State v. Ross

The Court may exercise plain error review of unpreserved issues on appeal when they are errors of law, which are not reasonably in dispute, and the error is apparent in the record. The Court may decline to use its discretion to review plain errors when the errors were harmless.

Defendant appealed conviction for multiple sexual offenses based on the trial court’s admission of testimony from a witness regarding a victim’s credibility and failure to instruct the jury on the necessary mental state for “forcible compulsion”.

Defendant argued that allowing witness testimony regarding the victim’s credibility was an error of law and falls within the Court’s discretionary plain error review even though it was not preserved on appeal. Under Brown, plain error review requires three factors: (1) the error is one of law; (2) the legal point is obvious or not reasonably in dispute; and (3) the error appears “on the face of the record.”

The Court did not find plain error regarding the witness testimony because it was not apparent in the record. Furthermore, the Court stated that it would have refused to exercise its discretion regardless because the error was harmless.

Defendant argued that failure of the trial court to give an instruction on the requisite mental state for forcible compulsion, included in Counts 1 and 5, was plain error. The Court held that under Count 1, failure to give the instruction was plain error but declined to review it because the error was harmless.

The Court held that Count 5 did not fall under plain error review because the requisite mental state for this attempted crime is not clearly established, making the legal point not obvious and therefore not plain error.

Conviction affirmed.