                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 31 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-2162
                                                    (D.C. No. CR-01-11 LH)
    HECTOR M. ABADIA-ALMONTE,                              (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and         BRORBY Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant-appellant Hector M. Abadia-Almonte appeals his conviction for

the misdemeanor crime of assault by striking, beating or wounding, contrary to 18

U.S.C. § 113(a)(4).   1
                          Following a bench trial to a magistrate judge, he was found

guilty and fined $100.00 plus a $5.00 special assessment. He appealed his

conviction to the district court, where his conviction was affirmed. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      On Holloman Air Force Base, New Mexico, at about 1:15 a.m., a witness

saw Mr. Abadia-Almonte and his wife walking down the street, arguing.

Mr. Abadia-Almonte took a swing at his wife, who fell to the ground. After she

got up, he swung several more times, but the witness was not sure if he made

contact the second time. A security law enforcement patrolman then stopped the

couple and asked if anything was wrong. Both denied any trouble, but the law

officer noticed that both of the woman’s arms were bruised and red, as if she had

just been hit. The woman went to get a coat before going to the law enforcement

station. She refused to remove the coat to have her arms photographed by law

enforcement personnel. At trial, she testified that Mr. Abadia-Almonte had not




1
       “Whoever, within the special maritime and territorial jurisdiction of the
United States, is guilty of an assault shall be punished as follows: . . . (4) Assault
by striking, beating, or wounding, by a fine under this title or imprisonment for
not more than six months, or both.” 18 U.S.C. § 113(a).

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hit her or hurt her, and that she had only one bruise on her arm that night and it

was not caused by her husband.

       On appeal, Mr. Abadia-Almonte challenges the sufficiency of the evidence

to convict him. “[W]e reverse on a sufficiency of the evidence claim only if no

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.”     United States v. Wilson , 244 F.3d 1208, 1219 (10th Cir.)

(quotations and citations omitted),    cert. denied , 121 S. Ct. 2619 (2001). Our

review of the record is de novo, and we draw all reasonable inferences in the light

most favorable to the government.      Id. We do not reevaluate the credibility of

witnesses or weigh the evidence presented at trial.    Id.

       Mr. Abadia-Almonte argues that the elements of the crime were not proven

because there was no evidence of physical contact with the victim. He relies on

the victim’s testimony that he did not strike her that night, and on the

cross-examination of the prosecution’s witnesses. Although the witness who saw

the couple fighting in the street stated that he did not know how many times Mr.

Abadia-Almonte swung at her and that it was possible she had tripped, he testified

that “[h]is arms would have had to have hit her.” R. Vol. II, at 11. The law

enforcement officer who interviewed the couple on the street corner stated on

cross-examination that he did not know how or when the victim’s arms became

bruised, but he testified that   the woman’s arms were red, as if “she had just gotten


                                            -3-
slapped or hit.” Id. at 18. The victim admitted that she had refused to have her

arms photographed by law enforcement personnel.

      The credibility of witnesses and weighing of the evidence presented are

squarely within the province of the trial judge. Based on the eyewitness accounts

and inferences reasonably drawn from the evidence, a reasonable trier of fact

could have found that Mr. Abadia-Almonte had the requisite physical contact with

the victim for guilt beyond a reasonable doubt of the misdemeanor crime of

assault by striking, beating or wounding. We will not overturn his conviction on

appeal.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




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