☢ test - Í

error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant's substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (internal quotation marks omitted); see also United States v. Olano, 507 U.S. 725, 731-737, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Johnson v. United States, 520 U.S. 461, 466-467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Cotton, 535 U.S. 625, 631-632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).” Second Circuit here, in holding that “any possibility” of error required reversal, failed to consider the third and fourth prongs of the test. 3. Not Ex Post Facto. “[W]e note that the Government has never claimed that the [Act] retroactively criminalizes preenactment conduct … and that Marcus and the Second Circuit were thus incorrect to classify the error at issue here as an Ex Post Facto Clause violation, see Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (‘The Ex Post Facto Clause is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government’ (citation omitted)). Rather, if the jury, which was not instructed about the [Act’s] enactment date, erroneously convicted Marcus based exclusively on noncriminal, preenactment conduct, Marcus would have a valid due process claim. Cf. Bouie v. City of Columbia, 378 U.S. 347, 353- 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (applying Due Process Clause to ex post facto judicial decisions). In any event, however Marcus' claim is labeled, we see no reason why this kind of error would automatically ‘affect substantial rights’ without a showing of individual prejudice.” Reid v. State, 286 Ga. 484, 690 S.E.2d 177 (February 8, 2010). Structural error – closing courtroom for victim’s testimony out of fear for his safety – was waived where defense counsel failed to object, although structural error, citing Glover v. State, 292 Ga.App. 22, 26-27(3) (663 S.E.2d 772) (2008). Hunstein dissents, citing Presley v. Georgia , 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (January 19, 2010) and noting trial court’s failure to consider alternatives to closure. Hedgpeth v. Pulido, 555 U.S. 57, 129 S.Ct. 530, 172 L.Ed.2d 388 (December 2, 2008). Ninth Circuit erred in upholding grant of defendant’s habeas petition on basis that jury charge error – instruction on multiple theories of guilt, one of which is not valid – was structural error, when in fact it is subject to harmless error anaylsis. “[A] reviewing court finding such error should ask whether the flaw in the instructions ‘had substantial and injurious effect or influence in determining the jury's verdict.’ Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted).” “[W]e concluded in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that constitutional errors can be harmless. … In a series of post- Chapman cases, however, we concluded that various forms of instructional error are not structural but instead trial errors subject to harmless-error review. See, e.g., Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (omission of an element of an offense); California v. Roy, 519 U.S. 2, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam) (erroneous aider and abettor instruction); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (misstatement of an element of an offense); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (erroneous burden-shifting as to an element of an offense). “ Neder makes clear that harmless-error analysis applies to instructional errors so long as the error at issue does not categorically ‘“vitiat[e] all the jury's findings.”’ 527 U.S., at 11, 119 S.Ct. 1827 (quoting Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable-doubt instructions constitute structural error)).” Defendant here was convicted of felony murder in California court; trial court’s jury instruction “permitted the jury to find him guilty of felony murder if he formed the intent to aid and abet the underlying felony before the murder, but they also permitted the jury to find him guilty if he formed that intent only after the murder. The California Supreme Court agreed with Pulido that the latter theory was invalid under California law, but upheld the conviction on the ground that Pulido was not prejudiced by the error.” Delgado v. State, 287 Ga.App. 273, 651 S.E.2d 201 (August 16, 2007). No structural error where most spectators excluded from courtroom during child molestation victim’s testimony pursuant to OCGA § 17-8-54. “As we recognized in Hunt [ v. State, 268 Ga.App. 568 (602 S.E.2d 312) (2004)] , ‘[a] violation of one’s right to a public trial is structural error.’ Id. at 570(1), quoting Judd v. Haley, 250 F.3d 1308, 1314-1315(II) (11 th Cir., 2001). Other structural errors include total deprivation of the right to trial counsel, a biased judge, unlawful exclusion of members of the defendant’s race from a grand jury, and the right to self-representation at trial. See Arizona v. Fulminante, 499 U.S. 279, 309-310(II) (111 S.Ct. 1246, 113 L.Ed.2d 302) (1991). Accord State v. Wooten, 273 Ga. 529, 532(2), n. 14 (543 S.E.2d 721) (2001). Although we did not address the plain error doctrine in Hunt, we did point out that where, as here, ‘the courtroom is only partially closed to spectators[,] ... the impact of the closure is not as great, and not as deserving of such a rigorous level of constitutional scrutiny.’ Hunt, supra at 571(1), citing Judd, supra at 1315. Here, at the very least, the press remained in the courtroom during the child’s testimony. As such, Delgado was required to object to the exclusion of his parents from the courtroom in order for his claim to be reviewable on appeal. We decline to extend the plain error doctrine to his