specially concurring.
¶ 41 As observed by the majority, Arizona courts have not developed an explicit test to distinguish between error that is “invited” for which fundamental error review is unavailable and eiTor that is forfeited because not objected to, which may be reviewed for fundamental error. Thus, it is unclear as to what degree a defendant must contribute to a ruling by the trial court before the invited error doctrine precludes any review of the ruling on appeal. Compare State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001) (finding invited error when defendant requested improper instruction because the party “urging” the error should not be permitted to benefit from it on appeal), with State v. Pandeli, 215 Ariz. 514, 528, ¶ 50, 161 P.3d 557, 571 (2007) (finding invited error when defendant, questioned by the court whether he objected to proposed testimony by state’s witness, stated that he did not). Logan involved a classic example of invited error: the defendant affirmatively caused or “injected” the error by requesting the instruction about which he later complained on appeal. In Pandeli, on the other hand, the defendant did not inject the error; rather, he acquiesced in the admission of damaging'testimony. Relying primarily on Logan, the majority asserts that an error is invited only when a party takes “independent affirmative unequivocal action to initiate the error” and does not occur when a party “merely fail[s] to object to the error or merely aequiesee[s] in it.” Supra ¶ 21.
¶ 42 I think the majority’s focus is misplaced. Instead, I would begin by recognizing that the doctrine of invited error (referred to by some courts as “induced” error) is based on the principles that underlie estoppel, not waiver. See Norgart v. Upjohn Co., 21 Cal.4th 383, 87 Cal.Rptr.2d 453, 981 P.2d 79, 92 (1999) (stating that invited error doctrine is application of the estoppel principle); C.T. v. Marion County Dept. of Child Services, 896 N.E.2d 571, 588 (Ind.App.2008) (same); Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App.1999) (same, distinguishing waiver of error); see also Thomson v. Olsen, 147 Idaho 99, 205 P.3d 1235, 1242-43 (2009) (explaining that doctrine of invited error “applies to estop a party from asserting error when his own conduct induces the commission of the error”) (citation omitted). Estoppel is based on the equitable concept that a person “ought not to be allowed to assert a position inconsistent with his former acts to the prejudice of others who have relied thereon.” City of Tucson v. Koerber, 82 Ariz. 347, 356-57, 313 P.2d 411, 418 (1957); see also City of Glendale v. Coquat, 46 Ariz. *142478, 481-83, 52 P.2d 1178, 1180 (1935) (explaining differences between waiver and estoppel). Unlike the approach espoused by the majority, which categorically limits invited error only to those instances in which the defendant was the sole cause of the claimed error, an estoppel-based approach requires an appellate court to carefully examine the facts and circumstances of each ease in deciding whether the defendant should be es-topped from receiving the benefit of fundamental error review.
¶43 Viewing Lucero’s action through an estoppel lens, I reach a different conclusion than does the majority regarding the applicability of the invited error doctrine. Lucero did more than simply not object to the court’s proposed instruction, he endorsed it. When the prosecutor suggested that the question whether the military investigator was a law enforcement official for voluntariness analysis might be a factual issue that should be submitted to the jury for its determination, defense counsel responded: “Yeah. I think because the fact he was in the military kind of clouds it.” Immediately after this response, the court informed counsel: “Right. All Right. My response to this question ... is “You have heard the facts of the case. It is up to you to make this determination. Judge Kemp.’ Any objection to that?” Defense counsel said: “No, that sounds right.”
¶ 44 As this exchange shows, defense counsel actively participated in the discussion and fully agreed with the court’s response. Although this situation does not present as clear a case of invited error as Logan, Lucero nonetheless led the court and prosecutor to believe that he thought the instruction was “right”; in other words, that he would not assert it as error on appeal. Under these circumstances, Lucero should be estopped by the invited error doctrine from having any claim of error reviewed on appeal. See Pandeli, 215 Ariz. at 529, ¶ 50, 161 P.3d at 571; see also State v. Escobedo, 222 Ariz. 252, 266, ¶ 50, 213 P.3d 689, 703 (App.2009) (holding that defendant entitled to a twelve-person jury who stipulated to an eight-person jury invited the error); State v. Islas, 132 Ariz. 590, 592, 647 P.2d 1188, 1190 (App. 1982) (“Generally, a party who participates in or contributes to an error cannot complain of it.”).
¶ 45 Cases from other jurisdictions support my view that a party who participates in or contributes to the error of which he complains on appeal is barred from having that claim reviewed. For example, in State v. Coleman, 114 Conn.App. 722, 971 A2d 46, 51-53 (2009), the court found that defendant “induced” any error when he encouraged the court to respond to jury questions by rereading the portion of the charge to which he now objected on appeal. Likewise, in State v. Kammeyer, 226 Or.App. 210, 203 P.3d 274, 276 (2009), the court declined to review the trial court’s restitution order for plain error because defendant was “actively instrumental” in causing any error by stating he was “okay” with restitution for dismissed counts and rejected defendant’s claim that the invited error doctrine was inapplicable because he did not “urge” or “advise” the court to impose restitution. Similarly, in People v. Sanchez, 388 Ill.App.3d 467, 328 Ill.Dec. 400, 904 N.E.2d 162, 169-70 (2009), the court declined to review the defendant’s claim that the trial court erred by failing to provide clarification on terms contained in the jury instructions because he acquiesced in the trial court’s answer to the jury’s question. See also State v. Momah, 167 Wash.2d 140, 217 P.3d 321, 328 (2009) (“In determining whether the invited error doctrine was applicable, courts have also considered whether a defendant affirmatively assented to the error, materially contributed to it, or benefited from it.”); State v. Clay, 291 Mont. 147, 967 P.2d 370, 374, ¶ 24 (1998) (“Nor will we put a trial court in error for a ruling or procedure in which a party acquiesced or participated.”). The principle common to these cases is that a defendant should not be permitted to take one position before the trial court and then ambush the state and the trial court on appeal by asserting an inconsistent position.
¶ 46 To summarize, I believe that any error in the trial court’s response to the jury question was invited or induced by Lucero. Accordingly, I would hold that the claim is unreviewable and affirm Lucero’s convictions *143without considering whether fundamental error occurred.