcomes, restrains, or injures the victim or if the defendant
uses a threat of harm sufficient to coerce or compel submission. See United
States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990).

      Eagle argues that the only evidence of force before the jury was the
victim's testimony that Eagle pushed her.                            This is not the case.                 The
victim testified that the contact Eagle had with her was painful.                                          Dr.
Likness and Dr. Bloom both testified about conversations with the victim
where she reported that the acts Eagle had performed on her hurt. She told
Dr. Likness that she had been “raped”, and that Eagle had pushed her on the
bed. From this evidence, a jury could reasonably conclude that the victim had been forced to engage in a sexual
act.

        The jury also viewed the victim's demeanor and body language while testifying. The district court in
denying the motion for new trial stated that the “court also personally observed the victim’s obvious fear of the
defendant, at least three times during her testimony.” This comment by the judge is not evidence, and can not be
used to prove an element of the offense. However, the judge observed the same testimony




                                                      -3-
as the jury, and his comment illustrates how the credibility of the victim as a witness may have been viewed by
a reasonable jury.

         Next, Eagle argues that the testimony of Dr. Likness should have been barred under Rules 401 and 403
of the Federal Rules of Evidence as being remote in time, irrelevant, and more
prejudicial than probative. Eagle moved to exclude this testimony before
trial and the motion was denied.

      “The admission or exclusion of evidence is committed to the sound
discretion of the district court and will not be disturbed unless there has
been a clear abuse of discretion.” United States v. Turner, 104 F.3d 217,
221 (8th Cir. 1997). The jury was made aware of the timing of Dr. Likness’
exam, and the defense presented two doctors to contradict Dr. Likness'
findings. The first was Dr. Bloom, the doctor who examined the defendant
the day following the assault, and the second was Dr. Born, who testified
that Dr. Likness’ theory of the case was flawed.

      The testimony of Dr. Likness was more corroborative than direct. His
testimony was relevant in that it showed the medical status of the girl at
a particular moment in time. He testified as to what he found in the exam
and related that these findings would be consistent with the events related
by the victim.    The jury was made aware of the flaws inherent in Dr.
Likness’ exam. The jury was able to weigh the merits of competing medical
evidence and come to a decision.

      This evidence was not so remote, nor so removed from the case, that
it became irrelevant. Neither was the evidence so prejudicial that we can
say the district court judge abused his discretion in allowing Dr. Likness
to testify.

      Eagle also challenges two decisions made by the district court during
the sentencing phase. First, he objects to a two point enhancement for
obstruction of justice under U.S.S.G. § 3C1.1. Our review of whether the
defendant's conduct




                                                     -4-
warrants an obstruction of justice enhancement is de novo as this is a
legal interpretation of a guideline term. See United States v. Walcott,
61 F.3d 635, 639 (8th Cir. 1995), cert. denied, 116 S.Ct. 953 (1996).

      A two point enhancement is warranted where the defendant “willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the investigation, prosecution, or
sentencing of the instant offense.” Walcott, 61 F.3d at 639 (quoting
U.S.S.G. § 3C1.1). Comment 3(e) to U.S.S.G. § 3C1.1 explains that the
enhancement applies to instances of “willfully failing to appear, as
ordered, for a judicial proceeding.”

      Eagle was initially arrested near Eagle Butte, South Dakota. He was
transported to Aberdeen, South Dakota, and there he was taken to the
hospital by authorities. Eagle told the authorities that he would check
himself into the hospital, and come to court the next morning. He did not
check into the hospital, nor did he appear in court the next day. Instead,
Eagle went to Waubay, South Dakota. He was rearrested four days later in
Eagle Butte. Eagle knew he was to be in court and decided not to appear.
Clearly, Eagle “willfully” failed to appear at the judicial proceeding and
therefore, the district court properly applied a two point sentencing
enhancement for obstruction of justice.

      Defendant, presently 42 years of age, has numerous physical
limitations     including       glaucoma, septic arthritis,  uncontrolled
hypertension, possible avascular necrosis, degenerative arthritis in both
hips and requires a total hip replacement. Because of these impairments,
Eagle asserts that the district court should have departed downward under
U.S.S.G. § 5H1.4, which states:
     Physical condition or appearance, including physique, is not ordinarily relevant in determining
     whether a sentence should be outside the applicable guideline range. However, an extraordinary
     physical impairment may be a reason to impose a sentence below the applicable guideline range;
     e.g., in the case of a seriously infirm defendant, home




                                                  -5-
detention may be as efficient as, and less costly than, imprisonment.

The trial court found that Eagle had serious health problems, but specifically found “there is no evidence that the
defendant’s disability prevents him from being managed in prison.” The district court's refusal to depart
downward was an exercise of discretion. “We have repeatedly held that a district court's discretionary refusal to
depart downward is not reviewable.” United States v. Kessler, 48 F.3d 1064, 1065 (8th Cir. 1995). As such we
do not reach this issue.


        For the foregoing reasons, we affirm the jury conviction and the sentence of the district court.3

        A true copy.

                 Attest:

                           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




        3
        A few days before this case was scheduled for hearing before this court,
Eagle sent two handwritten letters to this court. Eagle also sent a letter after the
hearing and while the case was under advisement. The letters chronicled the
defendant's life and explained how he could not have committed the crime. These
letters were an improper communication with the court. There are proper
procedures for bringing matters before the court, and this is not one of them. As
such, these letters were not considered in this decision.
                                                       -6-
