UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ SUZANNA F. DAILEY, Plaintiff - Appellant,

v. NIKOS HECHT, Defendant - Appellee. No. 17-1409 (D.C. No. 1:16-CV-00581-RBJ) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BACHARACH , and CARSON , Circuit Judges.

________________ _________________ Plaintiff Suzanna F. Dailey appeals a jury verdict in favor of Defendant Nikos Hecht on claims of assault, battery and sexual assault, and int entional infliction of emotional distress. Ms. Dailey argues that errors in the distr ict court’s evidentiary rulings and other courtroom prac tices warrant reversal and a ne w trial. Our jurisdiction arises under 28 U.S.C . § 1291. We affirm.
I. In March 2014, Ms. Dailey and her extended family vacationed in Cabo San Lucas, Mexico. While on vacation, Ms. Dailey claims that Mr. H echt sexually

* This order and judgment is not binding precedent, except underthe doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 7, 2018
Elisabeth A. Shumaker Clerk of Court2 assaulted her. The alleged assault occurred on March 25, 2014, on the grounds of Flora Farms, a restaurant where Ms. Dailey, Mr. Hecht, and their respective families and friends attended a dinner party. Ms. Da iley claims Mr. Hecht approache d her to accompany him on a walk of the restaurant g rounds. He offered her his ar m, and together they walked down a path. Shortly thereafter, Ms. Dailey alleges tha t Mr. Hecht faced her, forcefully placed his hand on t he back of her neck, and put his mouth over hers. He then placed Ms. Dailey’s hand on his penis. According to Ms. D ailey, the next thing she knew she was on her back and Mr. Hecht forcibly penetrated her. Mr. Hecht presented a different s tory at trial. He testified t hat Ms. Dailey approached him as he walked along the pathway. According to Mr . Hecht, Ms. Dailey made sexually explicit comments t o him. She then undid Mr. Hec ht’s pants and performed five to ten seconds of oral sex on him. Ms. Dailey a llegedly pulled Mr. Hecht to the ground on top of her, and the two attempted to hav e sexual intercourse. Mr. Hecht testified there was no penetration. According to both Ms. Dailey and Mr. Hecht, when the encounter was over, Mr. Hecht quickly stood up and returned to the dinner table where t heir families were assembled. Ms. Dailey followed him. She did not tell anyone a bout their sexual encounter until she confided in her sister the next morning. A t that point, her sister had already heard about the sexua l encounter from her son, T.A. , who observed part of the alleged assault.3 Three eyewitnesses observed the encounter between Ms. Dailey an d Mr. Hecht: Mr. Hecht’s personal chef; T.A. , Ms. Dailey’s fourteen-year-old nephew; and T.A.’s friend G.C. The chef testified that she was looking for Mr. Hecht when she observed him and Ms. Dailey together on the pa th. She saw Ms. Dailey get on her knees and begin to touch the top of Mr. Hecht’s pants. At that point, the chef returned to the kitchen, believing that Ms. Dailey was a bout to perform oral sex on Mr. Hecht. T.A. and G.C. both testified that they saw Ms. Dailey and Mr. H echt lock arms as they walked along the path. Curious, T.A. and G.C. decided to follow them. The boys lost sight of Ms. Dailey a nd Mr. Hecht for approximately a minute and a half. When Ms. Dailey and Mr. Hecht re appeared, T.A. testified that h e saw Ms. Dailey on her back with Mr. Hecht on his knees above her. He described M s. Dailey as silent and looking up and away from Mr . Hecht. T.A. also testified th at Mr. Hecht thrust his pelvis approximately ten times. G.C. provided substantially th e same testimony. Both boys testified they were close enough to hear the encounter and that Ms. Dailey did not say anything. Neither boy obse rved Ms. Dailey struggling. Ms. Dailey sued Mr. Hecht over tw o years later for assault, bat tery and sexual assault, and intentional inflic tion of emotional distress. The parties filed eighteen pretrial motions in limine to e xclude the introduction of certa in unflattering evidence during trial. For example, Mr. H echt moved to exclude evidence of his alleged drug use. Meanwhile, Ms. Dailey soughtto exclude evidence of a pri or SEC settlement for insider trading. The district court emphasized that this was “ going to be a clean trial.4 The plaintiffs aren’t going to b ash Mr. Hecht for all his pecca dillos past and present, unless they are relevant specific ally to this incident; nor is the defendant going to get away with bashing the plaintiff for her peccadillos . . . .” C onsistent with this statement, the district court excluded evidence from both sides

. The district court also exclude d evidence related to Mr. Hecht’ s prescription opioid (specifically, Percocet) use on the day of the alleged a ssault as well as his history of recreational drug use. In one of the eighteen text- only docket entries, the district court invited Ms. Dailey to present medical evidence t hat prescription drug use could have negatively affected M r. Hecht’s recollection of even ts on the night of the alleged assault. Relying on Fed eral Rule of Evidence 403 the d istrict court ruled: If [Ms. Dailey] can show through p roperly disclosed expert test imony by a qualified health care professi onal that the defendant’s drug use on the day of the incident probably affected his ability to recall the incident accurately, that testimony will b e permitted. With that except ion, the Court finds that defendant’s drug use before and afterthe incident has marginal relevance, if any, and that such relevance is substant ially outweighed by the danger of unfair prejudice. (emphases added). Although she never came forward with expert testimony, at trial Ms. Dailey again urged the court to allow evidence of Mr. Hecht’s drug use . Ms. Dailey argued that Mr. Hecht opened the door to questioning about his drug us e when he testified to his clear recollection of the night of the alleged assault. Th e district court was not convinced. It ruled that the door had not been opened because there was no evidence “the opioids he took that day . . . had anything to do with thi s.” The district court also ruled, in accordance with its pretrial invitation to present me dical evidence about the5 effect of prescription drugs on me mory, that the jury would be speculating whether the drugs consumed by Mr. Hecht impa ired his memory of events. The district court additionally e xcluded evidence related to Mr . Hecht’s guilty plea to misdemeanor harassment in a 2015 case where authorities charged him with misdemeanor assault, m enacing, and harassment of a former roman tic partner. In that case, Mr. Hecht pleaded guilty to one count of harassment afterhe grabbed his partner’s purse and bruised her arm. The district court exclud ed the evidence under Rule 403 because any relevance wa s substantially outweighed by the danger of unfair prejudice. The district court al so limited Ms. Dailey’s testim ony regarding a newspaper article concerning the harassment. In that regard, t he district court permitted Ms. Dailey to testify only that she brought this clai m after seeing a newspaper article about Mr. Hec ht, but excluded evidence that t he article discussed the harassment charges to wh ich he pleaded guilty. After a four-day trial, the jury found that Ms. Dailey failed t o prove her claims by a preponderance of the evidence. The district court thus en tered judgment in Mr. Hecht’s favor. Ms. Dailey then moved for a new trial claiming several evidenti ary rulings “prejudiced Plaintiff’s ability to tell her story.” The court denied her motion, explaining: The problem was that the story both parties wanted to tell incl uded a great deal of “dirt” that they had dug up on each other. For example , Ms. Dailey wished to show the jury that Mr. Hecht had a history of drug problems, extramarital affairs, and abusive relationships. Mr. Hecht6 wished to show the jury that Ms. Dailey had a history that incl uded securities fraud and shoplifting. The Court made it clear before and during the trial that it wou ld not permit the trial to be sidetracked by ma rginally relevant (at best) an d inflammatory evidence, and that the case would be tried on the facts of what happened that evening in Mexico.
II.
A. Ms. Dailey raises three challenges to the district court’s evid entiary rulings based on Federal Rule of Eviden ce 403. First, Ms. Dailey conte nds the district court erred by excluding evidence of Mr. Hecht’s drug use, both on th e day of the alleged assault and his general recrea tional drug use. Second, she cha llenges the district court’s exclusion of evidence re lated to Mr. Hecht’s arrest and guilty plea for misdemeanor harassment. Finally , Ms. Dailey argues that even i f not reversible individually, the cumulative eff ect of the allege d evidentiary errors requires reversal. We review the district court’s evidentiary decisions for an abu se of discretion. United States v. Silva, 889 F.3d 704, 709 (10th Cir. 2018). “A district court abuses its discretion when it renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Id. (inte rnal quotation marks omitted) . Under this standard, “a trial court’s decision will not be disturbed unless the appe llate court has a definite and firm conviction that the low er court made a clear error of judgment or exceeded the bounds of permissible choice i n the circumstances.” Pandit v. Am. Honda Motor Co., 82 F.3d 376, 379 (10th Cir. 1996) (quoting Boughton v. Cot ter Corp., 65 F.3d 823, 832 (10th Cir.1995)).7 A district court may generally admit relevant evidence. Fed. R . Evid. 402. However, Federal Rule of Eviden ce 403 allows the district courtto “exclude relevant evidence if its probative value i s substantially outweighed by a danger of one or more of the following: unfair prejudi ce, confusing the issues, misle ading the jury, undue delay, wasting time, or needlessly presenting cumulative eviden ce.” Fed. R. Evid. 403. Evidence is unfairly prejudicial if “it provokes an emotional r esponse in the jury or otherwise tends to affect advers ely the jury’s attitude toward the defendant wholly apart from its judgment” as to l iability. United States v. Rod riguez, 192 F.3d 946, 951 (10th Cir. 1999) (quoting United States v. Roberts, 88 F.3d 872 , 880 (10th Cir. 1996)). “[T]he unfair prejudice aspect o f Rule 403 cannot be equated wi th testimony which is simply unfavorable to a party. ” Rodriguez, 192 F.3d at 951 (qu oting United States v. Flanagan, 34 F.3d 949, 953 (10th Cir. 1994)). Ms. Dailey argues that the distric t court abused its discretion by excluding evidence of Mr. Hecht’s use of th e drug Percocet on the day of the alleged assault. In a deposition, Mr. Hecht testified that he generally took a five -milligram pill with breakfast, lunch, and dinner. A ccording to Mr. Hecht, at the t ime of his sexual encounter with Ms. Dailey, he would have consumed between two t o three pills that day. In the deposition, Mr. Hechtfurther testified that he di d not feel impaired when taking the medicine. At trial he repeatedly testified as to hi s clear recollection of the night of the alleged assault. Ms. Dailey argues that she shoul d have been allowed to present evidence that he consum ed Percocet on the night of the alleged assault to attack the veracity of his statem ents regarding his memory.8 Evidence of a witness’s drug use is relevant and may be admissi ble to attack the witness’s “ability to perceive t he underlying events and testif y lucidly at trial.” United States v. Apperson, 441 F.3d 1162 , 1196 (10th Cir. 2006) (quoti ng Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir. 1987)). But evidence of a witness’s prior drug use cannot be used to attack the witness’s general credibility. Id. at 1195. Further, even when a witness’s drug use is admissible to attack his perc eption of the underlying events, no per se rule requires the judge to admit the evidence . See United States v. Jones, 213 F.3d 1253, 1261 (10th Cir. 2000) (suggesting prescri ption medications might affect a witness’s “memory, perce ption, or comprehension”); Un ited States v. Dixon, 38 F. App’x 543, 548 (10th Cir. 2002) (“Evidence of a wi tness’s drug use may be admitted to show the effect o f the drug use on the witness’s memory or recollection of events.” (emphasis added)). To be sure, a district court ma y exclude otherwise relevant evidence under Rul e 403. See Fed. R. Evid. 403. Here, the district court determined that evidence of Mr. Hecht’ s drug use had “marginal relevance, if any, and that such relevance is substan tially outweighed by the danger of unfair prejudice.” None theless, the district court p rovided a specific exception to this ruling, which w ould have allowed Ms. Dailey t o introduce evidence of Mr. Hecht’s use of Percocet on the day of the alleged assaul t, if she showed “through properly disclosed expert testi mony by a qualified health care professional that the defendant’s drug use on the day of the incident probably affect ed his ability to recall the incident accurately.” Absent that showing, the district co urt determined the evidence of Mr. Hecht’s prescri ption drug use s hould be exclude d under Rule 403.9 As she must concede, Ms. Dailey never attempted to produce any testimony from a qualified witness about the impact of Percocet on memory . Given Ms. Dailey’s choice not to present testimony from a qualified witness, the d istrict court reasonably concluded that evidence of Mr. Hecht’s prescription drug use ha s little probative value. As the district court observed, without the testimony of a qual ified witness regarding how the type and amount of prescr iption pills could affect Mr. Hecht’s ability to recall the events of that night, the ju ry would be left to speculate. We have held that speculation is an impermissible ground on which a jury may base a verdict. See Bankers Tr. Co. v. Lee Keeling & Assocs., Inc., 20 F.3d 1092, 1 101 (10th Cir. 1994) (“[T]he jury’s finding that [the defendant] was negligent . . . could only have been based on speculation and conjectur e, an impermissible ground up on which to base its verdict.”); cf. Jones, 213 F.3d at 1261 (holding that the distr ict court did not abuse its discretion by refusing to allow th e defendant to cross-examine a witness about his medical history without testimo ny from a medical expert on the effect of the medication on the witness’s memo ry, perception, or comprehensio n). Further, the probative value of this evidence is substantially outweighed by the prejudicial impact such evidence would have, given the negative connotations surrounding opioid use. Evidence of drug use—including prescri ption drug use— carries the risk that a jury coul d make negative assumptions ab out the party or the party’s character. See e.g., U nited States v. Sellers, 906 F.2 d 597, 602 (11th Cir. 1990) (noting the “extreme potential for unfair prejudice flowing fro m evidence of drug use”); Reppert v. Marion, 259 F . App’x. 481, 489 (3d Cir. 2007) (noting that testimony10 relating to prior drug use has “a substantial tendency to confu se the issues, and to inflame passions of the jury by unfairly tilting the balance of sympathies in favor of defendants”). On this basis, th e decision of the district cour t to exclude this evidence was not an “arbitrary, capricious , whimsical, or manifestly unr easonable judgment.” Silva, 889 F.3d at 709. We thus c onclude that the district cou rt did not abuse its discretion in excluding evidence of Mr. Hecht’s specific drug u se on the night of the alleged sexual assault. Ms. Dailey next argues that the district court erred when it ex cluded evidence of Mr. Hecht’s recreational dr ug use under Rule 403 because tha t evidence was necessary to “impeach [Mr. Hech t’s] inconsistent testimony.” S pecifically, she claims that Mr. Hecht previously lied under oath about his recreationa l drug use. Thus, she claims, she should have been given the opportunity to cross exa mine Mr. Hecht about the content of those inconsistent statements to establish his p ropensity for untruthfulness under Federa l Rule of Evidence 608(b). As a threshold matter, Ms. Daile y has not shown that the distri ct court abused its discretion by excluding evidence of Mr. Hecht’s recreationa l drug use under Rule 403. The probative value of this evidence is negligible a nd does not make it more or less likely that Mr. Hecht a ssaulted Ms. Dailey. Certainly, Ms. Dailey has not attempted to provide a nexus bet ween Mr. Hecht’s recreational d rug use and the alleged assault. Cf. United States v. H olden, 557 F.3d 698, 703 (6th C ir. 2009) (concluding that evidence of drug use and tr eatment were too remote in time , lacked a causal relationship with testimony at trial, and were thus laden with potential un fair11 prejudice). Evidence of Mr. Hec ht’s recreational drug use is a lso highly prejudicial and could lead to a decision on an improper, emotional basis. Rodriguez, 192 F.3d at 951 (Evidence is unfairly prej udicial if “it provokes an emotio nal response in the jury or otherwise tends to affect adve rsely the jury’s attitude towa rd the defendant wholly apart from its judgment.”). A j ury could conceivably find Mr. Hecht liable solely because “he is a drug abuser,” a nd thus deserving of punishment . Cf. United States v. Mojica, 185 F.3d 780, 788–89 (7th Cir. 1999) (“[T]here is consi derable danger that evidence that a witness has use d illegal drugs may so prejudice the jury that it will excessively discount the witness’ testimony.” (internal quotati on marks omitted)). Because the danger of unfair pr ejudice substantially outweighs the probative value of this evidence, the district court did not abuse its di scretion under Rule 403 by excluding evidence of Mr. Hecht ’s recreational drug use. Ms. Dailey argues that the state ments about Mr. Hecht’s recreat ional drug use should have been admitted under Ru le 608(b) to establish his pr opensity for untruthfulness. But this ignores the district court’s proper e xclusion of that evidence under Rule 403. Where the distr ict court excludes evidence und er Rule 403, that exclusion controls eve n though the evidence is otherwise admiss ible for impeachment purposes pursuant to Rule 608(b). United States v. Olivo, 80 F .3d 1466, 1470 (10th Cir. 1996); United States v. Skelt on, 514 F.3d 433, 445 (5th Ci r. 2008). Ms. Dailey next challenges the district court’s exclusion of ev idence related to Mr. Hecht’s misdemeanor harassment arrest and guilty plea in an unrelated case. According to Ms. Dailey, the dis trict court’s ruling prevented her from explaining to12 the jury why she waited two years before bringing a lawsuit aga inst Mr. Hecht. She hoped to tell the jury that she brought her suit after she saw an article about Mr. Hecht in the paper describing charges against him for assault and har assment against another woman. According to Ms. Dailey, she “realized that Mr. Hecht w as hurting others, and she wanted to make sure that those prosecuting Mr. Hecht kn ew what had happened to her and that she was willing to testify to help [the other a lleged victim].” The district court permitted her to testify onl y that she brought this suit after seeing an article about Mr. Hecht, but ordered her not dis close to the jury the content s of the article. As a general matter, Mr. Hecht’s misdemeanor conviction for har assment is not admissible at trial. Federal Rule of Evidence 609(a) “permits impeachment by proof of conviction of a misdemeanor o nly if the crime involved disho nesty or false statement.” United States v. Harvey, 588 F.2d 1201, 1203 (8th Cir. 1978); Fed. R. Evid. 609(a)(2). Because the bas ic elements of harassment do n ot involve dishonesty or false statements, the most Ms . Dailey could have introduced at trial were the allegations contained in the article she saw. The district court correctly excluded evidence of the harassmen t allegations against Mr. Hecht because “the relevance of this evidence, if a ny, is substantially outweighed by the danger of unfai r prejudice.” Ms. Dailey argu es that the evidence has probative value because it he lps fill a “chronological and conceptual void”— namely, her choice to file the lawsuit two years after the sexu al encounter occurred. This argument ignores, however, that the district court permitt ed Ms. Dailey to testify that she chose to bring charges against Mr. Hecht after she saw an article about him in13 the newspaper. The district cour t determined that the contents of the article were unnecessary to fill any “chronol ogical and conceptual void.” T he district court explained in its order denying M s. Dailey’s post-trial motions: The fact, if it was a fact, that Mr. Hecht had in the past been verbally or physically abusive to [another wo man] has no apparent relevance to whether his sexual contact with M s. Dailey in March 2014 was consensual, other than it relate d to his alleged character trai t of abusing women. But to any extent it coul d be said to be relevant for a legitimate purpose other than evidence of M r. Hecht’s character, my judgme nt was and is that its probative value is substantially outweighed by the danger of unfair prejudice. Like the district court, we conc lude the danger of unfair preju dice of this evidence substantially outweigh s its probative value. The evid ence is not probative of whether the sexual encounter betw een Ms. Dailey and Mr. Hecht w as consensual. Further, the probative value rela ted to the chronology of Ms. D ailey’s decision to come forward with her sexual assault allegations is substantially ou tweighed by a danger of unfair prejudice. There can be lit tle doubt the evidence of Mr . Hecht’s arrest for misdemeanor assault and harassme nt would have been highly preju dicial to Mr. Hecht. A jury could be more inclined to believe sexual assault allegat ions made against an individual with a history of abusing women. This is precisely the type of prejudice the rules of evidence seek to prohibit. 1 Allowing Ms. Dailey to present evidence of a

1 In addition to being excludable under Rule 403, the evidence c ould also be excluded under Rule 404(a), whi ch explicitly prohibits evidence being offered to prove a specific character traitin this context. Tanberg v. S holtis, 401 F.3d 1151, 1167 (10th Cir. 2005) (“The Feder al Rules of Evidence generally preclude the use of evidence of crimes or wrongs unrel ated to the conduct at issue if that evidence is offered to prove a propensity to behave in a particular manner. ”).14 misdemeanor arrest, unrelated to her sexual assault allegations , would be significantly prejudicial given the nature of Ms. Dailey’s allegations. The district court did not abus e its discretion by excluding ev idence of the assault and harassment allegati ons against Mr. Hecht from the j ury. Finally, Ms. Dailey argues that t he cumulative effect of the al leged trial errors requires reversal. Because we c onclude the district court made no evidentiary errors, there is no basis upon which to f ind a cumulative error. Unite d States v. Fuentez, 231 F.3d 700, 709 (10th Cir. 2000).
B. Ms. Dailey next asserts for the f irst time on appeal that the d istrict court made a prejudicial comment in the pres ence of the jury. She alleges t hat the comment amounts to reversible error. Ms. Dailey requests that the Cou rt expand the record on appeal to include an affidavit from a paralegal on he r legal team. The affidavit st ates that at some point during the trial the district court received a handwritten ques tion from the jury and the judge jokingly stated “not guilty” while unfolding the paper. The judge allegedly went on to explain to the jury that t his is how he usually receives verdict forms. The paralegal on Ms. Dailey’s le gal team is the only person who claims to have heard this comment. According to the affidavit, this paralegal “told one of Ms. Dailey’s lawyers that the Judge h ad mocked the opening of a ‘no t guilty’ verdict in front of the jury” after the tria l ended for the day. “When [t hey] received that day’s15 real time transcript,” the affid avit continues, “[they] reviewe d the transcript for the Judge’s statement butdid not find it.” Despite having notice of the alle gedly prejudicial comment, Ms. Dailey’s attorneys never objected to the ju dge’s statement in the distri ct court. In fact, in the Reply in support of the Motion to Supplement the Record, attorn eys for Ms. Dailey acknowledged trial counsel “ elected not to raise [this] issue that might have
undermined her entire case .” (emphasis added). A party cannot observe an erro r, choose not to raise it, and us e it to seek relief if the verdict does not go her way. See United States v. Socon y-Vacuum Oil Co., 310 U.S. 150, 238–39 (1940) (“[C]ounsel for the defense cannot as a rule remain silent, interpose no objections, and afte r a verdict has been returned seize for the first time on the point that the comments to the jury were improper and preju dicial.”). “Where, as here, a plaintiff pursues a new l egal theory for the first time on appeal” and that theory

“ was intentionally relinquished or abandoned in the district court , we usually deem it waived and refuse to consider it. ” Richison v. Ernest Grp., In c., 634 F.3d 1123, 1127 (10th Cir. 2011) (emphasis adde d). Because Ms. Dailey admits t hat her counsel strategically and purposefully e lected not to raise this issue before the district court, this issue is waived, and we de ny Ms. Dailey’s motion to supple ment the record on appeal.
C. During trial, the district court allowed jurors to present ques tions to the witnesses. The procedure for ju ror questions was first set for th in a proposed jury16 instruction, submitted jointly by Ms. Dailey and Mr. Hecht. Th e proposed instruction reads:Rules governing jury trials do notallow jurors to ask question s directly of a witness. However, if you do have a question you would lik e to ask a witness during the trial, write your question down, but do no t sign it. After each witness’s testimony, b efore he or she leaves the wit ness stand, I will ask if there are any juror questions. The Court Room De puty will collect your questions a nd hand them to me. I may discuss the question with the lawyers. If I decide the q uestion is proper, it will be asked when appropriate. Keep in mind, howev er, that the rules of evidence or other rules of law may prevent some qu estions from being asked. I will apply the same legal standards to you r questions as I do to the questions a sked by the lawyers. If a particular question is notasked, do not guess why or what the answer might have been. The failure to ask a question is not a reflec tion on the person asking it, and you should not attach any significance to the failure to ask a question prop osed by a juror. The district court discussed the use and procedure for juror qu estions twice more before the end of trial—once during a pretrial conference and o nce again during trial. At neither time did Ms. Dailey object to the use of juror quest ions. Ms. Dailey concedes she “did notobject to the overall practice of juror questioning in the district cour t.” In fact, she actively subm itted proposed jury instructions allowing for juro r questions and thus invited the activity she is now claiming is error. Under the invited error doctrine, a party may not induce or app rove an action by the district court and later seek reversal on the same ground. Invited error occurs when “the party sought out or affirmatively approv[ed] an errant outcome.” United States v. Thornton, 846 F.3d 1110, 1117 n. 3 (10th Cir. 2017) (internal qu otation marks omitted)17 (emphasis added). “It is a spec ies of waiver because it requir es intentional relinquishment of a right.” Id. (internal quotation marks omit ted). We have specifically declined to revie w an alleged error when a defenda nt invited the error through the submission of propos ed jury instructions and verdic t forms that were functionally the same as those u ltimately used by the court. U nited States v. Fields, 516 F.3d 923, 939 (10th Cir. 2008). By submitting proposed jury instru ctions that allowed for jurorquestions, Ms. Dailey invited this error. She h ad ample opportunity to object to their use in the district court. Ms. Dailey’s objection to the use of jury questions is thus waived, and she is not entitled to appellate relief.
D. For the foregoing reasons, the dis trict court’s judgment is
AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge