### IN THE SUPREME COURT, STATE OF WYOMING

20 2 1 WY 33

OCTOBER TERM , A.D. 2020

February 22, 2021

ADAM CHRISTOPHER MACKLEY,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 20

- 0124

A

ppeal from the D istrict Court of Uinta Coun t y Th e Ho nora ble Joseph B. Bluemel , Judge

Representing Appellan t : Dion J. Custis, Dion J. Custis, P.C., Cheyenne , Wyoming. Argument by

Mr. Custis.

R epre senting App elle e : Bridget L. H ill , Attorney General; Jenny L

. Craig , Deputy Attorney Gen eral;

J

oshua C . Eames , Senior Ass istant Attorney General ; Kristen Jones , Assistant Attorney General. Ar gument by Ms. Jones.

Befo re DAVI S, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revi sion before pu blica tion in Paci fi c Reporter T hi rd. Rea ders

are requested to notify the Clerk of the Sup reme Court, Supreme Court Building, Cheyenne, Wyomin g 82002, of any typographical or other formal errors so that correction may be made befo re final pub lication in

th e per manent volum e.1 FOX, Justice.

[¶1] Rocky, a boxer, escaped his owner’s grasp and attacked Mr. Mackley’s dogs at his front door. A local teenager grabbed Rocky and dragged him into the street as the dog fight continued. Mr. Mackley got his gun and shot Rocky as he was hel d by the teenager

. A jury convicted Mr. Mackley of aggravated animal cruelty and reckless endangering.

He contends the jury was improperly instructed on the law of animal cruelty , and the

evidence was insufficient to convict him of reckless endangering

. We affirm.

ISSUES

[¶2] The parties raise these issues :

I. Whether Mr. Mackley waived his claim that jury

instruction No. 15 misled the jury

.

II. Whether the district court properly instructed the jury

on the law related to animal cruelty

.

III. Whether the evidence w as sufficient to convict

Mr. Mackley of reckless endangering.

FACTS

[¶3] Gabriel and Danielle Mendez were walking their boxers, Rocky and Lola

, when Rocky escaped M r. Mendez ’s g r asp and ran to Adam Mackley’s front door

, where

Mr. Mackley ’s son w as returning from walking the Mackleys’ three dogs

. As he lost

hold of R o c ky’s leash , Mr. Mendez shouted for help from a group of kids playing

basketball nearby

. Some of the kids gave chase , including high school sophomore, P.V

.

[¶4] T wo o f the Mackley s ’ d ogs began to fight with Rocky on the Mackley s ’ porch.

P.V. reached the top of the Mackley s ’ stairs, grabbed Rocky by his harness, and pulled Rocky down the stairs and into the street, while all three dogs contin u e d to fight. P.V.

heard Mr . Mackley ’s wife yell “shoot the dog ” and saw Mr. Mackley appear and then disappear back into the house.

[¶5] I n the stree t

, P

. V

. continu ed to try to stop the ongoing dog fight, and was holding Rocky’s front end u p by his harness with both hands, with Rocky’s hind end betwe en his legs

. Whi l e P.V. and Rocky were in that position

, Mr. Mackley came back out of the house, into the street

, and shot Rocky in the neck

. P.V. did not realize Mr . Mackley had a gun until he felt Rocky go limp in his arms.2 [¶6] The State charged Mr. Mac kley with aggravated cruelty to an i mals under W yo

. S tat

. Ann. § 6

- 3

- 203(c)(vii) & (n) (LexisNexis 2017) , a felony, and reckless endangering

under W yo

. S t at

. Ann. § 6

- 2

- 504(a), a misdemeanor. T he district court agreed to give

instruction No. 15, offered by the State and Mr. Mackley as a theory of defense

instruction on the animal cruelty charge

.

[¶7] The State and Mr. Mackley each submitted el e m ents instructions on the aggravated cruelty to animals charge

. T he district court declined to give Mr. Mackley’s

ve rsion, which contained excerpts of the animal cruelty statute, including subsection (m) ( i)

. Subsection (m) creates an exception to the animal cruelty statute when a person humanely destroy s an anima l or livestock

. Wyo. Stat. A nn

. § 6

- 3

- 203(m)( i).

[¶8] At t he close of the Sta t e’s evidence

, and again a fter the close of all evidence

, Mr. Mackley moved for judgment of acquittal on both charges. He argued that the Wyoming L egislature mad e it clear that it is not cruelty to animals “ wh e re an animal is humanely d estroyed,

. . . where th at animal isn’t shot multiple times or shot in a manner to cause it undue pain or anguish or any substantial, significant, lingering issue, pain or injury.” As for reckless enda n gering , he argued the State did not provide evidence that he intentionally pointed a firearm at anyone

, which he contended the statute required

. The court denied the motions on Count I and reserved ruling on Count II. The jury found Mr. Mackley guilty on both counts. Mr. Mackley appeal s , and w e affirm.

DISCUSSION

[¶9] Mr. Mackley claims the dis trict court erred when it gave instruction No. 15

because it was confusi ng a nd erred when it denied his proposed elements instructio n . He also claims the evidence was insufficient to convict him of reckless endangeri ng.

I. Mr. Mackley waived his argument that jury instruction No. 15 was confusing or

mis lead i ng

[¶10] The parties jointly submitted i nstruction No. 15, which the State characterized as a “theory of defense

. ” 1 At two points during the instruction conference, Mr. Mackley’s attorney told the court he agreed with the instruction.

1 The instruction read:

If you find that Gabriel and Danielle Mendez’ [s] d og was shot by Defendant Adam C. Mackley beyond a reasonable doubt then you

must further find, beyo nd a reas onable doubt, that conduct occurred “while the animal was on property where the animal was autho rized to be present.”3 [¶11] On appeal, Mr. Mackley argues the instruction was confusing and misleading

because it left doubt whether the jury understood under what circumstances Mr. Mackl e y could be found guilt y. The State argues Mr. Mackle y wa i ve d this argument because he

“ requested ” i nstruction No. 1 5

. “We reject attempts by a defendant to turn a trial strategy into an appellate error.” Toth v. Sta t e , 2015 WY 86A, ¶ 45, 353 P.3d 696, 710 (Wyo. 2015) (quotin g Ortiz v. State , 2014 WY 60, ¶ 81, 326 P.3d 883, 899 (Wyo. 2014)). “ The doctrine of invited error prohibits a party from raising on appeal alleged trial court errors that were induced by tha t pa r ty ’ s actions.” Jackson v. State , 2019 WY 81, ¶ 9, 445 P.3d 983, 986 (Wyo. 2019) (quot ing Toth , 2015 WY 86A, ¶ 45, 353 P.3d at 710). When a
party affirmatively waives a right or objection, we do not review it ; however, when a party merely forfeits a r ight o r objection, we review for plain error. Jackson

, 2019 WY 81, ¶ 9, 445 P.3d at 987. Waiver is the “intentional relinquishment or abandonment of a known right .” Id. ( quo ting United States v. Olano , 507 U.S. 725, 733, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1 993) ). Forfeiture is the failure to make a timely asse rtion of a right

. Jackson

, 2019 WY 81, ¶ 9, 445 P.3d at 987 ( c i t ing Olano , 507 U.S. at 733, 113

S. Ct. at 1777 ).

[¶12] There is a “fine line between positive acts and omissions.” Vaught v. State

, 2016 WY 7, ¶ 35, 3 66 P.3d 512, 520 (W yo. 2 01 6). W e regard s im ple agreement as an omission or forfeiture

, not a waiver

. In Vaught

, the jury asked for clarification on several instructions, and the State advised the district court to tell the jury to read the p acket they

had been given. Id. at ¶ 11 , 366 P.3d at 515. Defense counsel said

, “I agree, Your

Honor

. R ead the instructions and then instructions have been provided and whatever standard language the court uses for this kind of inquiry .” Id. W e reviewe d for plain

error because his “ endo r se ment took the form of a simple agreement with the prosecutor’s view. It was not an act of such independent intent that we can view it as a complete waiver of the error now alleged on appeal.” Id. at ¶ 35 , 366 P.3d at 520 ; see also Mraz v. State , 2 016 W Y 85, ¶ ¶ 62

- 65, 378 P .3d 280, 294

- 95 (Wyo. 2016) (defendant did not waive her claim the jury should have been given a supplemental instruction on the definition of “forgery” when she agreed with the prosecution that the jury should be

referred to th e inst r uc tions already given ).

No o wner is permitted to allow any animal to run at l a rge within the City of Evanston and an animal is considered to be “at larg e” when i t is off the property of the owner and not under immediate control by a competent person.

You are instructed that Defendan t Adam C. Mackley as serts that

Gabriel and Daniel l e Mendez’ [s] dog was not “on property where the

animal was authorized to b e present” a nd if the State fails to prove beyond a reasonable doubt that the d og was not “at large ” then you

should find Defendant Adam C. Mackley not gui lty of Aggravated Cruelty to A nimals.4 [¶13] Waiver requires something more affirmative than simple agreement ; it requires an “intentional relinquishment or abandonment of a known right.” Jackson , 2019 WY 81, ¶ 9, 445 P.3d at 987

. In Ja ckson

, t he d e fe ndant argued that because the verdict form and jury instructions did not adequately describe separate instances of charged conduct, it was not possible to determine the specific conduct that formed the basis for his conviction.

Id. at ¶ 8

, 445 P. 3d at 9 86

. However, t he defendant knew there was a description issue during trial because the defense and prosecution could not agree whether to specify

which conduct w ent with which charge in the verdict form

, instructions , or both

. Id. at ¶ 11, 4 45 P.3 d at 9 8 7

- 88. Despite the court’s invitation, t he d efendant then offered instructions that did nothing to differentiate between the instances and left the verdict form unchanged

. Id. We determined Mr. Jackson waived his claim of reversible error

be cause he off e re d the instructions the district court ulti mately gave , and did not correct them when given the opportunity, thus inviting the error he complained of

. Id

.

[¶14] In Toth v. State , the defendant repeatedly declined the district court’s offer to

i nclude a n in s tr uction on specific intent, despite his the ory that he was too intoxicated to form the specific intent required for felony theft. 2015 WY 86A, ¶¶ 11

- 12, 353 P.3d at

702 . Lat er, when the jury asked

, “Do we only consider the original purpose of the t akin g

o f the equipment or do we consider the enti re event[?]” Mr. Toth advised the court to “refer them to the elements instruction as previously given.” Id. at ¶ 13 , 353 P.3d at 702

. W e found Mr. Toth waived his argument that the district court should have g iv en an instruction on specific intent. Id. at ¶ 47, 353 P.3d at 711.

[¶15] This case is most similar to Toth

. A t the jury inst ruction conference , the court inquired whether the parties had agreed to any instructi ons

. The State indicated they had :

[Defen se counsel] will certainly correct me but my

u nderstanding is the only real stipulation that I believe the parties have for the jury instructions is that he agre ed that my

theo ry of d efense instruction that I crafted to eliminate some of his other proposed instructions would be appropriate; and

so I b elieve that we have stipulated to that instruction. That was my understanding.

Mr. Ma ckley ’ s attorne y s aid

, “Your Honor, she’s correct that we reached an agreement with regard to the instruction that she drafted, which she phrases as a theory of the

defe nse instruction. Based on that, I informed her we are withdrawing our Ins tructions

No. 1 and 2.” The discussion then turned back to Mr. Mackley’s self

- defense theory , and the court took a recess so the parties could confer. When it resumed, they went th rough numerous pattern instructions before turn ing back to t hose the partie s h ad submitted

. The

court asked Mr. Mackley’s attorney , in reference to instruction No. 15

, “And this is the5 instruction you would like me to give

. . . . Is that correct, [defens e counsel] ?”

Mr. Ma ckley ’ s counsel replied

, “Yes, it is.”

[¶16] The record shows Mr. Mackley did more than “merely agree” to the instruction, he negotiat ed with the Sta t e t o draft it, and twice affirmatively endor sed it

. Mr. Mackley abandoned a known right because he offered the instruction jointly with the State and

declined the opportunity to object or correct any potential confusion it could c ause.

II

. The district court correctly den ied Mr. Mackley’s elements instruction

[¶17] The standard of review for a district court’s action on jury instructions is abuse of

discretion. Farrow v. State , 2019 WY 30, ¶ 12, 437 P.3d 809, 815 (Wyo. 2019) (citing Merit Energy Co. , LLC v. Horr , 2016 WY 3, ¶ 23, 366 P.3d 489, 497 (Wyo. 2016) ).

“The district court ‘has extensi ve discretion in tailoring jury instructions, so long as they correctly stat e the law and f a ir ly and adequately cover the issues presen ted.’” Farrow

, 2019 WY 30, ¶ 12, 437 P.3d at 815 (quoting Merit Energy Co. , 2016 WY 3, ¶ 23, 366

P.3d at 497). Mr. Mack le y ’ s challenge to the elements instruction rests on statutory interpretation, which we review de novo. Bird v. Lampert

, 2021 WY 11, ¶ 7, 479 P.3d

382

, 384 (Wyo. 2020).

[¶18] Mr. M a ckley and the State proposed different element s instruction s on the animal

cr

uelty charge , and the district court gave the State’s version , which read:

The elements of the crime of Aggr a vated Cruelty to Animals as charged in the I nformation are:

1. On or a b out th e 25 th day of May, 2019;

2. In Uinta County, Wyoming;

3. The Defendant, Adam C. Mackley;

4. Shot

5. Any domesticated animal owned by another person;

6. While the animal wa s on property where t he animal

wa s authorized to be present.

If you find from you r consid e ration of all the evidence that each of these elements has been proved beyond a reasonable doubt, th en you should find the defendant guilty.

If

, on the other hand, you find from your co n sideration of all the evidence that any of these elements ha s not be e n

prov ed beyond a reasonable doubt, then you should find the defendant not gu ilty.6 Mr. Mackley argues the district court erred by refusing his elements instruction, which

included this p ortion of the Wyoming statute:

(m) Nothing in subsection (a), . . . (c)(vii) or (n) of this section shall be construed to prohibit:

(i) A person from humanely destroying an animal, including lives tock;

[¶19] Mr. Mackley ’s counsel urged the district court to give his instruction because “that’s the statute; and the statute is clear.” The State responded that subsection (m)

would be conf using, a nd no t a clear statement of the law if it were included in the

elements instruction. The district court agreed and rejected Mr. Mackley’s instruction

. Mr. Mackley’s counsel objected, but did not ask the cou rt to offer subsection (m) as a separate instruction.

[¶20] Mr. Mac kley also contends, for the first time on appeal , that subsection (m) should have been given as a theory of defense. Normally

, we review a court’s re f usal to give a theory of defense instruction de novo, however when the instruction was not offere d by a defendant, or, in this case, was not offered as a theory of defense, the sta n dard of review is plain error. Hopkins v. State , 2019 WY 77, ¶ 18, 44 5 P.3d 582, 588 (Wyo. 2019)

. Th e instruction must present a proper theory of defense that is recognized by statut e or case l aw in the jurisdiction. Garza v. State , 2020 WY 32, ¶ 18, 458 P.3d 1239, 1243 (Wyo

. 2020) (citing Bouwkamp v. State , 833 P.2d 486, 490 (Wyo. 199 2)). Both of

Mr. Mackley’s contentions raise an issue of statutory construction, which we review de

novo. Bir d

, 2021 WY 11, ¶ 7, 479 P.3d at 384

. Because Mr. Mackley’ s argument that the killing was humane

, and therefore excluded from the cri m e of aggravated cruelty to

animals

, is not supported by the language of the statute

, we conclude the district c ourt did

no t err by refusing to give his instruction

.

[¶21] Our goal when interpreting a statute is to give effect to the intent o f th e legislature

and to attempt to determine that intent primarily through the plain and ordinary meaning

of the words used in the statute. Bird

, 2021 WY 11, ¶ 8, 479 P.3d at 384 ( ci ting Matter of Adoption of MAJB , 2020 WY 157, ¶ 15, 478 P.3d 19 6

, 201 (W yo. 2 020) ).

Whe re there is plain, unambiguous language used in a statute

ther e is no room for construction, and a court may not look

for and impose another meaning. Where legisla t ive intent is discernible a court should give effect to the most likely, m ost

r easonable, in terpretation of the statute, given its design and

purpose.7 Hop kins , 2019 WY 77, ¶ 7, 445 P.3d at 585 (quoting Adekale v. State

, 2015 WY 30, ¶ 12, 344 P.3d 761, 76 5 (Wyo. 2015) (citations and quotation marks omitted) )

.

[¶22] T he statute ’s plain language sets forth the elements of aggra vated animal cru elty : the defendant (1) shoots, (2) a domesticated animal owned by another per son, (3) while the animal is on property where it is authorized to be present. Wy o . Stat. Ann. § 6

- 3

- 203 (c) ( vii)

. Sub se ction (m) is an exception to (c) ( v ii ) whe n someone “hu manely destroy[s]” a do mesticated animal or livestock , even when the animal is ow ned by another person and on property where it was authorized to be. If, as Mr. M a ck le y contends, inhumane killing is an element of th e crime, then any animal could be killed, under any circumstances, as long as it is killed quickly. “[W] e strive to avoi d an interpretation that produces an absurd result , or that renders a portion of the statute meaningless.” HB Fa m. Ltd. P ’ ship v . Tet on C n ty. Bd. of C n ty. Comm ’ rs , 2020 WY 98, ¶ 56, 468 P.3d 1081, 1096 (Wyo. 2020) ( quoting Seherr

- Thoss v. Teton Cnty. Bd. of Cnty.

Comm ’ rs , 2014 WY 82, ¶ 19, 329 P.3d 936, 945 ( Wyo. 2014) (ci tation s omitted) ).

[¶23] “Hu mane” means “ marked by compassion, s ympathy , or consid er ation for other

human b eings or animals. ” Humane

, Webster’s Third New International Dictionary ( 2002 ). Mr . Mackley argues subsection (m) means if Rocky died qu i ckly and without excess pain

, Mr. Mack ley acted humanely

. He misreads the statute

. “ H umane ly”

describe s an act driv en by compassion for animals who are suffering and distressed , not
the swift executi on of any livestock or domesticated animal owned by an o ther person , for

any reason

. Mr. Mack ley presented no evidence that he “h umanely destr oyed” Rocky. Rocky was not su ffering or distressed and did not need to be euthanized. The fact that Rocky died i mmediately, from one shot, without cuts, bruises, or a b rasions did not make his dispatch huma ne. Because the evidence did not su pport Mr. Ma ckley’ s position that

he humane ly killed Rocky

, under the plain meaning of the statute, the district court

committe d no error when it declined to instruct the jury on sub section (m).

III. The e vidence was s ufficient for the j ury to c onvict Mr . Mackley of r eckl ess

e ndangering

[¶24] Mr. Mack ley argues there was insufficient evidence to convict him of reckless endanger ing , a nd his motion for judgment of acquittal should have be e n granted. The

standard of review for sufficiency of the evid ence and denial of a motion for judgment of acquittal is the same. Armajo v. State , 2020 WY 153, ¶ 20, 478 P.3d 184

, 191 (Wyo. 2020) (citi ng Fol t z v. State , 2017 WY 155, ¶ 10

, 407 P .3d 398, 401 (Wyo. 2017)). W e

must de termine “ whether the evidence could reasonably support the jury’s verdict.” Armaj o , 2020 WY 153, ¶ 21, 478 P.3d at 191 (quoting Huckins v. State , 2020 WY 21, ¶ 10, 457 P.3d 1 277, 1279 (Wyo. 2020) ) . We do not reweigh the evidence or re examine

the credibil it y of witnesses, but examine the evid ence in the light most favorable to the

State. Armajo , 2020 WY 153, ¶ 21, 478 P.3d at 191 . We accept the State’s evidence as true, givi ng it every favorable inference which can re a sonably and fairly be drawn from8 it. Id

. “We disregard any evidence favo rable to the appel lant that conflicts with the

State’s evidence.” Id. (quotation marks and cit at ion omitted).

[¶25] The jury found Mr. Mackl ey guilty of reckless endangering under Wyo. Stat. Ann. § 6

- 2

- 504(a) (LexisNexis 20 1 7 ) which states :

(a) A person is g uilty of reckless endangering if he recklessly engages in conduct which places another person in danger of death or serious bodily injury

.

Mr. Mackley argues the Stat e did not prove he engaged in conduc t which p laced P.V . in danger because he did n ot point the gun at P.V

. , and because he acted cautiously and was not “wildly shooting” his gun

. Po inting a gun at someone is conduct th at m ay be charged

under re ckless endangering

, but it is not the only way to commit the crime

. In his motion for judgment of acqui t tal, Mr. Mackley argued Sindelar v. State , 932 P.2d 730

, 733 (Wyo. 1997)

, stoo d for the proposition that the statut e required “at le ast” pointing a gun

at someon e. Mr. Sindelar was charged with aggravated assault and battery for pointing a pistol at the victim’s son and ordering him to “get his sister back in the truck” or he

would kill his mother. 932 P.2d at 731. He asked for a ju ry instruction on reckless endangering as a lesser included offense. Id. at 731

- 32. This Court held reckle s s endangering was not a lesser included o ffe nse of aggravated assault and battery a nd explained th at subsection (b) of Wyo. Stat. Ann

. § 6

- 2

- 504 co difies the Model Penal

Code rule that when a defendant points a gun at someone , he is presumed to have

commit t ed reckless endangering

. Sindelar , 932 P .2 d at 733. Subsection (b) provides :

(b ) Any person w ho knowingly points a firearm at or in

the direc t ion of another, whether or not the person believes the firearm is loaded, is guilty o f reckless endangering u n less reasonably necessary in defense of his person, property or abode or to prevent serious bodil y injury to another or as provided for under W.S

. 6

- 2

- 602.

Wyo. Stat. Ann. § 6

- 2

- 504 (LexisNexis 201 7 ). Subsection (b) therefore identifies specific cond u ct that is a subset of the more general catego ry of reckless endangering.

Mr. Mack ley did not point a gun at P.V., therefore he was charged unde r subsection (a),

which only required that he recklessly engaged in conduct which plac ed P.V. in danger of

dea t h or serious bodily injury.

[¶26] Mr. Mackley als o argues that he did not act reckless ly because he did not “wildly” shoot at the dog , but “was caut ious ” and “put the gun right next to Rocky’s neck to avoid any risk of harm to P V.” The jury was instructed:9 A person acts reckles sly when he consciously disregards a

substantial and unjustifiable risk that the harm he is accused of causing will occur, and t he harm results. The risk shall be

of such nature and d egree that disregarding i t constitutes a gross deviation from the standa rd of conduct that a reasonable

pers on would observe in the situation

.

Mr. Mackley did not need to “wildly ” shoot at Rocky to b e guil ty of reckless endangeri n g

. He did not need to cause actual physical ha rm or serious bodily injury to

P.V

. or anyone else

. Orona

- Rangal v. Sta te , 2002 WY 134, ¶ 18, 53 P.3d 1080, 1086 (Wyo. 2002). “[T] he term ‘ harm ’ in the definition of ‘ recklessl y ’ ref ers to engaging ‘ in

cond u ct which places another person in danger of dea th or serious bodily injury. ’ It

lo gically follows t hat the harm which m ust result is actually placing another person in danger of death or serious bodily injury. ” Id. T he Sta te pre sented evidence that P.V

. was holding Rocky while Mr. Mackley shot him

, and that Mr. Mackley gave no warning

before he fired. Based on that evid ence, the jury could conclude that Mr. Mackley consciously disregarded a substantial risk that his conduc t plac ed P.V. in danger of dea t h or serious bodily injury , and that his conduc t was a gross deviation from the sta ndard of

conduct a reasonable person would observe in that situation. Therefore

, the evidence was sufficient to find him guilty of reckless e ndange ring.

CONCLUSION

[¶27] Mr. M a ckley waived his argument that jury i nstruction No. 15 on the crime of aggravated a nimal cruelty was confusing or misleading. The district court did not err by denying Mr. Mackley’s proposed elements instructio n

. The eviden ce wa s sufficient to
sustain the conviction of reckless endangering. Affirmed

.