from the District Court of Laramie County The Honorable
Thomas T.C. Campbell, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, Wyoming State Public Defender; Kirk A.
Morgan, Chief Appellate Counsel; David E. Westling, Senior
Assistant Appellate Counsel. Argument by Mr. Westling.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Benjamin Fischer, Assistant Attorney General. Argument by Mr.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Appellant Duane Lester Jackson was charged with three counts
of first-degree sexual abuse of a minor. The jury convicted
Mr. Jackson on Counts I and III. It acquitted him on Count
II. The district court granted a judgment of acquittal on
Count III. Mr. Jackson appeals his conviction on Count I
claiming reversible error because the jury instructions
contained identical elements for Counts I and II with nothing
to differentiate one count from the other. The verdict form
also failed to distinguish between Counts I and II. We term
these contentions the "Description Issue." Mr.
Jackson also argues the evidence was insufficient to convict
him of first-degree sexual abuse. Finally, he alleges his
trial counsel was ineffective. We conclude Mr. Jackson waived
review of the Description Issue claims under the invited
error doctrine, the evidence adduced at trial was sufficient
to convict Mr. Jackson on Count I, and Mr. Jackson's
counsel was not ineffective. We affirm.
We rephrase the issues:
I. Did Mr. Jackson waive his right to appeal the jury
instructions and verdict form under the invited error
II. Was the evidence sufficient to convict Mr. Jackson of
first-degree sexual abuse beyond a reasonable doubt on Count
III. Was Mr. Jackson denied a fair trial because of
ineffective assistance of counsel?
A.D., a seven-year-old girl, resided in a two-bed motel room
in Cheyenne, Wyoming, with her mother, sister and Mr.
Jackson. A.D. confided in her grandmother that Mr. Jackson
had sexually abused her more than once. Her grandparents
reported these allegations to law enforcement, and an
investigation was opened. The State charged Mr. Jackson with
three felony counts of First-Degree Sexual Abuse of a Minor
in violation of Wyo. Stat. Ann. § 6-2-314(a)(i) and (c).
The Information described the three counts identically,
without distinguishing facts. At trial, however, A.D.
testified to three separate incidents of sexual intrusion:
the first occurred on the bed; the second took place in the
bathroom; and the third was digital penetration as opposed to
At the close of the State's evidence, the district court
commented on distinguishing the occurrences:
THE COURT: . . . [E]ven if you take the victim's evidence
sort of situationally, there is an incident on the bed,
incident in the bathroom, that's two, but in what period
of time and when? Those are very troubling, but, of course,
the Wyoming Supreme Court has not put that burden on the
State, and if it occurred one, two or more times in an
identifiable time period, and here, you know, it seems
identifiable, you know, I can't cut it out for that
reason, I guess.
parties initially agreed to the jury instructions at the jury
instruction conference. However, Mr. Jackson's counsel
objected to the verdict form, arguing that under Heywood
v. State, 2007 WY 149, 170 P.3d 1227 (Wyo. 2007)
(abrogated on alternate grounds by Granzer v. State,
2008 WY 118, 193 P.3d 266 (Wyo. 2008)), the verdict form was
[DEFENSE COUNSEL]: . . . [W]e're running into the similar
issue that they had in Heywood v. State, where how
is the jury going to tell what the conduct was that he's
actually being convicted of? There is no indication of what
his conduct was in the verdict form that they would find him
guilty of, which leads to confusion as to what he was
actually convicted of. So I think that needs to be spelled
out, what the allegation is, or what conduct actually
constitutes the crime so that we know what they think
explained, "I don't know what . . . the allegations
actually are," and then suggested that the vague
descriptions of the underlying counts "need[ed] to be
addressed in this verdict form."
The district court expressed concern that adding additional
language to the verdict form might "supply an
allegation" that the State did not raise, but directed
the parties to revise the verdict form and present amendments
to the district court for consideration the next day. Before
the jury instruction conference ended, the State proposed a
different remedy-amending the jury instructions to include
more detail as to the time and place of each count rather
than changing the verdict form. Defense counsel renewed its
objection, again citing Heywood, arguing additional
specificity was needed in the verdict form:
[DEFENSE COUNSEL]: . . . My recollection of Heywood was they
wanted that in the verdict form, and the reasoning there was
they didn't want to be amending the Information, but
I'm not sure putting it in the instructions would really
be amending the Information, so I guess if I could hold off
on my argument there and I'll do some more research.
district court again directed the parties to come to agreed
upon language, "either in the verdict form or in the
elements instruction," by the start of trial the next
day. If the parties could not agree whether the defining
language should be inserted in the jury instructions or in
the verdict form, the district court instructed them to send
separate versions "of the elements or verdict or
whatever," and stated it would rule on competing
versions at the start of the third day of trial.
The parties were not able to agree on revised instructions,
and each submitted separate jury instructions to the district
court. Neither submitted an alternate verdict
form. The State then informed the court it agreed with the
Defendant's jury instructions. The district court noted
the defense counsel's proffered instructions "say
the same thing [as the State's proposed instructions] but
don't identify a location . . . ." The verdict form
was not discussed further.
The district court sentenced Mr. Jackson to a term of not
less than twenty-five years in prison on ...