An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate
Procedure.


             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA14-1174

                                 Filed: 5 May 2015

Durham County, No. 11 CRS 52203

STATE OF NORTH CAROLINA

             v.

JOSE ANDRES AMADOR GOMEZ


      Appeal by Defendant from judgments entered 21 May 2014 by Judge Howard

E. Manning, Jr., in Durham County Superior Court. Heard in the Court of Appeals

4 March 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore,
      for the State.

      Paul F. Herzog for Defendant.


      STEPHENS, Judge.


                          Evidence and Procedural History

      Defendant Jose Andres Amador Gomez appeals from the judgments entered

upon his convictions on two counts each of assault with a deadly weapon with intent

to kill inflicting serious injury and discharging a firearm into an occupied dwelling
                                         STATE V. GOMEZ

                                        Opinion of the Court



inflicting serious bodily injury. The charges arose from a shooting which occurred on

26 December 2010 at a Durham apartment complex. The evidence at trial tended to

show the following: Late on the night of 25 December 2010, Defendant’s former

girlfriend, Sindi Paola Florinda Benegas Zavala,1 was at a nightclub in Durham with

one of her roommates, Fatima Jose Molina Sanchez.2 Defendant, who had been

drinking, was also at the nightclub. Zavala testified that Defendant was “bothering”

her and trying to keep her from dancing with other people. A security guard noticed

what was happening and asked Defendant to leave. Defendant complied, but, when

Zavala arrived at her apartment complex with a male friend in the early morning

hours of 26 December, Defendant and another man were waiting in the parking lot.

Defendant and Zavala argued, and when Defendant refused to leave, Zavala called

the police.    Officer Rachel Campbell Hinton of the Durham Police Department

(“DPD”) arrived at the apartment complex at about 3:00 a.m. Officer Hinton observed

a group of people, which included Zavala and Defendant, arguing in Spanish. After

Defendant left the complex in a car and Zavala went into her apartment, Officer

Hinton also departed.




1This opinion reflects the name under which this witness was sworn at trial. However, the State and
other witnesses referred to her as “Paola Benegas.”

2Again, this opinion reflects the name under which this witness was sworn at trial, although the State
and other witnesses referred to her as “Fatima Molina.”

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                                  Opinion of the Court



      Shortly thereafter, Sanchez, her boyfriend, Zavala’s other roommate Edgar

Gutierrez, several of Gutierrez’s friends, and Zavala were all inside the apartment

when they heard someone knocking on the door and asking to be let inside. Zavala,

Sanchez, and Gutierrez all recognized Defendant’s voice. In response to Defendant’s

questions, Gutierrez and Sanchez identified all of the occupants of the apartment,

but refused to allow Defendant inside. Sanchez also went out onto a bedroom balcony

and saw Defendant standing near the apartment door.          Eventually Defendant

announced that he was leaving, but Zavala and Sanchez both heard Defendant

threaten to “come [back] and kill you all.”

      About ten or fifteen minutes later, at least five gunshots were fired into the

apartment. Gutierrez, sitting in his bedroom with friends, was shot in the right

buttock. He required surgery on his stomach, bladder, and kidney, and wore a

colostomy bag for a year. Sanchez was shot in the left leg. She was treated at Duke

University Medical Center and released later that day, although she retained bullet

fragments in her leg.

      Because Zavala did not know Defendant’s real last name, DPD officers were

not able to positively identify him and obtain a warrant until March 2011. Defendant

was eventually apprehended in early 2013.

      Defendant presented no evidence. At the close of all evidence, Defendant

moved to dismiss all charges, and the trial court denied that motion. After the jury



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                                   Opinion of the Court



returned guilty verdicts on all charges, Defendant renewed his motion to dismiss.

The trial court again denied the motion and sentenced Defendant to three consecutive

active prison terms totaling 189 to 255 months. Defendant gave notice of appeal in

open court.

                                      Discussion

      Defendant’s sole argument on appeal is that the trial court erred in denying

his motions to dismiss all of the charges against him because the State’s evidence

does not permit a reasonable inference that Defendant was the person who fired a

gun into Zavala’s apartment. We disagree.

      We review “the trial court’s denial of a motion to dismiss de novo.” State v.

Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). “‘Upon [the]

defendant’s motion for dismissal, the question for the Court is whether there is

substantial evidence (1) of each essential element of the offense charged, or of a lesser

offense included therein, and (2) of [the] defendant’s being the perpetrator of such

offense. If so, the motion is properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (citation and internal quotation marks omitted), cert. denied, 531

U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Smith, 186

N.C. App. at 62, 650 S.E.2d at 33 (citation and internal quotation marks omitted).

“In making its determination, the trial court must consider all evidence admitted,



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                                   Opinion of the Court



whether competent or incompetent, in the light most favorable to the State, giving

the State the benefit of every reasonable inference and resolving any contradictions

in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation

omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

      “If the evidence is sufficient only to raise a suspicion or conjecture as to either

the commission of the offense or the identity of the defendant as the perpetrator of it,

the motion should be allowed.” Fritsch, 351 N.C. at 378, 526 S.E.2d at 455 (citation

and internal quotation marks omitted). However,

             [c]ircumstantial evidence may withstand a motion to
             dismiss and support a conviction even when the evidence
             does not rule out every hypothesis of innocence. If the
             evidence presented is circumstantial, the court must
             consider whether a reasonable inference of [the]
             defendant’s guilt may be drawn from the circumstances.
             Once the court decides that a reasonable inference of [the]
             defendant’s guilt may be drawn from the circumstances,
             then it is for the jury to decide whether the facts, taken
             singly or in combination, satisfy [it] beyond a reasonable
             doubt that the defendant is actually guilty.

Id. at 379, 526 S.E.2d at 455 (citations, internal quotation marks, and emphasis

omitted).

      Here, Defendant does not argue that the State failed to present substantial

evidence of each essential element of the offenses charged.         Rather, Defendant

contends only that the State’s evidence that he was the perpetrator of the crimes was

insufficient. As Defendant concedes, the evidence at trial tended to show that he: (1)



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                                   Opinion of the Court



was jealous of Zavala dancing with other men at the nightclub on the morning of the

shooting, (2) confronted Zavala when she returned home from the nightclub and

argued with her in the apartment complex parking lot, (3) tried to gain admittance

to Zavala’s apartment, and (4) threatened to “come [back] and kill you all” when he

was refused entry. Defendant also concedes that “someone fired into the apartment”

ten to fifteen minutes after Defendant issued his threat. Defendant contends this

evidence is “entirely circumstantial[] and raise[d] only a strong suspicion of his guilt.”

As noted supra, circumstantial evidence like that here is entirely sufficient to support

submission of a case to the jury so long as “a reasonable inference of [the] defendant’s

guilt may be drawn from the circumstances[.]” Id. (citation omitted). We conclude

that the circumstances in this case certainly permit a reasonable inference that

Defendant was the person who fired a gun into Zavala’s apartment.

      A careful reading of Defendant’s brief suggests that his true argument is that

the evidence did not prove beyond a reasonable doubt that he was the perpetrator.

For example, Defendant emphasizes that the evidence is insufficient because, inter

alia, no one actually saw Defendant fire a gun into his ex-girlfriend’s apartment,

Defendant did not flee the Durham area, and Defendant did not have a weapon when

he was eventually arrested by the DPD some three years after the shooting.

Defendant also implies that the man who was with him in the parking lot when he

confronted Zavala could have been the shooter. While Defendant is correct that the



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                                  Opinion of the Court



evidence does not remove all doubt about his identity as the shooter, “circumstantial

evidence may withstand a motion to dismiss and support a conviction even when the

evidence does not rule out every hypothesis of innocence[.]” Id. (citation and internal

quotation marks omitted). Because the evidence presented at trial, taken in the light

most favorable to the State, was “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion [that Defendant was the perpetrator of

the offenses charged],” see Smith, 186 N.C. App. at 62, 650 S.E.2d at 33 (citation and

internal quotation marks omitted), the trial court did not err in denying Defendant’s

motion to dismiss and in submitting the charges to the jury.

      NO ERROR.

      Judges HUNTER, JR., and TYSON concur.

      Report per Rule 30(e).




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