United States v. Harold Wayne Drapeau ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-4028
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United States, *
*
Plaintiff/Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Harold Wayne Drapeau, also *
known as Samples Drapeau, *
*
Defendant/Appellant. *
__________
Submitted: March 11, 1997
Filed: April 10, 1997
__________
Before MAGILL, JOHN R. GIBSON, and MURPHY, Circuit Judges.
__________
MURPHY, Circuit Judge.
A jury found Harold Wayne Drapeau guilty of assault resulting in
serious bodily injury to a one year old child. The district court1
sentenced Drapeau to 63 months imprisonment. Drapeau appeals, arguing that
there was insufficient evidence to support the guilty verdict and that the
district court incorrectly applied the sentencing guidelines. We affirm.
Drapeau had a close relationship with the child's mother. He
frequently stayed at the mother's home, and the mother sometimes left the
child in Drapeau's care. On July 20, 1994, a neighbor
1
The Honorable Charles B. Kornmann, United States District
Judge for the District of South Dakota.
who was babysitting the child discovered bruises on the child's body and
found that his testicle area was injured and swollen. The neighbor
notified the police, and the child was taken to the hospital by the Child
Protective Services that day. The examining doctor determined that the
injury to the child's genitals had occurred within the past day. Evidence
revealed that the child had been in Drapeau's care for at least one hour
on July 19.
After a two and one half day trial, the jury found Drapeau guilty of
assault resulting in serious bodily injury. The district court applied
several enhancements to the offense level for the crime of conviction,
including two levels for obstructing justice and two levels for a
vulnerable victim. The court also determined that the criminal history
category of II did not reflect the seriousness of Drapeau's behavior
because it did not include his multiple convictions in tribal court for
assault. The court therefore departed upward to category III, resulting
in a sentencing range of 57 to 71 months instead of 51 to 63 months, and
sentenced Drapeau to 63 months imprisonment. Drapeau argues on appeal that
the enhancement under the vulnerable victim provision and the upward
departure for the criminal history were improper.2
Drapeau claims there was not sufficient evidence to support the
jury's verdict. On appeal the evidence must be interpreted in the light
most favorable to the verdict and given all reasonable inferences that
support it. United States v. Roach, 28 F.3d 729, 736 (8th Cir. 1994).
There was evidence that Drapeau had hit the child on a number of occasions
and that he disliked the child, in part because the child was the product
of the mother's relationship with another man. One witness testified that
she had seen Drapeau
2
Drapeau does not contest on appeal the enhancement for
obstruction of justice based on threats to potential witnesses.
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slap the child; Drapeau acknowledged this incident. The mother said that
whenever she left the child with Drapeau, the child would be bruised when
she returned and that the child appeared frightened when Drapeau was
present. The mother also testified that she had left the child under
Drapeau's care July 19, and that the child's scrotum was bruised when she
returned. When questioned by the police shortly after the injury, the
mother had said that the child had fallen from his bed onto a milk crate,
but at trial she testified that this is what Drapeau had told her and that
she was afraid he would beat her if she were to say anything to anyone. The
examining doctor testified that a severe injury such as the child suffered
could not have been caused by a fall from a bed that was only 21 inches off
the floor. It was for the jury to resolve any conflicting testimony, and
there was sufficient evidence to support its verdict.
The sentencing guidelines provide for an adjustment if the defendant
knew the victim was "unusually vulnerable due to age, physical or mental
condition, or that a victim was otherwise particularly susceptible to the
criminal conduct." U.S. Sentencing Guidelines Manual § 3A1.1(b) (1995).
The district court correctly noted that Drapeau knew the child was
vulnerable because of his age. As a one year old child, he did not have
the physical ability to protect himself, and Drapeau knew that the child
would not be able to identify him since the child could not talk and did
not have the mental ability to identify him otherwise. The district court
did not err by applying the vulnerable victim provision.
Drapeau's challenge to the upward departure based on his criminal
history is also without merit. Drapeau had been convicted in tribal court
four times for assault and battery and once for violence to a police
officer. The presentence investigation report (PSR) calculated his
criminal history category as II based on his
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state convictions, but also indicated that his tribal convictions could
support an upward departure to category III. Although Drapeau claims he
did not have sufficient notice of a possible departure, he had access to
the PSR and he made specific objections to it. No other form of notice is
required if the grounds for an upward departure are identified in the PSR.
United States v. Andrews, 948 F.2d 448, 449 (8th Cir. 1991) (per curiam).
The court appropriately applied an upward departure to reflect Drapeau's
tribal offenses. These offenses were not factored into the calculation of
criminal history category II, and the sentencing guidelines explicitly
allow for an upward departure to reflect tribal offenses. See U.S.
Sentencing Guidelines Manual § 4A1.3(a) (1995). In any event, any error
in calculating the criminal history would be harmless because the court
could have sentenced him to 63 months imprisonment even without this
departure.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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