                                                                                       05/09/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs March 13, 2018

                 STATE OF TENNESSEE v. MIGUEL GOMEZ

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

                          No. W2017-01457-CCA-R3-CD
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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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ALAN E. GLENN, JJ., joined.

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

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.


                                       OPINION

        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
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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 during the shooting. Officer Garrett testified that the victim told him
that he was present during the shooting at Defendant’s house but that he was not the one
who pulled the trigger.

       Ms. Garza filed a report with the police. The police documented the victim’s
injuries. After talking with the police, Ms. Garza and the victim went home. The next
day, the victim was treated at the hospital for his injuries.

        At a later date, Ms. Garza and the victim went to the police station and identified
Defendant in a photographic lineup. Ms. Garza told the police that Defendant had the
gun and “one of the [brass] knuckles.” Officer Kenneth Adams of the Memphis Police
Department (“MPD”) General Investigation Bureau took the statements and conducted
the photographic lineups in this case. Officer Adams maintained that the victim and Ms.
Garza were kept separate while giving their statements and during the photographic
lineups. Officer Adams also stated that the handwriting on the victim’s photographic
identification was solely the victim’s. However, Ms. Garza revealed that she had written
on the victim’s photo identification sheet. Additionally, Ms. Garza said that she looked
up on Facebook the other individuals who participated in the attack, but ultimately, only
gave four names out of sixteen to the police.

       Lieutenant Andre Pruitt of the Memphis Police Department was the lead
investigator in this case. He conducted the interrogation of Defendant, and after signing a
waiver of rights, the only thing that Defendant said was that “it would take three to
convict him.” After the interrogation, Defendant was placed in a different room where he

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punched a hole in the wall. After gathering information, Lieutenant Pruitt decided to
charge Defendant.

       Kevin Gomez, Defendant’s brother also known as “Little Stump” or “Little
Stumper,” admitted to committing the assault against the victim. He said that he carried
out the crime by himself and that his cousin was present but did not participate. He stated
that he committed the assault using his fists without any weapons. He also testified that
Defendant was not present at El Mercadito at the time of the attack. Mr. Gomez also
stated that he was the individual who punched the hole in the wall at the police station
and that he was charged and prosecuted for vandalism as a result.

        After deliberation, the jury found Defendant guilty as charged of all three counts
of aggravated assault. During a sentencing hearing, the trial court noted its consideration
of the facts at trial, the criminal behavior of Defendant, and the pre-sentence report. The
trial court found Defendant to be a Range I offender. The trial court found that three
enhancement factors applied. First, the trial court found that Petitioner had a criminal
history in excess of that needed to establish the appropriate range. See T.C.A. § 40-35-
114(1). Additionally, the trial court found that Defendant was a leader in the commission
of the offense based on the testimony that Defendant was part of the group that attacked
the victim. See T.C.A. § 40-35-114(2). Finally, the trial court found that Defendant
committed a delinquent act as a juvenile that would constitute a felony if convicted as an
adult. See T.C.A. § 40-35-114(16). The trial court applied no mitigating factors. The
trial court merged Counts Two and Three into Count One and sentenced Defendant to
eleven years.

      Defendant filed a timely motion for new trial raising the issues on this appeal
amongst other issues. The trial court denied the motion after a hearing, and this appeal
followed.

                                         Analysis

      Defendant argues that the evidence is insufficient to support his convictions
because “[o]nly flawed and inconsistent testimony linked [Defendant] to the crime.”
Additionally, Defendant argues that his sentence is excessive. The State disagrees. We
agree with the State.

                              I. Sufficiency of the Evidence

       Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. A guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
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1992). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). “In the absence of direct evidence, a criminal offense
may be established exclusively by circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (citing Duchac v.State, 505 S.W.2d 237, 241 (Tenn.
1973)). Moreover, we may not substitute our own “inferences for those drawn by the
trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further,
questions concerning the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier
of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
“The standard of review ‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” Dorantes, 331 S.W.3d at 379 (quoting State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)).

       For the purposes of this case, an aggravated assault occurs when a person
intentionally or knowingly commits an assault as defined in T.C.A. § 39-13-101, and the
assault results in serious bodily injury to another or involved the use or display of a
deadly weapon. T.C.A. § 39-13-102(a)(1)(A)(i),(iii). A person commits assault by
“[i]ntentionally, knowingly or recklessly [causing] bodily injury to another” or
“[i]ntentionally or knowingly [causing] another to reasonably fear imminent bodily
injury.” Aggravated assault is a Class C felony, but it is a Class B felony when
committed while acting in concert with two or more other persons. T.C.A. § 39-13-
102(e)(1)(A)(ii); T.C.A. § 39 -12-302(a).

       Defendant points to evidence used to impeach the State’s witnesses as proof that
the evidence was insufficient to support his convictions. Assessing the quality of witness
testimony is not within our purview. See Pruett, 788 S.W.2d at 561. So, we will
evaluate the evidence presented at trial with the jury’s accreditation of the State’s
witnesses in mind. See State v. Manning, 909 S.W.2d 11, 12 (Tenn. Crim. App. 1995)
(“A jury verdict approved by the trial judge accredits the state’s witnesses and resolves
all conflicts in favor of the state.”). Viewing the testimony presented at trial in a light
most favorable to the State, the evidence pertaining to Count One showed that Defendant,
while acting in concert with at least ten other individuals, intentionally or knowingly
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caused serious bodily injury to the victim by beating him severely with brass knuckles
until the victim suffered facial fractures and temporarily lost consciousness. With regard
to Count Two, Ms. Garza testified that Defendant had a gun, and when asked what
weapons were used to attack the victim, she replied “all of them.” From this a rational
juror could find Defendant knowingly used or displayed a deadly weapon and caused
bodily injury to the victim while acting in concert with at least ten other individuals. In
Count Three, the evidence showed that Defendant, while acting in concert with at least
ten other individuals, handed a gun to his brother and told him to shoot the victim. A
rational juror could find that action involved the use or display of a firearm and caused a
reasonable fear of imminent bodily injury in the victim. Thus, a rational juror could find
beyond a reasonable doubt that Defendant was guilty of all three counts of aggravated
assault.

                                       II. Sentencing

        When a defendant challenges the length or manner of service of a within-range
sentence, this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This
presumption applies to “within-range sentencing decisions that reflect a proper
application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at
707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)
(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). The defendant bears the
burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing
Comm’n Cmts.

        In reaching its decision, the trial court must consider the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the defendant in his own
behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-102, -
103, -210(b); see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed
“should be no greater than that deserved for the offense committed” and also “should be
the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. § 40-35-103(2), (4).

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       This Court will uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. The weighing of
various enhancement and mitigating factors is within the sound discretion of the trial
court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). Appellate courts may not
disturb the sentence even if we had preferred a different result. See id. at 346

         Defendant contends that the trial court did not make the proper considerations
before imposing his sentence. However, the trial court considered the facts presented at
trial, the criminal behavior of the defendant, and the pre-sentence report. In so doing, it is
obvious that the trial court would have considered the nature and characteristics of the
criminal conduct. Further, the trial court referred to the sentencing principles and
listened to the argument of both parties on the applicable enhancement and mitigating
factors. The record does not indicate that any statistical information was provided to the
trial court by the administrative office of the courts. Additionally, the trial court
considered Defendant’s potential for rehabilitation or treatment when it referenced
Defendant’s “tough time” growing up and Defendant’s “mental health issues.” Included
in the record are the trial court’s written findings of fact as to sentencing. It is clear that
the trial court considered all of the available information pertaining to the aforementioned
factors.

       Additionally, Defendant argues that the trial court erred in weighing the
enhancement and mitigation factors. The trial court found that three enhancement factors
applied and no mitigating factors applied in this case. The trial court merged Counts Two
and Three into Count One and sentenced Defendant to eleven years as a Range I
offender. The sentence is within the appropriate range and presumed reasonable. See
T.C.A. § 40-35-112(a)(2) (listing sentencing range of “not less than eight (8) nor more
than twelve (12) years” for a Class B felony). We will not reweigh enhancement and
mitigating factors, and we discern no abuse of discretion by the trial court.

                                         Conclusion

       For the aforementioned reasons, the judgments of the trial court are affirmed.


                                               ____________________________________
                                               TIMOTHY L. EASTER, JUDGE




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