Cited by

State v. Emery, 152 N.H. 783, 787 (2005) (holding that trial court’s alleged error in instructing jury that defendant could be convicted of stealing from her own joint account could not have been “plain” because we had never addressed whether a party may be convicted of stealing by making unauthorized withdrawals from a joint account).

State v. Emery, 152 N.H. 783, 788 (2005) (holding that evidence was sufficient to prove that use of funds was unauthorized where “nothing in the record” indicated that victim looked at checks before he signed them and there was testimony that victim did not usually look at checks that he signed).

United States v. Olano, 507 U.S. 725, 734-35 (1993); State v. Emery, 152 N.H. 783, 787 (2005).

The plain error rule allows us to exercise our discretion to correct errors not raised in the trial court or in the notice of appeal.

“The trial court has broad discretion in managing the proceedings before it,” In the Matter of Connor & Connor, 156 N.H. 250, 252 (2007), including pre-trial discovery, State v. Emery, 152 N.H. 783, 789 (2005).

State v. Emery, 152 N.H. 783, 786 (2005); State v. Taylor, 152 N.H. 719, 720-21 (2005).

State v. Emery, 152 N.H. 783, 788 (2005); State v. Littlefield, 152 N.H. 331, 350 (2005).

Even assuming that there was error in this case, and that the error was plain, the burden is on *433 the plaintiff to prove that the error affected substantial rights.

*125 Assuming that the State had the burden of proving the existence of the defendant’s prior conviction beyond a reasonable doubt in the trial court, on appeal the burden shifts to the defendant to prove that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found the existence of the prior conviction beyond a reasonable doubt.

For this reason, we disagree with the special concurrence’s position that our decisions in State v. Taylor, 152 N.H. 719 (2005), and State v. Emery, 152 N.H. 783 (2005), were inconsistent.

Even assuming that there was error in this case, and that the error was plain, the burden is on the plaintiff to prove that the error affected substantial rights.

“In an appeal challenging the sufficiency of the evidence, the defendant carries the burden of proving that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt.” State v. Emery, 152 N.H. 783, 788 (2005) (quotation omitted).

“Generally, when the law is not clear at the time of trial, and remains, unsettled at the time of appeal, a decision by the trial court cannot be pláin error.” State v. Emery, 152 N.H. 783, 787 (2005).

State v. Emery, 152 N.H. 783, 786-87 (2005); Johnson v. United States, 520 U.S. 461, 466-67 (1997).