State v. Foster

I must respectfully dissent. I do not believe the record supports the determination of plain error upon which the majority opinion rests.

Error not properly preserved will not be considered ‘plain error’ unless there is a finding that ‘manifest injustice or miscarriage of justice has resulted therefrom,’ Rule 30.20; and instructional error will not be considered plain error unless it is found that the trial court has so misdirected or failed to instruct the jury upon the law as to produce or cause manifest injustice or a miscarriage of justice. State v. Ealey, 624 S.W.2d 465, 467 (Mo.App.1981).