Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] The appellant was convicted of one count of sexual abuse of a minor and one count of attempted sexual abuse of a minor. In this appeal from those convictions, the appellant challenges the district court's admission of evidence of a prior conviction, and he accuses the prosecutor of committing misconduct during closing argument. Finally, he relies upon the cumulative error doctrine. Finding no error, we affirm.
[¶2] 1. Does the doctrine of invited error bar the appellant from raising in this appeal issues concerning the admission of evidence of his prior conviction?
2. Did plain error occur as a result of prosecutorial misconduct during closing argument?
3. Does the doctrine of cumulative error require reversal of the appellant's convictions?
[¶3] The sordid details of the encounter between the appellant and his victim are not particularly relevant to our analysis of the appellate issues. Briefly stated, the State produced evidence that the appellant manually stroked the penis of a twelve-year-old boy and attempted to insert a finger into the boy's anus. Further, the State proved that DNA consistent with that of the appellant was found on a swab taken from the boy's penis.
Does the doctrine of invited error bar the appellant from raising in this appeal issues concerning the admission of evidence of his prior conviction?
[¶4] Where an objection has been made, we review a district court's decision as to the admissibility of evidence for abuse of discretion. Majors v. State, 2011 WY 63, ¶ 24, 252 P.3d 435, 441 (Wyo. 2011). Where "no objection is lodged in the trial court to the evidence challenged on appeal, we apply our plain error standard of review." Roden v. State, 2010 WY 11, ¶ 9, 225 P.3d 497, 500 (Wyo. 2010). These standards of review are inapplicable, however, where the appellant has not only failed to object at trial, but has affirmatively acted to introduce or allow introduction of the evidence. "[T]he doctrine of invited error prohibits a party from raising error on appeal that was induced by the party's own actions." Martin v. State, 2007 WY 76, ¶ 34, 157 P.3d 923, 930-31 (Wyo. 2007); see also Bromley v. State, 2007 WY 20, ¶ 35, 150 P.3d 1202, 1212 (Wyo. 2007) and Butcher v. State, 2005 WY 146, ¶ 29, 123 P.3d 543, 552 (Wyo. 2005). The invited error doctrine applies in this case.
[¶5] The appellant filed a pretrial motion seeking disclosure by the State of any evidence it intended to introduce under W.R.E. 404(b) or under W.R.E. 609. In a nutshell, W.R.E. 404(b) allows admission of uncharged misconduct evidence, under limited circumstances, if such evidence is probative of such things as motive or intent. W.R.E. 609, on the other hand, allows admission of evidence of prior criminal convictions, under limited circumstances, for the purpose of impeaching the credibility of a witness. The State's response to the appellant's motion indicated the State's intent to introduce evidence that the appellant had a prior conviction in Iowa for "lascivious acts with a child." While analyzing the evidence primarily under W.R.E. 404(b), the State reserved the right to argue for its admission under W.R.E. 609.
[¶6] The district court heard the motion during a pretrial conference several months before trial. In the midst of a brief generalized discussion concerning what the district court characterized as "the 404(b) issue," the following colloquy occurred:
[PROSECUTOR]: . . . . Probably goes more to 609.
THE COURT: All right. [Defense Counsel], what would you like me to know?
[DEFENSE COUNSEL]: Your Honor, certainly if [the appellant] intends to take the stand within the last ten years of him being released -- I believe it was 2001 from custody -- I would think that information should come in.
However, without [the appellant] taking the stand, I think this is exactly the type of material that we would hope to keep out. I think it's highly prejudicial. I think without [the appellant's] testimony, based on the evidence the State may introduce, I think there's a good possibility [the appellant] could be convicted, based almost wholly on this charge itself.. . . .
THE COURT: Okay. I'll take this one under advisement. . . .
[¶7] The chronology of events and non-events that followed leads us to the conclusion that the appellant is barred from raising this issue on appeal. To begin with, the district court never ruled upon the matter, and it does not appear from the record that the appellant ever sought such a ruling. Further, the State did not mention the prior conviction during its opening statement or during the examination of any of its witnesses, and rested its case with no mention of the prior ...