The jury acquitted appellant of second-degree intentional murder and convicted him of felony murder in the second degree and the underlying assault charge. Appellant argues his convictions must be reversed because the district court failed to instruct the jury on the intent element of assault. As the state concedes, the court committed plain error in instructing the jury on second-degree assault. A person is guilty of second-degree assault if the person assaults another with a dangerous weapon. The court omitted the instruction defining assault as an act done with intent to cause fear of immediate bodily harm or death or an intentional infliction of bodily harm.
Intent is an essential element of assault.
While the state concedes that the omission was plain error, it argues that the error did not affect appellant's substantial rights. To determine if a defendant's substantial rights were affected, this court analyzes whether the error was prejudicial and whether it affected the outcome of the case. An error is prejudicial if there is a reasonable likelihood that giving the instruction in question would have had a significant effect on the jury's verdict. It is elementary to a fair trial and due process that the jury is fully and accurately instructed on the elements of the charged offense. The jury in this case was given a fundamentally incorrect instruction on the intent element of assault.