Mendoza v. State

Decision Date17 November 2021
Docket NumberS-21-0060
PartiesJORGE OMERO MENDOZA, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
CourtWyoming Supreme Court

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.

[¶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 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 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." 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 a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way." Id. ¶ 34, 478 P.3d at 1168. Mr. Mendoza contends the prosecutor's statements transgressed the rule that prosecutors may not misstate the law. See Hill v. State, 2016 WY 27, ¶ 61, 371 P.3d 553, 569 (Wyo. 2016) ("Even unintentional misstatements of the law are misconduct by a prosecutor." (citation omitted)); Drennen, ¶¶ 10-16, 311 P.3d at 121-23 (concluding that clear misstatements of self-defense law met the plain error standard for prosecutorial misconduct). In support of his claim, he relies solely on Drennen, which he says involved "the same types of statements[.]" We conclude the statements in Drennen are different in substance and effect.

[¶14] Mr. Drennen, who was charged with first degree murder, second degree murder, and aggravated assault and battery, claimed self-defense at trial. Drennen, ¶ 8, 311 P.3d at 121. The prosecutors in his case told the jury:

"[T]here's one general rule that shines through no matter what the scenario is: you do not shoot the unarmed man. You don't do it."
"And you just do not shoot the unarmed man."
"[I]n the state of Wyoming, there is a law against shooting an unarmed man."
"He didn't know the law. He thinks he's justified. He thinks he can shoot and kill someone even though they are unarmed."

Id. ¶ 12, 311 P.3d at 122 (emphasis added). Reading these statements in the context of the entire record, we concluded that because "the right to defend oneself in Wyoming, together with the amount and type of force used, depends upon what is reasonably necessary under the circumstances" and "the presence or absence of a weapon is relevant[, ] . . . but it is not determinative[, ]" "[t]he prosecutors' assertions that Wyoming law prohibits shooting an unarmed man were inaccurate, and the record [left] no doubt that the prosecutors misinformed the jury in that regard." Id. ¶ 13, 311 P.3d at 122. We then concluded "the prosecutors' violation of the clear and unequivocal rule of law [prohibiting prosecutors from misstating the law] affected Mr. Drennen's substantial rights." Id. ¶ 14, 311 P.3d at 122.

[¶15] The prosecutor in this case did not misstate the law. Read in context, the prosecutor's statements are about proportionality and reasonableness of force.[5] See Jones v State, 2012 WY 82, ¶ 36, 278 P.3d 729, 737 (Wyo. 2012) (considering the propriety of a voir dire statement in context); Benjamin v. State, 2011 WY 147, ¶¶ 53-54, 264 P.3d 1, 14 (Wyo. 2011) (reviewing a prosecutor's comments during voir dire in context); Ridinger, ¶ 38, 478 P.3d at 1169 (reviewing a prosecutor's closing argument...

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5 cases
  • Ingersoll v. State
    • United States
    • Wyoming Supreme Court
    • June 16, 2022
    ...a violation of a clear and unequivocal rule of law; and (3) he was denied a substantial right resulting in material prejudice.’ " Mendoza v. State , 2021 WY 127, ¶ 12, 498 P.3d 82, 85 (Wyo. 2021) (quoting Ridinger v. State , 2021 WY 4, ¶ 33, 478 P.3d 1160, 1168 (Wyo. 2021) ) (other citation......
  • Ogden v. State
    • United States
    • Wyoming Supreme Court
    • September 13, 2022
    ...39, ¶ 18, 131 P.3d 963, 969 (Wyo. 2006) ). [¶22] Mr. Ogden "bears the burden of establishing prosecutorial misconduct." Mendoza v. State , 2021 WY 127, ¶ 12, 498 P.3d 82, 85 (Wyo. 2021) (quoting Armajo , ¶ 32, 478 P.3d at 193 ). Mr. Ogden did not object to the prosecutor's statement at tria......
  • Ogden v. State
    • United States
    • Wyoming Supreme Court
    • September 13, 2022
    ... ... Bogard v. State, 2019 WY 96, ¶ 19, 449 P.3d ... 315, 321 (Wyo. 2019) (quoting Doherty v. State, 2006 ... WY 39, ¶ 18, 131 P.3d 963, 969 (Wyo. 2006)) ...          [¶22] ... Mr. Ogden "bears the burden of establishing ... prosecutorial misconduct." Mendoza v. State, ... 2021 WY 127, ¶ 12, 498 P.3d 82, 85 (Wyo. 2021) (quoting ... Armajo, ¶ 32, 478 P.3d at 193). Mr. Ogden did ... not object to the prosecutor's statement at trial, so the ... plain error standard applies. Ridinger v. State, ... 2021 WY 4, ¶ 32, 478 P.3d 1160, 1168 (Wyo. 2021) ... ...
  • Anderson v. State
    • United States
    • Wyoming Supreme Court
    • September 27, 2022
    ...them agree with him through his questions. [¶35] Anderson "bears the burden of establishing prosecutorial misconduct." Mendoza v. State , 2021 WY 127, ¶ 12, 498 P.3d 82, 85 (Wyo. 2021) (quoting Armajo v. State, 2020 WY 153, ¶ 32, 478 P.3d 184, 193 (Wyo. 2020) ). Because Anderson did not obj......
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1 books & journal articles
  • Court Summaries, 0222 WYBJ, Vol. 45 No. 1. 38
    • United States
    • Wyoming Bar Journal No. 45-1, February 2022
    • February 1, 2022
    ...Bar Journal February, 2022 Anna Reeves Olson Park Street Law Offices Casper, Wyoming Jorge Omero Mendoza v. State of Wyoming S-21-0060 2021 WY 127 November 17, The State charged Jorge Mendoza with one count of aggravated assault and battery after an incident at a Rawlins restaurant. At the ......

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