State v. Stucker

I dissent. A conviction based upon a verdict-directing instruction unsupported *223by substantial evidence is manifestly unjust.1

The majority opinion says it treats the insufficiency contention “ex gratia,” because defendant did not specifically raise it in his motion for new trial. But the insufficiency issue is reviewable as a matter of right under the Plain Error Rule2 This is as it should be. To permit convictions based upon instructions unsupported by evidence is to disregard the presumption of innocence, to diminish the State’s burden of proof and to undermine the adversary process.…