The Akron Legal News

Life sentence upheld for man who killed victim outside of bar

ANNIE YAMSON
Special to the Legal News
Published: December 19, 2013

In the 9th District Court of Appeals recently, a three-judge appellate panel ruled to affirm Angel Guerra’s conviction for aggravated murder from the Lorain County Court of Common Pleas.

According to case summary, Guerra and his accomplice, Richard Alvarado, intercepted Moises Velez and several of his acquaintances outside Southerner’s Bar in Lorain.

Velez’s companions saw that the two men had guns so they jumped into a car and drove away.

Velez stayed behind and urged Guerra and Alvarado to put away their weapons.

Guerra shot Velez in the forehead at close range, killing him within minutes.

Guerra and Alvarado fled through a nearby alley. They were identified by eyewitnesses and later arrested.

Trial testimony revealed that Velez was not the intended victim and that Guerra had actually been planning to kill Noel Cruz.

The trial court sentenced Guerra to life in prison without the possibility of parole along with a concurrent 12-month prison term for having a weapon while under disability.

Upon his appeal, Guerra challenged the sufficiency of the evidence, arguing that his conviction should be reversed because the state failed to prove that he acted with prior calculation and design.

“Guerra’s assignment (of error) is limited,” wrote Judge Donna Carr for the court of appeals. “He has not challenged the conclusion that he killed Moises Velez. Instead, he has argued that, although some evidence indicated prior calculation and design toward another intended victim, his decision to shoot Velez was made at the spur of the moment.”

The appellate panel refused to adopt Guerra’s logic.

It held that “when a defendant formulates a plan that constitutes prior calculation and design with respect to an intended victim but purposely kills another person in the course of carrying out the plan, the culpability evidenced by the prior calculation and design is transferred to the actual victim.”

In Guerra’s case, the evidence at trial was sufficient to prove that Guerra purposely killed Velez while carrying out a plan “to implement the calculated decision to kill” Noel Cruz, the intended victim.

Tension had been building for months between Guerra and Cruz.

Guerra’s brother was dating Cruz’s mother. Cruz indicated that Guerra began acting disrespectfully toward the family.

Along with other witnesses, Cruz described two incidents in June and July 2011 that illustrated the escalating conflict between the two men.

In June 2011, Cruz went to a local bar known as Club Copa with his brother and some friends, including Velez.

Cruz stepped outside and, along with several other witnesses, saw Guerra hold a gun to one of his friends outside the bar and shoot him.

During the following weeks, the tension grew and Cruz testified that Guerra’s conduct “never stopped, it got worse.”

Guerra regularly drove past Cruz, brandishing a gun and yelling things like, “I’m going to get you.”

In July 2011, another confrontation took place at Club Copa during which Cruz confronted Guerra about the shooting of his friend.

Later that month, Guerra and Alvarado approached Velez and his friends outside of Southerner’s Bar.

Alvarado testified that he and Guerra armed themselves with guns that they had loaded three days before the murder.

He stated that they went to the bar looking for Cruz but that they never found him because he was not there.

In his testimony against Guerra, Alvarado said, “We wasn’t looking for Mo Velez. It was his friend who was supposed to die.”

Considering the evidence and trial testimony, the appellate panel concluded that there was sufficient evidence to lead the jury to the reasonable conclusion that Guerra shot Velez in the course of his plan to kill Cruz.

“Because the evidence is sufficient to demonstrate that Guerra acted with prior calculation and design to kill Noel Cruz, it is also sufficient to support his conviction for the aggravated murder of Moises Velez with prior calculation and design,” wrote Judge Carr.

Guerra proceeded to challenge the admission of testimony regarding the events at Club Copa.

He contended that the trial court erred by admitting the testimony relating to the confrontations because it was not relevant and constituted other acts evidence.

“In this case, the testimony related to the ... incidents at Club Copa demonstrates the increasing hostility between the Cruz brothers and their friends and Guerra,” wrote Judge Carr.

She stated that the testimony provided a full picture for the context of Velez’s shooting death “by filling in the details surrounding the parties’ acrimonious relationship and Guerra’s threatening behavior in the weeks leading up to the murder.”

The court of appeals concluded that the other acts evidence was relevant and it overruled Guerra’s second assignment of error.

The panel also overruled Guerra’s claim that his conviction was against the manifest weight of the evidence and proceeded the affirm the judgment of the Lorain County court.

Presiding Judge Carla Moore and Judge Jennifer Hensal concurred.

The case is cited State v. Guerra, 2013-Ohio-5367.

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