plain error in North Carolina

2026Plain error arises when an error is “so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660 (1983) (citation omitted).

2026“Even when the plain error rule is applied, it is the rare case in -4- which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” State v. Odom, 307 N.C. 655 , 660-61 (1983) (cleaned up).

2026The plain error rule is traditionally applied in the “exceptional case where, after reviewing the entire record, the claimed error is [considered] a ‘fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.’ ” State v. Odom, 307 N.C. 655, 660 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (emphasis in original)); see State v. Lawrence, 365 N.C. 506, 516 (2012).

2026As our Supreme Court has emphasized, the plain error rule “is always to be applied cautiously and only in the exceptional case[.]” State v. Odom, 307 N.C. 655, 660 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).

2014State v. Carter, 177 N.C. App. 539, 541 , 629 S.E.2d 332, 335 , aff’d per curiam, 361 N.C. 108 , 637 S.E.2d 537 (2006) (holding the trial court committed plain error by failing to instruct the jury on the offense of conspiracy to commit common law robbery on conflicting evidence regarding whether the gun “was real or fake[,]” and reversing the defendant’s conviction and remanding for a new trial); but see State v. Lawrence, 365 N.C. 506, 519 , 723 S.E.2d 326, 335 (2012) (stating that “the trial court’s charge on conspiracy to commit robbery with a dangerous weapon was erroneous,” because the i

2014State v. Carter, 177 N.C. App. 539, 541 , 629 S.E.2d 332, 335 , aff’d per curiam, 361 N.C. 108 , 637 S.E.2d 537 (2006) (holding the trial court committed plain error by failing to instruct the jury on the offense of conspiracy to commit common law robbery on conflicting evidence regarding whether the gun “was real or fake[,]” and reversing the defendant’s conviction and remanding for a new trial); but see State v. Lawrence, 365 N.C. 506, 519 , 723 S.E.2d 326, 335 (2012) (stating that “the trial court’s charge on conspiracy to commit robbery with a dangerous weapon was erroneous,” because the i

2026“Under the plain error rule, [the] defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440 (1993).

2026To succeed under the plain error rule, the “defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440 (1993) (citing State v. Faison, 330 N.C. 347 (1991)).

2016Plain error may also exist when the error is "so fundamental as to amount to a miscarriage of justice." Id. (quoting State v. Bagley, 321 N.C. 201 , 213, 362 S.E.2d 244 , 251 (1987), cert. denied, 485 U.S. 1036 , 99 L.Ed.2d 912 (1988) ).

2016Plain error may also exist when the error is "so fundamental as to amount to a miscarriage of justice." Id. (quoting State v. Bagley, 321 N.C. 201 , 213, 362 S.E.2d 244 , 251 (1987), cert. denied, 485 U.S. 1036 , 99 L.Ed.2d 912 (1988) ).

2026Plain error review “is limited to errors in a trial court’s jury instructions or a trial court’s rulings on admissibility of evidence[,]” State v. Golphin, 352 N.C. 364, 460 (2000), and to those “truly exceptional cases[,]” State v. Walker, 316 N.C. 33, 39 (1986).

2023“The plain error rule applies only in truly exceptional cases.” State v. Walker, 316 N.C. 33, 39 , 340 S.E.2d 80, 83 (1986).

2026Plain error “must be so fundamental as to amount to a miscarriage of justice or . . . probably result[ ] in the jury reaching a different verdict than it otherwise would have reached.” State v. Collins, 334 N.C. 54, 62 (1993) (quotation omitted).

2011App. 110 , 117-18 605 S.E.2d 647, 653-54 (2004) (refusing to provide plain error relief in a case in which the defendant specifically opposed the submission of a lesser included offense), vacated in part on other grounds, 361 N.C. 160 , 695 S.E.2d 750 (2006), we conclude that the trial court’s failure to instruct the jury on attempted first-degree sexual offense constituted *467 plain error, see State v. Collins, 334 N.C. 54, 62-63 , 431 S.E.2d 188, 193 (1993) (holding that the trial court committed plain error by failing to instruct the jury concerning the issue of the defendant’s guilt of at

2025Merely reciting “plain error” as an alternative argument is insufficient, see State v. Grooms, 353 N.C. 50, 66 , 540 S.E.2d 713, 723 (2000), as an “empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error -6- rule,” State v. Cummings, 352 N.C. 600, 637 , 536 S.E.2d 36, 61 (2000); see also State v. Reber, 386 N.C. 153 , 159-60, 900 S.E.2d 781 , 787-88 (2024) (explaining a defendant must demonstrate that absent the error in question, the jury “almost certainly” would have reached a different result to sat

2025Merely reciting “plain error” as an alternative argument is insufficient, see State v. Grooms, 353 N.C. 50, 66 , 540 S.E.2d 713, 723 (2000), as an “empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error -6- rule,” State v. Cummings, 352 N.C. 600, 637 , 536 S.E.2d 36, 61 (2000); see also State v. Reber, 386 N.C. 153 , 159-60, 900 S.E.2d 781 , 787-88 (2024) (explaining a defendant must demonstrate that absent the error in question, the jury “almost certainly” would have reached a different result to sat

2012Because Defendant bears the burden of showing that an error arose to the level of plain error, Bishop, 346 N.C. at 385 , 488 S.E.2d at 779 , and because Defendant failed to meet this burden, we conclude the trial court did not commit plain error in its jury instructions on the elements of the offenses in this case.

2012Because Defendant bears the burden of showing that an error arose to the level of plain error, Bishop, 346 N.C. at 385 , 488 S.E.2d at 779 , and because Defendant failed to meet this burden, we conclude the trial court did not commit plain error in its jury instructions on the elements of the offenses in this case.

2025However, “plain error review is unavailable for issues that fall within the realm of the trial court’s discretion, such as Rule 403 determinations.” Id. at 821, 909 S.E.2d at 251 (cleaned up); see also State v. Steen, 352 N.C. 227, 256 , 536 S.E.2d 1, 18 (2000) (“[T]his Court has not applied the plain error rule to issues which fall within the realm of the trial court’s discretion, and we decline to do so now.”), cert. denied, 531 U.S. 1167 , 148 L. Ed. 2d 997 (2001).

2025Although the abuse of discretion standard typically requires a manifestly arbitrary or unreasoned decision, an “abuse of a trial court’s discretion also occurs where a trial judge acts under a misapprehension of the law.” State v. Robinson, 383 1 We also emphasize that even if plain error review was the appropriate standard, our appellate courts do not apply the plain error rule to “issues which fall within the realm of the trial court’s discretion.” State v. Steen, 352 N.C. 227, 256 (2000), cert. denied, 531 U.S. 1167 (2001).

2023“Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to appellant of a fair trial.” State v. Gregory, 342 N.C. 580, 586 , 467 S.E.2d 28, 32 (1996) (citation omitted).

2023“Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to appellant of a fair trial.” State v. Gregory, 342 N.C. 580, 586 , 467 S.E.2d 28, 32 (1996) (citation omitted).

2020The plain error rule thus requires a defendant to show “[i]n other words, . . . that the error in question ‘tilted the scales’ and caused the jury to reach its verdict convicting the defendant.” State v. Walker, 316 N.C. 33, 39 , 340 S.E.2d 80, 83 (1986) (citing State v. Black, 308 N.C. 736, 741 , 303 S.E.2d 804, 806-807 (1983)).

2020The plain error rule thus requires a defendant to show “[i]n other words, . . . that the error in question ‘tilted the scales’ and caused the jury to reach its verdict convicting the defendant.” State v. Walker, 316 N.C. 33, 39 , 340 S.E.2d 80, 83 (1986) (citing State v. Black, 308 N.C. 736, 741 , 303 S.E.2d 804, 806-807 (1983)).

2019"In order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected." State v. Holden , 346 N.C. 404 , 435, 488 S.E.2d 514 , 531 (1997), cert. denied , 522 U.S. 1126 , 118 S.Ct. 1074 , 140 L.Ed.2d 132 (1998).

2019"In order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected." State v. Holden , 346 N.C. 404 , 435, 488 S.E.2d 514 , 531 (1997), cert. denied , 522 U.S. 1126 , 118 S.Ct. 1074 , 140 L.Ed.2d 132 (1998).

2026State v. Leopard, 300 N.C. App. 199 , 205 (2025). “[T]o demonstrate that a trial court committed plain error, the defendant must show ‘that a fundamental error occurred at trial.’ ” State v. Maddux, 371 N.C. 558, 564 (2018) (quoting State v. Lawrence, 365 N.C. 506, 518 (2012)).

2024Indeed, as both the Black and Walker Courts explained, the strength and volume of the evidence against the defendant plays a role in the plain error analysis. 1 Black, 308 N.C. at 741; Walker, 1 It is important to note that while the majority cites State v. Maddux, 371 N.C. 558, 564 (2018), for the proposition that it is improper to consider “the strength of the State’s evidence” when conducting a plain error analysis, Maddux does not state this.

2026No plain error Plain error involves a “three-factor test,” requiring a defendant to prove three elements to establish plain error: (1) “that a fundamental error occurred at trial”; (2) that “absent the error, the jury probably would have returned a different verdict”; and (3) “that the error is an ‘exceptional case’ that warrants plain error review[.]” State v. Reber, 386 N.C. 153 , 158 (2024) (citation omitted).

2026Plain error is “applied cautiously and only in the exceptional case, reserved for grave error which amounts to a denial of a fundamental right of the accused, and that focuses on error that has resulted in a miscarriage of justice or the denial of a fair trial.” State v. Reber, 386 N.C. 153 , 158 (2024) (cleaned up).

2007Plain error is an error “ ‘so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.’ ” State v. Parker, 350 N.C. 411, 427 , 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084 , 145 L. Ed. 2d 681 (2000) (quoting State v. Bagley, 321 N.C. 201, 213 , 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036 , 99 L. Ed. 2d 912 (1988)).

2007Plain error is an error “ ‘so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.’ ” State v. Parker, 350 N.C. 411, 427 , 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084 , 145 L. Ed. 2d 681 (2000) (quoting State v. Bagley, 321 N.C. 201, 213 , 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036 , 99 L. Ed. 2d 912 (1988)).

2007Under well-established North Carolina law, "plain error analysis applies only to instructions to the jury and evidentiary matters." State v. Cummings, 352 N.C. 600, 613 , 536 S.E.2d 36, 47 (2000) (citations and quotation omitted), cert. denied, 532 U.S. 997 , 121 S.Ct. 1660 , 149 L.Ed.2d 641 (2001); see also State v. Atkins, 349 N.C. 62, 81 , 505 S.E.2d 97, 109-10 (1998) (refusing to apply the plain error doctrine to a trial court's failure to give an instruction during jury voir dire that was not requested), cert. denied, 526 U.S. 1147 , 119 S.Ct. 2025 , 143 L.Ed.2d 1036 (1999).

2007Under well-established North Carolina law, "plain error analysis applies only to instructions to the jury and evidentiary matters." State v. Cummings, 352 N.C. 600, 613 , 536 S.E.2d 36, 47 (2000) (citations and quotation omitted), cert. denied, 532 U.S. 997 , 121 S.Ct. 1660 , 149 L.Ed.2d 641 (2001); see also State v. Atkins, 349 N.C. 62, 81 , 505 S.E.2d 97, 109-10 (1998) (refusing to apply the plain error doctrine to a trial court's failure to give an instruction during jury voir dire that was not requested), cert. denied, 526 U.S. 1147 , 119 S.Ct. 2025 , 143 L.Ed.2d 1036 (1999).

2026Our precedent does not extend the plain error rule to “situations where a party failed to object to statements made by the other party during jury voir dire.” State v. Wiley, 355 N.C. 592, 616 , 565 S.E.2d 22, 40 (2002).

2026Our precedent does not extend the plain error rule to “situations where a party failed to object to statements made by the other party during jury voir dire.” State v. Wiley, 355 N.C. 592, 616 , 565 S.E.2d 22, 40 (2002).

2025Prior to the Supreme Court’s clarification of the plain error standard in Reber, it had already made clear, “we need not ‘decide whether an instruction on the -5- aggressor doctrine was improper’ given defendant’s failure ‘to sufficiently demonstrate that, absent instructions on the aggressor doctrine, the jury would not have rejected his claim of self-defense for other reasons.’” State v. Mumma, 372 N.C. 226, 241 , 827 S.E.2d 288, 298 (2019) (quoting State v. Juarez, 369 N.C. 351, 359 , 794 S.E.2d 293, 300 (2016)).

2025Prior to the Supreme Court’s clarification of the plain error standard in Reber, it had already made clear, “we need not ‘decide whether an instruction on the -5- aggressor doctrine was improper’ given defendant’s failure ‘to sufficiently demonstrate that, absent instructions on the aggressor doctrine, the jury would not have rejected his claim of self-defense for other reasons.’” State v. Mumma, 372 N.C. 226, 241 , 827 S.E.2d 288, 298 (2019) (quoting State v. Juarez, 369 N.C. 351, 359 , 794 S.E.2d 293, 300 (2016)).

2026We next consider Defendant’s argument that the “the trial court committed plain error in allowing the prosecutor to attempt to sway the jury to a verdict based on an emotional response.” But “[t]he standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing - 34 - counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133 , 558 S.E.2d 97, 107 (2002) (citation omitted).

2026We next consider Defendant’s argument that the “the trial court committed plain error in allowing the prosecutor to attempt to sway the jury to a verdict based on an emotional response.” But “[t]he standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing - 34 - counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133 , 558 S.E.2d 97, 107 (2002) (citation omitted).