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

498 P.3d 82

Jorge Omero MENDOZA, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

S-21-0060

Supreme Court of Wyoming.

November 17, 2021

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 battery¹ 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,

[498 P.3d 84

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 Harnisch² 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

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