State v. Roy

A trial court may err when it fails to give a jury instruction informing the jury that at least 10 jurors must concur as to the specific crime or crimes the defendant intended to commit where a party does not request the instruction; however, on appeal, the Court may decline to consider and correct the alleged error where the defendant did not object to the instruction and the jury verdict met the concurrence requirement anyway.

Defendant appealed his conviction for first-degree burglary, arguing the trial court failed to give a jury instruction that at least 10 jurors had to concur on the specific crime or crimes Defendant intended to commit when he was alleged to have committed burglary. At trial, the court provided a copy of the jury instructions to the parties and, after confirming with Defendant and the State that there were no objections, gave the instruction on burglary in a way that was inconsistent with how burglary was charged in the indictment. On appeal, Defendant argued that, although the error was unpreserved, under State v. Frey it was plainly erroneous for the trial court to have not, on its own, provided a concurrence instruction. The Court held that while a trial court could plainly err for failure to deliver the concurrence instruction absent a request from a party, in this case it declined to exercise discretion to consider and correct the alleged error because Defendant failed to raise an issue with the court’s proposed instruction and the jury ultimately returned an 11-1 verdict against Defendant. Affirmed.