IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 9, 2019

STATE OF TENNESSEE v. GERARDO JUAREZ aka GERARDO JUAREZORTEGA

Appeal from the Criminal Court for Shelby County

No. 15-06152 Chris Craft, Judge

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No. W2018-01054-CCA-R3-CD

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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

03/18/2019
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. 

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 J. ROSS DYER, JUDGE