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SALT LAKE CITY — The criminal case against an officer accused of shooting his parolee three times after he said the man pounded on his unmarked police car was dropped Tuesday.
Prosecutors say new developments spoiled their case, but Andrew Reed O'Gwin's attorney says they never had a case in the first place.
Adult Probation and Parole agent O'Gwin, 49, faced a charge of aggravated assault, a second-degree felony, after prosecutors determined he was not legally justified when he shot Joe Alvin Gomez, who survived, in 2017. Neither man recognized the other at the time, Gomez's attorney has said.
Prosecutors asked a judge to dismiss the criminal charge on Tuesday because witness accounts have changed and Gomez is now facing federal drug distribution charges, making it difficult to pull him back into court as a witness, said Salt Lake County District Attorney Sim Gill.
"There was enough shifting that was occurring from a factual perspective that our assessment changed, so based on that, our attorneys were concerned," Gill said. "This happens in cases all the time, where witnesses' stories sometimes change slightly enough to change the perspective, where we say we can't meet our burden of proof. And that's what happened."
O'Gwin's attorney, Jeremy Jones, said the resolution confirms his client never broke the law.
"All we're getting today is finally a recognition that this case shouldn't have been brought in the first instance," Jones said. Witness statements have been unreliable and inconsistent throughout the case, he said, and Gomez has gang ties and several drug convictions, so the new federal case should not come as a surprise.
Gill said he stands by his determination that O'Gwin was not legally justified in firing at Gomez, a statement Jones said "doesn't add up." Jones said he was preparing a letter asking Gill to revisit the conclusion and citing the state's own arguments in court.
O'Gwin has been on administrative leave, Jones said, but he expects his client will soon return to work.
On May 13, 2017, O'Gwin was stopped at the intersection of 4500 S. Main waiting to make a turn when he said Gomez got out of his car and threw something at his window, then punched the window three times with an object in his hand, charging documents state.
O'Gwin said he fired five times through the car window because he feared for his life. Gomez was struck three times.
Investigators did not find damage to the window other than from gunfire and Gomez did not have hand injuries, according to the charges. Gill concluded that O'Gwin's account conflicted with those of witnesses, who reported Gomez did not strike the parole agent's vehicle.
Gill said Tuesday that one witness who reported Gomez had nothing in his hands just before he was shot was originally thought to be parked nearby, but it has since come to light that his car was moving at the time. He declined to detail how other evidence in the case has changed.
Karra Porter, Gomez's attorney last year, said at the time that her client was a passenger in a car stopped right next to O'Gwin but neither man recognized the other.
"You don't shoot five times unless you’re grossly overreacting," she said.
Her client at the time told investigators that he was throwing a cigarette out the window, but ash landed in his lap and began burning him so he got out of his car and was yelling and brushing off his pants.
"Gomez said that while he was brushing off his pants, he was shot," charging documents say.
It was only after he got to the hospital that Gomez found out he had been shot by his own parole officer. He was treated for gunshot wounds to his chest and left arm, plus an eye injury from glass.
O'Gwin also told investigators "he was 'kind of zoning out' at the red light," according to Gill's report. Porter believed this may have played a factor in O'Gwin impulsively shooting, while Jones suggested the criminal charge was politically motivated because Gill was running for re-election.
Gomez's new attorney did not return a message for comment Tuesday.
Gomez was sent back to the Utah State Prison for a parole violation and was not released until seven months later, Porter said. He was later cited for disorderly conduct for getting out of his vehicle the day he was shot and was ordered to serve a month of probation, court documents show.
