Mackley v. State

481 P.3d 639

Adam Christopher MACKLEY, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-20-0124

Supreme Court of Wyoming.

February 22, 2021

Representing Appellant: Dion J. Custis, Dion J. Custis, P.C., Cheyenne, Wyoming. Argument by Mr. Custis.

Representing Appellee: Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Kristen Jones, Assistant Attorney General. Argument by Ms. Jones.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

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 held 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 was sufficient to convict Mr. Mackley of reckless endangering.

FACTS

[¶3] Gabriel and Danielle Mendez were walking their boxers, Rocky and Lola, when Rocky escaped Mr. Mendez's grasp and ran to Adam Mackley's front door, where Mr. Mackley's son was returning from walking the Mackleys’ three dogs. As he lost hold of Rocky'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] Two of the Mackleys’ dogs began to fight with Rocky on the Mackleys’ porch. P.V. reached the top of the Mackleys’ stairs, grabbed Rocky by his harness, and pulled Rocky down the stairs and into the street, while all three dogs continued 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] In the street, P.V. continued to try to stop the ongoing dog fight, and was holding Rocky's front end up by his harness with both hands, with Rocky's hind end between his legs. While 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.

[¶6] The State charged Mr. Mackley with aggravated cruelty to animals under Wyo. Stat. Ann. § 6-3-203(c)(vii) & (n) (LexisNexis 2017), a felony, and reckless endangering under Wyo. Stat. Ann. § 6-2-504(a), a misdemeanor. The 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 elements instructions on the aggravated cruelty to animals charge. The district court declined to give Mr. Mackley's version, 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 destroys an animal or livestock. Wyo. Stat. Ann. § 6-3-203(m)(i).

[¶8] At the close of the State's evidence, and again after the close of all evidence, Mr. Mackley moved for judgment of acquittal on both charges. He argued that the Wyoming Legislature made it clear that it is not cruelty to animals "where an animal is humanely destroyed, ... where that 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 endangering, 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 appeals, and we affirm.

DISCUSSION

[¶9] Mr. Mackley claims the district court erred when it gave instruction No. 15 because it was confusing and erred when it denied his proposed elements instruction. He also claims the evidence was insufficient to convict him of reckless endangering.

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

[¶10] The parties jointly submitted instruction 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.

[¶11] On appeal, Mr. Mackley argues the instruction was confusing and misleading because it left doubt whether the jury understood under what circumstances Mr. Mackley could be found guilty. The State argues Mr. Mackley waived this argument because he "requested" instruction No. 15. "We reject attempts by a defendant to turn a trial strategy into an appellate error." Toth v. State , 2015 WY 86A, ¶ 45, 353 P.3d 696, 710 (Wyo. 2015) (quoting 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 that party's actions." Jackson v. State , 2019 WY 81, ¶ 9, 445 P.3d 983, 986 (Wyo. 2019) (quoting 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 right or 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. (quoting United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) ). Forfeiture is the failure to make a timely assertion of a right. Jackson , 2019 WY 81, ¶ 9, 445 P.3d at 987 (citing 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, 366 P.3d 512, 520 (Wyo. 2016). We regard simple 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 packet they had been given. Id. at ¶ 11, 366 P.3d at 515. Defense counsel said, "I agree, Your Honor. Read the instructions and then instructions have been provided and whatever standard language the court uses for this kind of inquiry." Id. We reviewed for plain error because his "endorsement 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 , 2016 WY 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 the instructions already given).

[¶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 Jackson , the defendant 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 986. However, the defendant knew there was a description issue during trial because the defense and prosecution could not agree whether to specify which conduct went with which charge in the verdict form, instructions, or both. Id. at ¶ 11, 445 P.3d at 987-88. Despite the court's invitation, the defendant 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 because he offered the instructions the district court ultimately 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 include an instruction on specific intent, despite his theory that he was too intoxicated to form the specific intent required for felony theft. 2015 WY 86A, ¶¶ 11-12, 353 P.3d at 702. Later, when the jury asked, "Do we only consider the original purpose of the taking of the equipment or do we consider the entire event[?]" Mr. Toth advised the court to "refer them to the elements instruction as previously given." Id. at ¶ 13, 353 P.3d at 702. We found Mr. Toth waived his argument that the district court should have given an instruction on specific intent. Id. at ¶ 47, 353 P.3d at 711.

[¶15] This case is most similar to Toth . At the jury instruction conference, the court inquired whether the parties had agreed to any instructions. The State indicated they had:

[Defense counsel] will certainly correct me but my understanding is the only real stipulation that I believe the parties have for the jury instructions is that he agreed that my theory of defense instruction that I crafted to eliminate some of his other proposed instructions would be appropriate; and so I believe that we have stipulated to that instruction. That was my understanding.

Mr. Mackley's attorney said, "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 defense instruction. Based on that, I informed her we are withdrawing our Instructions 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 through numerous...