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Jorge Omero Mendoza v. State of Wyoming

May 8, 2013

JORGE OMERO MENDOZA, APPELLANT (DEFENDANT),
v.
STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge

The opinion of the court was delivered by: Kite, Chief Justice.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] The district court denied Jorge Omero Mendoza's motion for a new trial after a jury found him guilty of aggravated assault and battery.*fn1 The State advanced two theories that Mr. Mendoza committed aggravated assault -- 1) he attempted to cause serious bodily injury to another with a deadly weapon; and 2) he threatened to use a drawn deadly weapon on another person. The jury found him not guilty of the first alternative, but guilty of the second. Mr. Mendoza claims the district court erred by failing to instruct the jury that he had no duty to retreat before "threatening to use a drawn deadly weapon," and he is, therefore, entitled to a new trial.

[¶2] We conclude that the jury instructions did not violate a clear and unequivocal rule of law. Consequently, we affirm.

ISSUE

[¶3] Mr. Mendoza presents the following issue on appeal:

Did the trial court err in denying the motion for new trial, which was based upon the trial court's failure to give an explanatory jury instruction regarding whether appellant had a "duty to retreat" if charged with ag[g]ravated assault pursuant to Wyo. Stat. 6-2-502(a)(iii)?

The State presents substantially the same issue, although phrased differently.

FACTS

[¶4] On May 21, 2011, Mr. Mendoza and his girlfriend attended a party to celebrate another woman's graduation from nursing school. They ended up at a bar called Mike's Big City Grill in Rawlins, Wyoming in the early morning hours of May 22, 2011. The owner of the bar, Joseph Michael Lujan, noticed Mr. Mendoza because he had been "86'd"*fn2 from the bar. Mr. Lujan followed Mr. Mendoza when he ran out the front door and saw him repeatedly striking his girlfriend while she laid on the ground. Mr. Lujan pulled Mr. Mendoza off the woman and told him to leave the property. Mr. Mendoza assumed a fighting stance and came at Mr. Lujan, who performed a "leg sweep" causing Mr. Mendoza to fall to the ground. When he got back up, Mr. Mendoza had a knife in his hand. He lunged and slashed at Mr. Lujan several times, at one point catching his shirt with the knife and tearing it.

[¶5] Mr. Mendoza's girlfriend began honking a truck horn, and, while Mr. Mendoza was momentarily distracted, Mr. Lujan tackled him. Mr. Mendoza dropped the knife, and a witness put it in the trash can. In the meantime, Mr. Lujan placed Mr. Mendoza in a chokehold and law enforcement arrived at the scene. The officers pulled Mr. Lujan off Mr. Mendoza, but Mr. Mendoza continued to fight and was arrested. The State charged Mr. Mendoza with one count of aggravated assault and battery upon Mr. Lujan, one count of misdemeanor battery upon his girlfriend and one count of misdemeanor interference with a peace officer. The aggravated assault was charged under Wyo. Stat. Ann. § 6-2-502 (LexisNexis 2011) and included the alternatives identified in subsections

(a)(ii) and (iii):

(a) A person is guilty of aggravated assault and battery if he: . . .

(ii) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon; [or]

(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to ...


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