Assigned on Briefs March 13, 2018
from the Criminal Court for Shelby County No. 13-06276 John
Wheeler Campbell, Judge
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
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
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.
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.,
TIMOTHY L. EASTER, JUDGE
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
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
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
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.
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
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 ...