This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,





Ronald Rhodes,




Filed January 24, 2006


Toussaint, Chief Judge


McLeod County District Court

File No. K3031392



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Michael K. Junge, McLeod County Attorney, Mark A. Metz, Assistant County Attorney, 830 East Eleventh Street, Suite 112, Glencoe, MN 55336 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Ronald Rhodes argues that his conviction of first-degree driving while impaired (DWI) must be vacated because he did not, either in writing or orally on the record, waive his right to a jury trial on the element of prior convictions.  Because the record reflects a knowing and intelligent waiver of a jury trial on the element of appellant’s prior convictions, we affirm.


            Appellant argues only that he did not personally agree, either in writing or orally on the record, to waive his right to a jury trial on the prior-convictions element of first-degree DWI.  The state acknowledges that appellant did not specifically state that he was waiving his jury-trial right on the element of prior convictions, but it argues that appellant understood his rights and stipulated to the prior convictions. 

            A defendant has a constitutional “right to be tried [by a jury] on each and every element of the charged offense.”  State v. Hinton, 702 N.W.2d. 278, 281 (Minn. App. 2005), review denied (Minn. Oct. 26, 2005) (citing U.S. Const. art. III, § 2, cl. 3, amend. VI; Minn. Const. art. I, §§ 4, 6; Minn. R. Crim. P. 26.01, subd. 1(1)).  A defendant may relinquish the right to a jury trial by stipulating to a particular element of an offense.  Id. (citing State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004)); State v. Halseth, 653 N.W.2d 782, 785 (Minn. App. 2002).  When stipulating to a factual element of an offense, the requirements of Minn. R. Crim. P. 26.01 must be satisfied:  (1) the court must approve the waiver, (2) the defendant must waive the right “personally . . . either orally or in writing” upon the record in open court, (3) the court must advise the defendant of the right to a trial by a jury, and (4) the defendant must have the opportunity to consult with counsel.  Hinton, 702 N.W.2d at 281 (citing Wright, 679 N.W.2d at 191); Minn. R. Crim. P. 26.01, subd. 1(2)(a). 

            Appellant was charged with two counts of first-degree DWI and one count of driving after cancellation.  He waived his right to a jury trial on the cancellation charge and entered a stipulation on the record regarding his prior convictions.  He argues that the stipulation did not satisfy the personal-waiver requirement of rule 26; he does not contend that the court failed to approve the waiver, that the court failed to advise him of his right to a jury trial, or that he was denied an opportunity to consult with counsel.

            Rule 26.01 must be strictly construed.  Halseth, 653 N.W.2d at 785.  A defendant’s waiver of a jury trial must be knowing, voluntary, and intelligent, State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991).  “The nature and extent of the inquiry [regarding an appellant’s understanding of his jury-trial right and waiver] may vary with the circumstances of a particular case.”  Id. at 654.

            Here, appellant’s statements and conduct during the hearing before trial included personal affirmative statements that (1) he had heard the stipulations recited by his attorney and agreed to by the prosecutor; (2) he specifically understood and waived his right to a jury trial on the cancellation count; (3) he specifically did not want the jury to hear that his driving was “inimical to public safety”; (4) he reviewed and agreed to waive any objection to admission of his prior-convictions record; (5) he understood that he was waiving objection to his record; (6) there was nothing that he did not understand about what had been said at the hearing; and (7) he did not need any more time to talk with his attorney before proceeding.  With regard to his prior convictions, appellant specifically said that he heard his defense counsel stipulate that he had four convictions on four certain dates in the last ten years and that “the state would not have to prove that [he] has those prior driving while impaired convictions.”   Appellant also said “yes” in open court when asked if he understood and agreed that “the State can offer these two [prior-convictions records as] exhibits without my objecting to them for reasons such as that they’re improper or not reliable, things of that nature.”

            It is significant that appellant does not challenge his waiver of a jury trial as to cancellation of his license as inimical to public safety.  See Minn. Stat. §§ 171.24, subd. 5; 171.04, subd. 1(10) (2002).  That waiver reflects his knowledge and understanding that he would avoid the negative effect on jurors of his driving being “inimical to public safety.”  See State v. Busse, 644 N.W.2d 79, 85 (Minn. 2002) (stating that “cancellation as inimical to public safety necessarily requires multiple driving under the influence convictions”); see also Hinton, 702 N.W.2d at 282 n.1 (stating that because prior convictions are prejudicial by nature, courts recognize that it is generally “to the defendant’s advantage to avoid presenting the question of prior convictions to the jury”). It would be inconsistent for the appellant to waive his jury trial on the inimical-to-public-safety element to avoid reference to his prior convictions and then to demand a jury trial on the prior-convictions element of first-degree DWI.  See Minn. Stat. § 169A.24, subd. 1(1) (2002)  (requiring three or more qualifying incidents of driving while impaired occurring within ten years of current offense for first-degree driving-while-impaired conviction).  Upon receipt of the record of his prior convictions, the jury would observe multiple references to “cancellation as inimical to public safety”—the very result appellant sought to avoid.

            The record reflects no confusion regarding appellant’s intent with regard to the prior-convictions stipulation.  The trial proceeded consistently with a court trial of prior convictions and the cancellation charge and a jury trial of all elements of first-degree DWI except prior convictions.  On the remaining elements of first-degree DWI, appellant had a jury trial, testified on his own behalf, was allowed the opportunity to call witnesses, and cross-examined the state’s witnesses.  No reference was made to prior convictions or “inimical to public safety” during the trial.  Jury instructions did not include the element of prior convictions.  Appellant did not, and does not now, challenge his prior DWI convictions and does not dispute the accuracy of his driving record showing four prior convictions within the past ten years. 

            Based on the foregoing, we conclude the record contains ample evidence that appellant knew the difference between a jury and a court trial on the issue of prior convictions and knew, after consultation with counsel, that it was advantageous to stipulate to his prior convictions.  See Ross, 472 N.W.2d at 654 (waiver of right to jury trial valid in part because defendant had prior convictions and was familiar with judicial system). Therefore, the record shows that appellant voluntarily, intelligently, and knowingly agreed to have the court, and not a jury, decide the issue of prior convictions. 

            Even if the waiver of jury trial rights as to appellant’s prior convictions were inadequate, it was harmless error for the court to try that element of the first-degree DWI charges.  Since appellant’s brief was submitted, this court issued its decision in State v. Hinton, appling the harmless-error analysis to conclude failure to waive a jury trial as to the prior-convictions element of an offense was not prejudicial.  Hinton, 702 N.W.2d at 282.  There, it was harmless error because (1) appellant did not challenge his prior convictions and (2) the record on appeal of the prior convictions was accurate.  Id.   For the same reasons, we conclude any error on this issue was harmless.  There is no reasonable likelihood that the jury’s verdict would have come out differently had the jury decided whether appellant had the requisite prior convictions.  Therefore, the error, if any, was harmless beyond a reasonable doubt.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.