[¶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 thе 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 оf sexual abuse of a minor in the second degree,
[¶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 elemеnts 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” tо- 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 thе 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 сounsel suggested keeping the instructions “consistent throughout” by again identifying “the specific conduct.” The dis
[¶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 Statе’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,
[¶9] In Toth, ¶ 45,
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,
[¶10] In the case befоre us now, Appellant proposed the idea that the instructions should be more specific. However, it was the district court’s suggestion to make the instruction more specific by taking language (Erectly from the Information. Based on the trаnscript of the jury instruction conference, it is apparent that defense counsel, the prosecutor, and the district court were all unaware that the language taken from the Information and inserted into the jury instructions did not match the language of the statute defining the crime of sexual abuse of a minor in the first degree. Because Appellant was unaware of the alleged error, we cannot conclude that he intentionally relinquished a known right.
[¶11] Appellant did nоt waive the claim. Rather, he forfeited it by failing to preserve it and, accordingly, his claim is subject to review for plain error. Vaught v. State,
[¶12] As reflected in the Facts section above, the errors alleged by Appellant are clearly set forth in the record. With regard to the rule of law, a trial court is given wide latitude in instructing the jury, but it commits reversible error if the instructions do not correctly state the law. Knospler v. State,
[¶13] Appellant was convicted of two counts of sexual abuse of a minor in the first degree in violation of Wyo. Stat. Ann. § 6-2-314(a)(i) (LexisNexis 2013). The statute lists, as one elemеnt of this crime, that the defendant “inflict[ed] sexual intrusion on a victim.” The term “sexual intrusion” is defined in Wyo. Stat. Ann. § 6-2-301(a)(vii) to mean “[a]ny intrusion, however slight, by any object or any part of a person’s body, except the mouth, tongue or penis, into the genital оr anal opening of another person’s body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse” or “[s]exual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or without emission.”
[¶14] In Appellant’s case, Jury Instruction No. 15 listed as an element of the crime of sexual abuse of a minor in the first degree that the defendant “[i]nflicted sexual intrusion upon D.S. (YOB 2000) by fondling or touching D.S.’s vagina and inserting his finger into D.S.’s vaginа.” Instruction No. 16 was identical to Instruction No. 15 except with different dates. Instruction No. 17 defined the term “sexual intrusion” in language identical to the statutory definition.
[¶15] Appellant contends that Instructions 15 and 16 “were erroneous in that they instructed the jury that sexual intrusion could be committed by fondling or touching the vagina of the alleged victim.” He asserts that, given the statutory definitions, fondling or touching may constitute “sexual contact,”
[¶16] We agree. Sexual intrusion is an element of the crime of sexual abuse of a minor in the first degree. The statutory definition of sexual intrusion does not include fondling or touching. The twо instructions that required the State to prove Appellant “[i]nflicted sexual intrusion upon D.S. (YOB 2000) by fondling or touching D.S.’s vagina” are incorrect statements of the law. Appellant has demonstrated that the instructions transgressed a clear and unequivocal rule of law.
[¶17] However, we cannot conclude that the erroneous instructions prejudiced Appel
Webster’s recognizes that the word “and” is “used in logic as a sentential connective that forms a complex sentence which is true only if both constituent sentences are true.” Webster’s New Collegiate Dictionary 43 (1977) (emphasis added). The use оf the conjunctive “and” thus requires both ... conditions to be met.
Prickett, ¶ 11,
Notes
. Appellant was also charged with a count of sexual abuse of a minor in the third degree. This count was dismissed before trial.
. A third count of soxual abuse of a minor in the first degreе was dismissed near the end of the trial.
. In Vaught, we suggested that "[t]here is an exception [to the doctrine of invited error] for an error which is 'necessarily prejudicial.'" Id., ¶ 34 n.11,
We would also note that prejudice attributable to a waived error may be considered in a different context. For example, a waived error may be considered in addressing an ineffective assistance of counsel claim. See United States v. Baldwin,
. "Sexual contact” is an element of the crime of sexual abuse of a minor in the second degree. Wyo. Stat. Ann. § 6-2-315(a)(iii). It is defined to include "touching ... of the victim’s intimate parts.” Wyo. Stat. Ann. § 6-2-301 (a)(vi).
. In oral argument, counsel for Appellant offered an alternative interpretatiоn of the erroneous instructions. He suggested that the jury , could have found Appellant guilty if he: (1) fondled D.S.’s vagina; or (2) touched and inserted his finger in D.S.’s vagina. Appellant’s interpretation is contrary to the structure of the language used in the instructions, which sets "fondling or touching D.S.’s vagina” together as one element, and "inserting his finger into D.S.’s vagina" as a second and separate element.