concurring in part, dissenting in part.
I concur in that portion of the majority’s opinion which holds “the trial court did not err in denying defendant’s motion to dismiss the charge of conspiracy to commit robbery with a dangerous weapon.” I respectfully dissent from that portion of the majority’s opinion which holds the trial court committed plain error in failing to instruct the jury on the offense of conspiracy to commit common law robbery, and the award of a new trial to defendant under plain error review.
[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a ‘‘fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “ ‘resulted in a miscarriage of justice or in the denial to appellant of a fair trial’ ” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).
In State v. Gallimore, our Supreme Court defined conspiracy as follows:
A conspiracy is the unlawful concurrence of two or more persons in a wicked scheme — the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way by unlawful means. A conspiracy to commit a felony is a felony. The *545crime is complete when the agreement is made. Many jurisdictions follow the rule that one overt act must be committed before the conspiracy becomes criminal. Our rule does not require an overt act.
272 N.C. 528, 532, 158 S.E.2d 505, 508 (1968) (emphasis supplied). The crime of conspiracy merely requires an agreement between two or more persons to engage in an unlawful act. Id. Whether or not the agreed upon offense was actually perpetrated is irrelevant to a determination of whether a conspiracy occurred. Id.
Here, the State presented sufficient evidence from which the jury could have found that defendant engaged in an agreement with Oakley and Collins to commit a robbery with a dangerous weapon. Oakley testified that she was not sure whether the gun she used in the robbery was real. Oakley gave a statement to police in which she stated, “I went in because they said either I go in with the fake gun, because they had a — they had a fake gun and a real one, or they want sex. So either I go in or give them sex.” The agreement between Oakley, Collins, and defendant involved the use of a weapon to accomplish the robbery. The only conflicting evidence is whether the gun Oakley used in the robbery was real or “fake.”
Wilma Allen (“Allen”), the store owner, whom Oakley robbed at gunpoint, was asked, “Is there any doubt in your mind that that gun was a fake gun?” Allen responded, “Huh-uh. It looked real to me.” She later testified, “There was no doubt; it was real to me.” Allen also testified that she knew the difference between a revolver and a semiautomatic weapon, and that the gun used by Oakley appeared to be a revolver. Police did not recover a fake gun from any of the conspirators. Both of defendant’s co-conspirators pled guilty to conspiracy to commit robbery with a dangerous weapon.
Evidence was presented which tended to show a real gun was used in the robbery. Defendant has failed to show that the trial court’s failure to give an instruction on conspiracy to commit common law robbery had a “probable impact on the jury’s finding that the defendant was guilty” of conspiracy to commit armed robbery to warrant a new trial under plain error review. Odom, 307 N.C. at 660, 300 S.E.2d at 378.
The conspiracy was complete when the agreement to commit a robbery with a dangerous weapon was made. Gallimore, 272 N.C. at 532, 158 S.E.2d at 508. The trial court did not commit plain error *546in failing ex mero moto to instruct the jury on conspiracy to commit common law robbery to entitle defendant to a new trial. I respectfully dissent.