dissenting.
[¶ 17] This Court has the power to notice obvious error under Rule 52(b), N.D.R.Crim.P., at the request of counsel or on its own motion. State v. Rindy, 299 N.W.2d 783, 785 (N.D.1980) (citing 3A Charles Alan Wright, Federal Practice and Procedure § 856, at 338 (2d ed.1982)). “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken.” Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962) (per curiam).1
*569[¶ 18] Under the framework adopted in State v. Olander, 1998 ND 50, 575 N.W.2d 658, before we may take notice of obvious error there must be (1) error, (2) that is plain, and (3) affects substantial rights. Id. at ¶ 14. Once this is established, we have the discretion to correct the obvious error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at ¶ 16. An obvious error may seriously affect the fairness, integrity, or public reputation of judicial proceedings regardless of the defendant’s actual innocence. Id. at ¶ 16.
[¶ 19] In assessing the possibility of obvious error affecting the substantial rights of the defendant under Rule 52(b), N.D.R.Crim.P., we must examine the entire record and the probable effect of the error in light of all the evidence. State v. Kraft, 413 N.W.2d 303, 307 (N.D.1987).
[¶ 20] Here, at the beginning of the trial, the State read the information to the jury, stating, in part:
Prosecuting Attorney of Ward County charges that on or about the 13 th day of February, 1997, in the City of Minot, Ward County, North Dakota, the above-named defendant committed the offense of: Criminal Conspiracy — Delivery of a Controlled Substance, in violation of Sections 12.1-06-04; 19-03.1-05(5)(j); 19-03.1-23 of the North Dakota Century Code, by then and there the defendant, Dustin Smith, agreed with one or more persons to engage in or cause conduct which in fact constitutes an offense or offenses and any one or more of such persons did an overt act to effect the objective of the conspiracy, to wit: He agreed with Jamie Metcalfe and/or Brad Ronnie to deliver the controlled substance of marijuana to Brad Ronnie for the purchase price of $170.00 under circumstances in which either the defendant, Dustin Smith, or Jamie Metcalfe, did an overt act to affect the objective of the conspiracy, delivery of a controlled substance by actually delivering marijuana to Brad Ronnie, agreeing to sell marijuana to Brad Ronnie, or by accepting the purchase price of $170.00. (Emphasis added.)
[¶ 21] Following the reading of the information, the trial court gave the jury its preliminary jury instructions. The court read the jury the “Essential Elements of the Offense — Criminal Conspiracy” jury instruction, which states, in part:
The State satisfies its burden of proof if the evidence shows, beyond a reasonable doubt, the following essential elements of the offense charged.
1. On or about the 13 th day of February, 1997, in Ward County, North Dakota, the defendant willfully agreed with one or more persons to engage in or cause conduct which, in fact, constitutes an offense, that is, delivery of a controlled substance, and
2. Any one or more of such persons, including the defendant, did an overt act to effect an objective of the conspiracy.
Criminal Conspiracy: A person commits conspiracy if that person agrees with one or more persons, to engage in or cause conduct constituting an offense, and any one or more of those persons acts overtly to effect an objective of the conspiracy. The agreement need not clearly be stated. It may be implicit in the fact of collaboration or existence of other circumstances. If a person knows or could expect that one with whom that person agrees, has agreed, or will agree with another to effect the same objective, that person is deemed to have agreed with the other, whether or not that person knows the other’s identity. (Emphasis added.)
[¶ 22] “The purpose of jury instructions is to apprise the jury of the state of the law.” State v. Murphy, 527 N.W.2d 254, 256 (N.D.1995). We review jury instructions as a whole and consider whether they *570correctly and adequately advise the jury of the applicable law. State v. Steinmetz, 552 N.W.2d 358, 361 (N.D.1996). When the jury instruction, read as a whole, is erroneous, relates to a subject central to the case, and affects the substantial rights of the defendant, it is grounds for reversal. State v. Bonner, 361 N.W.2d 605, 609 (N.D.1985).
[¶ 23] We recently held that proof of a buyer-seller relationship, without more, is not sufficient to prove a conspiracy to deliver a controlled substance. State v. Serr, 1998 ND 66, ¶ 13, 575 N.W.2d 896. We explained the “something more” is a further understanding between the buyer and seller, often implicit, relating to the subsequent distribution by the buyer. Id. at ¶ 13 (citing United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994)). Furthermore, the two parties at the time of the conspiratorial agreement must have contemplated the resale of the narcotics. Id. at ¶ 13. Therefore, it is contrary to the law of this State to convict a defendant of conspiracy to deliver a controlled substance arising purely out of a proven buyer and seller relationship.
[¶ 24] In this case, the information charges Smith, the seller, with conspiracy between Metcalfe and/or Ronnie, the buyer. Thus, the information, as charged, includes the possibility of conviction for a conspiracy between Smith and Ronnie, the buyer and seller. The jury instruction containing the elements of conspiracy would also permit a jury to find a conspiracy between Smith and Ronnie. However, the greatest problem is the State’s central theory of the case as tried to the jury seems to have been the existence of a conspiracy between Smith and Ronnie.2
[¶ 25] In presenting its case, the State during opening statements said, “[s]imply put, ladies and gentlemen, this is a trial about an agreement. A secret agreement between the defendant, Dustin Smith, and a person by the name of Brad Ronnie.” During the trial, the State called Ronnie, Wes Beck, and Steve Niebuhr as witnesses. Ronnie testified regarding how a purchase was arranged on February 12, 1997, and the purchase was subsequently completed on February 13, 1997. Wes Beck and Steve Niebuhr, both Minot Police Officers involved in the case, gave testimony regarding their dealings with Ronnie. All three of these witnesses testified at length about the facts and circumstances surrounding the deal set up between Smith and Ronnie.
[¶ 26] By contrast, the State provided limited testimony about a possible conspiracy between Metcalfe and Smith. During her testimony, Metcalfe stated she knew Ronnie was coming over to buy marijuana, but could not recall how she had come to know that information.
[¶ 27] During closing statements, the theme of the case had not changed. The State argued, “the defendant made an agreement with Brad Ronnie.” Later in discussing the sequence of events, the State asserted Metcalfe, by giving the drugs to Ronnie on February 13, 1997, “[t]hereby complet[es] the objectives of the agreement that started on the 12 th between the defendant and Brad Metcalfe'— or excuse me, Brad Ronnie.”
[¶ 28] Considering the evidence presented as a whole, it is apparent the State’s main case was the existence of a conspiracy between Smith and Ronnie. When considered in that context, the jury instructions, as given, permit the jury to convict Smith for this alleged “conspiracy” between buyer and seller, a conspiracy which is specifically contrary to the law of this State. Thus, when considered in the context of the State’s theory of the case, *571the jury instruction regarding the elements of criminal conspiracy to deliver a controlled substance does not correctly advise the jury of the law, even though, in another setting, it might well be an adequate instruction. Quite clearly, when a jury instruction allows a defendant to be convicted for doing something that does not constitute the crime charged, it is error affecting substantial rights of the defendant, obvious error which we may recognize.
[¶ 29] In my opinion this is an obvious error that affects the fairness, integrity, or public reputation of judicial proceedings. Olander, 1998 ND 50, ¶ 16, 575 N.W.2d 658. Because there was some evidence concerning a possible conspiracy between Metcalfe and Smith, I would reject Smith’s argument that his motion for judgment of acquittal should have been granted by the trial court. I would remand for a new trial.
[¶ 30] MARING, J., concurs.. Our rule differs from the federal rule only in the substitution of the word "obvious” for *569"plain.'' N.D.R.Crim.P. 52, Explanatory Note.
. The State did not present any. evidence proving the required "something more” under Setr. There is a scintilla of evidence relating to a conspiracy between Smith and Met-calfe and oblique reference to an implicit agreement between Metcalfe and Smith in closing statement, but clearly the State's case was predicated on finding a conspiracy between Smith and Ronnie.