MADISON — The Norfolk man who brutally attacked another outside of a Norfolk restaurant and store last fall will be spending the next several years in prison.
Jose F. Tamayo, 32, had previously been found guilty in Madison County District Court on charges of first-degree assault and attempted possession of Vyvanase, a prescription stimulant.
Judge James Kube said the facts of the case were disturbing.
“This was a situation back in November of last year where an individual was severely beaten outside of Tienda Leon in Norfolk, and you and your brother were responsible for that,” Kube said to Tamayo.
According to court records, Norfolk police officers responded to a report of an assault in the parking lot of the business just after 6 p.m.
A male victim was located outside of the store bleeding profusely from his head and with two teeth knocked out or damaged.
It also was determined that the victim’s wallet was missing.
The victim told police that he was coming out of Tienda Leon when he was approached by two men, one of whom tried to pick a fight.
The victim said he then got into his vehicle and attempted to leave, but both men were in the way, so he got out to tell them to move.
At that point, the man who had tried to pick a fight — Tamayo — pulled him down and both men began to hit and kick him in the head and face, the victim said.
A witness later told police she had seen Tamayo and his brother, Angel Villalobos, with blood on their shoes and speaking about assaulting a man. She also said Tamayo had the victim’s wallet.
A search warrant at the brothers’ mother’s house later turned up a pair of steel-toed boots with blood on them and the victim’s wallet, as well as a pair of sneakers that had blood on them.
In court Thursday, Judge Kube asked Tamayo if he remembered the assault, and Tamayo said that he did.
Tamayo said in court that the victim had come out of the store angry and rambling and had threatened to punch him and to kill him.
“He was talking to me in Spanish, saying bad words to me ... and then he punched me. I still didn’t do anything, then he kicked me in the shin, and that’s when we started the fight,” Tamayo said.
“I punched him, and he fell to the floor and I started kicking him. And he was spitting blood at me and said, ‘I’m going to kill you,’ ” he said.
Kube asked Tamayo if he had kicked the victim in the head and face and if he was wearing boots at the time. Tamayo answered yes to each question.
Kube noted that Tamayo’s prior criminal history included aggressive behavior such as a couple of domestic battery charges that were later dropped when the victim backed out of testifying and a protection order violation involving his mother.
Deputy County Attorney Matthew Kiernan said this type of crime, “a vicious assault for no reason,” is the type that terrifies the public.
He said the victim had gone to Tienda Leon for baking supplies, and when he exited the store, he was approached by Tamayo and Villalobos, who began to verbally harass him.
The victim had no idea who the brothers were, and words were exchanged, Kiernan said. He said the victim tried to de-escalate the situation and leave in his car but was unable to because Villalobos stood in the way.
“(The victim) got out to shoo them away, and (Tamayo) knocked him to the ground and started kicking and punching him,” Kiernan said.
The lion’s share of the victim’s injuries that night were caused by the steel-toed boots Tamayo was wearing, Kiernan said.
“Police reports said they were ‘devastating blows’ to his head and face,” he said.
The victim’s injuries included a large gash on his head, three lost teeth, bruised ribs and trauma to his neck that required a couple of months of physical therapy for extreme whiplash, Kiernan said.
Tamayo’s attorney, Brad Ewalt, said his client is sorry about the incident and indicated he had been drinking that night.
“We’ve heard a couple of different stories here. ... Only those three people know what happened that night,” Ewalt said.
Statements from Tamayo’s girlfriend, as well as letters of reference from different people, indicate that his behavior the night in question was out of character, Ewalt said.
He agreed that Tamayo “has a somewhat violent criminal history” but said that his client had seemed to have gotten better over the past few years.
“He’s asked me to tell the court that this is not the type of person he is. ... (Capt. Terry) Kotrous has indicated that Mr. Tamayo has been a model prisoner. He attends AA and NA and church services. ... It’s kind of hard to take what happened in November and take what everybody sees in Mr. Tamayo — his girlfriend said he’s basically a gentle giant — and see how these two people come together,” Ewalt said.
While Tamayo was found with a Vyvanase pill in his possession, he was tested and found to not have taken any drugs on the night of the assault. Tamayo's biggest issue seems to be alcohol, Ewalt said.
He asked the court to consider a term of probation or a shorter jail sentence that would allow him to pay restitution to the victim.
Tamayo addressed the court when given the opportunity to do so.
“I just want to say that I first of all apologize to the court, and I’m sorry to all the people I hurt through my actions. I’m truly sorry,” he said.
Kube said when he considered Tamayo’s version of what happened outside of Tienda Leon, “it’s absolutely not believable. ... There’s no evidence I have from any police reports that this victim was at all responsible for what happened that night,” Kube said.
He then sentenced Tamayo to a total of 9-13 years in the Nebraska Department of Corrections with credit for 255 days served. Tamayo must serve at least 4½ years, less 255 days, before he is first eligible for parole and at least 6½ years before his mandatory release.
Tamayo also was ordered to pay $4,838.79 in restitution, jointly and severally with co-defendant Villalobos. Villalobos was sentenced in July by Judge Mark Johnson to 6-10 years in prison on a charge of robbery. A first-degree assault charge in that case was dismissed per a plea agreement.