Invited Error Waives Instructional Objections; Single-Count Third-Degree Sexual Abuse Requires No Act-Specific Jury Instruction

Introduction

This commentary examines the Supreme Court of Wyoming’s decision in Ryan Dale Townsend v. The State of Wyoming, 2025 WY 108 (Oct. 3, 2025). The case arises from a mixed jury verdict on three sexual abuse charges stemming from alleged conduct toward a 15-year-old victim, VL. The jury acquitted Mr. Townsend of two counts of second-degree sexual abuse of a minor (Counts I and II, each premised on “sexual intrusion”) but convicted him of one count of third-degree sexual abuse of a minor (Count III, premised on “immodest, immoral, or indecent liberties” under Wyo. Stat. Ann. § 6-2-316(a)(iv)).

On appeal, Mr. Townsend challenged the jury instructions on two grounds: first, that the court failed to tell the jury third-degree sexual abuse cannot be based on acts constituting first- or second-degree sexual abuse (i.e., sexual intrusion); and second, that the court should have specified the factual conduct supporting the third-degree charge. The Court affirmed, holding that the first claim was waived under the invited error doctrine and the second claim failed under plain error review.

Summary of the Opinion

The Wyoming Supreme Court, per Justice Gray, affirmed Mr. Townsend’s conviction for third-degree sexual abuse of a minor. The Court held:

• Invited error barred appellate review of the argument that the jury should have been instructed that third-degree sexual abuse excludes conduct that would constitute first- or second-degree sexual abuse. Defense counsel expressly requested that Instruction 20 not exclude the conduct alleged in the second-degree counts, thereby intentionally relinquishing the objection.
• Under plain error review, the district court did not violate a clear and unequivocal rule of law by declining to include act-specific factual details in the third-degree elements instruction for a single-count charge. Wyoming law does not require act-specific unanimity or fact-specific element instructions for a single count, particularly where the evidence supports “indecent liberties” independent of the acquitted “intrusion” conduct.

Distinguishing prior cases, the Court explained that its earlier demand for clarifying instructions in Cercy addressed a double jeopardy/issue-preclusion context, and the unanimity concerns in Walker involved multiple identical counts—not a single count as here. The Court also clarified that “on or about” date language is not error absent an alibi defense making date material, distinguishing Esquibel.

Analysis

Statutory Framework and the Charges

Wyoming’s sexual abuse statutes establish degree-based offenses, with third-degree (§ 6-2-316(a)) expressly carved out to exclude conduct constituting first- or second-degree sexual abuse (§§ 6-2-314, -315). Relevant here, Count III proceeded under § 6-2-316(a)(iv), which criminalizes, for actors at least 17 years old, knowingly taking “immodest, immoral or indecent liberties” with a minor under 17 who is at least four years younger.

At trial, the court instructed the jury on:

• Elements of third-degree under § 6-2-316(a)(iv) (Instruction 18);
• A general, societal-common-sense definition of “immodest, immoral, or indecent liberties” (Instruction 19); and
• A clarifying instruction that allowing minors to use a CBD pen/vape does not constitute indecent liberties as contemplated in Count III (Instruction 20).

In a critical on-record colloquy, defense counsel agreed to keep Instruction 20 “simple” and affirmatively requested that the court not add language expressly excluding penetration-based conduct (Counts I and II) from serving as the basis for Count III.

Precedents Cited and Their Role

• Toth v. State, 2015 WY 86A, 353 P.3d 696 (Wyo. 2015) and United States v. Olano, 507 U.S. 725 (1993): These decisions articulate the difference between forfeiture and waiver. Forfeiture is a failure to timely assert a right; waiver is the intentional relinquishment or abandonment of a known right. The Court invoked these to ground the invited error doctrine.
• Jackson v. State, 2019 WY 81, 445 P.3d 983 (Wyo. 2019) and Mackley v. State, 2021 WY 33, 481 P.3d 639 (Wyo. 2021): Both reinforce that a defendant who knowingly accepts or proposes jury instructions cannot later challenge them on appeal; invited error precludes review of instructional issues.
• Walker v. State, 2022 WY 158, 521 P.3d 967 (Wyo. 2022): Establishes the plain error framework for jury instructions and the requirement that instructions, taken as a whole, leave “no doubt” as to the circumstances under which the crime can be found. It also addresses jury unanimity for multiple identical counts; where indistinguishable counts risk a non-unanimous verdict, reversal may be warranted. The Court distinguished Walker because Townsend involved a single third-degree count.
• Cercy v. State, 2019 WY 131, 455 P.3d 678 (Wyo. 2019): In a retrial setting, evidence of cunnilingus (previously resolved by an acquittal) could not serve as the “sexual contact” basis for a third-degree conviction. The Court required an instruction excluding that conduct under principles akin to issue preclusion. The Court distinguished Cercy here because there was no prior adjudication barring consideration of particular acts; thus, no obligation to enumerate which acts could (or could not) satisfy third-degree in this single-trial context.
• Esquibel v. State, 399 P.2d 395 (Wyo. 1965): Held that when the date of the offense becomes material because of an alibi, the jury must be instructed to fix the date. The Court distinguished Esquibel because Townsend did not present an alibi, and the date was not material.
• Jordin v. State, 2018 WY 64, 419 P.3d 527 (Wyo. 2018); Worley v. State, 2017 WY 3, 386 P.3d 765 (Wyo. 2017); Richardson v. United States, 526 U.S. 813 (1999): These authorities reinforce that while jurors must unanimously agree each element is satisfied, they need not unanimously agree on the particular means or factual theory by which an element is met. This supports the Court’s rejection of a requirement to specify factual acts in a single-count instruction.

Legal Reasoning

1) Invited Error and Waiver

The Court first addressed whether Mr. Townsend could challenge the absence of a limiting instruction clarifying that third-degree sexual abuse may not rest on acts constituting first- or second-degree sexual abuse. The district court had expressly raised the possibility of excluding Counts I and II conduct from Count III in Instruction 20. Defense counsel affirmatively requested that the court not include such an exclusion, opting to “keep it simple.” That strategic choice constituted an intentional relinquishment of a known right—precisely the kind of waiver captured by invited error doctrine.

Relying on Olano, Toth, and Jackson, the Court held the issue was waived and declined to review it. This underscores a practical lesson: when counsel affirmatively shapes an instruction (especially after the court spotlights a potential safeguard), later appellate claims premised on the omitted safeguard are foreclosed.

2) Plain Error and the Factual Basis in a Single-Count Instruction

As to the claim that the court should have included the specific acts forming the basis of the third-degree charge, the Court applied the three-part plain error test from Walker:

• The record must clearly show the incident alleged to be error;
• A clear and unequivocal rule of law must have been violated in a clear and obvious way; and
• The error must have denied a substantial right resulting in material prejudice.

While the jury instructions were in the record (satisfying part one), the Court found no violation of a clear and unequivocal rule of law (failing part two). Wyoming precedent does not require act-specific element instructions for a single count. Instead, under Jordin/Worley/Richardson, jurors may disagree about the factual “means” so long as they unanimously agree that the element—here, “immodest, immoral, or indecent liberties”—was proven beyond a reasonable doubt.

The Court distinguished:

• Cercy, which required excluding acts resolved by a prior acquittal;
• Walker, where the combination of multiple indistinguishable counts and vague airing in closing argument created a risk of non-unanimity; and
• Esquibel, which applied where date was essential due to an alibi.

Here, the single third-degree count was accompanied by separate instructions for Counts I and II (vaginal and anal intrusion), and another instruction told the jury to consider each count separately. The jury acquitted on the intrusion counts and convicted on the indecent liberties count—reflecting that it distinguished the charges and the evidence.

Moreover, the State introduced multiple acts supporting indecent liberties independent of the alleged penetrations: touching VL’s thigh, kissing her neck and lips, undressing her, undressing himself, and masturbating on her chest. Instruction 20 sensibly clarified that merely providing a CBD pen/vape to minors cannot satisfy indecent liberties for Count III. Against that evidentiary and instructional backdrop, the Court saw no clear legal requirement to enumerate particular acts in the elements instruction and thus no plain error.

Impact and Practical Implications

A. Instruction Conferences: Preserve or Forfeit

• Defense and prosecution must treat instruction conferences as dispositive moments. Where a court flags a potential clarifying instruction—especially one tailoring third-degree counts away from penetration-based acts—any express decision to omit that safeguard will likely be treated as invited error, waiving appellate review.
• Trial courts should continue to place on the record the gist of off-record instruction discussions. The on-record colloquy here was pivotal in establishing knowing waiver.

B. Single-Count Indecent Liberties: No Act-Specific Element Instruction Required

• This decision reaffirms that for a single count of third-degree sexual abuse, juries need not be directed to particular acts that may satisfy “indecent liberties.” General elements instructions remain sufficient when the statute and evidence provide multiple, legally adequate means.
• Prosecutors should marshal multiple independent acts supporting indecent liberties to insulate a third-degree conviction even where penetration counts fail.

C. Limits of Walker’s Unanimity Concerns

• Walker retains force where a charging document and instructions present multiple identical counts without distinguishing details, risking a non-unanimous blend of factual bases across counts. Townsend clarifies that those concerns do not extend to a single count accompanied by generalized elements instructions supported by varied evidence.

D. The Cercy Distinction: Prior Adjudications Matter

• Courts must instruct juries not to rely on acts previously resolved by acquittal (issue preclusion/double jeopardy implications). Townsend confirms that absent that unique procedural posture, enumerating or excluding specific acts is not required for a single count.

E. The Role of Clarifying “Non-Sexual” Conduct Instructions

• Instruction 20’s explicit statement that providing a CBD pen/vape to minors is not “indecent liberties” shows prudent line-drawing to prevent a conviction based on non-sexual conduct. Counsel may wish to request similar clarifying instructions to avoid juror confusion, particularly where evidence includes questionable-but-nonsexual behavior.

Complex Concepts Simplified

• Invited Error vs. Forfeiture:
  • Forfeiture: You failed to object—review is for plain error.
  • Invited Error (Waiver): You asked for or agreed to the very thing you later challenge—appeal is barred. It requires an intentional relinquishment of a known right.
• Plain Error (Three-Part Test):
  • The alleged error is clear from the record.
  • A clear and unequivocal rule of law was violated in a clear and obvious way.
  • The defendant suffered material prejudice.
• Means vs. Elements:
  • Jurors must unanimously agree that each legal element is proven.
  • They need not unanimously agree on the specific factual “means” by which an element is satisfied (e.g., which of several acts constituted “indecent liberties”).
• “Indecent Liberties” in Wyoming:
  • Defined broadly by common societal sense as conduct that is indecent or improper in a sexual context, evaluated under the totality of the circumstances.
  • Not every inappropriate act qualifies; courts may clarify that particular non-sexual acts (like furnishing a CBD pen) are insufficient.
• Double Jeopardy/Issue Preclusion (Cercy Context):
  • When a prior acquittal necessarily decides that a specific act did not occur, a later jury cannot use that act to satisfy an element of a new charge; instructions must tell the jury not to consider it.
• “On or About” Dates (Esquibel):
  • Permissible unless the defendant’s alibi makes the date material. If date is material, the jury must be instructed to fix the offense to a specific time frame consistent with the alibi evidence.

Conclusion

Townsend underscores two enduring principles in Wyoming criminal practice. First, invited error is potent: when counsel intentionally declines a clarifying instruction—especially after the court spotlights it—appellate review is foreclosed. Second, for a single count of third-degree sexual abuse of a minor under § 6-2-316(a)(iv), the trial court is not obligated to specify the precise acts that can satisfy “indecent liberties,” provided the instructions correctly state the law and the evidence supports multiple sexualized acts that meet the standard.

The decision harmonizes Wyoming’s instruction jurisprudence: Walker’s unanimity and clarity concerns are confined to multiple, indistinguishable counts; Cercy’s exclusionary mandate applies in retrials or where issues have been necessarily decided; and Esquibel’s date-specificity applies only when alibi makes time material. Practically, Townsend advises trial lawyers to be deliberate and explicit at instruction conferences and affirms trial courts’ flexible, elements-focused approach to single-count “indecent liberties” charges where the record contains diverse sexualized conduct apart from penetration.