State v. Gaines

When multiple theories of criminal liability are presented by the state, the trial court must give a jury concurrence instruction, requiring at least 10 jurors to agree on the theory of liability before a defendant can be convicted.

Defendant appealed a judgment of conviction for second-degree robbery. The State presented two theories by which Defendant was liable for robbery; (1) as a principal or (2) under an accomplice liability theory by aiding and abetting is accomplice’s commission of robbery. Defendant assigns plain error to the trial court’s failure to give a jury concurrence instruction. Defendant argues that the trial court should have given the jury a concurrence instruction, requiring at least ten of the jury members to agree on the same theory of guilt. It is well established that, especially in the context of competing theories of accomplice and principal liability, the jury must concur on the theory of guilt in order to convict a defendant. The Court rejects the State’s argument that trial courts are not required to give a jury concurrence instruction sua sponte. The Court decided that the error was a legal one, obvious from the record, and grave and exercised its discretion to review the assignment of error for plain error. The trial court erred when it failed to give a jury concurrence instruction, even though Defendant did not request it at the time. Reversed and remanded.