Background

• Mendoza was convicted of aggravated assault and battery by threatening to use a drawn deadly weapon against Lujan; he claimed self-defense.
• The State pursued two theories under Wyoming statute § 6-2-502(a)(ii) and (iii): (ii) attempting to cause bodily injury with a deadly weapon, and (iii) threatening to use a drawn deadly weapon.
• The jury acquitted on the (ii) theory and convicted on the (iii) theory; Mendoza also was charged with misdemeanors.
• Mendoza requested a jury instruction clarifying that the duty to retreat applies to the (ii) theory but not to the (iii) theory; the court granted this modification orally but did not include it in the final instruction.
• Mendoza did not object to the final jury instructions at read, and the district court later denied the motion for a new trial; this appeal followed.
• The court ultimately held there was no plain error in the jury instructions and affirmed the conviction and denial of the new trial.

Issues

Key Cases Cited

• Baier v. State, 891 P.2d 754 (Wy. 1995) (duty to retreat; retreat before deadly force considered)
• Garcia v. State, 667 P.2d 1148 (Wy. 1983) (duty to retreat prior to resorting to deadly force)
• Hernandez v. State, 976 P.2d 672 (Wy. 1999) (retreat before resorting to deadly force)
• Creecy v. State, 210 P.3d 1089 (Wy. 2009) (jury instructions; review of charge as a whole)
• Small v. State, 689 P.2d 420 (Wy. 1984) (duty to retreat; alternative means prior to deadly force)
• Harries v. State, 650 P.2d 273 (Wy. 1982) (earlier limits on threat vs. use of deadly weapon)
• Miller v. State, 67 P.3d 1191 (Wy. 2003) (necessity and self-defense considerations)
• Garcia v. State, 667 P.2d 1148 (Wy. 1983) (duty to retreat prior to dangerous action)
• Talley v. State, 153 P.3d 256 (Wy. 2007) (plain error standard)