concurring in part and dissenting in part.
{¶ 30} I concur in the majority opinion’s conclusion that this is a plain-error case. I dissent because I believe that the court of appeals conducted a proper plain-error analysis under Crim.R. 52(B).
{¶ 31} The bulk of the court of appeals’ error analysis is squarely directed at plain error. The court of appeals mentions both types of error near the beginning of its analysis, structural error implicitly and plain error explicitly. 2006-0hio-5303, ¶ 26. The court goes on to discuss jury instructions for four paragraphs, without referring to structural error. Id. at ¶ 28-31. Structural error is not touched upon again until ¶ 45, in which the court refers to “automatic reversible error.” In ¶ 32, the court states that “a failure to object to a trial error waives all but plain error.” In ¶ 33, that court states, “Appellant contends that the error is of such magnitude that the plain error rule should be invoked.” In ¶ 34-39, the court discusses State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, and the concept that not all failures to properly *395instruct the jury on the elements of an offense require reversal under the plain-error rule. In ¶ 41-46, the court discusses State v. Smith (Jan. 20, 1989), 11th Dist. No. 1720, 1989 WL 4275, the “[o]nly * * * appellate case [that] specifically discusses * * * whether it is plain error for the trial court to fail to instruct the jury on the culpable mental state for criminal trespass as an element of aggravated burglary.” 2006-Ohio-5303, at ¶ 41.
Robert L. Herron, Columbiana County Prosecuting Attorney, and Tammie M. Jones, Assistant Prosecuting Attorney, for appellant. David H. Bodiker, Ohio Public Defender, and Katherine A. Szudy, Assistant Public Defender, for appellee.{¶ 32} In ¶ 47-52, the court discusses Hoover v. Garfield Hts. Mun. Court (C.A.6, 1986), 802 F.2d 168, a federal case that concluded that “the failure to instruct the jury on an essential element of [a] crime” is not harmless error. Id. at 178. These paragraphs undeniably discuss structural error but conclude by stating that federal cases do not bind state courts on this issue. 2006-0hio-5303, at ¶ 52. At ¶ 53, the court states that “[m]any of Ohio’s appellate districts agree that a failure to instruct the jury as to one of the essential elements of the crime requires reversal, whether as plain error or as automatically reversible structural error.” In ¶ 54, the court quotes with approval from State v. Stacy, 12th Dist. No. CA2002-03-073, 2003-Ohio-3695, which stated, “We find that the trial court’s failure to instruct the jury on every essential element of the offense * * * was plain error under Crim.R. 52(B).” In ¶ 55, the court concludes that “failure to instruct the jury on all the elements of [a] crime is a type of fundamental error that satisfies the requirements of the plain error rule.” The court continues by deciding that “under the facts of this case, the failure of the trial court to instruct the jury on the culpable mental state for criminal trespass as part of the definition of the crime of aggravated burglary warrants reversal.” Id.
{¶ 33} I agree with the majority opinion that the court mentioned structural error at the beginning of its analysis, primarily because the issue had been raised by the appellant. I also agree with the majority opinion that the court of appeals discussed a federal case that applied a structural-error analysis, though without relying on it. But I do not agree with the majority opinion that the court of appeals confused structural error and plain error. Majority opinion at ¶ 27. After reviewing the entirety of the court of appeals’ analysis, I conclude that the court of appeals conducted a plain-error analysis. I would affirm the decision of the court of appeals.