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.
[¶ 2] Mr. Tingey states the issues on appeal as follows:
[¶ 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.
[¶ 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.
[¶ 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:
[¶ 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.
[¶ 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.
[¶ 13] Sergeant Sheets went directly toward Mr. Tingey and attempted to secure Mr.
[¶ 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 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.
[¶ 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.
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 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:
[¶ 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:
[¶ 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.
[¶ 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
Vaught, ¶ 14, 366 P.3d at 516 (footnote omitted).
[¶ 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.
[¶ 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:
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)).
[¶ 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.
[¶ 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 at 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
[¶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:
[¶ 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:
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 officer or act in self defense. Mr. Tingey's reliance on Mickelson v. State, 906 P.2d 1020
[¶ 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:
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.
[¶ 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 cross-examination 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
[¶ 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 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:
The following is also instructive when reviewing a district court's decision regarding jury instructions:
[¶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:
[¶ 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 cross-examination, 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
[¶ 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.
[¶ 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.
[¶ 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).
[¶ 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:
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 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.
[¶ 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
[¶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.
[¶ 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)).
[¶ 56] This Court evaluates claims of ineffective assistance of counsel according to the following framework:
Mraz, ¶ 43, 378 P.3d at 291.
[¶ 57] We have also stated:
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 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.
[¶ 59] The district court did not err in instructing the jury, and Mr. Tingey was not denied effective assistance of counsel. Affirmed.
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.").
