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Nunamaker v. State

Supreme Court of Wyoming

September 1, 2017

JEREMY NUNAMAKER, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Laramie County The Honorable Catherine R. Rogers, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

          Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Darrell D. Jackson, Director, Kevin T. Farrelly, Student Director, and Paige N. Hammer, Student Intern, Prosecution Assistance Program, University of Wyoming, College of Law. Argument by Ms. Hammer.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          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 28thday of February, 2014;
2. In Laramie County, Wyoming;
3. The Defendant, Jeremy ...

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