DAVIS, Justice.
[¶1] Steven Vaught appeals convictions for two counts of first-degree sexual assault under Wyo. Stat. Ann. § 6-2-302(a)(ii) and one count of kidnapping under Wyo. Stat. Ann. § 6-2-201(a)(iii), (d).
[¶2] Vaught raises two issues relating to jury instructions, which we condense as follows:
[¶3] Vaught and his wife-to-be started dating in early April of 2013, began living together approximately a month later, and married on September 13, 2013. The events leading to Vaught's prosecution and conviction took place on January 15, 2014. Prior to that morning, he had never been violent with his spouse. However, earlier that month he became severely depressed, and despite taking the medication prescribed for his condition, he found himself frequently contemplating suicide.
[¶4] At approximately 4:00 a.m. on January 15, Vaught's wife arose because he had been crowding her out of bed, and then went to the kitchen. While she was leaning on a counter top and looking out the window in the dark, the kitchen lights came on, and Vaught, who is six feet four inches tall and weighs three hundred pounds, rushed up to her, forced duct tape over her mouth, knocked her legs out from under her, rolled her to the floor, and pressed his forearm on her neck until she had to struggle to breathe. With an angry look, he told her not to scream and that "you've made me do this. You've forced me into this." He then informed her that he was going to tie her to the bed, kill her, and then kill himself.
[¶5] Vaught then pulled his wife from the floor, removed the duct tape, and ushered her to the bedroom, where at his instruction she removed her pajamas and got into bed. Vaught joined her and the two talked for nearly an hour. Believing that he intended to kill her, she apologized for offending and belittling him during an argument they had the evening before, and also told him that she was wrong and that he had every right to be mad. She promised that if he let her go, she would never tell anyone
[¶6] She tried to get him to change his lethal plan by telling him she loved him and would do anything to prove it. She ultimately performed oral sex and engaged in intercourse due to his threat to kill her. Afterward she asked him if he felt better about their relationship. Vaught said he did not believe her, evidently referring to her statements that she loved him and would not report the incident. He then lifted the pillows on the bed to show the boot laces he had secured to both sides of the bed for the purpose of lashing her to it.
[¶7] A few moments later, she asked him to "let [her] make [him] one last meal." When he assented, she went to the kitchen, turned on the stove, and cracked three eggs into a skillet. She then asked if he wanted toast, which Vaught declined. With the eggs frying and out of sight of the bedroom where Vaught remained, she secured a small blanket and some slip-on shoes from near a couch. Thus attired, she slipped out the front door and sought help from her neighbors, who provided her sanctuary and called the Gillette Police Department.
[¶8] Vaught heard the front door close and assumed the police would soon be looking for him. Consequently, he dressed and locked and barricaded the front door with a chair wedged under the knob before leaving the second-floor apartment through a bedroom window and driving away. He was arrested later that day.
[¶9] Vaught claims that the acts alleged to constitute a kidnapping were merely incidental to the sexual assaults described above, and could not constitute a separate crime. However, this claimed "incidental rule" played no part in his trial. No one ever alluded to it, Vaught offered no instruction that even remotely reflected the rule of which he now claims the jury should have been informed, and such a rule was never mentioned in a motion for judgment of acquittal or for a new trial.
[¶ 10] His second issue relates to a question posed by the jury during its deliberations. The jury indicated, "We need clarification on count 3 and lesser charges; the courts' [sic] interpretation/definitions of # s 15, 22, 23." Count 3 was the kidnapping charge, and Instruction Nos. 15, 22, and 23 were the elements instructions for, respectively, kidnapping and the lesser-included offenses of false imprisonment and felonious restraint.
[¶11] The district court asked the prosecutor and defense counsel how it should respond to the question. The prosecutor noted "they've been instructed and I think that they need to read the packet and be encouraged to read the package." Defense counsel then said, "I agree, Your Honor. Read the instructions and then instructions have been provided and whatever standard language the court uses for this kind of inquiry." The judge confirmed that counsel wanted him to instruct "the jury to review again all of the instructions that were previously provided to the jury by the court," which he then did. No one challenged the instruction as being contrary to what the court was asked to do after it was given.
[¶ 12] Vaught was convicted on all three charged counts. The district court sentenced him to twenty to forty years imprisonment on each of the sexual assault convictions, and to fifty-five to sixty-two years for the kidnapping conviction, with all sentences to run concurrently. Vaught timely perfected his appeal.
[¶ 13] Vaught contends that the district court erred in failing to instruct the jury on what he calls the "incidental rule." He concedes that because he never offered such an instruction or otherwise brought the alleged rule to the court's attention, he can obtain a reversal of his conviction only if he can show that the court's failure to give that instruction amounted to plain error.
[¶15] Kidnapping is an offense which has evolved considerably over time, and in order to understand Wyoming's present kidnapping statute, it is helpful to briefly digress and review its history. At common law the crime was a misdemeanor, the elements of which were unlawfully confining and transporting another out of the country. Over time the scope of the crime was gradually broadened far beyond its common-law roots. One reason was likely a lack of development of the law of attempt and the desire to use the offense to punish conduct that was preparatory to the commission of robbery, rape, or some other crime. Model Penal Code § 212.1 cmt. 1 (Am. Law Inst. 1980).
[¶16] In approximately the first third of the last century, there was an increase in the number of kidnappings associated with the growing use of automobiles. There were also several high-profile abductions for ransom. These events motivated lawmakers to increase the severity of the punishment for kidnapping, often drastically. Id.
[¶17] The wide variety of legislative responses to those concerns and the equally wide variety of judicial efforts to reconcile and apply that legislation resulted in a lack of consistency between jurisdictions. Compounding that diversity was the fact that the grading of some kidnapping-like offenses into the lesser crimes of felonious restraint and false imprisonment was not uniform. Commentators observed that identical conduct often would subject defendants to wildly disparate punishments in different jurisdictions. Moreover, instances of asportation or confinement of a victim during the commission of another crime could result in punishment much more grave than that for the other crime, even though the movement or detention involved was relatively trivial or had no criminological significance apart from its role in the commission of the other crime. Id.; see also cmt. 2.
[¶18] Legislative and judicial efforts to eliminate the most egregious of those anomalies have been based on a relatively vague notion that if a kidnapping statute is to apply to confinement or movement of a victim that is in any way associated with the commission of another crime, the confinement or movement must in some sense be so substantial that it cannot be deemed a mere incident of the other crime. 2 Charles E. Torcia, Wharton's Criminal Law § 207 (15th ed. database updated September 2015); Frank J. Wozniak, Annotation, Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283 § 2[a] (1996).
[¶19] However, that notion has by no means led to a cure for the problems described above. Several jurisdictions that purport to follow it nevertheless recognize exceptions when the underlying crime is an escape, murder, or extortion, or when the victim is taken as a hostage or for purposes of inflicting great bodily harm or terror. Wozniak, supra, § 2[a] n.4. Furthermore, courts in the jurisdictions purporting to follow that approach frequently reach disparate and even contradictory results in factually
[¶20] Often courts define the substantiality or significance of confinement or movement by the extent to which it increases the risk of harm to the victim over and above that which is necessarily present in the underlying crime. Other definitions look to whether the confinement or movement is somehow different in kind from the sort that is inherent in the nature of the other crime, whether it makes that crime substantially easier to commit, or whether it substantially lessens the risk of detection. Most commonly, substantiality is viewed as a function of the duration of confinement or the distance the victim is moved. Thus a prolonged confinement, even within the same premises that were the site of the underlying crime, or movement from one premises to another will generally not be viewed as incidental to the underlying crime. Wozniak, supra, § 2[a]. None of those tests, however, account for decisions that hold it merely incidental to a sexual assault to grab and drag a victim into a nearby alley to complete the assault, or that hold it merely incidental to a robbery to lock a homeowner in a closet while searching for valuables to steal. See 2 Torcia, supra, § 207.
[¶21] These anomalies provided motivation and guidance to the drafters of the Model Penal Code's section on kidnapping, as we briefly observed in Keene v. State, 812 P.2d 147, 150-51 (Wyo.1991). The solution
Model Penal Code, supra, § 212.1 cmt. 3. Stated another way, under the Model Penal Code's formula, unlawful movement or confinement that occurs in comparatively close temporal proximity to another crime is not merely "incidental" to that crime if done with statutorily specified purposes or intent, and the distance of the move or the time of the confinement is deemed to be (presumably by appellate courts on a case-by-case basis) "substantial" as a matter of law.
[¶22] However, many jurisdictions, including Wyoming, did not adopt the Model Penal Code's recommended language in its entirety. Section 212.1 of the Model Penal Code reads as follows:
(Emphasis added.)
[¶23] On the other hand, Wyo. Stat. Ann. § 6-2-201 (LexisNexis 2015) provides:
[¶24] As the quoted language indicates, the Model Penal Code provides that unlawful movements or confinements constitute a separate crime of kidnapping not merely "incidental" to some other approximately contemporaneous crime if done with statutorily specified purposes or intent, and if the distance of the move or the time of the confinement is substantial. A victim must be taken a substantial distance from any place other than his home or business. The Wyoming legislature removed the "substantial distance" requirement when it adopted our kidnapping statute.
[¶25] Similarly, unlawful confinement constitutes the separate crime of kidnapping under the Model Penal Code only if the confinement lasts for a substantial period of time and is in a place of isolation. The Wyoming legislature chose not to so limit the confinement that constitutes a crime independent of another roughly contemporaneous offense.
[¶26] Thus, to the extent the kidnapping provisions of the Model Penal Code may embody an "incidental rule" as broad, vague, and general as that advanced by Vaught, key aspects of that rule did not survive in the statute adopted in Wyoming. This Court is not at liberty to ignore or alter that legislative decision. See State v. Walch, 346 Or. 463, 213 P.3d 1201, 1206-12 (2009) (en banc) (where legislature declines to include the Model Penal Code's "substantial distance" requirement in its kidnapping statute, and instead limits the reach of that statute only by reference to the intent which must accompany an unlawful asportation, court will not read the Model Penal Code requirement into the statute); State v. Morris, 281 Minn. 119, 160 N.W.2d 715, 717-18 (1968) (same approach in confinement cases); see also Burton v. State, 426 A.2d 829, 834-35 (Del.1981) (if the statute is unambiguous, courts cannot and should not limit when a kidnapping conviction is permissible by adding what is in effect a new element in the guise of construction). Consequently, we are unable to find the incidental rule Appellant argues for somewhere in the interstices of Wyo. Stat. Ann. § 6-2-201.
[¶27] Vaught asks us to find that we judicially adopted such a rule in Keene v. State, supra. In that case, a gunman robbed a pharmacy in Cheyenne. During the robbery, he ordered two employees working in another area of the business behind the pharmacy counter before loading up drugs and
[¶28] We engaged in a grammatical analysis of the text of the kidnapping statute and determined that the phrase "or from the vicinity where he was" referred to a catch-all third alternative site, in addition to a victim's residence or business, from which one could be kidnapped. Thus, the phrase did not refer to moving a victim from one place to another within a residence or business, as the State argued. We observed that this result was consistent with the principles which guided the drafting of the Model Penal Code's kidnapping provision. Keene, 812 P.2d at 150-51. Given its focus on the specific language of the statute, that observation cannot be said to declare an "incidental rule" in Wyoming.
[¶29] Two years later, in Doud v. State, 845 P.2d 402 (Wyo.1993), we rejected the appellant's invitation to read into § 6-2-201 the Model Penal Code requirement that a confinement had to last for a substantial period of time in order to constitute a kidnapping. We concluded that regardless of what this Court may think of the Model Code's intent and method of distinguishing between kidnapping and restraints that are less significant or strictly necessary to the commission of another crime,
[¶30] Vaught has not carried his burden of showing that authority existing at the time of his trial clearly established an "incidental rule" beyond the elements of the kidnapping statute. Nor has he shown us any authority requiring juries to be instructed on the claimed rule.
[¶31] This is not to suggest that any amount of restraint could constitute kidnapping or one of its lesser included offenses.
[¶ 32] As already explained, the jury indicated during deliberation that it wanted the district court to clarify or interpret the three elements instructions relating to the kidnapping charge and the lesser-included crimes of false imprisonment and felonious restraint. As already explained, when the court asked counsel how it should respond to the jury's note, the prosecutor noted "they've been instructed and I think that they need to read the packet and be encouraged to read the package." Defense counsel then replied, "I agree, Your Honor. Read the instructions and then instructions have been provided and whatever standard language the court uses for this kind of inquiry." Consequently, the court instructed the jury "to review again all of the instructions that were previously provided to the jury by the court."
[¶33] Vaught now claims the district court's response to the note amounts to plain error. The State asserts that we should not review that response because Vaught invited any error upon which he now relies upon.
[¶34] The plain error rule is applicable only to acts of omission, deliberate or not, when a party fails to timely assert a right or pose an objection. Such an omission forfeits reversal based upon the error unless an appellant satisfies our well-established plain error test, which we set out in our discussion of Vaught's first claim of error. The invited error rule, on the other hand, altogether precludes appellate consideration of errors that a party's affirmative actions induced, invited, or provoked because such intentional conduct constitutes a species of knowing waiver. Toth v. State, 2015 WY 86A, ¶¶ 45-47, 353 P.3d 696, 710-11 (Wyo. 2015) (in response to jury question, defendant's attorney wanted court to simply instruct jurors to review instructions already given);
[¶35] The facts of this case illustrate the sometimes fine line between positive acts and omissions. Vaught's counsel did in fact endorse a plan of action which the district court ultimately implemented. However, that endorsement took the form of a simple agreement with the prosecutor's view. It was not an act of such independent intent that we can view it as a complete waiver of the error now alleged on appeal. Consequently, we will apply the plain error standard to that allegation.
[¶36] Vaught has not shown that, under the circumstances, the district court's response to the jury note violated a clear rule of law. We have found that the failure to provide supplemental instructions can amount to prejudicial error where the original instructions are insufficient and confusing, but we have also cautioned courts to avoid giving such instructions where they touch upon factual matters. Brown v. State, 2015 WY 4, ¶¶ 40-44, 340 P.3d 1020, 1031-32 (Wyo.2015).
[¶37] It is difficult to see how the court could have done other than it did. The jury's note identified nothing defective or confusing about the original instructions, and it was so lacking in particulars that one cannot tell whether the jury wanted a clarification of the law or some guidance as to how the facts in evidence might relate to that law. In short, the jury's question was so general that the court could not have answered it, and it would have been inappropriate for it to inquire into the jury's deliberations—and for it to potentially intrude into the jury's fact finding—to narrow it.
[¶39] The district court did not violate a clear and unequivocal rule of law by failing to instruct the jury on Vaught's belatedly proposed "incidental rule," nor did the court's response to the question posed by the jury during deliberations violate such a clear rule of law. The court did not, therefore, commit plain error. Accordingly, we affirm Vaught's conviction.