### Appellant was also convicted of a lesser-included offense 1 

### of striking, beating, or wounding, in violation of 18 U.S.C. § 113(a)(4), but he does not contest that conviction in this appeal. The Honorable Charles B. Kornmann, United States District 2 

### Judge for the District of South Dakota. ___________ No. 96-2003

___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the District Richard Quentin LeCompte, * of South Dakota. * Appellant. *

___________ Submitted: October 24, 1996 Filed: March 17, 1997

___________ Before MAGILL, ROSS and MURPHY, Circuit Judges.

___________ ROSS, Circuit Judge.
Richard LeCompte (appellant) appeals his conviction of two counts of aggrav ated assault with a dangerous weapon which occurred within India n country, in violation of 18 U.S.C. §§ 1153, 113(a)(3), for which he wa s sentence d to 51 months imprisonment. After considering the record , 1 briefs and arguments of the parties, we affirm the judgment of the distric t court. 2

### -2- I.

The record reflects that on the even ing of July 10, 1995, a night of drinking culminated i nto an argument over money between appellant and the vict im, Danielle Welch. Appellant and Welch had been at appellant' s brothe r's residence and other locations until sometime into the earl y morning hours of July 11, 1995, when they returned to Welch's trailer hous e whe re the two were currently living. Welch testified that as she an d appella nt were proceeding on the driveway to the trailer house, Welc h realized that some of her money was missing from her wallet and she accuse d appellant of taking it without her approval. She stated that appellan t 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 fis t several times, causing her to fall into a ditch alongside th e driveway. When she w as knocked down into the ditch, Welch struck her arm on a rock on the ground and received a deep lace ration that later required sti tches to repair. While Welch was still in the ditch, appellan t continued hitting and kicking her. At one point, appellant threatene d Welch by holding a rock as he stood over her, calling her names. Welc h 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 th e ditc h, appellant ordered her to get into the house. On the way to th e trailer, appellant again struck Welch in the face, breaking her glasses an d causing them to fly off her face. Once inside the trailer the beatin g continued. At one point, appellant jerked the p hone base for the cordless phone off the counter. Welch gave conflicting testimony regarding when th e appellant hit her with the phone base, but the phone base provided th e basis for the charge in

### -3-

Count III of the indi ctment. The jury ultimately reduced this count to a striking, beating, and wounding offense.

Because her arm was bleeding profusely, appellant ordered Welch t o take a shower and Welch complied. During the shower, appellant entered th e bathroomcarrying the receiver of a second phone and struck her on th e head, wh ile challenging her to call her "cop friends." The use of th e phone rece iver provided the basis for the second count alleged in th e indictment, charging appellant with assault with a dangerous weapon.

After her shower, but before she had a chance to dress, appellan t ordered Welch back into the kitchen, where Welch saw that appellant ha d taken out his hunting knife and laid it on the table. Welch testified tha t 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 gu t [her] like a deer and kill [her] and nobody would know about it." Whe n appellant turned his back, Welch took the knife and hid it on a chair unde r the table. The incid ent relating to the hunting knife was not charged in the indictment.
The verbal and physical abuse contin ued until Welch was finally able to escape from the trailer. She ran approximate ly 1/2 mile to her closest neighbor where she received help. Welch's neigh bor, Shawn Boehr testified that in the early morning hours of July 11, 1995, he was awakened by Welch , who was n aked, crying and obviously injured. Welch told Boehr tha t appellant "tried to kill me and he's got a knife." Boehr took Welch to th e hospita l where her laceration was sutured and her other injuries wer e treated.
Police investigation of the scene revealed Welch's shoes in the ditch where she alleged the first assault occurred, her broken glasses on he r front porch, phones torn off the walls, bloody paper towels in the kitchen , a knife sheath on the kitchen table, and a

### -4-

phone receiver in the bathroom tub. At trial, appellant admitted through his counsel that he assaulted Welch, but claimed that his attack wa s limited to his fists and shod feet.
On appeal, appellant claims the district court erred by enhanci ng his offense level by two points for aggravated assault resulting in bodil y in jury; improperly limiting his cross-examination of Welch regardin g all egations that she was dishonest at her place of employment; allowin g Welch to explain to the jury that appellant inti midated 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 allow s a two-level enhancement when a victim sustains b odily injury. Application Not e 1(b) of U.S.S.G. 1B1.1 defines "bodily injury" as "any significan t injury; e.g. , an injury that is painful and obvious, or is of a type for which medical attenti on ordinarily would be sought." Appellant claims on appeal that the enhancement was improper because the "bodily injury" Welch
su stained was not caused by the dangerous weapons charged in th e 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 he r 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 hairl ine [rib] fracture was not ruled out."

Un der the relevant conduct provision of the Sentencing Guidelines , U.S.S.G. § 1B1.3, "[u]nless otherwise specified, the

### -5-

base offense level . . . [and] specific offense characteristics . . . shal l 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 conclu ded that a two-level enhancement was warranted under § 2A2.2(b)(3)(A) even though it was uncertain wh ether 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 whic h caused the bodily injuries, and that he was ther efore accountable for this harm under the Guidelines. Id . (citing U.S.S.G. § 1B1.3).

We agree that the Sentencing Guidelines allow the consideration o f § 1B1.3 relevant conduct in determining specific offense characteristics under the § 2A2.2(b)(3) enhancement, and includes the whole, nearl y
con tinuous assaultive behavior of the appellant upon the victim. Welc h received injuries that were "painful, obvious and required medica l attenti on." The district court was not required to assign the use of a specific dangerous we apon to a particular resulting injury. The district court di d not err in considering the injuries sustained during th e commission of the assault.

III.
Next, appellant contends the district court improperly barred c ertain cross-examination of Welch relating to her former employees' allegations that she was dishonest and untrustworthy. The appellant possessed a lette r sent by Welch's emplo yees to corporate management a few months before the assault, alleging tha t Welch stole money from the company. The appellant contends this evidence was relevant to the issue of Welch's credibility as
a

### -6-

witness. It is undisputed that Welch was never charged nor convicted of any crime associated with these allegations.

Federal Rule of Evidence 608(b) gives the court wide discretion t o allow questioning during cross-examination on specific bad acts no t resulting in the conviction of a felony if those acts concern the witness' s credib ility. However, in order to avoid holding "mini-trials o n peripherally related or irrelevant matters," Rule 608(b) "forbids the use of e xtrinsic evidence to prove that the specific bad acts occurred. " United St ates v. Martz , 964 F.2d 787, 789 (8th Cir.), cert. denied , 50 6 U.S. 1038 (1992).

Here , the district court determined that the proposed cross

examin ation was not probative of untruthfulness as there was a n ins ufficient foundation other than unsubstantiated accusations b y employees. The court allowed appellant's attorney to ask Welch whether sh e had ever stolen money from her employer, but ref used to allow appellant to introduce the employees' letter as extrinsic evi dence. The district court did not abuse its discretion in limiting the cross-examination of Welch.

IV.
Appellant next takes issue with the district court's decision t o allow Welch to provide testimony concerning the appellant's hunting knife, claiming the government had filed no charges relating to the knife and tha t thi s testimony was inadmissible "prior bad acts" evidence under Fed. R

. Evid. 404(b). Accord ing to Welch's testimony, after appellant forced her to take a shower and return to the kitchen, she observed the appellant's hunting knife on the kitchen table. At this point, appellant renewed his verbal and physical assault. Welch testified that the appellant berated her with comments, "g o ahead and pick it up, use it against me," and that "he could take [her] out back and hog-tie [her] up and gut

### -7-

[her] like a deer and kill [her] and nobody would know about it." Welch further testified that when appellant was not looking she took the knife off the table and hid it on the seat of the kitchen chair. This is where the knife was later discovered by the police.

We have previously approved admission of prior bad acts evidenc e where such evidence " relates to an integral part of the immediate context of the crime charged." United States v. Waloke , 962 F.2d 824, 828 (8t h Cir

. 1992) (citation omitted). Evidence of the earlier bad act i s admissible where it i s "so blended or connected, with the one on trial as that pro of of one incidentally involves the other; or explains th e circumstances; or tends logically to prove any element of the crim e charged.

. . . In such a case the evidence of the other act is no t considered extrinsic evidence and Rule 404(b) is not implicated." United States v. Bettelyoun , 892 F.2d 744, 746 (8th Cir. 1989) (citation omitted)

.

Here, the evidence was admissible to explain Welch's intense fear , as well as her initial statements to her neighbors regarding the knife, an d to provide insight in to what motivated Welch to flee from the house naked in search of help. Alternatively, we conclude the testimony was admissibl e under Rule 404(b) as evidence relevant to the issue of appellant's intent to cause bodily harm as required under 18 U.S.C. § 113(a)(3). The court did not abuse its discretion in allowing Welch to testify regarding th e knife.

V.
Finally, appellant argues there was insufficient evidence to sustain his conviction for assault with a dangerous weapon involving either th e rock or the phone under 18 U.S.C. § 113(a)(3). To sustain a convictio n under § 113(a)(3), the government is required to prove: 1) that the victi m was assaulted, 2) with the

### -8-

use of a dangerous we apon, and 3) with the intent to inflict bodily harm. An assault is any intentional and voluntary atte mpt or threat to do injury to the person of another, when coupled with the apparent present ability to do so sufficient t o put the person against whom the attempt is made in fear of immediate bodily harm. Appellan t claims that even if Welch's story regarding the rock wa s believed, just standi ng above her holding onto a rock does not constitute assault with a dangerous weapon. Appellant, however, apparently disregard s the allegations that just prior to the incident with the rock, appellant had physically attacked Welch with his fists and feet and knocked her down into a dit ch where he continued to kick her and threaten her. Welc h testified that she was afraid and thought the appellant intended to hit he r with the r ock. The evidence was sufficient to sustain the convictio n regarding the rock.
Appellant also contends the physica l and medical evidence proves no assault with the phone ever took place. According to appellant, Welch's
own description of her injuries, the observation of her injuries b y treating medical personnel and various police officials, and photographs of all her injuries identified to police, revealed a complete absence of any injury or complaint of injury consistent with the striking with th e phone on the back of her head as she claimed.

Welch all eged that she was struck in the head with the phone as she sho wered and that the phone was then thrown in the bathtub. Upo n investigation, the police discovered the phone in the bathtub in conformit y with Welch's story. Further, 18 U.S.C. § 113(a) (3) requires only that the government present sufficient evidence that appe llant assaulted the victim with an object capable of inflicting bodily injury, not that the victi m
ac tually suffered bodily injury as a result of the assault. Th e government's evidence was sufficient to sustain the conviction with respec t to the phone.

### -9- VI.

Bas ed on the foregoing, the judgment of the district court i s affirmed.

A true copy.

Attest:

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