Nunamaker v. State, 401 P.3d 863

Jeremy Nunamaker was tried on joined informations charging two counts each of sexual abuse of a minor in the first and second degrees; convictions on all four contested counts.
First-degree counts alleged he "inflicted sexual intrusion" on D.S. by "fondling or touching D.S.'s vagina and inserting his finger into D.S.'s vagina." Second-degree counts alleged separate acts (rubbing vagina; touching breast).
At the instruction conference the court, with agreement of both parties, copied the exact phrasing from the informations into the jury instructions for the first-degree counts.
The statutory definition of "sexual intrusion" excludes mere fondling or touching; it requires an intrusion (e.g., any intrusion by an object or part of the body into genital/anal opening) or specified acts (intercourse, cunnilingus, etc.).
Nunamaker did not object to the instructions at trial; on appeal he argued the first-degree instructions were legally erroneous. The State argued the claim was barred as invited error.
The court held the instructions misstated the law but found no prejudicial error because the instruction required both fondling/touching and insertion (conjunctive "and"), imposing a greater burden on the prosecution than the statute.

Issue	Nunamaker's Argument	State's Argument	Held
Whether the jury instructions for first-degree sexual abuse incorrectly equated fondling/touching with "sexual intrusion"	Instruction improperly allowed conviction for fondling/touching as "sexual intrusion" contrary to statute	Claim barred by invited error because defense proposed and accepted the language at conference	Instructions were legally incorrect (fondling/touching is not statutory "sexual intrusion") but error was forfeited, reviewed for plain error, and found not prejudicial because instructions required both touching and insertion (conjunctive), so conviction stands

Toth v. State, 353 P.3d 696 (Wyo. 2015) (explains invited error doctrine and distinction between forfeiture and waiver)
United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (discusses forfeiture vs. waiver and plain error review)
United States v. Olano, 507 U.S. 725 (U.S. 1993) (framework distinguishing forfeiture and waiver)
Guy v. State, 184 P.3d 687 (Wyo. 2008) (plain error standard articulated)
Knospler v. State, 366 P.3d 479 (Wyo. 2016) (trial court must correctly state law in jury instructions)
Prickett v. Prickett, 167 P.3d 661 (Wyo. 2007) (conjunctive “and” requires both elements be satisfied)
Sanchez v. State, 751 P.2d 1300 (Wyo. 1988) (greater protection where prosecution required to prove more facts)