               IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 55

                                                         APRIL TERM, A.D. 2013

                                                                  May 8, 2013

JORGE OMERO MENDOZA,

Appellant
(Defendant),

v.                                                   S-12-0165

STATE OF WYOMING,

Appellee
(Plaintiff).


                    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.

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.
KITE, Chief Justice.

[¶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.1 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”2 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.
1
  The jury also found Mr. Mendoza guilty of misdemeanor interference with a peace officer, but he does
not challenge that conviction on appeal.
2
  This term is slang for “to dispose of” or “nix someone or something.” Dictionary of American Slang
and Colloquial Expressions (4th Ed. 2007).
                                                  1
[¶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 prevent serious bodily injury to
              another[.]

[¶6] A jury trial commenced on January 31, 2012, and Mr. Mendoza claimed he acted
in self defense when he wielded the knife against Mr. Lujan. During the jury instruction
conference, there was a great deal of discussion about the self defense instructions and
the duty to retreat. Although Mr. Mendoza did not object to the district court’s plan to
give the pattern jury instruction on the duty to retreat, he requested the jury be
specifically instructed that the duty only applied to the “attempted injury” alternative in §
6-2-502(a)(ii) and not to the “threatens with a drawn deadly weapon” alternative under
subsection (iii) of that provision. The district court agreed to that modification but failed
to include the caveat in the final instructions presented to the jury. Mr. Mendoza did not,
however, object to the given instructions. At the conclusion of the trial, the jury returned
a verdict finding Mr. Mendoza guilty of aggravated assault for threatening to use a drawn
deadly weapon against Mr. Lujan, not guilty of aggravated assault for attempting to cause
bodily injury to Mr. Lujan, guilty of misdemeanor interference with a peace officer and
not guilty of battery upon his girlfriend.

[¶7] Mr. Mendoza filed a motion for a new trial because the district court had failed to
instruct the jury that the duty to retreat did not apply to the “threatens to use a drawn
deadly weapon” alternative. The district court denied the motion for a new trial and
sentenced Mr. Mendoza. Mr. Mendoza appealed.




                                             2
                               STANDARD OF REVIEW

[¶8] New trials in criminal cases are allowed if “required in the interest of justice.”
W.R.Cr.P. 33(a). We generally review the district court’s decision on a motion for a new
trial for abuse of discretion. Lawson v. State, 2010 WY 145, ¶ 19, 242 P.3d 993, 1000
(Wyo. 2010); Hicks v. State, 2008 WY 83, ¶ 30, 187 P.3d 877, 883 (Wyo. 2008). A
district court abuses its discretion when it could not have reasonably concluded as it did.
Majors v. State, 2011 WY 63, ¶ 24, 252 P.3d 435, 441 (Wyo. 2011).

[¶9] In addition to the standard of review for a ruling on a motion for new trial, we
must apply the standard of review applicable to the claimed underlying error. See Hicks,
¶ 30, 187 P.3d at 883 (acknowledging abuse of discretion standard for reviewing order on
a motion for a new trial while applying de novo standard to claim of constitutional error
in suppressing exculpatory evidence); Barker v. State, 2006 WY 104, ¶¶ 12-13, 141 P.3d
106, 112 (Wyo. 2006) (acknowledging abuse of discretion standard for reviewing order
on a motion for a new trial and applying appropriate standard to underlying claim of
denial of right to testify). W.R.Cr.P. 30 addresses jury instructions and states in relevant
part:

                     (a) At the close of the evidence or at such earlier
              time before or during the trial as the court reasonably
              directs, any party may file written requests that the court
              instruct the jury on the law as set forth in the requests. At
              the same time copies of such requests shall be furnished to
              all parties. Before instructing the jury the court shall
              conduct a formal instruction conference out of the presence
              of the jury at which the court shall inform counsel of the
              proposed action upon their requests and shall afford them an
              opportunity to offer specific, legal objection to any
              instruction the court intends to give and to offer alternate
              instructions. No party may assign as error any portion of the
              charge or omission therefrom unless that party objects
              thereto before the jury is instructed, stating distinctly the
              matter to which the party objects and the grounds of
              objection. Before the argument of the case to the jury has
              begun, the court shall give to the jury such instructions on
              the law as may be necessary and the same shall be in
              writing, numbered and signed by the judge, and shall be
              taken by the jury when it retires.

The purpose of Rule 30 is to avoid unnecessary new trials caused by instructional errors
that could have been corrected easily if brought to the trial court’s attention at the proper
time. Schaeffer v. State, 2012 WY 9, ¶ 26, 268 P.3d 1045, 1056 (Wyo. 2012); Bloomer v.


                                             3
State, 2010 WY 88, ¶ 9, 233 P.3d 971, 974 (Wyo. 2010). In the absence of a proper
objection, the plain error standard of review applies. Id.

[¶10] The case at bar presents an atypical allegation of jury instruction error. Although
Mr. Mendoza made an appropriate request for revision of the instruction and the district
court granted it, he did not speak up when the final instructions were read without
including the agreed upon modification. This failure is particularly troubling because,
after it instructed the jury, the district court held a bench conference out of the hearing of
the jury to explain on the record why it was refusing another offered instruction. That
hearing provided a perfect opportunity for Mr. Mendoza to point out the district court’s
error, which could have immediately been corrected.

[¶11] Considering the circumstances of this case, we conclude Mr. Mendoza did not
make a proper objection and the plain error standard of review applies. “‘Plain error
exists when: 1) the record is clear about the incident alleged as error; 2) there was a
transgression of a clear and unequivocal rule of law; and 3) the party claiming the error
was denied a substantial right which materially prejudiced him.’” Kidwell v. State, 2012
WY 91, ¶ 10, 279 P.3d 540, 543 (Wyo. 2012), quoting Talley v. State, 2007 WY 37, ¶ 9,
153 P.3d 256, 260 (Wyo. 2007).

                                      DISCUSSION

[¶12] As we mentioned earlier, the district court instructed the jury on two different
theories of aggravated assault—attempting to cause bodily injury with a deadly weapon
and threatening to use a drawn deadly weapon. The jury convicted Mr. Mendoza of the
threatening alternative but acquitted him of the other. The elements of the threatening
alternative were included in Jury Instruction No. 8:

                     [T]he elements of the crime of Aggravated Assault and
              Battery – Threatens to Use Drawn Deadly Weapon, as
              charged in Count I in this case are:

              1. On or about the 22nd day of May 2011;
              2. In Carbon County, Wyoming[;]
              3. The Defendant, Jorge Mendoza;
              4. Threatened to use a drawn deadly weapon on another
                 person, Mike Lujan;
              5. When not reasonably necessary in defense of Defendant’s
                 person, property or abode or to prevent serious bodily
                 injury to another.

(Emphasis in original.) The law on self defense was incorporated into Instructions No.
13 and 14:


                                              4
                                  Instruction No. 13

                    Before the Defendant may be convicted of any
            crime, the State must prove beyond a reasonable doubt
            that the Defendant did not act in self-defense.
                    It is lawful for a person who is being assaulted to
            defend himself from attack if he has reasonable grounds for
            believing or does believe that bodily injury is about to be
            inflicted upon him. In doing so he may use all force which
            would appear to a reasonable person, in the same or similar
            circumstances, to be necessary to prevent the injury which
            appears to be imminent.
                    One who has reasonable grounds to believe that
            another will attack him, and that the anticipated attack will be
            of such a character as to endanger his life or limb, or to cause
            him serious bodily harm, has a right to arm himself for the
            purpose of resisting such attack. If the Defendant armed
            himself in reasonable anticipation of such an attack, that fact
            alone does not make the Defendant the aggressor or deprive
            the Defendant of the right of self-defense.
                    To justify acting in self-defense, it is not necessary that
            the danger was real, or that the danger was impending and
            immediate, so long as the defendant had reasonable cause to
            believe and did believe these facts. If these two requirements
            are met, acting in self-defense is justified even though there is
            no intention on the part of the other person to do the
            Defendant harm, nor any impending and immediate danger,
            nor the actual necessity for acting in self-defense.

(Emphasis added.)

                                  Instruction No. 14

                   Generally, the right to use self-defense is not available
            to one who is the aggressor or provokes the conflict.
            However, if one who provokes a conflict thereafter withdraws
            from it in good faith and informs his adversary by words or
            actions that he wants to end the conflict, and he is thereafter
            attacked, he then has the same right of self-defense as any
            other person.
                   Even if the Defendant had reasonable grounds to
            believe and actually did believe that he was in imminent


                                            5
              danger of death or serious bodily harm, the Defendant
              was justified in using deadly force to repel the danger only
              if he retreated as far as he safely could do before using
              deadly force. The law requires a person to retreat rather
              than to take the life of an adversary if there was a
              convenient mode of retreat without increasing his actual
              or apparent peril. To excuse a failure to retreat, it is
              necessary that the Defendant’s peril would be increased, or
              that it reasonably appeared that it would be increased, by
              retreat. If you find that the Defendant could have safely
              retreated but failed to do so, the Defendant cannot rely on the
              justification of self-defense.
                      The right of self-defense exists only as long as the
              threatened danger would appear to exist to a reasonable
              person in the Defendant’s position. When the danger would
              no longer appear to exist to a reasonably prudent person, the
              right to use force in self-defense ends.

(Emphasis added.)

[¶13] In determining whether the district court properly instructed the jury, we consider
the jury instructions as a whole and do not single out individual instructions, or parts of
them, or view them in isolation. Reversible error will not be found when the instructions
correctly state the law and the entire charge covers the relevant issue. Creecy v. State,
2009 WY 89, ¶ 18, 210 P.3d 1089, 1093 (Wyo. 2009); Farmer v. State, 2005 WY 162, ¶
20, 124 P.3d 699, 706 (Wyo. 2005). A defendant is not prejudiced unless he can
establish the given instructions confused or misled the jury regarding the proper
principles of law. Giles v. State, 2004 WY 101, ¶ 14, 96 P.3d 1027, 1031 (Wyo. 2004);
Lane v. State, 12 P.3d 1057, 1061 (Wyo. 2000).

[¶14] Mr. Mendoza claims the requirement in the first sentence of Instruction No. 13
that the jury consider the law of self defense for any crime means that the jury could have
imposed upon him the duty to retreat before he could threaten Mr. Lujan with a drawn
deadly weapon. He claims the jury was misled because the district court did not
specifically instruct them that the duty to retreat did not apply to the threatening
alternative. The State argues the instructions, taken as a whole, correctly informed the
jury of the law of self defense, including the duty to retreat.

[¶15] The first element of the plain error standard is satisfied in this case because the
record clearly reflects the instructions which were given and the parties’ and district
court’s discussion of the relevant principles of law. The second plain error element
requires a showing of a violation of a clear and unequivocal rule of law. In order to
prevail, Mr. Mendoza must demonstrate there is a clear and unequivocal rule of law


                                            6
stating the court must specifically instruct the jury that the duty to retreat does not apply
to the “threatens to use” alternative of aggravated assault and battery.

[¶16] The law of self defense has its roots in the legal concept of necessity. The right to
defend oneself and the amount and type of force which may be used, therefore, depend
upon what is reasonably necessary under the circumstances. Miller v. State, 2003 WY
55, ¶ 21, 67 P.3d 1191, 1197 (Wyo. 2003); Baier v. State, 891 P.2d 754, 758 (Wyo.
1995). This concept is actually included in the statutory language at issue here when it
states that a person is guilty of aggravated assault and battery if he “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.” Section 6-2-502(a)(iii)
(emphasis added). The duty to retreat pertains to the reasonableness and necessity of the
self defense action.

[¶17] Although we have discussed the duty to retreat in various cases over the years, we
are not directed to any case expressly discussing it in the context of a threat to use a
drawn deadly weapon.3 We have consistently said that a person has a duty to retreat
before using deadly force. “[T]he law in Wyoming requires that, prior to resorting to
deadly force, a defendant has a duty to pursue reasonable alternatives under the
circumstances, and that among those reasonable alternatives may be the duty to retreat.”
Baier, 891 P.2d at 760. See also, Garcia v. State, 667 P.2d 1148, 1153 (Wyo. 1983).
Similarly, in Hernandez v. State, 976 P.2d 672, 675-76 (Wyo. 1999), we approved a jury
instruction stating the defendant had a duty to retreat “prior to resorting to deadly force.”
See also, Creecy, ¶¶ 19, 29, 210 P.3d at 1094-96 (approving the following jury
instruction: “[t]he law requires a person to retreat rather than use deadly force . . .”).
Articulated another way, a person has “a duty to seek alternative means prior to using . . .
a deadly weapon with force.” Baier, 891 P.2d at 760. See also, Small v. State, 689 P.2d
420, 423-24 (Wyo. 1984).

[¶18] The law set out in these cases was included in Instruction No. 14: “[T]he
Defendant was justified in using deadly force to repel the danger only if he retreated as
far as he safely could do before using deadly force. The law requires a person to retreat
rather than to take the life of an adversary if there was a convenient mode of retreat
without increasing his actual or apparent peril.” The fact that the district court also
instructed the jury that “[b]efore the Defendant may be convicted of any crime, the State
must prove beyond a reasonable doubt that the Defendant did not act in self-defense”

3
  The district court stated in its order denying Mr. Mendoza’s motion for a new trial that Harries v. State,
650 P.2d 273 (Wyo. 1982) “arguably involved only a ‘threat’ to use a deadly weapon, not the actual use
thereof.” It is true that the charge against Mr. Harries, under an older statute, stated that he possessed a
deadly weapon (gun) with the intent to “unlawfully threaten the life or physical well being of another.”
Id. at 274 n.1. However, the jury was charged that a person is justified in using deadly force only if he
retreated first, and the evidence in the Harries case clearly showed the gun was fired, or “used” during the
altercation. Id. at 274-76.


                                                     7
does not make the instructions incorrect. The court’s statements that the State must prove
the defendant did not act in self defense before he may be convicted of any crime and that
retreat is required, if reasonable, before using deadly force were correct. Under these
circumstances, the jury was properly instructed and the instructions were consistent with
the law propounded by Mr. Mendoza, i.e., the defendant had to retreat before using
deadly force.

[¶19] This law (and the instructions) indicates the duty to retreat is limited to the
circumstances where deadly force is used rather than threatened; however, Mr. Mendoza
does not direct us to any clear rule of law stating that the duty to retreat does not apply to
the “threatens to use” alternative. The statute specifically states that a person commits
aggravated assault and battery if he “[t]hreatens 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.” Section 6-2-502(a)(iii). Under the plain language of
this statute, the jury was required to determine whether Mr. Mendoza’s threat to use a
drawn deadly weapon was reasonably necessary. In the course of that analysis, the jury
could decide whether the defendant should have retreated or withdrawn from the
altercation prior to threatening to use a deadly weapon. We have said that “the duty to
retreat, where it prevails, is applied in cases of actual assault.” Baier, 891 P.2d at 760,
citing Garcia, 667 P.2d at 1153. An actual assault takes place pursuant to the statute
when a person makes a threat with a drawn deadly weapon. Because our review is for
plain error and, thus, a search for a violation of a clear and unequivocal rule of law, we
need not make a definitive decision as to whether the duty to retreat applies to aggravated
assault under the “threatens to use” alternative. 4

[¶20] The jury instructions in this case did not violate a clear and unequivocal rule of
 law. Mr. Mendoza has, therefore, failed to establish plain error and, accordingly, we also
 conclude that the district court did not abuse its discretion by denying Mr. Mendoza’s
 motion for a new trial.

[¶21] Affirmed.




4
 Mr. Mendoza maintains that the prosecutor confused or misled the jury in his closing argument when he
discussed the duty to retreat without limiting it to the “attempted injury” alternative of aggravated assault.
This argument may have been relevant to a determination of prejudice if we had concluded the district
court violated a clear and unequivocal rule of law, but since we did not find any such error, the
prosecutor’s argument was not improper.


                                                      8
