"The plain error rule allows us to exercise our discretion to correct errors not raised before the trial court." State v. Mueller, 166 N.H. 65, 68, 88 A.3d 924 (2014) (quotation omitted); seeSup. Ct. R. 16–A ("A plain error that affects substantial rights may be considered even though it was not brought to the attention of the trial court or the supreme court.").

See Ortiz, 162 N.H. at 590, 34 A.3d 599. For us to find plain error: "(1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights." State v. Mueller, 166 N.H. 65, 68, 88 A.3d 924 (2014) (quotation omitted). "If all three of these conditions are met, we may then exercise our discretion to correct a forfeited error only if the error meets a fourth criterion: the error must seriously affect the fairness, integrity or public reputation of judicial proceedings."

In other words, the [complainant] has not violated RSA 570-A:2, I, if [she] has a 'good faith' belief that [her] conduct was lawful." State v. Mueller, 166 N.H. 65, 69 (2014) (quoting Fischer v. Hooper, 143 N.H. 585, 589 (1999)). Accordingly, as the trial court correctly concluded, if the complainant acted "willfully" in recording the defendant without his knowledge or consent, the recording is subject to exclusion under RSA 570-A:6.

See RSA 570-A:2, I-a. By contrast, RSA 570-A:2, I, requires a willful mens rea in order for a one-party interception of a communication to be a felony. RSA 570-A:2, I; see also State v. Mueller, 166 N.H. 65, 68-69 (2014) (stating that misdemeanor and felony violations of RSA chapter 570-A require proof of different mental states). We therefore reject the defendant's statutory construction argument that all one-party interceptions are felonies, and that suppression is required.

Under the third prong, "the defendant must demonstrate that the error was prejudicial, i.e., that it affected the outcome of the proceeding." State v. Mueller, 166 N.H. 65, 70, 88 A.3d 924 (2014). We will find prejudice under the third prong when we cannot confidently state that the fact-finder would have returned the same verdict in the absence of the error.

An error is plain when it was clear or obvious. See State v. Mueller, 166 N.H. 65, 69, 88 A.3d 924 (2014). We conclude that the error was plain because the evidence was insufficient to establish that the attempted sexual intercourse occurred more than once "over a period of 2 months or more," an essential element of the crime.

This rule is used sparingly, however, and is limited to those circumstances in which a miscarriage of justice would otherwise result. State v. Mueller, 166 N.H. 65, 68, 88 A.3d 924 (2014) (quotation and ellipsis omitted). Here, we need not address the first three prongs of the test because we conclude that, even assuming, without deciding, that they are satisfied, the fourth is not.

"We will find prejudice under the third prong when we cannot confidently state that the jury would have returned the same verdict in the absence of the error." State v. Mueller, 166 N.H. 65, 70, 88 A.3d 924 (2014). Given the record before us, we are confident that the jury would have returned the same verdict even if it had not heard any of the three items of evidence discussed above.

See, e.g. , People v. McLaurin , 235 Ill.2d 478, 337 Ill.Dec. 221, 922 N.E.2d 344, 355 (2009) ("[W]here the defendant has made a timely objection and properly preserved an error for review, the reviewing court conducts a harmless-error analysis in which the State has the burden of persuasion with respect to prejudice."); State v. Reed , 737 N.W.2d 572, 583–84 (Minn. 2007) ("Unlike a harmless error analysis, the defendant generally bears the burden of persuasion with respect to the third plain error factor."); State v. Mueller , 166 N.H. 65, 88 A.3d 924, 928 (2014) ("[W]hereas the State bears the burden under harmless error analysis, the defendant bears the burden under the plain error test."); State v. Nelson , 587 N.W.2d 439, 443 (S.D. 1998) (explaining that, unlike harmless error review, "in which the State has the burden of proving the error was not prejudicial, with plain error analysis the defendant bears the burden of showing the error was prejudicial"); State v. Ray , 216 A.3d 1274, 1278 n.3 (Vt. 2019) ("The State bears the burden of showing that any preserved error is harmless."). But in Utah, except in cases of constitutional error, the State is not required to show that a preserved error was harmless; the defendant is required to show that a preserved error was not harmless.