State v. Thompson

When an error is unpreserved, a court will address it only if (1) the error is one “of law,” (2) the point of law is “apparent,” and (3) the error appears “on the face of the record.” If the state seeks to hold a defendant liable either as the principal or as an aider and abettor and if a party requests an appropriate instruction, the trial court should instruct the jury that at least 10 jurors must agree on each legislatively defined element necessary to find the defendant liable under one theory or the other

Defendant appealed a judgment of conviction for third-degree assault. He assigned error to the trial court’s failure to instruct the jury that it must concur on the facts establishing the elements of third-degree assault. Defendant did not request a jury concurrence before the trial court and the decision should have been reviewed for plain error. Defendant argued that the trial court plainly erred in failing to instruct the jury that it was required to concur on the factual basis for the elements of the charge of assault in the third degree. The State responded that the trial court did not err “because a defendant is entitled to a concurrence instruction only if he or she requests one, and defendant did not do so here.” The Court did not agree with the State's ridged interpretation, however, they still found for the State concluding that there was no plain error. Affirmed.