Therefore, we will not disturb the jury's verdict. Second, with respect to the attempted possession with intent to distribute charge, the government concedes, as it must under Cash v. United States, 648 A.2d 964, 965 (D.C. 1994), that the asserted instructional error is fatal. The trial court inadvertently omitted from its instructions the element of the offense requiring the government to establish that the marijuana was possessed "with the specific intent to distribute it."

While recognizing the basic right protected by the rule against permitting a defendant to be tried on charges not returned by the grand jury, see Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960), we are persuaded that no plain error occurred. See Robinson v. United States, 649 A.2d 584 (D.C. 1994); cf. Cash v. United States, 648 A.2d 964, 965 (D.C. 1994) (per curiam) (reversible error where trial court erroneously instructed jury on misdemeanor offense of simple possession of controlled substance, instead of felony possession with intent to distribute controlled substance, and jury convicted defendant of felony offense). A brief review of the facts will facilitate an understanding of the conclusion reached.

Because appellant failed to object to the erroneous instructions at trial, and indeed, affirmatively acknowledged his satisfaction with the instructions, applying a plain error standard, we cannot conclude that his conviction for misdemeanor simple assault should be reversed. See White, supra, 613 A.2d at 879; Curington, supra, 621 A.2d at 822; cf. Cash v. United States, 648 A.2d 964, 965 (1994) (per curiam) (reversible error where trial court erroneously instructed jury on misdemeanor offense of simple possession of controlled substance, instead of felony possession with intent to distribute controlled substance, and jury convicted defendant of felony offense). "The defendant's burden in plain error cases is, and should be a formidable one."