Mendoza v. State

• Decision Date: 17 November 2021
• Docket Number: S-21-0060
• Parties: JORGE OMERO MENDOZA, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2021 WY 127

JORGE OMERO MENDOZA, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-21-0060

Supreme Court of Wyoming

November 17, 2021

Appeal from the District Court of Carbon County The Honorable Dawnessa A. Snyder, Judge

Representing Appellant: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; H. Michael Bennett, Senior Assistant Appellate Counsel.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General.

Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

BOOMGAARDEN, Justice.

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[¶1] A jury found Jorge O. Mendoza guilty of aggravated assault and battery. He appeals his conviction, arguing that the prosecutor made three statements to the jury that misstated the law and amounted to prejudicial prosecutorial misconduct. We affirm.

ISSUE

[¶2] The issue is:

Did prosecutorial misconduct prejudice Mr. Mendoza

FACTS

[¶3] The State charged Mr. Mendoza with one count of aggravated assault and battery^[1]after an incident at a Rawlins restaurant on September 8, 2019. The case went to a jury trial in September 2020.

[¶4] The State put on two witnesses. Richard Oliver, a restaurant employee, testified he was washing dishes that night when Angel Roldan ran into the restaurant claiming a man "was chasing [] him with a knife[.]" Mr. Oliver looked out the window and saw Mr. Mendoza standing outside the restaurant, looking through the window at Mr. Roldan, running his thumb across his throat with a knife in his hand, "imitating a person's throat being cut[.]" Mr. Oliver called 911. When the police arrived, Mr. Oliver saw Mr. Mendoza throw the knife on the ground.

[¶5] Detective Matt Harnisch^[2] of the Rawlins Police Department testified that he responded to the call at the restaurant. He found Mr. Mendoza standing outside the restaurant, with a knife nearby on the ground. After he and another officer apprehended Mr. Mendoza, Detective Harnisch interviewed Mr. Oliver and Mr. Roldan. Mr. Roldan told him that he and Mr. Mendoza were at a mutual friend's house earlier that night, where Mr. Roldan was play fighting with another friend when Mr. Mendoza "for an unknown reason kicked him in the face." Mr. Roldan "pushed Mr. Mendoza down and might have punched him[.]" Mr. Mendoza then pulled out a knife, and Mr. Roldan fled the house. With the knife in his hand, Mr. Mendoza chased Mr. Roldan out of the house and through a bank parking lot until Mr. Roldan ran into the restaurant asking for help.

[¶6] Detective Harnisch explained that Mr. Roldan would not give him the address of the friend's house, but based on Detective Harnisch's familiarity with the city, he believed

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the men must have run at least 300 yards, as that was the approximate distance between the restaurant and the nearest residence across the bank parking lot. Both Mr. Oliver and Detective Harnisch stated that Mr. Roldan appeared out of breath, frantic, and scared.

[¶7] Mr. Mendoza put on three witnesses. Alisa Kalapakdee, a restaurant employee who was working that night, recalled that Mr. Roldan ran into the restaurant and Mr. Oliver called the police, but she did not remember seeing Mr. Mendoza. Anong Larsen, the owner of the restaurant, also recalled Mr. Roldan running into the restaurant, but she was not asked about Mr. Mendoza. Finally, David Smith, a private investigator hired by the defense, testified that he was unable to locate Mr. Roldan for questioning, and that Mr. Mendoza's "memory of the evening was not very good" due to sustaining a concussion. Mr. Smith said he attempted to question a few other witnesses, but he could not locate them.

[¶8] The jury found Mr. Mendoza guilty of aggravated assault and battery. The district court sentenced him to seven to ten years imprisonment with credit for time served.

DISCUSSION

[¶9] Mr. Mendoza was convicted under Wyo. Stat. Ann. § 6-2-502(a)(iii), which provides:

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

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

Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2021).

[¶10] At trial, Mr. Mendoza requested that the jury be instructed on self-defense. Though we have explained that separate self-defense instructions are unnecessary in aggravated assault and battery cases, see Cooper v. State, 2014 WY 36, ¶ 41, 319 P.3d 914, 924 (Wyo. 2014) (explaining that the "unless reasonably necessary" language in § 6-2-502(a)(iii) sufficiently "governs self[-]defense in an aggravated assault case involving threatening to use a drawn deadly weapon"); see also Drennen v. State, 2013 WY 118, ¶ 41, 311 P.3d 116, 130 (Wyo. 2013) (concluding that § 6-2-502(a)(iii) "is not difficult to understand and generally does not require additional instruction as to what constitutes legally justifiable

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action"), the court nevertheless instructed the jury as requested, with no objection from the State.^[3]

[¶11] Mr. Mendoza now contends that the prosecutor committed misconduct at trial when she misstated the law of self-defense to the jury three different times. The statements Mr. Mendoza takes issue with occurred during voir dire, the State's closing argument, and rebuttal. The prosecutor stated:

during voir dire: "You have probably all heard the saying, [d]on't bring a knife to a gunfight. I'm going to flip that around. You can't bring a gun to a knife fight."^[4]

in her closing argument: "During voir dire, I made an analogy of not bringing a knife to a gunfight. Based on the law that you have just been given, you also can't bring a gun to a fist fight."

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in her rebuttal argument: "You cannot bring a knife to a fist fight[.]"

Mr. Mendoza argues that this series of statements inaccurately represented to the jury that a defendant could never claim self-defense if he was armed with a drawn deadly weapon and his opponent was not. He asserts these statements "negated [his] self-defense claim[.]"

[¶12] Mr. Mendoza "bears the burden of establishing prosecutorial misconduct." Armajo v. State, 2020 WY 153, ¶ 32, 478 P.3d 184, 193 (Wyo. 2020) (quoting Bogard v. State, 2019 WY 96, ¶ 16, 449 P.3d 315, 321 (Wyo. 2019)). Because Mr. Mendoza did not object to these statements at trial, we review for plain error. Ridinger v. State, 2021 WY 4, ¶ 32, 478 P.3d 1160, 1168 (Wyo. 2021) (citation omitted). "To satisfy the plain error standard, Mr. [Mendoza] must show (1) the record is clear about the incident alleged as error; (2) a violation of a clear and unequivocal rule of law; and (3) he was denied a substantial right resulting in material prejudice." Id. ¶ 33, 478 P.3d at 1168 (citing Mraz v. State, 2016 WY 85, ¶ 55, 378 P.3d 280, 293 (Wyo. 2016)).

[¶13] The first requirement of plain error is satisfied because the prosecutor's statements clearly appear in the record. As to the second requirement, Mr. Mendoza "must demonstrate the existence of...