State v. Smith, 984 N.W.2d 367

Smith was charged after a 2019 shooting outside Outlaws' Bar with attempted murder, reckless endangerment, and tampering with physical evidence; jury convicted him of reckless endangerment and tampering but acquitted him of attempted murder.
The jury received a general self-defense instruction and an attempted-murder instruction that listed "did not act in self-defense" as an essential element; the reckless-endangerment instruction did not include that language.
Smith proposed and obtained the reckless-endangerment instruction he requested and did not object at trial to the omission of the explicit self-defense element.
Tampering was charged as a Class C felony, but the jury instruction omitted the statutory felony element that the defendant’s conduct "substantially obstructs, impairs, or perverts prosecution for a felony."
Evidence at trial showed Smith discarded a pistol, removed clothing and electronics, and left the scene; officers recovered a gun from a trashcan and clothing/headphones nearby, but the State presented no evidence that those actions substantially impaired or obstructed prosecution.
The Supreme Court affirmed the reckless-endangerment conviction (finding waiver/invited error) and reversed the felony tampering conviction, ordering a judgment of acquittal for tampering for lack of sufficient evidence of the felony-level element.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court erred by not including "non-existence of self-defense" as an essential element in the reckless-endangerment instruction	No reversible error; instructions were adequate and defendant got the instruction he requested	Omission was plain error because self-defense was implicated and the same factual basis supported both counts	Affirmed — error was invited/waived because Smith requested the instruction and did not object
Whether the jury should have been instructed on the felony-level element of tampering (that the acts substantially obstructed/ impaired prosecution for a felony) and proper remedy	State conceded the instruction omitted an essential felony element and did not identify record evidence of substantial obstruction	Omission was plain error and there was insufficient evidence to prove the felony element; remedy is acquittal	Reversed tampering conviction; remanded with direction to enter judgment of acquittal (insufficient evidence of substantial obstruction)

State v. Landrus, 974 N.W.2d 676 (N.D. 2022) (standards for obvious/plain error and instructing jury on essential elements)
State v. Pemberton, 930 N.W.2d 125 (N.D. 2019) (obvious error test and cautious exercise of appellate correction)
State v. Houle, 974 N.W.2d 401 (N.D. 2022) (party may not challenge error invited by its own requested instruction)
State v. Rende, 907 N.W.2d 361 (N.D. 2018) (waiver for failure to propose instruction containing a missing element and failure to object)
State v. Barth, 637 N.W.2d 369 (N.D. 2001) (construction of "substantial" in criminal statutes)
Tibbs v. Florida, 457 U.S. 31 (U.S. 1982) (Double Jeopardy prohibits retrying to supply missing evidence after acquittal)