State v. Gomez

An unpublished opinion of the North Carolina Court of Appeals does not constitute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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STATE V. GOMEZ
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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STATE V. GOMEZ
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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STATE V. GOMEZ
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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STATE V. GOMEZ
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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STATE V. GOMEZ
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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