* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

September 28, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-51292

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JASON ANTHONY DOMBROWSKY;

JON MICHAEL DOMBROWSKY,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Texas

USDC No. W-03-CR-86-1

Before JONES, SMITH and DeMOSS, Circuit Judges.

PER CURIAM: *

In this appeal, we review the convictions of DefendantsAppellants, Jason an d Jon Dombrowsky, for assaulting federal

office rs in violation of 18 U.S.C. § 111. For the following

reasons, we uphold the convictions.2 I. FACTUAL AND PROCEDURAL BACKGROUND

On December 10, 2002, Specialist Opal Peters of the

United States Army got into an argument with her husband, Jon

Dombrowsky, at their home on the military base in Fort Hood, Texas,

during which Dombrowsky pushed and threatened to hit Peters.

Jon’s brother, Jason Dombrowsky, was also present at the

time as he was helping his brother move o ut of the house. The

couple had decided to s eparate because Jon Dombrowsky believed

Peters was cheating on him.

After the argument, Specialist Peters went to see her

commander, who then contacted military police. Lieutenant

Christopher Smith, an Army Civilian Police Officer, responded to

the call and obtained permission from Peters to enter her home and

question Jon Dombrowsky. Lieutenant Smith also requested an

additional patrol, Sergeant Newton and Private Rottenberry, who met

with Lieutenant Smith at Peters’ and Dombrowsky’s home.

When the officers a rrived, Lieutenant Smith knocked on

the door and identified himself as a military policem an, saying

that he was there to speak with Jon Dombrowsky to investigate an

assault complaint. Jason Dombrowsky opened the door part-way,

allowing Lieu tenant Smith to see Jon Dombrowsky inside the home.

Lieutenant Smith and Sergeant Newton then made their way past Jason

Dombrowsky, who was still standing at the door.3 Sergeant Newton requested that Jason Dombrowsky leave the

house, but Jason refused. Sergeant Newton then grabbed Jason by

the arm to attempt to forcibly remove him from the house. After

Jason pushed Sergeant Newton away twice and made a move to punch

Sergeant Newton, Lieutenant Smith intervened by spraying Jason with

pepper spray. Jon Dombrowsky then attacked Lieutenant Smith with

his own can of pepper spray. After scuffling for a while,

Lieutenant Smith withdrew his pistol and ordered Jon Dombrowsky to

the ground. By that time Sergeant Newton had handcuffed Jason

Dombrowsky and the incident was over.

Following a bench trial, Jason and Jon Dombrowsky were

each convicte d of assaulting a military police officer while the

officer was performing his official duties. Jason was sentenced to

eight months’ imprisonment and two years’ supervised release. Jon

was sentenced to ten months’ imprisonment and two years’ supervised

release. Both Jason and Jon timely filed notices of appeal.

On appeal, th e Dombrowskys argue that the evidence was

insufficient to suppor t their convictions in light of their

affirmative defense of self-defense. Jason Dombrowsky argues that

the officers had no right to e nter the home and that Sergeant

Newton initiated physical contact. Jon Dombrowsky argues that he

was therefore justified in defending his brother.4 II. STANDARD OF REVIEW

We review the sufficiency of the evidence supporting a

conviction after a bench trial by determining whether the finding

of guilt is supported by substantial evidence sufficient to justify

the trial judge’s conclusion beyond a reasonable doubt that the

defendant is guilty. See United States v. Mathes , 151 F.3d 251,

252 (5th Cir. 1998). It is not our task to weigh the evidence or

determine the credibility of witnesses, but instead we view all of

the evidence in the light most favorable to the Government and

defer to all reasonable inferences drawn by the trial court. See

United States v. Ybarra , 70 F.3d 362, 364 (5th Cir. 1995).

III. SUFFICIENCY OF THE EVIDENCE

To obtain a conviction for assaulting a federal officer,

the Government m ust prove forcible assault or resistance of a

federal officer while engaged in th e performance of official

duties. S ee United States v. Moore

, 997 F.2d 30, 35 n.8 (5th Cir.

1993). The Government need not prove that the defendants intended

to injure the officers, but the Government must show that the

defendants intended the assault. See United States v. Feola , 420

U.S. 671, 684 (1975).

As the above stated facts convey, Jason and Jon

Dombrowsky intended to assault the federal officers. However, the

crux of their argument on appeal is that the officers did not have

a right to ente r the home or to arrest them, and thus, the5

Dombrowskys were justified in defending themselves from what the

Dombrowskys argue was the officers acting beyond the scope of their

authority and with excessive force.

An officer is considered to be engaged in his official

duties and thus protected by the statute, 18 U.S.C. § 111, if he is

performing the functions for which he is employed, if he is acting

in good faith and in the colorable performance of his duties, and

if he is not on “a frolic of his own.” S ee United States v. Lopez

,

710 F.2d 1071, 1074 (5th Cir. 1983).

In this case, there is substantia l evidence that the

officers were engaged in the performance of their duties.

Lieutenant Sm ith was responding to a domestic violence call from

Specialist Peters. Even if this information was insufficient to

provide Lieutenant Smith with probable cause to arrest Jon

Dombrowsky, a federal officer is protected from assault under 18

U.S.C. § 111, even if he is effecting an arrest witho ut probable

cause. Id. at 1074.

Furthermore, the Dombrowskys’ claim that the force used

by Sergeant Newton in attempting to escort Jason Do mbrowsky from

the home was excessive also fa ils. The trial court heard the

testimony of both the officers and the Dombrowskys, and the court

simply found the officers’ testimony to be more c redible. It is

not our du ty to second-guess the trial court’s determination of

credibility. See Ybarra , 70 F.3d at 364.6 Fi nally, Jason Dombrowsky argues that there is no

evidence that his slap of Sergeant Newton’s hand was forceful or

that his pushing of Sergeant New ton was done with the intent to

forcibly assault. However, any physical contact by which a person

forcibly assaults, resists, impedes, intimidates, or interferes

with a federal officer in the performance of their duties in

punishable under 18 U.S.C. § 111. S ee United States v. Ram irez

,

233 F.3d 318, 322 (5th Cir. 2000). Jason Dombrowsky conceded that

he intended to slap and push Sergeant Newton, and there is no

assertion that the physical contact was an accident. Thus, the

evidence is sufficient to establish that Jason intended to forcibly

assault Sergeant Newton.

IV. CONCLUSION

For the foregoing reasons, the convictions of Jason and

Jon Dombrowsky are AFFIRMED

.