dissenting.
While I have no disagreement with the discussion in the majority opinion concerning the law of lesser included offenses and the general rule relating to the defendant’s right to notice, I would affirm Derksen’s conviction. I think it is important that the judicial department of our State not lose sight of the fact that criminal trials are expensive, both to the State and the counties. The monetary costs do not account, in any way, for the emotional stress that is incurred by all the participants. Retrials should be avoided when that is possible without transgressing the rights of a defendant. Consequently, I write in dissent.
As the majority explains, these are the crucial facts regarding the conviction for the crime of taking immodest, immoral, or indecent liberties with a child:
More than two years after this incident reportedly took place, by information, Derksen was charged with second-degree sexual assault. During the instruction conference at Derksen’s jury trial, the defense initially objected to a state offered instruction for taking immodest, immoral or indecent liberties with a child as a lesser included offense. However, the objection was withdrawn after an unreported conference was held between the judge, prosecutor and defense lawyer.
Op. at 1885.
While the record does not explain the reason for this tactical decision to withdraw the objection, a comparison of the crimes and their penalties does demonstrate a rather clear motive. The offense of second degree sexual assault and the penalty is set forth in the statutes:
6-2-303. Sexual assault in the second degree.
(a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:
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(v) At the time of the commission of the act the victim is less than twelve (12) years of age and the actor is at least four (4) years older than the victim * * *.
6-2-306. Penalties for sexual assault.
(a) An actor convicted of sexual assault who does not qualify under the criteria of subsection (b) of this section shall be punished as follows:
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(ii) Sexual assault in the second degree is a felony punishable by imprisonment for not more than twenty (20) years * * *.
Wyo.Stat. §§ 6-2-303, -306 (1988) (emphasis added).
The statute proscribing the taking of immodest, immoral, or indecent liberties with a child reads:
Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both. (Emphasis added.)
Wyo.Stat. § 14-3-105 (1986) (emphasis added.)
By agreeing to have the jury charge include the offense of indecent liberties with a child, counsel for Derksen injected an offense for which the potential sentence was one-half of the potential maximum sentence for the crime with which he was charged. It worked for him.
Under the circumstances, instead of rewarding Derksen with a reversal for an *1393error he assisted in causing, if he did not cause it, I would hold he had consented to an informal amendment of the information or, in the alternative, the instruction became the law of the case once Derksen withdrew his objection. Both of these approaches are justified by persuasive authority from other jurisdictions.
Neither party objected to the giving of that instruction; consequently, it became the law of the case. Sanchez v. State, 751 P.2d 1300 (Wyo.1988). In New Mexico, had Derksen actually requested the instruction on indecent liberties with a minor it would be perceived as law of the case, and his complaint of error would not be recognized on appeal. State v. Hamilton, 107 N.M. 186, 754 P.2d 857 (N.M.App.1988). In light of Derksen’s original objection that later was withdrawn, there is no substantial basis to distinguish what occurred here from a request for the instruction on indecent liberties.
Similarly, in Washington, when a defendant fails to object to an instruction as to an offense that is not a lesser included offense, although perceived to be a lesser included offense in the trial court, the instruction becomes the law of the case, and the giving of the instruction will not be recognized as reversible error in the reviewing court. State v. Mak, 105 Wash.2d 692, 718 P.2d 407 (Wash.1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). Mak was followed in State v. Bailey, 114 Wash.2d 340, 787 P.2d 1378 (Wash.1990), in which an instruction on the offense of indecent liberties was given without exception although the charged offense was first degree statutory rape. The Supreme Court of Washington said:
In short, what we held in Mak was that a defendant cannot fail in his duty to except to lesser included offense instructions that potentially benefit him, and then on appeal claim reversible error based on those instructions. Yet that is precisely what the defendant is attempting here. The present case is even more egregious than Mak, because here the defendant profited from the trial court’s giving of the lesser offense instructions to the extent that he was convicted of the lesser offense of indecent liberties rather than the more serious offense of first degree statutory rape with which he was charged. We hold in this case, as we did in Mak, that “the lesser included offense instruction that was given, not having been excepted to at trial, became the law of the case.”
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The defendant claims that the lesser included offense instructions constituted an error of constitutional magnitude because they violated his constitutional right to notice of the charges filed against him. An accused has a constitutional right to be informed of the nature and cause of the accusation against him or her so as to enable the accused to prepare a defense. “[T]his can only be made known by setting forth in the indictment or information every fact constituting an element of the offense charged.”
Here, the charge of statutory rape in the first degree technically failed to notify the defendant of the nonmarriage requirement of indecent liberties. However, the defendant had ample notice of the possibility that he could be convicted of indecent liberties and ample opportunity to fully defend himself against that charge. While the charge of statutory rape in the first degree did fail to expressly notify the defendant of the non-marriage element of indecent liberties, this omission was harmless beyond a reasonable doubt.
Bailey, 787 P.2d at 1382-83 (footnotes omitted).
In California, the rule is that when a defendant fails to object to instructions on an offense, purportedly a lesser included offense but which is not, his failure to object constitutes “an implied consent to the jury’s consideration of the lesser relat*1394ed offense and a waiver of any objection based on lack of notice.” People v. Toro, 47 Cal.3d 966, 766 P.2d 577, 584, 254 Cal.Rptr. 811 (1989) (footnote omitted). Other California cases encompass similar holdings. E.g., People v. Rasher, 3 Cal.App.3d 798, 83 Cal.Rptr. 724 (1970); People v. Hensel, 233 Cal.App.2d 834, 43 Cal.Rptr. 865, cert. denied, 382 U.S. 942, 86 S.Ct. 396, 15 L.Ed.2d 351 (1965). Because of the development of this rule in California, it does not appear that the law-of-the-case proposition is in vogue there.
I am satisfied that either the law-of-the-case rule, coupled with waiver of the claim of error, or the rule of implied consent to amendment of the charge suffices to justify the affirmance of Derksen’s conviction. Both rules are rational and have value in the administration of criminal law. I would adopt both rules for Wyoming and in future cases apply the one most appropriate to the circumstances of the particular case, unless both fit that case.
I would affirm Derksen’s conviction.