¶1concurring in the result.
¶2I fully concur with the analysis of the first portion of the majority opinion which requires that this case be remanded for a néw trial based upon the instructional error.
¶3*267As to part II of the opinion, assuming error on the part of the trial court, it did not rise to the level that would constitute “plain error.”
¶4I would further note the danger of this court attempting to advise the trial court on issues that are likely to recur upon re-trial. At the re-trial of this case, the trial court must make its rulings and jury instructions based upon the evidence presented at the new trial, not that presented at the first trial. Taylor v. Abernethy, 174 N.C. App. 93, 105, 620 S.E.2d 242, 251 (2005).