¶1 dissenting.
¶2 I agree with the majority that the record does not demonstrate that the trial court’s failure to instruct the jury after closing arguments prejudicially affected the trial, but omission of the written jury instructions from the appellate record violates a fundamental element of due process under the Fourteenth Amendment because it deprives the defendants of the right of an effective appeal.
¶3 The practice of giving the jury preliminary instructions acquaints it with the applicable law before hearing evidence, but Crim.R. 30 requires that the trial *488 court also instruct the jury “after arguments are completed.” The rule assumes that the trial judge will do more than simply hand the jury a copy of the written instructions before it retires for deliberations. An oral recitation is implicit from the language in Crim.R. 30 which states that the “court need not reduce its instructions to writing.” R.C. 2901.05(B) also states that “the court shall read the definitions of ‘reasonable doubt’ and ‘proof beyond a reasonable doubt’ ….” (Emphasis added.)
¶4 There is a presumption that the jury followed the trial court’s instructions. State v. Ferguson (1983), 5 Ohio St.3d 160, 5 OBR 380, 450 N.E.2d 265. As the majority notes, counsel’s failure to object is a waiver which precludes an issue from being raised on appeal unless it rises to the level of plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332. Even had counsel timely objected, however, in light of the trial court’s preliminary instructions to the jury, which included all required instructions, and the availability of the written instructions in the jury room, the trial court’s failure to conform to the procedure of Crim.R. 30 standing alone is not indicative of prejudice. See State v. Van Gundy (1992), 64 Ohio St.3d 230, 233, 594 N.E.2d 604, 607.
¶5 The trial court did, however, violate a substantial right afforded by the state involving the defendant’s right to one appeal, when it did not comply with the mandate of R.C. 2945.10(G) that the written instructions are “to remain on file with the papers of the case.”
¶6 Where a state appeal is an integral part of the system for adjudicating the defendant’s guilt or innocence, the procedures for review must comport with due process. Evitts v. Lucey (1985), 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821. When an appeal is so provided, the state must assure more than a “meaningless ritual.” Douglas v. California (1963), 372 U.S. 353, 358, 83 S.Ct. 814, 817, 9 L.Ed.2d 811, 815. The very essence of the defendant’s right to due process in a criminal case is a fair trial and the right to a fair opportunity to defend against the state’s accusations. Chambers v. Mississippi (1973), 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 312-313. Whether or not the defendant is indigent, a transcript of the trial court proceedings is a prerequisite to review on the merits of an appeal. Evitts v. Lucey, supra, 469 U.S. at 393, 105 S.Ct. at 834, 83 L.Ed.2d at 827-828, citing Griffin v. Illinois (1956), 351 U.S. 12, 13-14, 76 S.Ct. 585, 588, 100 L.Ed. 891, 895-896. App.R. 9(B) provides for the filing of “a complete transcript or a transcript of the parts of the proceedings not already on file as the appellant considers necessary for inclusion in the record ….”
¶7 A comparison of the trial court’s written instructions with its preliminary instructions is impossible on review because, intentionally or unintentionally, the *489 typed copy was not made part of the appellate record. The result is an incomplete record. The prejudicial effect limiting review is no different in my view than where the trial court is held to commit reversible error by failing to preserve statements for the record ruled upon in camera with the defendant’s request for discovery pursuant to Crim.R. 16(B)(1)(g). State v. Billups (1990), 68 Ohio App.3d 248, 588 N.E.2d 208. Accordingly, noncompliance with R.C. 2945.-10(G) deprived the defendant of due process because it has impaired an adequate or effective first appeal as of right, guaranteed by Section 3, Article IV of the Ohio Constitution, and implemented by the legislature in R.C. 2953.02.
¶8 Trial counsel’s representation, likewise, “fell below an objective standard of reasonableness,” in failing to protect the record for use on appeal. Strickland v. Washington (1984), 466 U.S. 668, 687-688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693-694. Although the state’s evidence of guilt is persuasive, as the majority observes, under the second tier of the Strickland test, there is at least a reasonable possibility that but for counsel’s unprofessional errors, the result would have been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697-698. Realistically, without the written instructions given to the jury, any challenge under the second tier of Strickland is speculative at best, but without the written instructions appellate review on the issue is virtually precluded. A meaningful opportunity to appeal requires the state to furnish an indigent defendant a transcript if needed for a full and effective defense or appeal. Griffin v. Illinois, supra; State ex rel. Greene v. Enright (1992), 63 Ohio St.3d 729, 590 N.E.2d 1257. In this case the defendant did not receive a part of the record required by R.C. 2945.10(G) and App.R. 9(A).
¶9 Because the error is of constitutional dimension, and in the absence of a demonstrable basis for remanding the case to the trial court for the limited purpose of correcting the record under App.R. 9(E), the trial court’s judgment should be reversed and the case remanded for a new trial.