                                                                                     03/18/2019

       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs January 9, 2019

STATE OF TENNESSEE v. GERARDO JUAREZ aka GERARDO JUAREZ-
                         ORTEGA

                Appeal from the Criminal Court for Shelby County
                     No. 15-06152       Chris Craft, Judge
                    ___________________________________

                          No. W2018-01054-CCA-R3-CD
                      ___________________________________

A Shelby County jury convicted the defendant, Gerardo Juarez, of two counts of reckless
endangerment, one count of attempted voluntary manslaughter, three counts of
aggravated assault, and one count of employing a firearm during the commission of a
dangerous felony. Following a sentencing hearing, the trial court imposed an effective
sentence of eleven years in confinement. On appeal, the defendant challenges the
sufficiency of the evidence to support his aggravated assault and attempted voluntary
manslaughter convictions. After reviewing the record and considering the applicable
law, we affirm the judgments of the trial court. However, we remand the case for
corrected judgment forms in Counts one, four, and five.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and
                  Remanded for Entry of Corrected Judgments

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and ALAN E. GLENN, J., joined.

Stephen C. Bush, Shelby County Public Defender; Harry E. Sayle III, Assistant Public
Defender (on appeal); and Trent Hall and John Scott, Assistant Public Defenders (at
trial), for the appellant, Gerardo Juarez.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy Weirich, District Attorney General; and Jose Leon, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION
                              Facts and Procedural History

       Following a shooting at Club Las Vegas in Memphis, Tennessee, a Shelby County
grand jury indicted the defendant, Gerardo Juarez, for three counts of attempted first
degree murder (Counts one, three, and five), three counts of aggravated assault (Counts
two, four, and six), and three counts of employing a firearm during the commission of a
dangerous felony (Counts seven, eight, and nine). Following a jury trial, the defendant
was convicted of the lesser-included offenses of reckless endangerment (Counts one and
five), attempted voluntary manslaughter (Count three), the charged offenses of
aggravated assault (Counts two, four, and six), and employing a firearm during the
commission of a dangerous felony (Count eight). The defendant was acquitted on Counts
seven and nine. At trial, the State presented the following facts for the jury’s review.

       On August 24, 2015, Thomas Avant and Jeremy Fields were working as bouncers
at Club Las Vegas. Mr. Avant, legally armed with a Glock .40 caliber pistol, was
responsible for frisking patrons as they entered the club, while Mr. Fields checked each
person’s ID and occasionally assisted in frisking for weapons. At approximately 3:00
a.m., Mr. Avant approached the defendant, who was drinking a beer at the bar. Because
the club was closing, Mr. Avant repeatedly asked the defendant to leave and offered to
pour the defendant’s beer into a plastic cup, allowing him to finish it as he walked to the
front door. Although the defendant had been drinking, Mr. Avant did not believe he was
“falling down drunk.” Eventually, Mr. Avant had to physically remove the defendant
when he threw his beer at Mr. Avant’s feet. The defendant was “irate, yelling, [and]
cursing” as he was taken outside. In Spanish, the defendant threatened he would return
and, in English, that he would “f***ing kill you n*****s.”

       After the defendant was taken outside, he went to his vehicle and left the parking
lot. Mr. Avant and Mr. Fields went to a nearby McDonald’s to eat breakfast, but returned
to the club when the owner, who was carrying the cash from the night, asked Mr. Avant
to follow him home. They parked across the street from Club Las Vegas and, as they
were walking toward the building, noticed the defendant’s vehicle was parked in the
center lane of the street in front of the club. As Mr. Avant and Mr. Fields walked toward
the entrance, the defendant began shooting at them, firing approximately “ten to fifteen
shots.” The owner and several employees had begun to exit the building, and Mr. Avant
yelled for them to get back inside.

       The defendant then made a U-turn, turned off his headlights, and shot “about ten
more” times as he passed the club a second time. Finally, the defendant made a third
pass, pulled into the lane closest to the club, and shot approximately fifteen times. At this
point, Mr. Avant pulled out his gun and fired at the defendant three times. However,
because he was “ducking and dodging” the defendant’s bullets, he only managed to hit
the defendant’s windshield. Mr. Fields “initially ducked behind the bar” but later “tr[ied]
to usher everyone back inside” to safety.
       Meliza Contreras, an employee of the taco truck that was parked in front of the
club, was outside during the shootings. Although she was able to hide during the first
two shootings, during the third shooting, she “didn’t have a chance to run” and was shot
in her right thigh. Ms. Contreras was treated at the hospital and released the same day.
However, physicians were unable to remove the bullet from her leg. Sergeant Kevin
Covington with the Memphis Police Department (“MPD”) Felony Response Bureau met
Ms. Contreras at the hospital and photographed her injuries.

        Following the defendant’s final shots, Mr. Avant and Mr. Fields followed the
defendant while they called 911. Officer Patrick Taylor responded to the shooting call at
Club Las Vegas. He received information of the defendant’s whereabouts, located the
defendant’s vehicle, and initiated a traffic stop. However, the defendant refused to stop
and continued driving through a residential area, driving onto a curb, and finally coming
to a stop several blocks later. The defendant, who appeared “jovial,” was taken into
custody without incident. Officer Taylor noticed several spent shell casings in plain view
in the defendant’s backseat and a live round in the driver’s seat. Police also located a gun
at the corner where the defendant went onto the curb, although Office Taylor did not see
the defendant throw a gun from his vehicle. Once the defendant was detained, Mr. Avant
and Mr. Fields arrived at the scene and identified the defendant as the shooter.

       Sergeant Tim Monistere with the MPD Crime Scene Unit arrived at Club Las
Vegas at 3:40 a.m. and processed the scene, photographing and collecting all evidence.
He also responded to three additional scenes in this case, including the defendant’s car,
the location where the gun was recovered, and the police station where Mr. Avant had
relinquished his gun. William Merritt, a criminal investigator with the Shelby County
District Attorney General’s Office, transported the guns and shell casings to and from the
TBI Crime Laboratory for testing.

        Special Agent Cervinia Braswell, a forensic scientist with the Firearms
Identification Unit of the TBI, analyzed the firearms and shell casings recovered in this
case. She determined both firearms were functioning properly and compared test fired
cartridge cases to the casings found in the defendant’s car and at Club Las Vegas.
Special Agent Braswell determined the .40 caliber cartridge case recovered from Club
Las Vegas was fired from Mr. Avant’s Glock .40 caliber pistol. However, although the .9
millimeter casings found at the scene shared “the same class characteristics” and “some
similar individual characteristics” with the Ruger pistol recovered near the defendant,
Special Agent Braswell was unable to definitively determine whether the casings were
fired from that particular gun.
       The defendant declined to present evidence. Following deliberations, the jury
found the defendant guilty of reckless endangerment and aggravated assault with regards
to his actions against Meliza Contreras (Counts one and two), attempted voluntary
manslaughter, aggravated assault, and employing a firearm during the commission of a
dangerous felony with regards to his actions against Thomas Avant (Counts three, four,
and eight), and reckless endangerment and aggravated assault with regards to his actions
against Jeremy Fields (Counts five and six). The defendant was found not guilty of the
remaining employing a firearm during the commission of a dangerous felony charges
(Counts seven and nine). Following a sentencing hearing, the trial court merged Count
one into Count two, Count four into Count three, and Count five into Count six and
imposed an effective sentence of eleven years.

      The defendant filed a timely motion for new trial in which he argued, in part, the
evidence at trial was insufficient to support the jury’s verdict. The trial court denied the
motion, and this timely appeal followed.

                                          Analysis

      The defendant’s sole issue on appeal is the sufficiency of the evidence to support
his aggravated assault (Counts four and six) and attempted voluntary manslaughter
(Count three) convictions.1 The State contends the evidence is sufficient. We agree.

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the following rationale for this rule:


       1
         The defendant does not challenge his convictions for reckless endangerment (Counts
one and five), the aggravated assault of Ms. Contreras (Count two), and employing a firearm
during the commission of a dangerous felony (Count eight).
       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus, the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere, and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A.     Aggravated Assault

        The jury convicted the defendant of two counts of aggravated assault, a Class C
felony. As charged in this case, aggravated assault occurs when a person intentionally or
knowingly causes another to reasonably fear imminent bodily injury by using or
displaying a deadly weapon. Tenn. Code Ann. §§ 39-13-101(a)(2), -102(a)(1)(A)(iii).
The defendant specifically contends the evidence presented was insufficient to establish
beyond a reasonable doubt that Mr. Avant and Mr. Fields “reasonably fear[ed] imminent
bodily injury.” He bases his argument upon the fact that neither witness testified he was
in fear during the shooting, Mr. Avant shot back at the defendant, and Mr. Avant and Mr.
Fields followed the defendant until police apprehended him.

       Although neither Mr. Avant nor Mr. Fields directly testified he was in fear during
the shooting, the jury was entitled to infer the victims’ fear of imminent bodily injury.
See State v. Alvin Brewer and Patrick Boyland, No. W2012-02282-CCA-R3-CD, 2014
WL 1669807, at *23 (Tenn. Crim. App. Apr. 24, 2014), perm. app. denied (Tenn. Sept.
18, 2014) (holding the evidence was sufficient even though the victim did not testify he
was fearful); State v. Ricky Atkins, No. 03CO1-9812-CC-00432, 1999 WL 1019029, at *3
(Tenn. Crim. App. Nov. 10, 1999), perm. app. denied (Tenn. Apr. 10, 2000) (holding the
jury was entitled to infer fearfulness when the victim ran away from the defendant and
called the police); State v. Gregory Whitfield, No. 02CO1-9706-CR-00226, 1998 WL
227776, at *2 (Tenn. Crim. App. May 8, 1998), perm. app. denied (Tenn. Dec. 7, 1998)
(“The element of ‘fear’ is satisfied if the circumstances of the incident, within reason and
common experience, are of such a nature as to cause a person to reasonably fear
imminent bodily injury.”); State v. Tommy Arwood, Jr., No. 01CO1-9505-CC-00159,
1996 WL 274996, at *3 (Tenn. Crim. App. May 24, 1996), no perm. app. filed (holding
the evidence was sufficient to find the victim was fearful of imminent bodily injury when
he attempted to defend himself and called police after the defendant left).

       Here, the defendant began shooting at Mr. Avant and Mr. Fields as they walked
toward Club Las Vegas. The men were forced to hide behind vehicles as the defendant
drove by the building three times and fired approximately 35 shots. Mr. Avant testified
he was “ducking and dodging bullets” as he attempted to shoot back at the defendant.
Mr. Fields tried to get other employees to safety as the defendant continued shooting at
him. After the shooting ended, Mr. Avant and Mr. Fields called 911 and followed the
defendant until police arrived. Under those circumstances, the jury could have inferred
the victims were in fear of imminent bodily harm. The defendant is not entitled to relief.

B.     Attempted Voluntary Manslaughter

       The jury convicted the defendant of one count of attempted voluntary
manslaughter, a Class D felony. “Voluntary manslaughter is the intentional or knowing
killing of another in a state of passion produced by adequate provocation sufficient to
lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-
211(a). “[T]he jury is responsible for reviewing the evidence to determine whether it
supports a finding of adequate provocation.” See State v. Lajaun Harbison, No. E2015-
00700-CCA-R3-CD, 2016 WL 4414723, at *21 (Tenn. Crim. App. Aug. 18, 2016), rev’d
on other grounds, 539 S.W.3d 149 (Tenn. 2018) (citing State v. Williams, 38 S.W.3d 532,
539 (Tenn. 2001)). One is guilty of attempted voluntary manslaughter when he acts
“with intent to cause a result that is an element of the offense, and believes the conduct
will cause the result without further conduct on the person’s part.” Tenn. Code Ann. §
39-12-101(a)(2). “If an offense is defined in terms of causing a certain result, an
individual commits an attempt at the point when the individual had done everything
believed necessary to accomplish the intended criminal result.” Tenn. Code Ann. § 39-
12-101, Sent. Comm’n Cmts.

       The defendant specifically contends the State failed to prove he acted in a “state of
passion produced by adequate provocation” from Mr. Avant. The defendant asserts he
was angry, but not drunk, when he left Club Las Vegas and did not know Mr. Avant
would return to the club that night. He also emphasizes his demeanor when arrested,
which Officer Taylor described as “jovial.”

       Viewed in the light most favorable to the State, Mr. Avant testified he asked the
defendant to leave Club Las Vegas at closing time. Because the defendant wanted to
finish his beer, Mr. Avant offered to pour the beer into a plastic cup that could be taken to
the door. The defendant became angry, pouring the beer onto Mr. Avant’s feet and
threatening Mr. Avant in both Spanish and English. Eventually, Mr. Avant had to
physically remove the defendant from the club. When Mr. Avant returned to the club, he
noticed the defendant’s vehicle parked in the middle of the street. As Mr. Avant walked
toward the club, the defendant began shooting at him, driving by a total of three times
and firing approximately thirty-five shots. Mr. Avant hid behind vehicles and dodged
bullets to avoid being struck. In reaching its verdict, it is clear the jury found the
defendant’s prior altercation with Mr. Avant served as adequate provocation, and we will
not second guess the jury’s decision. See Lajaun Harbison, 2016 WL 4414723, at *21.
Accordingly, the evidence is sufficient to support the defendant’s conviction for
attempted voluntary manslaughter. The defendant is not entitled to relief.

       Finally, we must note one problem with the judgments in this case. The trial court
merged Count one into Count two, Count four into Count three, and Count five into
Count six. Specifically, the trial court stated “So counts one and four and five are
merged. He will not be sentenced on those.” It is well-established that the trial court
should have entered a separate sentence and judgment form for each count of the
indictment. See State v. Berry, 503 S.W.3d 360, 364-65 (Tenn. 2015). Therefore, we
remand this case to the trial court for entry of sentences and corrected judgment forms for
Counts one, four, and five. On remand, the trial court should impose separate sentences
for each count and the “Special Conditions” box for all counts should note the merged
counts. Id.


                                       Conclusion

      For the aforementioned reasons, the judgments of the trial court are affirmed.
However, we remand this case for entry of corrected judgments as specified in this
opinion.


                                             ____________________________________
                                             J. ROSS DYER, JUDGE
