CODY J. TINGEY, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
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
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
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
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?
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.
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.
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.
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.
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.
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
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
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?
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.
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
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
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 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?
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.
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. 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."
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 ...