dissenting.
{¶ 58} Although I agree that in charging appellant with robbery under R.C. 2911.02(A)(2) the indictment failed to allege a mens rea element, I respectfully dissent from the majority opinion for three reasons: first, appellant waived this defect by failing to raise the issue before the trial court; second, a plain-error standard of review applies; and third, the omission from the indictment does not constitute a structural error.
The Indictment
{¶ 59} The majority concludes that appellant’s constitutional rights were violated in this case. Section 10, Article I of the Ohio Constitution provides that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” Recently, we explained that “[t]he purposes of an indictment are to give an accused adequate notice of the charge, and enable an accused to protect himself or herself from any future prosecutions for the same incident.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7.
{¶ 60} The form that the indictment is to take is explained in Crim.R. 7(B): “The statement may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged." (Emphasis added.)
{¶ 61} In Buehner, we held that an indictment that tracked the language of the charged offense but did not include each element of the predicate offense still provided the defendant with adequate notice of the charges against him. 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, syllabus. Here, appellant’s *40indictment tracked the statute. The indictment reads: “[I]n attempting or committing a theft offense, as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense upon [the victim,] [the defendant did] inflict, attempt to inflict, or threaten to inflict physical harm on [the victim].”
{¶ 62} Adding the word “recklessly” to the indictment simply would have notified appellant that the state was required to prove beyond a reasonable doubt the default level of mens rea. R.C. 2901.21(B) states, “When the section [defining an offense] neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.” Moreover, R.C. 2901.22(E) provides, “When recklessness suffices to establish an element of an offense, then knowledge or purpose is also sufficient culpability for such element.” Thus, in tracking the robbery statute, R.C. 2911.02(A)(2), the indictment did not mislead the defense, for any one of the three criminal mental states suffice to complete the element of inflicting, threatening to inflict, or attempting to inflict physical harm on another.
{¶ 63} In State v. Wharf (1999), 86 Ohio St.3d 375, 715 N.E.2d 172, we examined R.C. 2911.02(A)(1) and held that it is not necessary to prove a specific mental state regarding the deadly weapon element of robbery. With respect to establishing a violation of R.C. 2911.02(A)(2), we had never, before today, held that the state is required to prove that the defendant recklessly inflicted, attempted to inflict, or threatened to inflict physical harm. Thus, in this case the majority’s conclusion is misplaced that “‘[a]n indictment charging an offense solely in the language of a statute is insufficient when a specific intent element has been judicially interpreted for that offense ’ ” (emphasis added), majority opinion at ¶ 42, quoting State v. O’Brien (1987), 30 Ohio St.3d 122, 124, 30 OBR 436, 508 N.E.2d 144. In fact, an argument could have been made that the element of inflicting physical harm or threatening or attempting to inflict physical harm requires a mere proof of fact, which equates to strict liability.
{¶ 64} Nevertheless, in spite of arguments that might have been made, the state accepts the proposition that appellant’s indictment is defective for lack of a mens rea element. Since the state does not dispute that there is a defect in the indictment, the issue remaining is whether appellant’s failure to raise the issue in the trial court results in a waiver. I accept the state’s view that our criminal rules and precedent require this court to hold that if a defendant fails to raise the issue at the trial level, a defendant may succeed on appeal only by establishing plain error.
Waiver Applies Pursuant to Crim.R. 12(C) and (H)
{¶ 65} The court of appeals relied on Crim.R. 12(C) and (H), which state that defects in an indictment are waived if not raised before trial. The majority *41determines that one of the Crim.R. 12(C) exceptions to the waiver rule exists in this case because appellant’s indictment failed to charge an offense. In stating that “[a]n indictment that omits the mens rea element of recklessness fails to charge the offense of robbery,” the majority first cites State v. Wozniak (1961), 172 Ohio St. 517, 18 O.O.2d 58, 178 N.E.2d 800, a case concerning an indictment that failed to allege intent, which was statutorily included as an element of the offense. In Wozniak, the indictment failed to charge an offense because it did not include language that followed the statute. The second case cited by the majority, State v. Childs (2000), 88 Ohio St.3d 194, 724 N.E.2d 781, concerns the omission from an indictment of an allegation that the defendant or an alleged co-conspirator of the defendant committed a substantial overt act in furtherance of a conspiracy, as required by R.C. 2923.01(B), the conspiracy statute. Appellant’s case is hardly the same, for his indictment set forth the crime of robbery as defined in R.C. 2911.02(A)(2).
{¶ 66} We have consistently found that failure to timely object to a defect in an indictment constitutes a waiver of the issues involved. This is true even in capital cases. In State v. Joseph (1995), 73 Ohio St.3d 450, 653 N.E.2d 285, we held that the error in Joseph’s capital indictment did not render the indictment invalid, since the record clearly demonstrated that the defendant “had sufficient notice that he was being tried as a principal offender in the commission of the aggravated murder of [the victim] while committing kidnapping.” Id. at 455-456, 653 N.E.2d 285. Furthermore, the court held that Joseph’s failure to timely object to the allegedly defective indictment constituted a waiver of the issue. Id. at 455, 653 N.E.2d 285.
{¶ 67} In State v. Carter (2000), 89 Ohio St.3d 593, 734 N.E.2d 345, the capital indictment omitted the words “engage in sexual conduct” that are used in the rape statute. However, Carter had not shown that he was prejudiced in the defense of his case by this error or that he would have proceeded differently had this error been corrected. See also State v. Biros (1997), 78 Ohio St.3d 426, 436, 678 N.E.2d 891; State v. Mills (1992), 62 Ohio St.3d 357, 363, 582 N.E.2d 972 (“Under Crim.R. 12(B) and 12(G) [now 12(H) ], alleged defects in an indictment must be asserted before trial or they are waived”).
{¶ 68} Furthermore, R.C. 2941.29 sets forth the time for objecting to defects in an indictment. It states: “No indictment or information shall be quashed, set aside, or dismissed, or motion to quash be sustained, or any motion for delay of sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment or information, unless the objection to such indictment or information, specifically stating the defect claimed, is made prior to the commencement of the trial, or at such time thereafter as the court permits.”
*42{¶ 69} A court of appeals need not consider an error that was not called to the attention of the trial court at a time when the error could have been corrected by the trial court. State v. Williams (1977), 51 Ohio St.2d 112, 117, 5 0.0.3d 98, 364 N.E.2d 1364, death sentence vacated on other grounds, Williams v. Ohio (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156. As a result, such an error is waived absent plain error. State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894. Plain error does not exist unless, but for the error, the outcome at trial clearly would have been different. Id. Thus, an appellate court’s discretionary review of the alleged error must proceed, if at all, under the plain-error analysis of Crim.R. 52(B).
Plain Error Applies
{¶ 70} The test for plain error is stringent. A party claiming plain error must show that (1) an error occurred, (2) the error was obvious, and (3) the error affected the outcome of the trial. See State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240; United States v. Olano (1993), 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508; Crim.R. 52(B).
{¶ 71} The burden of demonstrating plain error is on the party asserting it. See, e.g., State v. Jester (1987), 32 Ohio St.3d 147, 150, 512 N.E.2d 962 (“appellant cannot claim that the trial court’s instruction was plain error, inasmuch as he cannot demonstrate that but for the error, the outcome of the trial would have been different”). Additionally, “[n]otice 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.
{¶ 72} When a manifest miscarriage of justice occurs, it may be corrected through the trial court’s granting of a new trial. The majority does not, however, mention the statute that prevents the granting of new trials and the setting aside of verdicts for certain errors. R.C. 2945.83 states:
{¶ 73} “No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:
{¶ 74} “(A) An inaccuracy or imperfection in the indictment, * :|! * provided that the charge is sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him.”
{¶ 75} Subsection (E) provides that a new trial should not be granted for “[a]ny other cause unless it appears affirmatively from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”
{¶ 76} Appellant has not shown that he was prejudiced in the defense of his case or that he would have proceeded differently had this error been corrected. Indeed, had the error been discovered, it would have been properly subject to *43amendment. Crim.R. 7(D); State v. O’Brien, 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144, paragraph two of the syllabus.
The Error in the Indictment Is Not Structural
{¶ 77} Although appellant did not challenge his indictment until his appeal, the majority, after first concluding that appellant was never properly charged with a crime, decides that the missing element of recklessness made the indictment unconstitutional and caused structural error. I cannot agree.
{¶ 78} The majority cites State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 17, to support its statement that “[w]hen a defective indictment so permeates a defendant’s trial that the trial court cannot reliably serve its function as a vehicle for determination of guilt or innocence, the defective indictment will be held to be structural error.” Majority opinion at ¶ 44. But the cited paragraph does not mention defective indictments. In fact, the Perry court meant something entirely different. After repeating that structural error arises from “constitutional defects that ‘ “defy analysis by ‘harmless error’ standards” because they “affectf ] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself,” ’ ” id. at ¶ 17, quoting State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9, quoting Arizona v. Fulminante (1991), 499 U.S. 279, 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302, the Perry court, in concluding the paragraph, stated, “We have thus recognized that if ‘ “the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are subject to harmless-error analysis,” ’ ” id., quoting State v. Hill (2001), 92 Ohio St.3d 191, 197, 749 N.E.2d 274, quoting Rose v. Clark (1986), 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460. Thus, far from supporting it, Perry undercuts the majority’s analysis.
{¶ 79} In State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, we analyzed structural error, remarking, “There also exist those classes of errors that need not be analyzed using the above ‘limits’ and are ‘[s]ubject to automatic reversal, “only in a very limited class of cases.” ’ ” Id. at ¶ 18, quoting State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 18, quoting Johnson v. United States (1997), 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718. Although all structural errors are by nature constitutional errors, not all constitutional errors are structural. Chapman v. California (1967), 386 U.S. 18, 22-23, 87 S.Ct. 824, 17 L.Ed.2d 705. As a result, some constitutional errors can be deemed nonprejudicial, so long as the error is harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. 824, 17 L.Ed.2d 705.
{¶ 80} What are the significant errors in this jury trial, according to the majority? First, appellant has been called to answer for a charge on which the grand jury did not indict him. Second, even though the indictment tracked the *44language of the statute defining robbery, the indictment is constitutionally deficient because it did not inform appellant of the charge so that he could defend against it. Third, due process is implicated because appellant did not know that “the state was required to prove that he had been reckless in order to convict him of the offense of robbery.”
{¶ 81} These conclusions are incorrect, for although the indictment failed to add the word “recklessly” to the element “inflict, attempt to inflict, or threaten to inflict physical harm on [the victim],” the grand jury considered the essential elements of robbery because the indictment tracks the language of the robbery statute. As we noted in Harris v. State (1932), 125 Ohio St. 257, 264, 181 N.E. 104, it is “if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment” that the indictment is insufficient to charge an offense and would later allow a jury to convict on “an indictment essentially different from that found by the grand jury.” (Emphasis added.)
{¶ 82} This is also not a case where a defendant was indicted on one crime and convicted of another. Appellant does not show how he would have defended against the charge differently had he known that the state had to prove that he had recklessly inflicted, attempted to inflict, or threatened to inflict physical harm.
{¶ 83} Finally, the majority is not accurate in saying that the state was required to prove that appellant “had been reckless in order to convict him of the offense of robbery.” Majority opinion at ¶ 30. The state was required to show for this element that he recklessly inflicted, attempted to inflict, or threatened to inflict physical harm on the victim. It was unnecessary for the state to indict or prove the higher mental states of purpose or knowledge. As the majority itself notes, recklessness, the “catchall culpable mental state,” is sufficient. The indictment states that he “did * * * inflict, attempt to inflict, or threaten to inflict physical harm” (emphasis added), clearly informing appellant what the state would have had to prove to convict him of robbery.
{¶ 84} The jury heard evidence on every element of the offense of robbery. As the court of appeals noted, “[a] reasonable jury could find that, by throwing Mr. Woodie to the ground and struggling with him, appellant perversely disregarded a known risk that the septuagenarian victim would be injured.” State v. Colon, 8th Dist. No. 87499, 2006-Ohio-5335, 2006 WL 2899957, ¶ 17.
{¶ 85} Moreover, in similar circumstances, the United States Supreme Court has refused to perform a structural-error analysis. In Neder v. United States (1999), 527 U.S. 1, 19-20, 119 S.Ct. 1827, 144 L.Ed.2d 35, the court held that a trial court’s failure to submit an element of an offense for the jury’s determination did not render the trial fundamentally unfair. And in United States v. *45Cotton (2002), 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860, the court held that a defendant’s failure to object to an indictment that omitted a material element resulted in a waiver, making the issue subject to a plain-error review on appeal.
William Mason, Cuyahoga County Prosecuting Attorney, and Jon W. Oebker, Assistant Prosecuting Attorney, for appellee. Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney, Assistant Public Defender, for appellant. Jason A. Macke, urging reversal for amicus curiae, Ohio Association of Criminal Defense Lawyers.{¶ 86} In my view, the circumstances of this case do not rise to the level of structural error or require an automatic reversal of the conviction.
Conclusion
{¶ 87} Because appellant failed to raise the defect in his indictment as an issue before the trial court, he waived the defect pursuant to Crim.R. 12. The issue of the defect in the indictment, having not been raised until the appeal, is subject to an analysis under plain error, which means that the court of appeals should have determined whether this error in the indictment should be noticed to correct a manifest injustice, and if so, whether appellant has met his burden to show prejudice in that but for the error the outcome would have been different. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16-17.
{¶ 88} I would hold that in failing to raise a mens rea defect in his indictment during his proceedings in the trial court, appellant waived his objections pursuant to Crim.R. 12. Therefore, I would reverse the judgment and remand the case to the court of appeals.
Lundberg Stratton, J., concurs in the foregoing opinion.