Tingey v. State, S-16-0085

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: HILL, Justice.
• Citation: 2017 WY 5
• Parties: CODY J. TINGEY, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Decision Date: 23 January 2017
• Docket Number: S-16-0085

2017 WY 5

CODY J. TINGEY, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

S-16-0085

SUPREME COURT, STATE OF WYOMING

OCTOBER TERM, A.D. 2016
January 23, 2017

Appeal from the District Court of Uinta County
The Honorable Joseph B. Bluemel, Judge

Representing Appellant:
David McCarthy, Laramie, WY.

Representing Appellee:
Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Katherine A. Adams, Assistant Attorney General. Argument by Mr. Racines.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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 any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

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HILL, Justice.

[¶1] Cody Tingey was convicted of two counts of felony interference with a peace officer, one count of misdemeanor interference with a peace officer, and one count of misdemeanor simple assault. Mr. Tingey appeals his conviction on the interference counts, claiming the district court erred in failing to give the jury theory of defense instructions and that his Sixth Amendment right to effective assistance of counsel was violated. We affirm.

ISSUES

[¶2] Mr. Tingey states the issues on appeal as follows:

I. Did the court commit reversible error by refusing to give Mr. Tingey's proposed theory of defense instructions sufficient to apprise the jury of his theory of the case when there was competent evidence presented to support that theory?
II. Did trial counsel's failure to file a motion to suppress, renew the motion for judgment of acquittal at the end of trial, and propose appropriate theory of defense instructions violate Mr. Tingey's Sixth Amendment right to effective assistance of counsel?

FACTS

[¶3] On the evening of May 23, 2015, Cody Tingey and his girlfriend, Breanna May, had a gathering at their home in Evanston. The guests were Ms. May's sister, Tara Wisenbaker, and her husband, and another couple and their children. The adults drank alcohol and some, if not all of them, smoked marijuana. The party ended and the guests left by about 11:30 or midnight.

[¶4] After their guests left, Mr. Tingey and Ms. May got into an argument. Mr. Tingey called Ms. May's father "to figure out what to do" and because he did not want to become violent with Ms. May. After the phone conversation with Mr. Tingey, Ms. May's father, at about 1:00 the morning of May 24th, called Ms. Wisenbaker and asked her to pick up Ms. May and bring her to his home.

[¶5] Ms. Wisenbaker had been drinking earlier in the evening so she had her daughter drive her to the home of Mr. Tingey and Ms. May. When she arrived at the home and knocked on the door, Mr. Tingey let her in and led her to the guest bedroom where she found Ms. May, who appeared to be passed out. Ms. Wisenbaker woke Ms. May and told her she was there to take her to her father's home.

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[¶6] The accounts of what happened next are conflicting. According to Ms. May, she told Ms. Wisenbaker everything was fine and she and Mr. Tingey repeatedly asked Ms. Wisenbaker to leave. According to Ms. Wisenbaker, Ms. May said she wanted Mr. Tingey to leave the house, which angered Mr. Tingey. Regardless of which account is accurate, it is undisputed that Mr. Tingey then forcibly removed Ms. Wisenbaker from the home. Mr. Tingey grabbed Ms. Wisenbaker from behind, forced her through the house to the back door, with his knees against the back of her legs, and pushed her through the back door where she landed against her vehicle. Ms. Wisenbaker suffered scrapes and bruises from being knocked into objects as Mr. Tingey forced her through the house.

[¶7] When Ms. Wisenbaker was forced out the back door and against her vehicle, her daughter called 911 on her cell phone. Ms. Wisenbaker took the phone from her daughter, got in the vehicle, and instructed her daughter to pull out of the driveway and park in front of the home. Ms. Wisenbaker then reported the incident to the 911 operator, and she and her daughter waited for law enforcement to arrive.

[¶8] Officer Paul Robbins and Sergeant Preston Sheets arrived at the home at the same time, followed within seconds by Officer Kenny West and Officer Janeen Gilbert, who were riding together. Sergeant Sheets went to the front door with Officer Gilbert behind him. When Sergeant Sheets knocked on the front door and received no response, Officers Robbins and West walked up the driveway to the back door. At the back door, Officers Robbins and West smelled the odor of burnt marijuana.

[¶9] While Officers Robbins and West were at the back door, Mr. Tingey opened the front door, and the officers then returned to the front of the house to join Officer Gilbert and Sergeant Sheets. Sergeant Sheets explained what happened and what he observed when Mr. Tingey opened the front door:

Q. Okay. And what was Cody's - what was Cody Tingey's demeanor when he responded to the door?
A. When he answered the door, he was immediately abrading us with - calling us different names, F-ing pigs, bitches, yelling at us in an aggressive manner. He also was in an aggressive stance as well.
Q. And can you describe what stance he was in then at the door?
A. His - his arms were raised and kind of in fists as he would talk, clenched.
Q. Were you able to identify to him why you were there?

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A. We attempted to. It was difficult to get a word in edgewise. I attempted to let [him] know we were there because of [Ms. Wisenbaker's] call but I don't know if he heard what I was saying but I attempted to tell him.
Q. Okay. Were you able to get any information from Mr. Tingey about the altercation with Ms. Wisenbaker?
A. I was not.
Q. Did he ever acknowledge having any interactions with Ms. Wisenbaker?
A. I don't believe so.
Q. What happened - can you describe what happened while you were talking to him? Was there any other activity other than this discussion that was occurring?
A We were trying - I was also trying to talk to Breanna. They'd only opened the door just - probably a short distance, one to two feet open is all.
Q. Was Breanna there when Cody first opened the door?
A. I think she was in the living room.
Q. And so at some point were - when were you able to speak with her?
A. I don't remember the exact - the door, they'd opened and shut it on us numerous times while I was standing there and I don't remember which time it was, but she did eventually open the door herself to speak to me.
Q. Were you able to communicate with her then?
* * *A. Not very well. Cody was still yelling in the background, so it was difficult to have a conversation with her.
Q. And what was the nature of your conversation with her?
A. We were trying to see if she was okay, trying to find out what the claim was that her and Cody had been fighting. We were trying - I was attempting to ask her about that.
Q. So you had said at some point you had asked her to step outside?
A. I did.
Q. Why was that?
A. I was trying to separate her from Cody so that we could have a conversation without him yelling in the

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background, to try to defuse the situation that we had going right there because it was definitely a volatile one.
Q. And why did you assess it as volatile?
A. She didn't - she acted like she didn't want to talk to us, but then with him yelling in the background and still yelling obscenities, it made it volatile and the situation was pretty tense.
Q. So it was tense right from the start?
A. Yes.
Q. In addition to trying to communicate with the two occupants that you saw in the home, did you make any observations related to your presence there?
A. After they had opened the front door, I could smell the odor of burnt marijuana emanating from the residence.

[¶10] During the course of the attempts to communicate with Mr. Tingey and Ms. May, Sergeant Sheets remained on the front porch, with Officer Gilbert just behind him on the sidewalk a step down. Once Officers Robbins and West returned from the back door, Officer West remained near the front door on the steps and Officer Robbins was intermittently between the front porch and the vehicle where Ms. Wisenbaker was located.¹ Each of the officers was able to recognize the odor of marijuana, by training, experience, or both, and each was able to smell the odor of marijuana emanating from the front door. At one point, Sergeant Sheets stated he could smell marijuana and Mr. Tingey responded to the effect, "Of course, you smell it. I smoke it."

[¶11] Officer Robbins and Sergeant Sheets discussed the marijuana odor, and Officer Robbins stated he was going to get a search warrant for the home. Sergeant Sheets then, in a raised voice, instructed Ms. May and Mr. Tingey that they needed to leave the residence. Neither Ms. May nor Mr. Tingey complied.

[¶12] Either immediately before instructing Ms. May and Mr. Tingey to leave the residence, or immediately after, Sergeant Sheets pushed the door open so he could better see Mr. Tingey's location, which was about ten feet from the front door. When the instruction to leave the home was not complied with, the officers entered the home with the intention of escorting Ms. May and Mr. Tingey from the home. Sergeant Sheets entered first, with Officer Robbins immediately behind him. When they entered the home, Mr. Tingey came toward them in what Officer Sheets described as an aggressive manner, yelling with his fists raised.

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[¶13] Sergeant Sheets went directly toward Mr. Tingey and attempted to secure Mr. Tingey's left arm. As soon as Sergeant Sheets placed a hand on Mr. Tingey, however, he was shoved backward into a shelf and then into a chair. Sergeant Sheets did not know who or what shoved him backwards, but by the time he righted himself, Mr. Tingey was on...