U.S. v. LeCompte, 96-2003

• Decision Date: 17 March 1997
• Docket Number: No. 96-2003,96-2003
• Citation: 108 F.3d 948
• Parties: 46 Fed. R. Evid. Serv. 833 UNITED STATES of America, Appellee, v. Richard Quentin LeCOMPTE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 948

108 F.3d 948

46 Fed. R. Evid. Serv. 833

UNITED STATES of America, Appellee, v. Richard Quentin LeCOMPTE, Appellant.

No. 96-2003.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 24, 1996.

Decided March 17, 1997.

Bruce Henry Ellison, argued, Rapid City, SD, for appellant.

Mikal Hanson, Asst. U.S. Atty., argued, Pierre, SD, for appellee.

Before MAGILL, ROSS and MURPHY, Circuit Judges.

ROSS, Circuit Judge.

Richard LeCompte (appellant) appeals his conviction of two counts of aggravated assault with a dangerous weapon which occurred within Indian country, in violation of 18 U.S.C. §§ 1153, 113(a)(3), for which he was sentenced to 51 months imprisonment. ¹ After considering the record, briefs and arguments of the parties, we affirm the judgment of the district court. ²

I.

The record reflects that on the evening of July 10, 1995, a night of drinking culminated into an argument over money between appellant and the victim, Danielle Welch. Appellant and Welch had been at appellant's brother's residence and other locations until sometime into the early morning hours of July 11, 1995, when they returned to Welch's trailer house where the two were currently living. Welch testified that as she and appellant were proceeding on the driveway to the trailer house, Welch realized that some of her money was missing from her wallet and she accused appellant of taking it without her approval. She stated that appellant became angry and reached from the passenger seat and grabbed the keys from the ignition while the car was still proceeding. Both appellant and Welch got out of the car, at which time appellant hit her on the face with his fist several times, causing her to fall into a ditch alongside the driveway. When she was knocked down into the ditch, Welch struck her arm on a rock on the ground and received a deep laceration that later required stitches to repair. While Welch was still in the ditch, appellant continued hitting and kicking her. At one point, appellant threatened Welch by holding a rock as he stood over her, calling her names. Welch testified that she believed appellant intended to strike her with the rock. These actions provided the basis for Count I of the indictment, charging appellant with assault with a dangerous weapon.

Also according to Welch's testimony, after assaulting her in the ditch, appellant ordered her to get into the house. On the way to the trailer, appellant again struck Welch in the face, breaking her glasses and causing them to fly off her face. Once inside the trailer the beating continued. At one point, appellant jerked the phone base for the cordless phone off the counter. Welch gave conflicting testimony regarding when the appellant hit her with the phone base, but the phone base provided the basis for the charge in Count III of the indictment. The jury ultimately reduced this count to a striking, beating, and wounding offense.

Because her arm was bleeding profusely, appellant ordered Welch to take a shower and Welch complied. During the shower, appellant entered the bathroom carrying the receiver of a second phone and struck her on the head, while challenging her to call her "cop friends." The use of the phone receiver provided the basis for the second count alleged in the indictment, charging appellant with assault with a dangerous weapon.

After her shower, but before she had a chance to dress, appellant ordered Welch back into the kitchen, where Welch saw that appellant had taken out his hunting knife and laid it on the table. Welch testified that appellant told her to go ahead and pick it up and use it on him, and that he could take Welch "out in the trees out back and hog-tie [her] up and gut [her] like a deer and kill [her] and nobody would know about it." When appellant turned his back, Welch took the knife and hid it on a chair under the table. The incident relating to the hunting knife was not charged in the indictment.

The verbal and physical abuse continued until Welch was finally able to escape from the trailer. She ran approximately 1/2 mile to her closest neighbor where she received help. Welch's neighbor, Shawn Boehr testified that in the early morning hours of July 11, 1995, he was awakened by Welch, who was naked, crying and obviously injured. Welch told Boehr that appellant "tried to kill me and he's got a knife." Boehr took Welch to the hospital where her laceration was sutured and her other injuries were treated.

Police investigation of the scene revealed Welch's shoes in the ditch where she alleged the first assault occurred, her broken glasses on her front porch, phones torn off the walls, bloody paper towels in the kitchen, a knife sheath on the kitchen table, and a phone receiver in the bathroom tub. At trial, appellant admitted through his counsel that he assaulted Welch, but claimed that his attack was limited to his fists and shod feet.

On appeal, appellant claims the district court erred by enhancing his offense level by two points for aggravated assault resulting in bodily injury; improperly limiting his cross-examination of Welch regarding allegations that she was dishonest at her place of employment; allowing Welch to explain to the jury that appellant intimidated her with a hunting knife; and denying appellant's motion for judgment of acquittal based on insufficient evidence.

II.

Appellant first argues that the court erred in adding two points to his base offense level, pursuant to U.S.S.G. § 2A2.2(b)(3)(A), which allows a two-level enhancement when a victim sustains bodily injury. Application Note 1(b) of U.S.S.G. 1B1.1 defines "bodily injury" as "any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought." Appellant claims on appeal that the enhancement was improper because the "bodily injury" Welch sustained was not caused by the dangerous weapons charged in the indictment, but by appellant's fists and feet.

The presentence investigation report noted that during the course of the assault, Welch sustained "a large cut on her right forearm, bruises on her face and chin, a swollen nose, and scraped knees and shins ... [b]ruising on [her] shoulder, face, and shin areas ..., [l]acerations on [her] forearm were sutured, ... and a hairline [rib] fracture was not ruled out."

Under the relevant conduct provision of the Sentencing Guidelines, U.S.S.G. § 1B1.3, "[u]nless otherwise specified, the base offense level ... [and] specific offense characteristics ... shall be determined on the basis of ... all acts and omissions committed ... that occurred during the commission of the offense of conviction, [or] in preparation for that offense."

In United States v. Bassil, 932 F.2d 342, 345-46 (4th Cir.1991), the Fourth Circuit concluded that a two-level enhancement was warranted under § 2A2.2(b)(3)(A) even though it was uncertain whether the dangerous weapon used by the defendant caused a specific injury. The court reasoned that it was undisputed that the defendant participated in the assault which caused the bodily injuries, and that he was therefore accountable for this harm under the Guidelines. Id. (citing U.S.S.G. § 1B1.3).

We agree that the Sentencing Guidelines allow the consideration of § 1B1.3 relevant conduct in determining specific offense characteristics under the § 2A2.2(b)(3) enhancement, and includes the whole, nearly continuous assaultive behavior of the appellant upon the victim. Welch received injuries that were "painful, obvious and required medical attention." The district court was not required to assign the use of a specific dangerous weapon to a particular resulting injury. The district court did not err in considering the injuries sustained during the commission of the assault.

III.

Next, appellant contends the district court improperly barred certain cross-examination of Welch relating to her former employees' allegations that she was dishonest and untrustworthy. The appellant possessed a letter sent by Welch's employees to corporate management a few months before the assault, alleging that Welch stole money from the company. The appellant contends this evidence was relevant to the issue...