Wednesday, May 08, 2013

Summary 2013 WY 55

Summary of Decision May 8, 2013

Chief Justice Kite delivered the opinion for the Court. Affirmed.


Docket Number: S-12-0165


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

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General.

Date of Decision: May 8, 2013

Facts: The district court denied Jorge Omero Mendoza’s motion for a new trial after a jury found him guilty of aggravated assault and battery. 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.

Issues: 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. 6-2-205(a)(iii)?

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

Holdings: The jury instructions in this case did not violate a clear and unequivocal rule of law. Mr. Mendoza, therefore, failed to establish plain error and, accordingly, the Court also concluded that the district court did not abuse its discretion by denying Mr. Mendoza’s motion for a new trial. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

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