dissenting.
For the reasons stated below, I respectfully dissent from the majority opinion and would vacate defendant’s conviction.
The majority notes that we could as easily infer from Mundy and Spratt that the omission of essential elements from a jury instruction is an error per se as we could infer that the omission was not harmless error. I would argue that inferring harmless error analysis where there is none requires reading significant language into Mundy and Spratt that does not otherwise exist. In those cases, the Court noted that essential elements were omitted from the jury instructions and then, without further analysis, ordered new trials. Accordingly, I would hold that the trial court’s failure to instruct the jury on two of the three elements of felony murder is reversible error per se, or “structural error” in the current parlance, and requires a new trial. Our state Constitution guarantees all felony defendants a nonwaivable right to a jury trial; omitting two-thirds of the elements from the jury instructions amounts to the judge, not the jury, having the final say on those elements.
Furthermore, if I were to apply harmless error analysis to defendant’s case, I would still grant defendant a new trial. The jury delivered a verdict sheet indicating that it had found defendant guilty of first degree murder on the basis of the first degree felony murder rule, but not on the basis of malice, premeditation, and deliberation. The jury had the option of returning a verdict finding defendant guilty of both types of first degree murder, just one of the two types, neither type, or second degree murder. Of course, the jury also had the option of *447finding defendant not guilty. The trial court’s felony murder instruction was limited to whether “[defendant or someone with whom he was acting in concert committed first degree burglary and/or robbery with a dangerous weapon.” Although the majority argues that the two missing elements were adequately covered by the jury instructions for first degree murder on the basis of malice, premeditation, and deliberation, I cannot agree. It is untenable to encourage or allow a jury to reach a guilty verdict for a particular crime by substituting elements of other crimes for which the defendant is charged. Even though the two missing elements are nearly identical to two of the five elements of premeditated murder, it is unclear to me how the jury would have known to apply those two elements during its felony murder analysis. The trial court discussed the felony murder rule several times in its instructions, but did not accurately describe the rule or the elements during any of them. Although we will uphold instructions that, when “viewed in their entirety, present the law fairly and accurately to the jury,” State v. Roache, 358 N.C. 243, 304, 595 S.E.2d 381, 420 (2004), in my opinion, these instructions fall outside the intended scope of that rule. I cannot uphold a verdict that is based upon an assumption that a jury cobbled together a fair and accurate representation of the felony murder rule from the instructions given on premeditated murder.
Accordingly, for the reasons stated above, I would vacate defendant’s conviction and order a new trial.