When does a prosecutor's misstatement of justification law become harmless error? State v. Rendon Explained

Background and facts

In June 2021, Anthony Rendon and his friends attended a house party as it was winding down. After a friend got into a fight with another partygoer named Will, Rendon’s group left — but then Rendon and his friend urged the driver to turn around so the friend could “get” Will. They returned within a minute. After a second altercation, Rendon fired thirteen shots from the back seat of the car into the crowd, striking and killing Will, who was not close to the vehicle at the time. Rendon was convicted of murder and eleven counts of felony discharge of a firearm in the Third District Court. He appealed, raising three arguments centered on his justification defense.

Key legal issues

Three issues reached the Utah Court of Appeals: (1) whether the trial court erred in denying Rendon’s motion to arrest judgment under Utah Rule of Criminal Procedure 23 on the ground that the State failed to disprove justification beyond a reasonable doubt; (2) whether the court erred in instructing the jury on the initial aggressor provision of Utah Code section 76-2-402(3)(a)(iii); and (3) whether the court abused its discretion in failing to give a curative instruction after the prosecutor argued, overbroad, that “[y]ou don’t get to defend another person who was an aggressor.”

Court’s analysis and holding

The court affirmed on all three grounds. On the motion to arrest judgment, reviewed for correctness, the court found ample evidence from which a reasonable jury could reject the justification defense: Rendon fired when considerable space separated the car from the crowd, the car’s path was unobstructed, no witness testified that Rendon saw the partygoer carrying a maintenance hole cover, and the only person struck was Will — the person who had body-slammed Rendon’s friend moments earlier. The court characterized this as evidence of retaliation, which constitutes “illegal force used too late” under State v. Berriel, 2013 UT 19.

On the jury instruction challenge, reviewed for correctness as to the legal standard applied, the court held the initial aggressor instruction was proper because evidence that Rendon yelled at the driver to return to the scene — knowing his friend wanted another fight — supported a finding that his conduct was “of such a nature as would ordinarily lead to combat” under State v. Schoenfeld, 545 P.2d 193 (Utah 1976).

On the curative instruction issue, the court assumed without deciding that the prosecutor’s statement was an overstatement of the law — the statute does permit use of deadly force to protect an initial aggressor in limited circumstances — and assumed an abuse of discretion in failing to correct it. Nevertheless, the court held the error harmless because the evidence that Rendon’s use of force was unjustified was overwhelming, leaving no reasonable likelihood the omission affected the verdict.

Practice implications

Practitioners advancing a justification defense must build a record showing the defendant’s actual, contemporaneous perception of an imminent threat at the moment force was used. Evidence of a prior or dissipating threat will not sustain the defense. Additionally, when a prosecutor misstates the law during closing, a curative instruction request must be made promptly and on the record — but even a preserved objection may not yield reversal if the overall evidence of guilt is overwhelming. Finally, this opinion reinforces that the initial aggressor instruction is appropriate whenever there is competent evidence the defendant took affirmative steps to reignite a confrontation, even if someone else threw the first punch.