(concurring in the result):
1 18 I concur in both the rationale and the result reached by the majority. I respectfully submit, however, that the inclusion of footnote 3 is unnecessary and inappropriate. The footnote states that Defendant's "strategy may ... constitute invited error." As further noted, the State did not argue invited error in its briefing. This court requested that counsel for both the State and Defendant provide supplemental briefing on the applicability and effect of the doctrine of invited error. Other than the State citing cases involving invited error, both parties declined to urge its application. In light of that declination, I believe we should be silent. Moreover, I am not persuaded that the doctrine is, indeed, applicable under the facts of this case. In the two cases cited in the majority footnote, State v. Geukgeuzian, 2004 UT 16, 86 P.3d 742, and State v. Anderson, *963929 P.2d 1107 (Utah 1996), the defendants claimed the trial courts had erred in their instructions to the jury. See Geukgeuzian, 2004 UT 16 at ¶ 4, 86 P.3d 742; Anderson, 929 P.2d at 1108. In both cases, the supreme court held invited error occurred when the defendants' counsel failed to object to the instructions and/or explicitly approved them and then appealed the correctness of those same instructions. See Geoukgeuzian, 2004 UT 16 at 1 12, 86 P.3d 742; Anderson, 929 P.2d at 1109. In this case, Defendant does not claim error based on. the trial court's inadequate instructions. To the contrary, Defendant assumes the correctness of the instructions, and argues there was insufficient evidence to establish one of the elements of the crime. I would not want to be bound by my seant analysis based on only two cases, but prefer to wait until the issue is properly raised and briefed in a future case in order to have the benefit of the parties' analysis and arguments.