Can invited error preclude plain error review of protective order challenges? Orem City v. Jakeman Explained

In Orem City v. Jakeman, the Utah Court of Appeals addressed whether a defendant could challenge continuous protective orders under plain error review when he had previously argued that such orders were already in place.

Background and Facts

David Jakeman was convicted on eight domestic violence and violation of protective order charges in multiple consolidated cases. The court initially issued sentencing protective orders (SPOs), but later replaced them with continuous protective orders (CPOs) at Orem City’s request. Jakeman, representing himself, had filed a motion to modify the SPOs but argued at the hearing that the court had already issued continuous protective orders under Utah Code section 78B-7-804(3)(b), which requires such orders when a defendant receives jail time for domestic violence convictions.

Key Legal Issues

On appeal, Jakeman raised two unpreserved arguments: first, that the district court failed to comply with section 78B-7-804(5)’s requirements for issuing CPOs, and second, that the statute was unconstitutional as applied because it terminated his parental rights without due process. Both issues required plain error review due to lack of preservation.

Court’s Analysis and Holding

The court of appeals applied the invited error doctrine, finding that Jakeman could not challenge the CPOs when he had repeatedly told the district court that continuous protective orders were already in place. The court noted that Jakeman had “explicitly stated” and “doubled down” on his position that the existing orders were continuous, making it “logically inconsistent” to later argue that section 78B-7-804(5)’s requirements weren’t met. The court concluded that “inviting the error—inasmuch as there was error—is exactly what Jakeman did here,” and that invited error precludes appellate review even under plain error standards.

Practice Implications

This decision reinforces that the invited error doctrine can preclude even plain error review when parties make affirmative representations encouraging the trial court’s actions. Practitioners should carefully preserve statutory and constitutional arguments at the trial level and avoid taking inconsistent positions that could invite error. The case also demonstrates the importance of understanding the interplay between different protective order statutes in domestic violence cases.