### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

STATE OF TENNESSEE v. BENITO G OMEZ Direct Appeal from the Circuit Court for Bedford County No. 14308, William Charles Lee, Trial Judge

No. M1998-00096-CCA-R3-CD - Decided May 12, 2000

The appellant, Benito Gomez, was found guilty by a Bedford Coun ty ju ry of voluntary manslaughter. In this appeal as of right, the appellant challeng es the sufficiency

of the convicting evidenceupon grounds that the State’s key witness lacked credibility. The judg ment of conviction is affirmed. Tenn. R. App. P. 3(b) A ppeal as of Right; Judg

ment of the Circ

uit Court Affirm

ed. G LENN , J. delivered the opinion of the court, in which RILEY and W ITT , J.J., joined. Gregory D. Smith, Clarksville, Tennessee, attorney for appellant, Benito Gomez. Paul G. Summers, Attorney General and Reporter, Michael Moore, So licitor General

, Elizabeth T. Ryan, Assista

nt Attorney General, William Michael McCown, District Attorney Ge neral, and Rober

t G. Crigler, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION The appellant, Benito G omez, was found guilty by a Bedf ord County jury of voluntary manslaughter, a class C felony. The trial court sentenced the appellant, as a rang e I offender, to five (5) years and three (3) months in the Department of Correct ion. In his sole issue on appeal, the appellant co ntends t

hat the State failed to present sufficient evidence to support a conviction of voluntary ma

nslaughter bey

ond a reasonable

doubt. After review, w

e affirm.

Background1 Due to Luis Anchando’s unavailability, his testimony wa s introduced via a

transcript of his prev iou s te sti mon y in t he ap pel lan t’s fir st t ria l wh ich res ult ed i n a h ung j ury. 

### -2- On May 27, 1991, Benito Ybarra appeared at the

Shelbyville Police Department and stated that he had just witnessed a murder. Ybarra led the police officers back t o the apartment of the appellant where the victim, Alphonso Martinez’s body was found. After

further interview of Ybarra, who was present at the time of the shooting, Lt. Owens obtained a warrant for the a rrest of the appellant. All ef

forts to locate the

appellant proved

unsuccessful. In 1991, the Shelbyville Police Department

entered the appellant’s name into “the NCI C.” In June of 1997, the appellant was arrested in Phoenix, Arizona, and extradited to Tennessee. The pro secu tio n’s key w itn ess es at tri al w ere Z ina Dia ne Lo ve an d Lui s An chan do, bot h eye witnesses to the murder of Alphonso Martinez. At the time, Ms. Love w as involved in a re

lationship withAnchando and expe

cting a child by

him. Ms. Love test ified that , on the dat e of the shoo ting, she and Anchando had

been visiting with

the appellant at his apartment in Shelbyville. Also present at the apartment were the victim and B en ito Ybarra. The appellant and Martinez shared the apartment. All the men present had been drinking beer. During the early morning hours of May 27 th , the appellant and Martinez began arguing. The argument arose over rent money owed by the victim to the appellant. The argument became h e ated with the victim and the appellant at times being “face to face.” After appr o ximately thirty minutes of confrontation, the appellant broke off the argument

and went into the bathroom. As he came out of the bathroom, the appellant approached the victim, placed a pistol within inches of the victim’s head and fired five shots. After shooting the victim, the appellant fled the scene. The testimony of L

uis Anchando cor

roborated the te

stimony of Ms

. Love. 1 An chando related that the victim and the appellant had been arguingand, at times, the argument escalated into physical acts of shoving by both individuals. Prior to the shooting, Anchando observed that the appellant was armedwith a pistol. Anchando admitted that he sold the pistol to the appellant. Stephanie Moran testified that, on the day

prior to the murder, she saw Anchando give a pistol to the appellant, who putit in his pocket. Anchando testified that after the appellant came out of the bathroom,

he walked over to the victim, who was seated, pointed the pistol at him and began shooting. The .22 caliber pistol was later re

covered from the

yard of the

residence. Ba

llistics tests

confirmed that

the pistol recovered in the yard was the weapon from which the fatal shots were fired. Based

upon these facts, the jury found the appellant guilty of voluntar y manslaughter.
Analysis
In the ap pellant’s only issue, he challenges the sufficiency of the convicting evidenc e . Spe cif ica lly, he argues that his conviction cannot be based upon Ms. Love’s testimony, the State’s chief witness, who had an extremely strong motive to lie, i.e. , “Either she or [Anchando ] would become the primary suspect in Martinez’s death if Benito Gomez was acquitted.”

### -3-

The appellant’s cha

llenge is one of w

itness credibility

. In essence

, the appellant a

sks th is court to trespass upon the jury’s duty to evaluate the credibility of

the witness and reweigh the evidenceintroduced at the trial by reassessing the credibility of the State’s chief witness, Ms. Zina Diane Love. The credibility of the witnesses, the weight to be given their testimony, and the reconciliationof conflicts in the evidence are matters entrusted exclusively to the jury as the triers of fact. State v. Cribbs , 967 S.W.2d 773, 793 (Tenn. 1998). It is not the prerogative of this court to revisit questions

of witness credib

ility on appe

al, that function being within the province of the trier of fact. See generally State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1 995); State v. Boling , 840 S.W.2d 944, 947 (T enn. Crim. App. 1992

). We decline the a

ppella nt’s invit ation to ove rtu rn h is c onv ict ion by ma kin g a ch oic e di ffer ent fro m th at o f th e ju ry. Under the standard of Jackson v. Virgini a , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979), we are required to review the evidence presented in the light most favorable to the State. We again emphasize

that our inquiry

is not to examine the motives of the witnesses or to revisit implau sible theories that may have been advanced. Rather, we are required to review the record to determine whether there was substantive probative evidence to support the verdict. In this case, the testimonies of Love and An chando sat isfy this question of legal sufficiency . At trial, both of these witnesses testified that they saw the appellant shoot the victim repeatedly at near point blank range resulting in his death. Thus, we find the p roof sufficient t

o support the appellant’s conviction for voluntary manslaughter. Tenn. R. App. P. 13(e); Tenn. Code Ann. § 39-13-211. The judgment of conviction is affirmed.