dissenting.
{¶ 16} Pelfrey knew the nature of the indictment against him, which indicated that the record he had tampered with was a government record.
{¶ 17} The verdict form here referred to the offense of tampering with records, “as charged in the indictment.” No confusion existed regarding this matter during trial, and Pelfrey never objected when the trial court submitted the verdict form to the jury.
{¶ 18} Now, however, Pelfrey complains of a lack of compliance with R.C. 2945.75 because the verdict form did not include either the degree of the offense or a statement regarding the aggravating element, i.e., that the record involved was a government record, in order to justify conviction of a greater degree of the offense of tampering with records.
{¶ 19} With respect to judicial compliance with a statutory requirements, the standard has been that of substantial compliance. See, e.g., State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163. Here, I believe the issue *427is whether the verdict form substantially complied with the mandate of the statute.
{¶ 20} The majority is correct — the verdict form did not exactly comply with the statute in that the form specified neither the degree of the offense nor the aggravating factor, i.e., that the record allegedly tampered with was in fact a government record.
{¶ 21} However, the verdict form signed by all 12 members of the jury did specify that the jury found Pelfrey guilty of “the offense of Tampering with Records as charged in the indictment.” (Emphasis added.)
{¶ 22} The indictment charged that Pelfrey and Kilbarger “on or about the 2nd day of August in the year two thousand two * * * knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud did falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data or record, to-wit: E-check Vehicle Inspection Report having been kept by or belonging to a local, state or federal governmental entity.” (Emphasis added)
{¶ 23} Accordingly, no confusion could exist with respect to what records became the subject of the tampering charge. Neither did this case involve multiple counts or multiple documents that would suggest possible confusion with regard to either the nature of the indictment presented or the defense to be offered. The only records here concerned the “E-check Vehicle Inspection Report having been kept by or belonging to a local, state or federal governmental entity.”
{¶24} Thus, one of the central issues here is whether the language of the verdict form using the phrase “as charged in the indictment” substantially complies with the statutory mandate. I believe that it does, and so do appellate judges in three appellate districts.
{¶ 25} Assuming arguendo, however, that the language does not substantially comply with the statute, I cannot understand why Pelfrey has not been determined to have waived his right to contest this issue when he did not raise it in the trial court at a time when the court could have prepared a different verdict form.
{¶ 26} For the longest time, the law has been that errors not raised in the trial court are waived in the absence of plain error. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804; Crim.R. 52(B). Here the majority refers to a conclusory statement from the appellate court’s opinion.
{¶ 27} The appellate court, for its part, determined that Pelfrey had not waived this issue, based upon its holding in State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, in which the court also addressed a trial court’s breach of R.C. 2945.75(A)(2). The court held, without analysis or citation to *428authority, that “because the error is structural in nature, it is not waived by defendant-appellant’s failure to object.” (Emphasis added.) Id. at ¶ 34.
{¶ 28} That conclusion, in my view, is erroneous in two respects. First, the error in this case is not structural. In State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, we addressed a situation in which a trial court violated R.C. 2945.10(G), which “clearly and unambiguously requires the trial court to maintain the written jury instructions with the ‘papers of the case.’ ” Id. at ¶ 8. Though we determined that an error had occurred, we rejected the assertion that the trial court’s failure amounted to “structural error” because “the failure of the trial court to maintain the written jury instructions is a statutory, rather than constitutional, defect.” Id. at ¶ 24, citing State v. Esparza (1996), 74 Ohio St.3d 660, 662, 660 N.E.2d 1194 (“the trial-error/structural-error distinction is irrelevant unless it is first established that a constitutional error has occurred” [emphasis sic]).
{¶ 29} Similarly, in this case, the trial court’s failure to prepare a verdict form in compliance with R.C. 2945.75(A)(2) is a statutory rather than constitutional error. Furthermore, the error in this case does not comport with the “very limited class of cases” in which the United States Supreme Court has concluded that a structural error occurred. Johnson v. United States (1997), 520 U.S. 461, 468-M69, 117 S.Ct. 1544, 137 L.Ed.2d 718, citing Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (complete denial of counsel); Tumey v. Ohio (1927), 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (biased trial judge); Vasquez v. Hillery (1986), 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (racial discrimination in selection of grand jury); McKaskle v. Wiggins (1984), 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (denial of self-representation at trial); Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (denial of public trial); Sullivan v. Louisiana (1993), 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (defective reasonable-doubt instruction).
{¶ 30} Second, it is now well established that structural errors do not preclude an appellate court from applying the plain-error standard when the defendant has failed to object. See State v. Hill (2001), 92 Ohio St.3d 191, 749 N.E.2d 274, and State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643.
{¶ 31} Here, Pelfrey failed to raise the matter at trial and hence denied the trial judge the opportunity to at least consider modifying the verdict form to more closely track the statute. In my opinion, this constitutes a waiver and requires application of the plain-error doctrine.
{¶ 32} “Notice of plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus. We have held that “[p]lain error does not exist *429unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise.” State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, citing Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Jennifer B. Frederick, Assistant Prosecuting Attorney, for appellant.{¶ 33} On this record, I do not believe that but for the trial court’s failure to comply with R.C. 2945.75(A)(2), the outcome in Pelfrey’s trial would have been different. The jury found him guilty of tampering with records, and no question exists that the records involved belonged to a local, state, or federal governmental entity.
{¶ 34} I believe that the appropriate standard of review for an alleged violation of a statutory requirement is substantial compliance and that the trial judge substantially complied with this statute. Further, the record fails to demonstrate that Pelfrey even attempted to call this alleged error to the trial court’s attention at a time when it could have been corrected. I believe, therefore, that he waived the issue and that he cannot demonstrate plain error. For these reasons, I would reverse the decision of the court of appeals and affirm the judgment of the trial court in this case.
Lundberg Stratton, J., concurs in the foregoing opinion.