concurring in part, and dissenting in part:
The questions presented in this appeal, on plain error review, are narrow and straightforward.
I.
In circumstances where complainant, his fiancée, and two children were walking along a street, they passed a group of men which included the two appellants, who are brothers. Complainant recognized the brothers and unpleasant, menacing words were exchanged. The scene quickly turned violent when complainant was struck on the head with a bottle, causing him to fall to the ground. His fiancée testified that she saw one of the brothers kick the complainant — while he was on the ground — multiple times. She also stated that she saw the other brother jump on complainant’s head multiple times like a “trampoline.” In addition to questions of self-defense, appellants contended they were no longer present when the kicking occurred.
At an earlier trial which ended without a verdict, the jury was instructed, among other things, that an aider and abettor was culpable and responsible for the natural and probable consequences of his acts. At the second trial (the source of this appeal) there was little discussion and no objection by either side to the repetition of the same instruction. At the second trial, the nature of the prosecution’s evidence is fully described in the majority opinion. In the context of the larger group that was present at the scene of the altercation, the prosecutor argued that appellants could be deemed aiders and abettors in the offenses charged. During deliberations the jurors requested clarification of the accomplice instruction. Ultimately, the jury found appellants guilty of aggravated assault while armed and assault with a dangerous weapon. In this appeal, notwithstanding that there was no objection in the trial court on this issue, it is urged, for the first time, that the aiding and abetting instruction given did not conform to our Wilson-Bey opinion.1 In general, we held in that decision that one convicted as an accomplice to an offense must be shown to have had substantially the same mens rea as that required of the principal. Id. at 838. *825Thus our review in this instance is certainly for plain error as to the convictions before us.
II.
With regard to the aggravated assault offense, I think that Section (1) of the statute requires an intent to do assaultive acts with intent to “cause serious bodily injury.” Section (2) of the statute can be violated, alternatively, by “... conduct which creates a grave risk of serious bodily injury to another person....” We are in agreement that the instruction given, and later repeated, respecting aiding and abetting was in error. Thus on plain error review appellants must show that the error was plain, obvious and that there is a reasonable probability that the error caused unjust prejudice in the proceedings. On appeal, the primary challenge is that the instruction describing the intent requirement for accomplice responsibility, using “the natural and probable” language — especially when repeated — served to mislead or confuse the jury and perhaps increased the prospect of a compromise verdict.
In this instance the elements of the statute are not complex; that is particularly so of the mind set of a person accused of this offense. There must be the intent to cause serious injury or to do so by means of reckless behavior. Of course, this case presented a range of factual questions for the jury to resolve. Depending on the jury’s credibility findings, appellants could have been acquitted if the jury found they were not present when the complainant was attacked while on the ground; or they could find them to be aiders and abettors; or they could simply find appellants guilty as principals, based on the testimony of complainant’s fiancée. By design, we do not know and can not know the path of the jury’s deliberations. In my view this historic separation between lawyering and jury factfinding is at the heart of this issue. Appellants’ contention of error rests on the premise that appellants were convicted as aiders and abettors and thus were mislead by a faulty instruction; but the jury was not limited to that theory of the case and was free to decide otherwise. We cannot speculate. Rather, in light of all of these variables, appellants — to prevail on plain error — must show that the “natural and probable” instruction, in the circumstances of this case, caused a reasonable probability of unjust prejudice to appellants. They have not met that standard and I therefore would affirm the convictions.
As to the assault with a deadly weapon convictions, I would not reverse. The mens rea is the same as in simple assault. It is merely an intent to do an assaultive act. In the instance of the felony, assault with a weapon, the legislature has simply enhanced the range of penalty where a weapon is used; there is no change in the mens rea. In the circumstances of the present case the factual determination by the jury is clearer and I can see no plain error reason to disturb it. The challenged probability of unfairness attributable to the instruction is minimal and I therefore would not reverse the assault with the dangerous weapon convictions.
I write separately because on plain error review, I do not adopt the broader declarations rendered here and disagree with the reversal of the convictions for aggravated assault while armed.
. Wilson-Bey v. United States, 903 A.2d 818 (D.C.2006) (en banc).