Nunamaker v. State

2017 WY 100, 401 P.3d 863, 2017 WL 3821342, 2017 Wyo. LEXIS 105
CourtWyoming Supreme Court
DecidedSeptember 1, 2017
DocketS-16-0271; S-16-0272
StatusPublished
Cited by3 cases

This text of 2017 WY 100 (Nunamaker v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nunamaker v. State, 2017 WY 100, 401 P.3d 863, 2017 WL 3821342, 2017 Wyo. LEXIS 105 (Wyo. 2017).

Opinion

BURKE, Chief Justice.

[¶1] Appellant, Jeremy Nunamaker, was convicted of two counts of sexual abuse of a minor in the first degree and two counts of sexual abuse of a minor in the second degree. On appeal, he claims the district court erred in instructing the jury on the elements of the crime of sexual abuse of a minor in the first degree. We agree that'the instructions were erroneous. We affirm, however, because the errors were not prejudicial.

ISSUE

[¶2] Appellant raises one issue: Did the district court improperly instruct the jury on the two counts of sexual abuse of a minor in the first degree? The State asserts that Appellant’s claim is barred as invited error.

FACTS -

[¶3] On September 15, 2014, an Information was filed charging Appellant with two counts of sexual abuse of a minor in the second degree,1 In the first count, the State alleged that Appellant had engaged in sexual contact with a minor, G.S,, “by rubbing G.S.’s vagina with his hand.” In the second count, the State alleged that Appellant had engaged in sexual contact with G.S., “by touching G.S.’s breast.” On April 21, 2015, a separate Information was filed charging Appellant with two counts of sexual abuse of a minor in the first degree.2 In both counts, the State alleged that Appellant had inflicted' sexual intrusion on a minor, D.S., “by fondling or touching D.S.’s. vagina and inserting his finger into D.S.’s vagina.” The district court joined the two cases for trial.

[¶4] On the third day of the four-day trial, the district court convened a jury instruction conference. The proposed jury instruction regarding the first count of sexual abuse of a minor in the second degree listed these elements of the crime: ■

1. On or between the 1st day of February, 2014 and the 28th day of February, 2014;
2. In Laramie County, Wyoming;
3. The Defendant, Jeremy Nunamaker;
4. Engaged in sexual contact with G.S. (YOB 1999);
5. G.S, (YOB 1999) was less than eighteen (18) years of age;
,6. The Defendant was G.S.’s (YOB 1999) legal guardian; and
7. The Defendant was at least eighteen (18) years of age.

The proposed jury instruction defining the elements of the second count of sexual abusé of a minor in the second degree was identical, except that it asserted different dates for the alleged.crime.

[¶5] Defense counsel expressed concern that while the counts involved “two different types of contact,” the proposed instructions made no distinction between the two. To make the instructions “more specific,” she suggested revising the first instruction by adding “touching her vaginal area or genital area” to- the fourth element of the first instruction. The district court responded:

Let’s talk about that then because it would seem that the best place to look would be the language in the Information. And the Information in Count I in the "to wit” section alleges by rubbing GS’s' vagina with his hand.

Counsel for both parties accepted the district court’s suggestion, and the fourth element was altered to include “Engaged in sexual contact with G.S. (YOB 1999) by rubbing G.S.’s vagina with his hand.” The. jury instruction for the second count of sexual abuse of a minor in the second degree was similarly revised by adding “by touching G.S.’s breast” to the fourth element,

[¶6] When the conference reached the proposed elements instruction for the first count of sexual abuse of a minor in the first degree, defense counsel suggested keeping the instructions “consistent throughout” by again identifying “the specific conduct.” The dis[866]*866trict court repeated its suggestion to use the “exact verbiage from the Information,” and both parties accepted the suggestion. Accordingly, the fourth element in this instruction was amended to include “Inflicted sexual intrusion upon D.S. (YOB 2000) by fondling or touching D.S.’s vagina and inserting his finger into D.S.’s vagina.” The proposed jury instruction for the second count of sexual abuse of a minor in the first degree was revised by adding the same phrase, “by fondling or touching D.S.’s vagina and inserting his Anger into D.S.’s vagina.” Neither party objected to these revisions, and the district court gave the revised instructions to the jury before it deliberated on the charges against Appellant.

[¶7] The jury found Appellant guilty on both counts of sexual abuse of a minor in the second degree and on both counts of sexual abuse of a minor in the first degree. The district court entered Judgment against Appellant on all counts and imposed a lengthy prison sentence. Appellant filed this appeal challenging his conviction on the two charges of sexual abuse of a minor in the first degree.

DISCUSSION

[¶8] Because the issue is potentially dispos-itive, we begin with the State’s assertion that Appellant’s claim of erroneous jury instructions is barred under the doctrine of invited error. We have previously recognized that “[t]he doctrine of invited error prohibits a party from raising on appeal alleged trial court errors that were induced by that party’s actions.” Toth v. State, 2015 WY 86A, ¶ 45, 353 P.3d 696, 710 (Wyo. 2015) (quoting McIntosh v. State ex rel Wyo. Workers’ Safety & Comp. Div., 2013 WY 135, ¶ 54, 311 P.3d 608, 621 (Wyo. 2013) (internal quotation marks omitted)). The State contends that Appellant invited the alleged error by proposing and failing to object to the jury instructions he now challenges. On that basis, it claims Appellant is barred from raising his objections on appeal.

[¶9] In Toth, ¶ 45, 353 P.3d at 710-11, we refined our analysis of the invited error doctrine, recognizing that application of the doctrine depends upon whether an appellant “intentionally relinquished or abandoned a known right.” We explained that “[f]orfei-ture is the failure to make a timely assertion of a right, whereas waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” Id. (quoting United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993))). A waived, error is not subject to appellate review. Toth, ¶ 45, 353 P.3d at 710 (citing United States v. Cornelius, 696 F.3d 1307, 1319-20 (10th Cir. 2012)). As further explained in Perez:

Forfeiture is the failure to make a timely assertion of a right, whereas waiver is the “intentional relinquishment or abandonment of a known right.” Olano, 507 U.S. at 733, 113 S.Ct. at 1777 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Forfeited rights are reviewable for plain error, while waived rights are not. Id.

Perez, 116 F.3d at 845.

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Cite This Page — Counsel Stack

Bluebook (online)
2017 WY 100, 401 P.3d 863, 2017 WL 3821342, 2017 Wyo. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunamaker-v-state-wyo-2017.