FOX, Justice.
[¶ 1] Gregory M. Toth waited outside a gas station, trying to get a ride out of Gillette, Wyoming, on a cold fall morning in October 2013. As luck would have it, Ivan Aguilar pulled up in a pickup and left it running while he went inside. Mr. Toth got in and drove off, intending to drive south until the truck ran out of gas and then abandon it. The vehicle was quickly reported stolen, law enforcement gave chase, and Mr. Toth was apprehended. A jury found Mr. Toth guilty of felony theft, and he appeals. We affirm.
[¶ 2] We restate the issues as follows:
1. Was there sufficient evidence for the jury to reasonably conclude that Mr. Toth intended to dispose of the vehicle in a manner that made it unlikely the owner would recover it?
2. Did the district court abuse its discretion under W.R.Cr.P. 16 when it decided not to impose sanctions for the State's discovery violation?
3. Did the district court abuse its discretion under W.R.E. 609 when it allowed evidence of Mr. Toth's prior felony conviction?
4. Did the district court abuse its discretion and violate Mr. Toth's constitutional right when it prohibited defense counsel from questioning Officer Dillard about Mr. Toth's "nonstatements" made during his interview following his arrest?
5. Did Mr. Toth waive his right to challenge the district court's response to the jury question under the invited error doctrine?
[¶ 3] In the early morning hours of October 5, 2013, Ivan Aguilar pulled his Pro Built Homes company truck and attached trailer into a Shell gas station outside Gillette, Wyoming.
[¶ 4] Gregory Toth was at the gas station because he "had nowhere else to go." He "thought that people were after [him]," and asked a gentleman for a ride out of town. The gentleman declined, and as Mr. Toth was pacing in front of the station, he noticed Mr. Aguilar's company truck running with the door open. He climbed in and drove away. He testified, "My plan was to get out of town and drive as far south as I could until I ran out of gas and abandon the vehicle on the side of the road or in a parking lot and keep, keep going." Mr. Toth testified to being under the influence of methamphetamine at the time, which "confuses me and I have audio and visual hallucinations.... I — it makes my decision process wrong."
[¶ 5] Pursuant to a be on the lookout (BOLO) report for the stolen vehicle, a patroller with the Campbell County Sheriffs Department identified the vehicle and pursued Mr. Toth for approximately twenty minutes before Mr. Toth ran the vehicle off an unpaved and snow-covered rural road and got stuck. Mr. Toth was charged with felony theft, Wyo. Stat. Ann. § 6-3-402(a) (Lexis-Nexis 2013), which provides: "A person is guilty of theft if he knowingly takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the other person of the property."
[¶ 6] At trial, the State contended that Mr. Toth's intention of taking the truck, driving it until it ran out of gas, and then abandoning it met the statutory definition of "deprive:" "To dispose of the property so as to make it unlikely that the owner will recover it." Wyo. Stat. Ann. § 6-3-401(a)(ii)(B) (LexisNexis 2013).
[¶ 7] The State called Officer Dillard of the Gillette Police Department, who was the first responder to the stolen vehicle report and who later interviewed Mr. Toth while he was in custody. Officer Dillard testified that during the interview, Mr. Toth admitted he had taken the truck and attached trailer, and "he told me that [he] was just trying to get out of town[.]" On cross-examination, Officer Dillard testified that at the time of the interview, Mr. Toth "was exhibiting behaviors that are similar to someone under the influence of a controlled substance." Officer Dillard testified that Mr. Toth was exhibiting "twitchiness, making nonstatements, things like that that made me believe he was under the influence." When Mr. Toth's defense counsel inquired what type of "nonstatements" Mr. Toth was making, the district court sustained the State's objection on hearsay grounds. On re-direct, Officer Dillard testified with respect to Mr. Toth's signs of intoxication: "I did not believe that his being under the influence with what he was on was affecting his speech or the way he was talking to me[,]" and "It did not appear to affect the way he was recalling. The questions I asked him it did not appear as though he had any type of memory loss[.]"
[¶ 8] At trial, Mr. Toth relied on his self-induced intoxication to defeat the specific intent necessary for felony theft. Following the State's case-in-chief, Mr. Toth prepared to take the stand. The following exchange regarding the use of Mr. Toth's prior felony conviction occurred outside the presence of the jury:
[¶ 9] The State asked its two questions of Mr. Toth regarding his prior felony conviction, in addition to a series of other questions. In closing argument, the State raised the burglary conviction again: "Determining credibility in this particular matter, Mr. Toth has a prior felony burglary charge. Does that affect his credibility as a witness?" And in its rebuttal closing argument, the State once again broached the issue of credibility in relation to Mr. Toth's prior burglary conviction: "Mr. Toth who has motive and bias in regards to this case, in determining credibility, looking at his statements versus the evidence, taking into account the prior felony burglary, in regards to determining credibility...."
[¶ 10] Prior to closing arguments, the district court instructed the jury on the elements of theft in Jury Instruction No. 10, explaining:
The district court instructed the jury on the statutory definition of "deprive." It also instructed the jury as to the lesser-included offense of unauthorized use of a vehicle.
[¶ 11] Additionally, because Mr. Toth's defense was that he was too intoxicated to form the specific intent required for theft, the district court gave Mr. Toth's proposed self-induced intoxication jury instruction:
[¶ 12] On two different occasions during the trial, the district court asked Mr. Toth's counsel whether he wished to include a specific intent instruction, which he declined.
[¶ 13] The jury deliberated for approximately two hours and forty-five minutes before it sent out the following question: "Do we only consider the original purpose of the taking of the equipment or do we consider the entire event[?]" When the district court questioned the attorneys concerning the appropriate response, Mr. Toth's attorney made the following recommendation: "Your Honor, as I sat here and thought about it my response to the question would be to refer them to the elements instruction as previously given." The district court stated that it would respond in written form to the jury's question: "In response to your inquiry, the jury should consider all the instructions previously given including but not limited to the instructions defining the offenses of theft and unauthorized use of a vehicle." Approximately forty-five minutes later, the jury returned a guilty verdict for felony theft.
[¶ 14] Mr. Toth timely filed this appeal.
[¶ 15] Mr. Toth argues there was insufficient evidence to prove that when he took the truck, he intended to deprive the owner of possession, that is, to dispose of it in a manner that would make its recovery unlikely. When reviewing whether the State provided sufficient evidence to meet its burden, this Court applies the following standard:
Andersen a. State, 2014 WY 88, ¶ 23, 330 P.3d 256, 263 (Wyo.2014) (quoting Guerrero r. State, 2012 WY 77, ¶ 14, 277 P.3d 735, 738-39 (Wyo.2012)).
[¶ 16] "Conviction with respect to a crime involving an element of `specific intent' requires the State to prove that the defendant intended to commit some further act, or achieve some additional purpose, beyond the prohibited conduct itself." Wetherelt a. State, 864 P.2d 449, 452 (Wyo.1993). "A jury may properly infer larcenous
[¶ 17] Mr. Toth argues that his stated intent of driving the vehicle until it ran out of gas and then abandoning it by the side of the road or in a parking lot is insufficient evidence to support the jury's conclusion that he intended to dispose of the vehicle so as to make its recovery by the owner unlikely. In State v. Davis, 38 N.J.L. 176, 178-79 (N.J. 1875), the court squarely addressed the issue of abandonment in the context of larceny.
Wyoming cases also adopt this approach.
[¶ 18] In Wells v. State, 613 P.2d 201 (Wyo.1980), Mr. Wells was picked up while hitchhiking, and with the owner's consent, was allowed to sleep alone in the vehicle overnight. Id. at 202. The keys were left in the truck, and the next morning the vehicle was gone. Id. The vehicle was eventually recovered in Colorado, along with a backpack, a prescription bottle of lotion, and pills identified as belonging to Mr. Wells. Id. After a jury trial, Mr. Wells was convicted of grand larceny for theft of the motor vehicle. Id. at 201. On appeal, Mr. Wells challenged, inter alia, the sufficiency of evidence proving he had the intent necessary for larceny.
[¶ 19] Recently, in Pena, Mr. Pena argued the jury had insufficient evidence to conclude that he acted with the specific intent to deprive
[¶ 20] Mr. Pena was stopped in Louisiana pursuant to a BOLO notice. Id., ¶ 8, 294 P.3d at 15. Initially, Mr. Pena indicated that the truck belonged to his boss, but then conceded it was stolen, and did not mention any plan of returning it. Id. at ¶¶ 9-10. He was charged with felony larceny under Wyo. Stat. Ann. § 6-3-402(a), and the truck was returned to its original owner. Id. at ¶¶ 11-12.
[¶ 21] At trial, the State argued that the evidence showed Mr. Pena intended to deprive the owner of the truck for the following reasons:
Id., ¶ 16, 294 P.3d at 16.
[¶ 22] This Court found the evidence sufficient to prove Mr. Pena had the specific intent to deprive, holding "[a] jury may properly infer larcenous intent from circumstantial evidence, such as the defendant's words and conduct." Id., ¶ 39, 294 P.3d at 21 (citing Jones, 2012 WY 82, ¶ 27, 278 P.3d at 735-36). "The wrongful taking of another's property with no apparent intention of returning it, and in the absence of any explanatory circumstances' can support a finding of intent to deprive." Id. (quoting Wells, 613 P.2d at 204).
[¶ 23] Mr. Toth clearly admitted that he intended to drive the vehicle until it ran out of gas and then abandon it. Though both Wells and Pena were decided under different statutory language, their holdings are no less applicable to Mr. Toth's situation. Similar to Mr. Wells and Mr. Pena, Mr. Toth stated no intent to return the property to its owner, and the possibility that it might have been returned is not enough, where the "broader probability [is] that the owner may lose his property, because the taker has no purpose of ever returning it to him." Davis, 38 N.J.L. at 179. We find there was sufficient evidence for the jury to reasonably conclude that Mr. Toth possessed the requisite intent to deprive.
[¶ 24] Mr. Toth made a written demand for disclosure of his prior criminal record pursuant to W.R.Cr.P. 16(a)(1)(B).
[¶ 25] A "trial court has discretion in determining the proper sanction for a
[¶ 26] The district court explained:
When asked by the district court, both Mr. Toth and his attorney stated that they were aware of Mr. Toth's previous felony burglary conviction. Mr. Toth was therefore not surprised by the fact that he had a prior felony conviction.
[¶ 27] Mr. Toth argues that he was nevertheless prejudiced by the State's failure to disclose his prior criminal record because he was surprised by the State's intent to use the evidence at trial. He argues that his testimony was imperative to highlighting his lack of intent to deprive, and his defense strategy relied on Mr. Toth's testimony without the State bringing to light his prior criminal record.
[¶ 28] "[T]he ultimate issue is whether or not the court could reasonably conclude as it did.'" Ceja, 2009 WY 71, ¶ 11, 208 P.3d at 68 (quoting Naple, 2006 WY 125, ¶ 8, 143 P.3d at 361). We conclude that the district court acted within the bounds of reason when it imposed no sanction for the State's discovery violation based on the fact that Mr. Toth and his counsel were fully aware of the former conviction.
[¶ 29] The related issue is whether the district court abused its discretion under W.R.E. 609 when it allowed evidence of Mr. Toth's prior conviction at trial. The State argues that in the absence of a proper objection, plain error is the appropriate standard. Though Mr. Toth's 609 objection was couched in the discovery violation, we treat it as a valid objection, preserving the issue for review under our abuse of discretion standard. See Majors v. State, 2011 WY 63, ¶ 24, 252 P.3d 435, 441 n. 3 (Wyo. 2011) (The state argued for plain error, however the court recognized the validity of the objection because it was clearly made on the record, and the district court's determination of the admissibility of the evidence was "somewhat unusual."). "We review claimed error concerning the improper admission of evidence for abuse of discretion and will not reverse the trial court's decision absent a clear abuse." Szymanski v. State, 2007 WY 139, ¶ 15, 166 P.3d 879, 883 (Wyo.2007) (citing Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206 (Wyo.2007)). "A trial court abuses its discretion when it could not have reasonably concluded as it did. In this context, `reasonably' means sound judgment exercised with regard to what is right under the circumstances and without being arbitrary or capricious." Id. (internal citation omitted). Upon a finding of abuse of discretion, we must then determine whether the error was prejudicial. "`Error is prejudicial if there is a reasonable possibility that the verdict might have been more favorable to
[¶ 30] W.R.E. 609(a) provides, in relevant part, that "[f]or the purposes of attacking the credibility" of a criminal defendant, a prior conviction shall be placed into evidence if (1) "the crime was punishable by death or imprisonment in excess of one (1) year under the law under which the [defendant] was convicted; and (2) "the court determines that the probative value of admitting th[e] evidence outweighs its prejudicial effect to the accused[.]" W.R.E. 609(a)(1). If the State is able to satisfy these two criteria, Rule 609(b) requires:
The Rule 609(b) time calculation requires consideration of two dates: (1) the date of conviction, and (2) the date of release from confinement. If the later of these dates falls within ten years of the date of trial, 609(b) is satisfied. Lee v. State, 2 P.3d 517, 525 (Wyo. 2000). If both dates fall outside of the ten-year timeline, before admitting the evidence "[u]nder Rule 609(b), the court must view specific facts and circumstances and decide not only that the probative value outweighs the prejudicial effect, but also that the probative value is `substantially' outweighed." Vaupel v. State, 708 P.2d 1248, 1250 (Wyo. 1985).
[¶ 31] "Rule 609(a) requires an initial balancing of probative value and prejudicial effect[.]" Vaupel, 708 P.2d at 1250. In Miller v. State, 784 P.2d 209, 211 (Wyo.1989), we held that "W.R.E. 609(a) places no burden upon the court to makes findings [of whether the prior conviction is a qualifying conviction and probative value outweighs prejudicial effect] to support the admission of prior convictions until the defendant enters a proper objection." Id. However, we held that once a defendant objects to the admission of prior conviction evidence under Rule 609(a), the "trial court's obligation" to make findings to support the admission of prior convictions becomes "clear and unequivocal." id. (citing Bradley v. State, 635 P.2d 1161, 1165 (Wyo. 1981)).
[¶ 32] A defendant's decision to take the stand and expose himself to impeachment and possible jury bias because of prior conviction evidence is a difficult decision. As the District of Columbia Court of Appeals has explained:
United States v. Lipscomb, 702 F.2d 1049, 1062-63 (D.C.Cir.1983) (emphasis in original) (internal quotation marks and citations omitted). "This `special balancing test' is used because the `defendant faces a unique risk of prejudice — i.e., the danger that convictions that would be excluded under [Rule 404] will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes.'" United States v. Smalls, 752 F.3d 1227, 1240 (10th Cir.2014) (quoting Fed.R.Evid. 609, advisory committee notes (1990 Amendments)).
[¶ 33] Here, the district court erred when it relieved the State of its burden of producing information on the type of felony conviction and dates of the conviction and release from confinement when it inquired directly of
[¶ 34] Nevertheless, we cannot conclude Mr. Toth was prejudiced by the inclusion of the evidence. Though the admission may have affected his credibility with the jury, the fact remains that Mr. Toth himself admitted that at the time he took the vehicle he intended to drive it until it ran out of gas and then abandon the vehicle, as discussed see supra ¶¶ 4, 23. Considering Mr. Toth's own admission of his intent, we cannot say that the judgment was "`substantially swayed by the error.'" Warner v. State, 2001 WY 67, ¶ 22, 28 P.3d 21, 28 (Wyo.2001) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946)). We conclude that the district court's abuse of discretion in admitting Mr. Toth's prior conviction was harmless and does not warrant reversal.
[¶ 35] At trial, the district court prevented Mr. Toth's attorney from questioning Officer Dillard as to the content of Mr. Toth's "nonstatements," citing hearsay grounds. Our standard for review of evidentiary rulings is abuse of discretion. Wimbley v. State, 2009 WY 72, ¶ 10, 208 P.3d 608, 611 (Wyo.2009).
Wise v. Ludlow, 2015 WY 43, ¶ 42, 346 P.3d 1, 12 (Wyo.2015) (quoting Glenn v. Union Pacific R.R. Co., 2011 WY 126, ¶ 12, 262 P.3d 177, 182 (Wyo.2011)). Limits on a defendant's constitutional right to present a complete defense are reviewed de novo. Bush v. State, 2008 WY 108, ¶¶ 58-59, 193 P.3d 203, 217 (Wyo.2008); Hannon v. State, 2004 WY 8, ¶¶ 13-14, 84 P.3d 320, 328 (Wyo.2004).
[¶ 36] On cross-examination, Officer Dillard testified that Mr. Toth was exhibiting "[t]witchiness, making nonstatements, things like that that made me believe he was under the influence." Mr. Toth's counsel attempted to elicit the content of what presumably
Armstrong v. State, 826 P.2d 1106, 1117-1118 (Wyo.1992) (emphasis in original) (some quotation marks omitted).
[¶ 37] Here, the "nonstatements," by virtue of being nonstatements, were not assertions. See Humphrey v. State, 962 P.2d 866, 872 (Wyo.1998) (Testimony from two witnesses that as daughter was tucked into bed, daughter asked father if he wanted to "suck the juices" out of her vagina, did not assert that any event happened or that a condition existed, and thus was not a hearsay.) Furthermore, by the very fact that they were "nonstatements," we cannot conceive how Officer Dillard's testimony could have been used to prove the "truth of the matter asserted." See Proffit v. State, 2008 WY 102, ¶ 21, 191 P.3d 963, 970 (Wyo.2008) (testimony that a non-witness had stated that a drug deal had gone bad was not hearsay since it was not offered to prove the truth of the drug deal failure); Armstrong, 826 P.2d at 1119 (witness testimony about her statement to the victim and bar patrons that she was afraid appellant would return with a gun was not hearsay because it was not offered to prove that appellant went home to get a gun).
[¶ 38] Nonsensical statements and those that are patently untrue in light of observable conditions have historically been received to prove insanity, competency, testamentary capacity, and other issues relating to mental state. People v. Vanda, 111 Ill.App.3d 551, 67 Ill.Dec. 373, 444 N.E.2d 609, 614-15 (1982) (defendant's letters indicating that he was helping run the jail or that he was a prison fireman admissible to show insanity); People v. Garlick, 46 Ill.App.3d 216, 4 Ill.Dec. 746, 360 N.E.2d 1121, 1126 (1977) (defendant's out-of-court statements admissible as nonhearsay evidence of mental state); People v. Chancy, 91 Ill.App.3d 817, 47 Ill.Dec. 123, 414 N.E.2d 1239, 1242-43 (1980) (the words "Fantastic, Super Dopee and Me" written on blackboard at scene of crime were nonhearsay); Sollars v. State, 73 Nev. 248, 316 P.2d 917, 923 (1957) (defendant's "classic paranoid letters" admissible as non-hearsay evidence of mental state); Chase v. State, 369 P.2d 997, 1004 (Alaska 1962), overruled on other grounds by Schade v. State, 512 P.2d 907, 910-911 (Alaska 1973) (defendant's out-of-court statements admissible on insanity issue). For a historical perspective, see 1, 3, John H. Wigmore, Evidence §§ 228, 1738 (1923).
[¶ 39] Nonsensical or delusional statements may be as clear an indication that the utterer is not in his right mind as physical signs and symptoms or bizarre behavior, and they can thus be verbal acts or words of independent legal significance which are not hearsay. See 2 McCormick on Evidence § 249 (Kenneth S. Broun ed., 7th ed.2013); Mueller and Kirkpatrick, Federal Evidence § 8:22 (4th ed.2013) (a statement that one is Napoleon may be admissible because it proves a lack of connection to reality regardless of who the speaker thinks he is). It appears that defense counsel wanted to utilize the "nonstatements" to show that his client was under the influence of a controlled substance to the extent that he could not form the specific intent to deprive required for a felony conviction. The context makes it clear that the statements were such that they led the investigating officer to believe that
[¶ 40] The nonstatements were not hearsay; accordingly, the district court abused its discretion in excluding the testimony.
[¶ 41] Nevertheless, we must consider whether the abuse was prejudicial to Mr. Toth. While further information of the "nonstatements" may have added to the jury's information regarding Mr. Toth's intoxication, the "nonstatements" were not the only evidence of Mr. Toth's intoxication presented at trial. Mr. Toth testified that he was under the influence of methamphetamine at the time of the theft, that he heard voices in his head telling him it was okay to take the truck, and that methamphetamine "makes my decision process wrong." Mr. Toth himself admitted at trial that when he took the truck he had formed the intent to drive it until it ran out of gas and then abandon it. Officer Dillard himself testified he believed Mr. Toth was "under the influence." Officer Dillard's excluded testimony was but a fraction of the total evidence presented to the jury indicating the extent of Mr. Toth's intoxication and his ability to form the requisite intent to deprive. Though the district court abused its discretion, we cannot conclude that without the exclusion of the evidence the verdict might have been different.
[¶ 42] Mr. Toth argues that the district court's decision to bar Officer Dillard's testimony regarding Mr. Toth's nonstatements implicates his constitutional right to present a defense as required by the Sixth and Fourteenth Amendments to the United States Constitution and Wyo. Const. art. 1, § 10. We recently explained this right in McDowell v. State, 2014 WY 21, ¶ 25, 318 P.3d 352, 360 (Wyo.2014):
[¶ 43] Mr. Toth makes the same argument for his constitutional claim as he does for the hearsay argument above. He claims that his defense of self-induced intoxication was undermined by the exclusion of Officer Dillard's testimony, and that the evidence was integral to revealing Mr. Toth's state of mind and his ability to form the specific intent to deprive. However, Mr. Toth was still able to elicit testimony from Officer Dillard to establish that Mr. Toth was indeed intoxicated when he was interviewed by the officer; furthermore, Mr. Toth testified that he was under the influence of methamphetamine at the time, he heard a voice telling him it was okay to take the vehicle, and the methamphetamine "makes my decision process wrong." Mr. Toth admitted that his intent at the time of entering the vehicle and driving it away was to drive it until it ran out of gas and then abandon it on the side of the road or in a parking lot. Officer Dillard testified that Mr. Toth was capable of answering questions and recalling the events underlying his theft when queried during his post-arrest interview. When the dust settled, the jury made the conclusion that Mr. Toth formed the requisite specific intent for felony theft. We cannot conclude that the exclusion of the evidence unfairly prejudiced the truth-determining function of the trial process.
Mersereau, 2012 WY 125, ¶ 70, 286 P.3d at 122 (internal citations omitted).
[¶ 44] At the close of evidence, the district court asked Mr. Toth whether he wished to include a specific intent instruction for the jury. Later, during the instruction conference, the district court again asked Mr. Toth if he wished to include a specific intent instruction. Mr. Toth declined both of the court's invitations. During deliberations, the jury sent out the following question: "Do we only consider the original purpose of the taking of the equipment or do we consider the entire event[?]" The court asked Mr. Toth's attorney for a suggested response, to which he replied, "Your Honor, as I sat here and thought about it my response to the question would be to refer them to the elements instruction as previously given." Mr. Toth now argues that the district court's failure to respond to the jury question with a specific intent instruction was necessarily prejudicial and warrants reversal.
[¶ 45] "We reject attempts by a defendant to turn a trial strategy into an appellate error." Ortiz v. State, 2014 WY 60, ¶ 81, 326 P.3d 883, 899 (Wyo.2014). "The doctrine of invited error prohibits a party from raising on appeal alleged trial court errors that were induced by that party's actions." McIntosh v. State ex rel. Wyo. Workers' Safety & Colo. Div., 2013 WY 135, ¶ 54, 311 P.3d 608, 621 (Wyo.2013) (internal quotation marks and citation omitted); see also Pendleton r. State, 2008 WY 36, ¶ ¶ 13-16, 180 P.3d 212, 217-18 (Wyo.2008). Nevertheless, we have found room for review under limited circumstances.
Snow v. State, 2009 WY 117, ¶ 26, 216 P.3d 505, 513-14 (Wyo.2009). (internal citations omitted). Prior to considering whether the party was necessarily prejudiced under our invited error doctrine, we must consider whether the party intentionally relinquished or abandoned a known right. The Tenth Circuit Court explained this threshold consideration in United States v. Cornelius, 696 F.3d 1307 (10th Cir.2012):
Id. at 1319-20 (emphasis in original); see also United States v. Perez, 116 F.3d 840, 845 (9th Cir.1997) ("Forfeiture is the failure to make a timely assertion of a right, whereas waiver is the `intentional relinquishment or abandonment of a known right.'") (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993)).
[¶ 46] In Vigil v. State, 859 P.2d 659, 661 (Wyo.1993), the defendant was charged with second-degree murder and first-degree sexual assault. The jury acquitted him of sexual assault but convicted him of a lesser included offense of manslaughter. Id. at 661. On appeal, the defendant argued that the manslaughter instruction was defective because it included elements from an outdated version of the manslaughter statute, which used the terms "culpable neglect" and "criminal carelessness" instead of the recent statutory term "recklessly." Id. at 662. The State argued that because the instruction containing the repealed statutory language was proffered by the defendant, and he failed to object to it at trial, the doctrine of invited error precluded reversal based upon plain error. Id. at 664. This Court held that the omission was "necessarily prejudicial" and review was not precluded. Id. We concluded, "the jury instruction's neglect of the essential element of recklessly is prejudicial because it potentially allowed Vigil to be convicted of involuntary manslaughter without proof beyond a reasonable doubt of all elements of the crime." Id. (emphasis omitted).
[¶ 47] Mr. Toth not only proferred the elements instruction for felony theft (which is not defective, unlike the instruction in Vigil) on two occasions during the trial, he declined the district court's offer to include the specific intent instruction he now argues should have been given in response to the jury question. Instead, in response to the jury question at trial, his counsel advised the district court to refer them back to the existing elements instruction. Mr. Toth affirmatively waived the error he now alleges, and we therefore conclude that he waived his right to appellate review under our invited error doctrine. See, e.g., Perez, 116 F.3d at 845 (Defendant's attorney's indication that he did not believe it was necessary to instruct on the "overt act" element of conspiracy charge, "is an example of waiver because the record reflects that the defendant was aware of the omitted element and yet relinquished his right to have it submitted to the jury."). Our holding is distinguishable from the forfeiture in Vigil, where the original instruction itself was defective and the defendant merely failed to object to the defective instruction at trial. See also Snow, 2009 WY 117, ¶ 26, 216 P.3d at 513 ("Even where a defendant has not only not objected, but has actually offered the offending [jury] instruction, the invited error doctrine allows for review where the instruction is `necessarily prejudicial.`). Here, Mr. Toth not only declined two offers to include a specific intent instruction, but he approved of the response to the jury question, even though he now attempts to argue a different response should have been given. He took no steps to preserve his right to challenge the jury instructions, and therefore he waived his right to appellate review. Under such circumstances, the alleged error is not reviewable and we do not reach the question of whether Mr. Toth was necessarily prejudiced.
[¶ 48] We affirm.
(Emphasis added).
