State v. Carter, 366 N.C. 496 (Apr. 12, 2013)

The court reversed the decision below in State v. Carter,216 N.C. App. 453 (Nov. 1, 2011) (in a child sexual offense case, the trial court committed plain error by failing to instruct on attempted sexual offense where the evidence of penetration was conflicting), concluding that the defendant failed to show plain error. The court held that when applying the plain error standard

[t]he necessary examination is whether there was a “probable impact” on the verdict, not a possible one. In other words, the inquiry is whether the defendant has shown that, “absent the error, the jury probably would have returned a different verdict.” Thus, the Court of Appeals‟ consideration of what the jury “could rationally have found,” was improper.

Slip Op at 7 (citations omitted). Turning to the case at hand, the court found even if the trial court had erred, the defendant failed to show a probable impact on the verdict.

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