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State v. Gomez

Court of Criminal Appeals of Tennessee, Jackson

May 9, 2018


          Assigned on Briefs March 13, 2018

          Appeal from the Criminal Court for Shelby County No. 13-06276 John Wheeler Campbell, Judge

         Defendant, Miguel Gomez, was convicted of three counts of aggravated assault. The trial court merged Counts Two and Three into Count One and sentenced Defendant to eleven years. On appeal, Defendant argues that the evidence at trial was insufficient to support his convictions and that his sentence was excessive. After review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Omar Malik, Assistant District Attorney General, for the appellee, State of Tennessee.

          Juni S. Ganguli (on appeal) and Blake Ballin (at trial), Memphis, Tennessee, for the appellant, Miguel Gomez.

          Timothy L. Easter, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Alan E. Glenn, JJ., joined.



         A Shelby County grand jury indicted Defendant for three counts of aggravated assault while acting in concert with two or more persons. Each count alleged a different theory of aggravated assault, Count One was based upon serious bodily injury to the victim, Count Two was based upon the use or display of a deadly weapon and bodily injury to the victim, and Count Three was based upon use or display of a deadly weapon and reasonable fear of imminent bodily injury by the victim. A trial commenced at which the following facts were adduced.

         At around 6:00 p.m. on July 28, 2012, the victim, Aerol Cipriano, and Michelle Garza went to El Mercadito in Memphis, Tennessee. El Mercadito is an area similar to a mall. Ms. Garza testified that she and the victim went to El Mercadito with two of her friends. She did not know the last names of her two friends, but she stated that both of their first names were "Miguel." According to Ms. Garza, the purpose for their trip to El Mercadito was to meet two men on an unrelated matter. Neither man was present when Ms. Garza and the victim arrived at El Mercadito. After an hour of waiting at El Mercadito, Defendant, also known as "Stumper, " unexpectedly arrived with some friends. Prior to this day, the victim had only seen Defendant one time. Defendant yelled at the victim about shooting at Defendant's house.

         Ms. Garza's account of the subsequent events that day was unique. According to her, she and the victim were surrounded by sixteen people and "cornered" against a truck. Ms. Garza described the confrontation by saying, "He was just yelling at us . . . saying that we shot his house when we didn't." Defendant and fifteen other people kept Ms. Garza and the victim cornered against the truck until Defendant's friend arrived to identify the victim. After Defendant's friend identified the victim, everyone began to beat up the victim. Ms. Garza saw the attackers holding "two [brass] knuckles, a blade, and like a[n] ice pick and a screwdriver . . . and two guns." Defendant had one of the guns. When asked how many of the weapons were used against the victim, Ms. Garza replied, "All of them."

         Ms. Garza tried to go to the other side of the truck to call the police. However, one of the men named "Miguel" that rode to El Mercadito with her kept her from doing so. Consequently, Ms. Garza "punched [the man named "Miguel"] three times" and hit Defendant in the back of the head with a wrench that she retrieved from her back pocket. In response to being struck, Defendant grabbed Ms. Garza and pulled her into the middle of the group. At that point, everyone began beating her. Later, Defendant began pulling Ms. Garza out of the mob of people. As he did so, Ms. Garza grabbed on to the victim, and he was pulled from the group too. Once pulled from the group, Ms. Garza saw Defendant hand a gun to his brother, "Redolfo" or "Little Stump, " and tell him to "shoot that f***ing n*****." Somehow, Ms. Garza and the victim were able to escape the sixteen other people in the parking lot and escape to the interior of El Mercadito. A security guard called the police.

         The victim recalled the events of that evening a bit differently. According to the victim, Ms. Garza stepped away to look for her phone, and around ten people, including Defendant, surrounded the victim. Once Defendant's cousin arrived and identified the victim, they began beating him. The victim said that he began running and heard Defendant say "shoot him, shoot him." The victim turned around and saw Defendant's brother, "Little Stump, " holding a gun. As the victim turned to run away, he fell. Defendant grabbed him, choked him, and brought him back to the crowd. At that point, everyone began beating him again. The victim claims he lost consciousness. Yet, somehow, Ms. Garza pulled him from the crowd and they ran inside El Mercadito. Once inside, a person called the police. Describing his injuries, the victim testified that he had a face fracture and a stab wound to his shoulder. Pictures of the victim and his injuries after the attack were shown to the jury.

         The victim admitted that his recollection of the events was not that great because he lost consciousness. He could not recall the details about what items were used to attack him, but he recalled seeing Defendant and Defendant's brother standing in front of him and beside him. Though the statement by the victim to the police states that the attackers were armed with a gun, the statement did not specify that the gun was pointed at him. According to the victim, the police "didn't write it in." Additionally, the victim insisted that he did not shoot at Defendant's house and that he was not present when the shooting occurred. However, the victim did not remember if he told Officer Garrett that he had been present ...

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