IN THE SUPREME COURT, STATE OF WYOMING

2017 WY 5

OCTOBER TERM, A.D. 2016

January 23, 2017

CODY J. TINGEY,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-16-0085

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.
1

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.
2

[¶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, Fing 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?
3

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 
4

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.

 

1 Officer Robbins was the only officer to wear an audio recorder on his person, and that recording was 

entered into evidence. It was not a complete account of the events that transpired on the front porch 

because Officer Robbins was not on the front porch for the entire incident.
5

[¶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 the floor and Officers West and Gilbert had entered the home and were assisting in the 

attempt to secure Mr. Tingey.

[¶14] At the time Sergeant Sheets was shoved away, Officer Robbins had a hand on Mr. 

Tingey’s right wrist. Mr. Tingey was struggling and fighting, and when Officer Robbins 

attempted to pull Mr. Tingey’s arm around his back, they both ended up on the floor with 

Mr. Tingey on his back and Officer Robbins on top of him. Mr. Tingey then punched 

Officer Robbins three times in the face, causing pain, bruising and swelling.

[¶15] When Officer West attempted to help, Mr. Tingey grabbed and bent his glasses. 

Officer West also suffered a loosened front tooth, but he did not know how that had 

occurred. When the officers were able to get Mr. Tingey onto his stomach, he was still 

kicking, and Officer Gilbert attempted to secure his legs by sitting on them. In the course 

of that attempt, Officer Gilbert was kicked in her calf and suffered bruising.

[¶16] Once Mr. Tingey was handcuffed and had been searched, the officers attempted to 

move Mr. Tingey into a seated position on the ground. As they were moving him, Mr. 

Tingey swung his legs around and kicked Sergeant Sheets in the groin, causing him 

moderate testicular pain that dissipated to a dull pain after about three hours. When the 

officers again secured Mr. Tingey, they raised him to his feet and escorted him from the 

home and to Officer Robbins’ patrol vehicle.

[¶17] Mr. Tingey continued to swear at the officers, and when the officers attempted to 

place him in the patrol vehicle, he spit in Officer West’s face and tried to head butt him. 

Mr. Tingey then refused to be placed in the vehicle. Eventually, at Mr. Tingey’s request, 

Sheriff’s Deputy Kirby Lamb was called to the scene and was able to calm Mr. Tingey 

enough to get him in the patrol vehicle.

[¶18] After Mr. Tingey was escorted from the scene, Ms. May was asked to leave the 

residence and she willingly complied. Officers then entered the home to ensure there 

were no other occupants and having found no one else, they waited outside until a search 

warrant was obtained. Once a search warrant was obtained, Ms. May was allowed to 

remain in the living room while the home was searched. During the search, officers 

recovered marijuana, marijuana-related paraphernalia, edibles with THC content, and 

miscellaneous bags of pills and tablets.

[¶19] On June 15, 2015, the State filed an information charging Mr. Tingey with three 

counts of felony interference with a peace officer based on allegations that he 
6

intentionally and knowingly caused bodily injury to Sergeant Sheets and Officers 

Robbins and West. The State later amended the information to add a charge of 

misdemeanor simple assault, alleging Mr. Tingey attempted to cause bodily injury to Ms. 

Wisenbaker.

[¶20] A three-day jury trial was held on January 4-6, 2016, and the jury returned a 

verdict finding Mr. Tingey guilty of two counts of felony interference with a peace 

officer on the charges relating to Sergeant Sheets and Officer Robbins, one count of 

misdemeanor interference with a peace officer on the charge related to Officer West, and 

one count of misdemeanor simple assault on the charge related to Ms. Wisenbaker. On 

February 11, 2016, the district court entered a judgment sentencing Mr. Tingey to serve 

eighteen months to seven years on each of the felony interference counts and 180 days on 

the misdemeanor interference count, to be served concurrently. Mr. Tingey was ordered 

to pay a fine of $750.00 on the misdemeanor simple assault count. On February 26, 

2015, Mr. Tingey filed his notice of appeal to this Court.

DISCUSSION

I. Failure to Give Theory of Defense Instructions

[¶21] The jury was given elements instructions on both felony interference with a peace 

officer and the lesser included offense of misdemeanor interference with a peace officer. 

Misdemeanor and felony interference with a peace officer are statutorily defined as 

follows:

(a) A person commits a misdemeanor punishable by 

imprisonment for not more than one (1) year, a fine of not 

more than one thousand dollars ($1,000.00), or both, if he 

knowingly obstructs, impedes or interferes with or resists 

arrest by a peace officer while engaged in the lawful 

performance of his official duties.

(b) A person who intentionally and knowingly causes 

or attempts to cause bodily injury to a peace officer engaged 

in the lawful performance of his official duties is guilty of a 

felony punishable by imprisonment for not more than ten (10) 

years.

Wyo. Stat. Ann. § 6-5-204 (LexisNexis 2015) (emphasis added).

[¶22] Mr. Tingey’s theory of defense was that the officers who entered his home were 

not engaged in the lawful performance of their duties. More particularly, Mr. Tingey 

asserted: 1) the officers had no legal basis to enter his home and were therefore not 
7

engaged in the lawful performance of their duties when Mr. Tingey became physically 

violent, which is a defense to the charge of interference; and 2) because the officers were 

not lawfully in the home, he had a right to use self defense against them.

[¶23] In furtherance of his defense, Mr. Tingey offered five jury instructions, four on 

self defense and one on search and seizure. The four self defense instructions, which 

were proposed instructions A, B, D, and E, read:

INSTRUCTION NO. A

It is lawful for a person who is being assaulted to defend 

himself from attack if he has reasonable grounds for believing 

and 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.

INSTRUCTION NO. B

A person who has reasonable grounds to believe, and actually 

does believe that he is threatened with an attack that justifies 

the exercise of the right of self-defense, need not retreat or 

consider whether he can safely retreat, so long as he does not 

use deadly force. He is entitled to stand his ground and use 

such force as is reasonably necessary under the circumstances 

to secure himself from the attack. This law applies even 

though the assailed person might have been able to gain 

safety by flight or by withdrawal from the scene. 

INSTRUCTION NO. D

A person may defend his home or habitation against anyone 

who manifestly intends or endeavors in a violent or riotous 

manner, to enter that home or habitation and who appears to 

intend violence to any person in that home or habitation. The 

amount of force which the person may use in resisting such 

trespass is limited by what would appear to a reasonable 

person, in the same or similar circumstances, necessary to 

resist the violent or unlawful entry. A person is not bound to 

retreat even though a retreat might safely be made. A person 

may resist force with force, increasing it in proportion to the 

intruder’s persistence and violence if the circumstances 
8

apparent to him are such as would excite similar fears and a 

similar belief in a reasonable person. 

INSTRUCTION NO. E

A person who unlawfully and by force enters or attempts to 

enter another’s home or habitation is presumed to be doing so 

with the intent to commit an unlawful act involving force or 

violence.

[¶24] Mr. Tingey’s proposed instruction on search and seizure law, which was proposed 

instruction C, quoted Article 1, Section 4 of the Wyoming Constitution. It read:

INSTRUCTION NO. C

You are instructed that the Wyoming Constitution provides 

“The right of the people to be secure in their persons, houses, 

papers, and effects against unreasonable searches and seizures 

shall not be violated, and no warrant shall issue but upon 

probable cause, supported by affidavit, particularly describing 

the place to be searched or the person or thing to be seized.”

[¶25] The district court refused the five instructions. The court refused the self defense 

instructions on the ground that self defense is available against a police officer only upon 

a showing that the officer used excessive force. The court refused Instruction No. C, the 

quote from the Wyoming Constitution, on the ground that the instruction would not be 

helpful to the jury and would cause confusion.

[¶26] Mr. Tingey contends that the district court erred in denying his proposed jury 

instructions A, B, D, and E, and his proposed jury instruction C. He further contends that 

the court committed plain error in failing to on its own provide the jury with proper 

theory of defense instructions.

A. Standard of Review

[¶27] The failure to give an offered instruction on the law related to a theory of defense 

is a due process issue, which this Court reviews de novo. James v. State, 2015 WY 83, 

¶ 17, 357 P.3d 101, 105 (Wyo. 2015) (citing Nelson v. State, 2010 WY 159, ¶ 13, 245 

P.3d 282, 285 (Wyo. 2010)). The failure to give an instruction that is not offered by a 

defendant is reviewed for plain error. Vaught v. State, 2016 WY 7, ¶ 13, 366 P.3d 512, 

515 (Wyo. 2016); Schaeffer v. State, 2012 WY 9, ¶ 26, 268 P.3d 1045, 1056 (Wyo. 

2012). To prevail on his claim of plain error, Mr. Tingey
9

must establish by reference to the record that a clear and 

obvious violation of a clear and unequivocal rule of law 

adversely affected a substantial right to such a degree that he 

was materially prejudiced. To show material prejudice, [Mr. 

Tingey] must demonstrate a reasonable possibility that the 

jury verdict would have been more favorable in the absence 

of the error. Kovach v. State, 2013 WY 46, ¶ 79, 299 P.3d 97, 

122 (Wyo.2013). To establish that failure to give the 

instruction violated a clear rule of law, he must provide 

authority showing that, at the time of his trial, Wyoming law 

had a clear-cut requirement that juries be given the instruction 

he now champions. Causey v. State, 2009 WY 111, ¶¶ 20–21, 

215 P.3d 287, 293–94 (Wyo.2009).

Vaught, ¶ 14, 366 P.3d at 516 (footnote omitted).

B. Analysis

[¶28] We will first address Mr. Tingey’s claim that the district court erred in refusing his 

proffered theory of defense instructions. We will then address his plain error claim.

1. Refusal of Proffered Instructions

[¶29] As reflected in our standard of review, a defendant has a due process right to a 

jury instruction that details the defendant’s theory of the case. James, ¶ 18, 357 P.3d at 

105 (quoting Nelson v. State, 2010 WY 159, ¶ 14, 245 P.3d 282 at 285-86 (Wyo. 2010)). 

We have also said, however, that:

“[n]ot every instruction must be given simply because there is 

a claim that it incorporates a theory of the case.” Wilkening v. 

State, 922 P.2d 1381, 1383 (Wyo.1996). A trial court may 

properly refuse to give a proposed instruction if it is 

erroneous, confusing, argumentative, or if the instruction 

unduly emphasizes one aspect of the case, the law, or the 

defendant’s version of the events. Madrid v. State, 910 P.2d 

1340, 1346 (Wyo.1996); Jansen v. State, 892 P.2d 1131, 1140 

(Wyo.1995); Virgilio v. State, 834 P.2d 1125, 1128 

(Wyo.1992).

Iseli v. State, 2007 WY 102, ¶ 10, 160 P.3d 1133, 1136 (Wyo. 2007) (quoting Farmer v. 

State, 2005 WY 162, ¶ 23, 124 P.3d 699, 707 (Wyo. 2005)).
10

[¶30] This is precisely the problem with the theory of defense instructions offered by 

Mr. Tingey. They were either erroneous statements of law or would do no more than 

create confusion.

a. Self Defense Instructions Offered by Defense

[¶31] We begin with Mr. Tingey’s four proposed self defense instructions. The law in 

Wyoming is clear that self defense is not available against a peace officer unless the 

officer uses excessive force. CG v. State, 2011 WY 28, ¶ 15, 248 P.3d 186, 190 (Wyo. 

2011); Iseli, ¶ 18, 160 P.3d 1138. Mr. Tingey’s four proffered self defense instructions 

did not reflect this limitation and were not correct statements of the law as it pertains to 

the availability of self defense against a peace officer. The district court therefore did not 

err in refusing the instructions.

[¶32] Mr. Tingey next argues that the self defense instructions should have been given 

because he offered the district court a variation on the instructions that would have 

corrected them. We do not agree that the variation suggested during the instructions 

conference would have corrected the self defense instructions. Defense counsel argued 

as follows for the variation:

[Defense Counsel]: * * * But I think the instructions 

can be cleaned up to the extent of if you find that the officers 

engaged in the lawful performance of their duty, then the 

defendant has no right to self-defense. But in the event you 

find against, the officers are not engaged in a lawful 

performance of their duties, then this is the law and it should 

be given.

THE COURT: Are you talking about that as an 

additional argument in support of your instructions A and B 

or just D and E or both of them?

[Defense Counsel]: I think on all four of them, your 

Honor.

THE COURT: Okay. So, in essence, you’re 

asking for a revision on the instruction that if – in essence, 

first, go through and see if you think the officers were 

lawfully performing their duty; is that right?

[Defense Counsel]: Right. And if they believe it is, 

that’s the end of it. Self-defense, resisting intruder, assailed 

defense –

THE COURT: Doesn’t apply?

[Defense Counsel]: -- danger of intruder would not 

apply. But in the event there’s a finding by the jury of one of 

the elements of the crimes of the three counts, that, in fact, 
11

they were not in the lawful performance of their duty, I think 

the law at that point is they do have that right and I think 

[Mickelson], at least impliedly, implies that.

* * *

THE COURT: Okay. Well, the Court’s 

considered the arguments of both Counsel and the Court’s 

going to stand by my decision to not give A, B, D, and E.

[¶33] The variation offered by Mr. Tingey was essentially an instruction that a defendant 

is allowed to use self defense, meaning force, against a peace officer if that officer 

unlawfully enters the defendant’s home. That is not the law. We have said:

When an individual is confronted by a uniformed police 

officer attempting to effect an arrest [or secure a premises], 

any act of self-defense also amounts to resisting arrest [or 

interference]. In such a situation, a claim of self-defense is 

circumscribed by what we said in Roberts v. State, Wyo., 711 

P.2d 1131, 1135 (1985):

“There may be situations in which police activity is so 

provocative and resistance so understandable that it can 

only be concluded that the police were not engaged in the 

lawful performance of their official duties.”

If that situation is present, the law permits a person to use 

such force as he reasonably believes necessary to protect 

himself against excessive force by the officer which might be 

considered a separate assault. State v. Holley, Fla., 480 So.2d 

94 (1985); State v. Thomas, Mo., 625 S.W.2d 115 (1981); 

State v. Castle, 48 Or.App. 15, 616 P.2d 510 (1980); State v. 

Eckman, 9 Wash.App. 905, 515 P.2d 837 (1973); Annot., 77 

A.L.R.3d, § 2 at 284–286.

Best v. State, 736 P.2d 739, 745 (Wyo. 1987) (emphasis added).

[¶34] When a peace officer uses excessive force, he is not considered to be engaged in 

the lawful performance of his official duties, and the law permits a person to use the force 

he or she reasonably believes is necessary to protect against that use of excessive force. 

Yetter v. State, 987 P.2d 666, 669 (Wyo. 1999). This does not mean that any instance of 

unlawful conduct by a peace officer will justify force against that officer. For example, a 

peace officer’s entry of a premises in contravention of the occupant’s constitutional rights 

but without excessive force will not entitle the occupant to use force against the peace 
12

officer or act in self defense. Mr. Tingey’s reliance on Mickelson v. State, 906 P.2d 1020 

(Wyo. 1995) to argue otherwise is misplaced.

[¶35] In Mickelson, police officers entered a private business without a warrant and 

without consent or the presence of exigent circumstances. Mickelson, 906 P.2d at 1022-

23. When Mickelson tried to block the officers’ entry, one of the officers grabbed 

Mickelson’s arm and a fight ensued. Id. at 1022. Mickelson was then charged with 

felony interference with a peace officer and convicted on the lesser charge of 

misdemeanor interference. Id. This Court reversed the conviction, explaining:

The legality of Mickelson’s arrest, however, is elemental to 

his alleged crime. Interference with a peace officer is not a

crime unless the officer is “engaged in the lawful 

performance of his official duties.” Wyo.Stat. § 6–5–204(a)

and (b). Officer Ernst was not lawfully in the Fireside, ergo 

Mickelson’s conviction cannot stand.

Mickelson, 906 P.2d at 1023.

[¶36] Mickelson does not countenance the use of force against a police officer in the 

event the officer acts unlawfully in performing his official duties. Mickelson recognizes 

that unlawful performance is a defense to an interference charge, but it does not sanction 

use of force or self defense against a peace officer upon a finding of unlawful 

performance. The precondition the law imposes for a claim of self defense against a 

peace officer is not merely a finding of unlawful performance but a finding that the 

officer used excessive force.2 The revised self defense instructions proposed by Mr. 

 

2 This distinction makes sense. Massachusetts has similarly held that a person has no right to use force 

against an unlawful entry by police unless the police use excessive or unnecessary force against the 

person. Commonwealth v. Gomes, 795 N.E.2d 1217, 1224 (Mass. App. Ct. 2003). In so holding, the 

Massachusetts court observed:

The Moreira rationale is equally compelling in the context of resistance to 

possibly unlawful entry by police in the performance of their duties. As with the 

lawfulness of an arrest, the lawfulness of police entry into a residence often 

presents close and peculiarly fact-dependent questions as to which lawyers and 

even judges may disagree. [Commonwealth v. Moreira, 388 Mass. 596, 600, 447 

N.E.2d 1224 (1983)]. See Commonwealth v. Forde, 367 Mass. at 805, 329 

N.E.2d 717 (distinction between entry to search and entry to arrest is slight); 

Commonwealth v. Pietrass, 392 Mass. at 897 n.8, 467 N.E.2d 1368 (for purposes 

of Fourth Amendment, no difference whether search of home is for a person or a 

thing). Such questions, which are only resolved later with the benefit of 

dispassionate reflection, are particularly ill-suited to the split-second judgments 

required of police in their interactions with the citizenry. “Such a close question 

is more properly decided by a detached magistrate rather than by the participants 

in what may well be a highly volatile imbroglio.” Commonwealth v. Moreira, 
13

Tingey did not make this distinction and so those instructions again misstated the law. 

The district court therefore did not err in refusing the revised self defense instructions.

b. Search and Seizure Instructions Offered by Defense

[¶37] We turn next to the district court’s refusal of Mr. Tingey’s proposed Instruction C, 

which was a verbatim quote of Article 1, Section 4 of the Wyoming Constitution. Mr. 

Tingey presents several arguments concerning the grounds for warrantless entry of a 

home, and warrantless arrest of a person, and during both the direct and crossexamination of the officers during the trial, there was testimony concerning the officers’

understanding of the United States Constitution and their perception of the exigent 

circumstances. Proposed Instruction C, however, spoke to none of those questions. The 

proposed instruction provided no guidance to the jurors concerning probable cause for 

obtaining a warrant or the parameters of a warrantless entry or arrest. Because the 

instruction provided no direction on the questions relating to Mr. Tingey’s defense, we 

agree with the district court that it would have done no more than create confusion.

2. Allegation of Plain Error in Failure to Give Theory of Defense Instructions

[¶38] Mr. Tingey asserts that the district court committed plain error in failing to sua 

sponte provide appropriate theory of defense instructions to the jury. This claim is 

loosely asserted and we are hampered in our plain error review because, while Mr. 

Tingey asserts plain error, he provides no plain error analysis and has not identified the 

instructions he contends the district court should have given. We would typically decline 

any further review under these circumstances, but because of the due process 

implications surrounding theory of defense instructions, we will address the plain error 

claim.

[¶39] We presume from the nature of Mr. Tingey’s defense and his arguments on appeal 

that the instructions he contends should have been given would provide a framework to 

 

388 Mass. at 600, 447 N.E.2d 1224. If a police officer makes an entry into a 

dwelling, with or without a warrant, that is ultimately determined to be unlawful, 

the remedy is to be found in the courts. Ibid.

* * * [T]he rule the defendants would have us espouse, that an individual may 

forcibly resist an entry by police that is later determined to be unlawful, would 

encourage violence and erode the very security that our Federal and State 

Constitutions are designed to protect. Indeed, resistance would frequently result 

in far graver consequences for both the officer and the occupant than the 

unlawful intrusion itself. * * *

Gomes, 795 N.E.2d at 1225 (citations omitted); see also Roberts v. State, 711 P.2d 1131, 1134 (Wyo. 

1985) (“Even if the person arrested is absolutely certain that his arrest is a mistake, he should nevertheless 

cooperate with the arresting officer and employ remedies available through the judicial system.”).
14

assist the jury in determining whether the officers were engaged in the lawful 

performance of their official duties. More particularly, those instructions may have 

instructed the jury on the circumstances that justify a warrantless entry or arrest, and they 

may have instructed that self defense against a peace officer is permitted if the peace 

officer uses excessive force. While any of these instructions may have properly been 

given to the jury if requested, we cannot find plain error in the district court’s failure to 

give them sua sponte.

[¶40] As we indicated above, to establish plain error, Mr. Tingey must show there was a 

“clear-cut requirement” that the instruction at issue be given and a reasonable possibility 

that the jury verdict would have been more favorable had the instruction been given. 

Vaught, ¶ 14, 366 P.3d at 516. Because theory of defense instructions implicate due 

process concerns, a court must give such an instruction if there is any competent evidence 

to support the theory. James, ¶ 18, 357 P.3d at 105 (citing Nelson, ¶ 14, 245 P.3d at 285-

86). The evidence must be viewed in the light most favorable to the defense, and even 

evidence that is weak, or unworthy of belief, is sufficient if a jury could reasonably 

conclude the evidence supports the defendant’s position. Id. If an instruction is not a 

theory of defense instruction, the district court’s decision to give the instruction is 

discretionary:

* * * We review a district court’s decision on jury 

instructions for an abuse of discretion. Adekale v. State, 2015 

WY 30, ¶ 37, 344 P.3d 761, 770 (Wyo. 2015) (quoting 

Budder v. State, 2010 WY 123, ¶ 7, 238 P.3d 575, 577 (Wyo. 

2010)). District courts have substantial latitude to tailor jury 

instructions to the facts of the case. Id. “A trial court does not 

abuse its discretion by referring the jury to instructions that, 

when viewed as whole and in the context of the entire trial, 

fairly and adequately cover the issues.” Id.

The following is also instructive when reviewing a district 

court’s decision regarding jury instructions:

When we review claims of error involving jury 

instructions, the district court is afforded significant 

deference. Luedtke v. State, 2005 WY 98, ¶ 28, 117 P.3d 

1227, 1232 (Wyo.2005). A district court is “given wide 

latitude in instructing the jury and, as long as the 

instructions correctly state the law and the entire charge 

covers the relevant issue, reversible error will not be 

found.” Id. (citations omitted); see also Hawes v. State, 

2014 WY 127, ¶ 15, 335 P.3d 1073, 1078 (Wyo.2014). Its 

ruling on an instruction must be prejudicial to constitute 
15

reversible error. Heywood v. State, 2007 WY 149, ¶ 26, 

170 P.3d 1227, 1234 (Wyo.2007) (citation omitted), 

abrogated on other grounds by Granzer v. State, 2008 

WY 118, 193 P.3d 266 (Wyo.2008). Because the purpose 

of jury instructions is to provide guidance on the 

applicable law, prejudice will result when the instructions 

confuse or mislead the jury. Id.

Brown v. State, 2015 WY 4, ¶ 40, 340 P.3d 1020, 1031 (Wyo. 

2015).

Dougherty v. State, 2016 WY 62, ¶¶ 10-11, 373 P.3d 427, 431 (Wyo. 2016).

a. Excessive Force Instruction

[¶41] We address first the alleged error in the district court’s failure to instruct the jury 

on the law governing self defense in response to a peace officer’s use of excessive force. 

At the outset, we reject Mr. Tingey’s assertion that this was a theory of his defense. In 

our record review, we found no argument to the district court or the jury that the officers 

who entered Mr. Tingey’s home used excessive force. Indeed, the index to the trial 

transcript shows only one use of the word “excessive,” and that is when the district court 

explained its basis for rejecting Mr. Tingey’s proffered self defense instruction. The 

defense theory, the one argued to the jury, was not excessive force but was instead the 

alleged unlawfulness of the officer’s entry of Mr. Tingey’s home:

Someone’s not going to come into your house, even if 

they’re wearing blue and a badge and guns or all of the junk 

that they wear when they testify here, they’re not coming to 

your house and saying, “Get out of your house.” You’re 

going to wonder why. If it makes sense, you get out. But if 

you say, “Get out of your house” at the same time you’re 

grabbing them and throwing them to the ground, the fight is 

going to be on. Whether you’re drunk, whether you’ve

smoked dope, whether there’s dope in your house or not, the 

fight’s going to be on because they’re not in the lawful 

performance of their duties. And that’s, Ladies and 

Gentlemen, why we believe those three counts have to fail 

because those officers were not acting lawfully.

There’s something that is just underlying this whole 

mess of stuff. Because we’re a country of laws and those 

laws apply to us; those laws apply to law enforcement 

officers; they apply to all of us. And our country is great and 

functions well when you all function under the law. And we 
16

are a country of laws. But what happens when the sanctity of 

the home or the sanctity of being in your own living room is 

violated? Are we losing out that fact of being a country of 

laws? Are we becoming a police state where the police are 

above the laws, that they can do what they want? * * * We 

still need to be a country of laws because the bad thing about 

power, and we all know this, is power corrupts. And people 

in power will abuse that power and misuse that power and 

that’s not what’s made our country great.

Ladies and Gentlemen, there is not sufficient evidence 

that Mr. Tingey was attempting to cause bodily injury to Ms. 

Wisenbaker. He was wanting her to get out of the house and 

she was refusing. There is not evidence before you that those 

officers were engaged in the lawful performance of their 

duties. They came up to that door and immediately decided 

to go into that house. They forced their way into that house 

after being told not to come into the house and they 

immediately put hands on Mr. Tingey that initiated the 

physical contact that initially was applied. That’s just wrong; 

and we ask you to find him not guilty of the charges.

[¶42] Given that Mr. Tingey did not put the question of excessive force in issue, it is 

difficult to find a clear-cut requirement that an instruction be given on the question. 

Additionally, the record contains virtually no evidence from which the jury could 

reasonably conclude that Mr. Tingey’s actions were in response to a use of excessive 

force. Ms. May testified that the officers barged in, pushed her to the side, and tackled 

Mr. Tingey. She also testified, however, that she was intoxicated, that alcohol affected 

her memory, and that everything happened very fast when the officers entered. On crossexamination, she agreed that the officers did not push or shove her, but brushed against 

her, and she testified that while she was at the front door she was telling Mr. Tingey to 

calm down.

[¶43] None of Ms. May’s testimony points to excessive force. Her testimony is in fact 

consistent with that of Sergeant Sheets and Officer Robbins who likewise testified the 

altercation happened quickly, immediately when they each placed a hand on one of Mr. 

Tingey’s arms. Additionally, her testimony that she was trying to calm Mr. Tingey fits 

with the testimony of Sergeant Sheets and Officer Robbins that Mr. Tingey was 

aggressive when they entered the home. Finally, her testimony did not contradict that of 

Sergeant Sheets and Officer Robbins that before the altercation started their first contact 

was Sergeant Sheet’s hand on Mr. Tingey’s left arm and Officer Robbins’ hand hold on 

Mr. Tingey’s right wrist. The evidence simply does not add up to excessive force that 

would justify Mr. Tingey’s violent outburst. See CG, ¶ 15, 248 P.3d at 190 (upholding 
17

finding that officer’s application of compliance grip to defendant, which hurt her “a 

little,” and physically pulling her from van, was not excessive force).

[¶44] Given the evidence, and the focus of the defense arguments, we are unable to find 

that there was a clear-cut requirement that an excessive force instruction be given, and we 

therefore find no plain error in the district court’s failure to give the instruction. We turn

then to the assertion of plain error in the district court’s failure to instruct the jury on the 

circumstances that would justify a warrantless entry and arrest.

b. Lawful Performance Instructions

[¶45] As discussed previously, whether the officers were lawfully performing their 

official duties when Mr. Tingey caused them bodily injury went to the heart of Mr. 

Tingey’s defense against the interference charges. Instructions that would have defined 

the circumstances under which a warrantless entry and arrest could be made were 

therefore theory of defense instructions. As such, there would have been a clear 

requirement to give the instructions if there was any competent evidence based on which 

the jury could reasonably have found the entry and arrest were unlawful.

[¶46] All of the officers testified that they had the training and/or experience to 

recognize the smell of burnt marijuana and they recognized the smell of burnt marijuana 

emanating from inside Mr. Tingey’s home after he opened the front door.3The officers 

made the decision to get a search warrant based on probable cause that a controlled 

substance, marijuana, would be found in the home. The officers also testified that the 

exigent circumstances that prompted their warrantless entry of the home was their 

concern that the marijuana would be destroyed while they waited for a search warrant.

[¶47] The odor of burnt marijuana emanating from a home is sufficient to establish 

probable cause for a warrant to search the premises. Rideout v. State, 2005 WY 141, 

¶ 17, 122 P.3d 201, 205 (citing Gompf v. State, 2005 WY 112, ¶ 20, 120 P.3d 980, 986

(Wyo. 2005)). While the odor of burnt marijuana may provide probable cause for a 

search warrant, the warrantless entry of a home is not permitted unless the occupant of 

the home consents to the entry or an exigent circumstance justifies the warrantless entry. 

Pena v. State, 2004 WY 115, ¶ 29, 98 P.3d 857, 870 (Wyo. 2004). In order for the 

exigent circumstance exception to apply, the government must establish that the officers 

had probable cause for the search and that exigent circumstances made it impracticable to 

obtain a warrant before conducting the search. Miller v. State, 2009 WY 125, ¶ 11, 217 

P.3d 793, 799 (Wyo. 2009). “Among the exigent circumstances justifying a warrantless 

search is a need ‘to prevent the imminent destruction of evidence.’” Id. (quoting Pena, 

¶ 29, 98 P.3d at 870).

 

3 The exception was Officer Robbins who testified that he recognized the smell of marijuana emanating 

from inside the front of the home but he could not tell if the marijuana was burnt or unburned.
18

[¶48] In Rideout, we found a warrantless entry justified by the need to prevent 

destruction of the evidence, namely marijuana. Rideout, ¶ 24, 122 P.3d at 208. In Miller, 

we explained our application of that exigent circumstance:

We applied the exigent circumstances exception to a 

warrantless entry in Rideout v. State, 2005 WY 141, 122 P.3d 

201 (Wyo.2005). In Rideout, officers went to the defendants’ 

residence to investigate drug-related activities. As they exited 

their vehicles, they smelled burning marijuana coming from 

the residence, and the officers realized “their presence was 

known to the occupants.” Id., ¶¶ 5, 24, 122 P.3d at 203, 208.

At that point, officers decided to enter the house and secure it 

to prevent the destruction of evidence before seeking a search 

warrant. Id., ¶ 7, 122 P.3d at 203. We affirmed the denial of 

the motion to suppress and found no Fourth Amendment 

violation because: (1) officers possessed probable cause that a 

crime was being committed within the residence; (2) exigent 

circumstances justified the warrantless entry to secure the 

residence and prevent destruction of any evidence; and (3) the 

officers refrained from searching the home until they had 

authorization—either in the form of consent or a search 

warrant. Id., ¶ 25, 122 P.3d at 208.

Miller, ¶ 12, 217 P.3d at 799.

[¶49] This case presents a similar set of facts. It is undisputed that law enforcement was 

legitimately called to Mr. Tingey’s home in response to a report of family violence. The 

evidence is also undisputed that once Mr. Tingey opened his front door, the odor of 

marijuana emanating from the home was detected. As in Rideout, the officers were 

confronted with probable cause to believe that illegal drugs were present in the home and 

that the occupants of course knew of law enforcement’s presence, making destruction of 

the evidence a very real and legitimate concern. To further those concerns, Mr. Tingey 

repeatedly shut the door on the officers and when the door was left open to allow the 

officers to speak with Ms. May, Mr. Tingey could be viewed moving back and forth and 

clearing items from surfaces in the home.

[¶50] Mr. Tingey nonetheless contends that these concerns of evidence destruction 

should be disregarded as justification for the warrantless entry because the officers 

created the exigent circumstance themselves by invading his private space in violation of 

his Fourth Amendment rights. See Kentucky v. King, 563 U.S. 452, 463, 131 S.Ct. 1849, 

1858, 179 L.Ed.2d 865 (2011) (exigent circumstance justifies warrantless entry so long as 

police did not create exigency by engaging in conduct that violates the Fourth 
19

Amendment). Specifically, Mr. Tingey asserts that to detect the odor of marijuana at his 

back door, Officers Robbins and West had to intrude on a private space, one that was 

blocked from public view. It is this unlawful intrusion, he claims, which created the 

exigency. We disagree.

[¶51] First, the back door was not protected by a fenced off or blocked off area as 

suggested by Mr. Tingey’s argument. The officers testified that the back door was 

adjacent to the driveway and they simply walked up the driveway to reach the back door.4 

Moreover, the officers approached the back door for a legitimate investigatory reason. 

They were called to respond to a family violence report and there was initially no 

response to the other officers who were knocking at the front door. Officers Robbins and 

West approached the back door for the sole purpose of looking for occupants and to 

ensure the entire house was accounted for. Finally, the odor of marijuana that prompted 

the officers to obtain a search warrant and make a warrantless entry was detected at both 

the front and back entrances, and more particularly by all four officers at the front 

entrance. The odor at the back entrance was thus not the sole cause for the warrant or the 

sole justification for the warrantless entry. The officers plainly did not create the 

exigency by their own conduct.

[¶52] With regard to the officers’ warrantless entry into the home, the evidence supports 

only one conclusion: exigent circumstances justified the warrantless entry. It follows that 

had the jury been instructed on the definition of exigent circumstances, it is unlikely that 

the instruction would have affected their verdict. We thus find no plain error in the 

district court’s failure to provide the warrantless entry instruction, both because there was 

no clear-cut requirement that the instruction be given and because Mr. Tingey has not 

established a reasonable possibility that the jury verdict would have been more favorable 

had the instruction been given.

[¶53] With regard to the warrantless arrest of Mr. Tingey, we have held that “[p]robable 

cause for a warrantless arrest exists when, under the totality of the circumstances, a 

prudent, reasonable, and cautious peace officer would be led to believe that a crime has 

been or is being committed and that the individual arrested is the perpetrator.” McCallie 

v. State ex rel. Wyo. Dep’t of Transp., 2014 WY 18, ¶ 7, 317 P.3d 1142, 1145 (Wyo. 

2014) (quoting Keehn v. Town of Torrington, 834 P.2d 112, 116 (Wyo. 1992)). The 

evidence is again undisputed that when officers entered Mr. Tingey’s home, they did so 

not for the purpose of arresting him but for the purpose of clearing and securing the 

residence. The decision to arrest Mr. Tingey was made only after he became physically 

violent with the officers. At that point, the officers certainly had a reasonable belief Mr. 

Tingey was committing a crime.

 

4 This was also where Tara Wisenbaker had parked and entered the home when she came to check on Ms. 

May that evening.
20

[¶54] Given the evidence in support of the decision to make a warrantless entry of Mr. 

Tingey’s home, and the ensuing circumstances that justified his warrantless arrest, we are 

again unable to find that there was a clear requirement that the jury be instructed on the 

grounds for a warrantless entry and arrest. We further find, based on the overwhelming 

evidence, that such an instruction would have been unlikely to affect the verdict against 

Mr. Tingey. We thus find no plain error in the district court’s failure to give an 

instruction on these matters.

II. Ineffective Assistance of Counsel

A. Standard of Review

[¶55] “Claims of ineffective assistance of counsel involve mixed questions of law and 

fact and are reviewed de novo.” Mraz v. State, 2016 WY 85, ¶ 42, 378 P.3d 280, 290 

(Wyo. 2016) (quoting Castellanos v. State, 2016 WY 11, ¶ 95, 366 P.3d 1279, 1304 

(Wyo. 2016)).

B. Analysis

[¶56] This Court evaluates claims of ineffective assistance of counsel according to the 

following framework:

A defendant challenging the effectiveness of counsel bears 

the burden of proving that ineffectiveness. Luftig v. State, 

2010 WY 43, ¶ 17, 228 P.3d 857, 864 (Wyo. 2010) (citing 

Rutti v. State, 2004 WY 133, ¶¶ 22–23, 100 P.3d 394, 405 

(Wyo. 2004)). Based on our adoption of the two-prong test 

set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 

S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the defendant must 

prove both that counsel’s performance was deficient, and that 

the defendant was prejudiced by the deficient performance. 

Galbreath v. State, 2015 WY 49, ¶ 4, 346 P.3d 16, 18 (Wyo. 

2015) (citing Frias v. State, 722 P.2d 135, 145 (Wyo. 1986)). 

The defendant’s burden is a heavy one, as we have explained:

When reviewing a claim of ineffective assistance of 

counsel, the paramount determination is whether, in 

light of all the circumstances, trial counsel’s acts or 

omissions were outside the wide range of 

professionally competent assistance. We indulge a 

strong presumption that counsel rendered adequate 

assistance and made all significant decisions in the 

exercise of reasonable professional judgment. Under 
21

the two-prong standard articulated in Strickland, to 

warrant reversal on a claim of ineffective assistance of 

counsel, an appellant must demonstrate that his 

counsel failed to render such assistance as would have 

been offered by a reasonably competent attorney and 

that counsel’s deficiency prejudiced the defense of the 

case. “The benchmark for judging any claim of 

ineffectiveness must be whether counsel’s conduct so 

undermined the proper functioning of the adversarial 

process that the trial cannot be relied on as having 

produced a just result.”

Luftig, ¶ 17, 228 P.3d at 864 (quoting Dettloff v. State, 2007 

WY 29, ¶ 18, 152 P.3d 376, 382 (Wyo. 2007) (internal 

citations omitted)).

Mraz, ¶ 43, 378 P.3d 291.

[¶57] We have also stated:

An ineffective assistance claim has a performance component 

and a prejudice component. The components are mixed 

questions of fact and law. A court does not have to approach 

the inquiry by addressing performance first and prejudice 

second. A court does not have to address both components if 

the appellant makes an insufficient showing on one. If a court 

determines it is easier to dispose of the claim because

sufficient prejudice is lacking, the court may do so.

Castellanos, ¶ 96, 366 P.3d at 1304 (quoting Eaton v. State, 2008 WY 97, ¶ 132, 192 

P.3d 36, 92 (Wyo. 2008)).

[¶58] Mr. Tingey argues that he was denied effective assistance of counsel because his 

counsel failed to file a motion to suppress, failed to renew the motion for judgment of 

acquittal at the end of trial, and failed to propose appropriate theory of defense 

instructions. While Mr. Tingey asserts three grounds for his ineffective assistance of 

counsel claim, he does not separately address each ground, and his argument is 

essentially a recasting of his argument that the officers acted unlawfully when they 

entered Mr. Tingey’s home without a warrant and then arrested him without a warrant. 

Because these arguments are no different than those we already addressed, we resolve 

them on essentially the same ground. Mr. Tingey has not shown that counsel’s failure to 

file a motion to suppress, to renew the defense motion for judgment of acquittal, and to 

offer appropriate theory of defense instructions prejudiced his defense. As previously
22

discussed, the evidence plainly establishes that the officers lawfully entered Mr. Tingey’s 

home and lawfully arrested him. This result would not have been changed by a motion to 

suppress, a renewed motion for judgment of acquittal, or additional jury instructions.

CONCLUSION

[¶59] The district court did not err in instructing the jury, and Mr. Tingey was not denied 

effective assistance of counsel. Affirmed.