This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Kaytheus Lamar Moore,




Filed February 28, 2006


Lansing, Judge



Ramsey County District Court

File No. K4-04-2360



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


Manuel J. Cervantes, St. Paul City Attorney, Anthony F. Tedesco, Assistant City Attorney, 500 City Hall and Court House, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)


John Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


Kaytheus Moore appeals from his conviction of second-degree test refusal, asserting that he is entitled to a new trial because, although his attorney stipulated to Moore’s two prior driving-while-impaired convictions, Moore did not personally waive his right to a jury trial on the prior-convictions element.  Because we conclude that the error in failing to secure a personal waiver of Moore’s right to a jury trial on the prior-convictions element was harmless beyond a reasonable doubt, we affirm.


St. Paul police officers arrested Kaytheus Moore for driving while impaired in June 2004.  The officers transported Moore to the law enforcement center and administered an implied-consent advisory.  Moore declined to submit to a breath test.  Because a record check indicated that Moore’s license had been revoked for two previous driving-while-impaired incidents, the officers charged him with second-degree test refusal, second-degree driving while impaired, and driving after suspension.

            Before jury selection, the prosecutor asked Moore’s attorney whether he preferred to stipulate to the previous charges or have the state introduce them into evidence.  Moore’s attorney initially stated that he would not stipulate, but, after the jury was impaneled, he told the judge that they would stipulate that Moore had two prior driving-while-impaired convictions within the last ten years.  Although the circumstances suggest that Moore was present when his attorney stipulated to the prior-convictions element, Moore made no statement on the record, his attorney did not attribute the decision solely or directly to Moore, and no one conducted an inquiry into Moore’s waiver of his right to a jury trial on that element.

The jury returned a guilty verdict for second-degree test refusal and a verdict of not guilty of second-degree driving while impaired; the driving-after-suspension charge was dismissed.  Moore now appeals from his conviction of second-degree test refusal, arguing that his conviction must be vacated because he did not personally waive his right to a jury determination of the prior-convictions element of second-degree test refusal.


A criminal defendant has a constitutional right to a jury trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  This constitutional right includes the right to a jury determination of every element of the charged offense.  State v. Hinton, 702 N.W.2d 278, 281 (Minn. App. 2005), review denied (Minn. Oct. 26. 2005).  A defendant may stipulate to an element of the offense, but the stipulation must be accompanied by a personal waiver of his trial rights either orally or in writing.  State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004); see also State v. Barker, 705 N.W.2d 768, 773 (Minn. 2005) (recognizing that formal requirements of jury-trial waiver on criminal charge apply to waiver of jury trial on element of that charge).  When the prior convictions are uncontroverted, a stipulation to the prior-convictions element is generally perceived as beneficial to the defendant because it effectively removes potentially prejudicial evidence from the jury’s consideration.  State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984). 

To waive the right to a jury trial, the defendant must state the waiver “personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.”  Minn. R. Crim. P. 26.01, subd. 1(2)(a); Wright, 679 N.W.2d at 191.  This waiver requirement is a straightforward procedure that protects a basic right, and it must be strictly construed to ensure that the waiver is voluntary and intelligent.  State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002), review denied (Minn. June 18, 2002).  We review a rule 26.01 waiver de novo to determine whether the district court complied with its requirements.  Id.

Second-degree test refusal requires the state to establish the existence of prior qualified impaired-driving convictions, and the existence of any prior conviction is therefore an element of the charged offense.  Minn. Stat. § 169A.095, .20, subd. 2, .25 (2002) (providing that each prior qualified driving-while-impaired offense constitutes separate aggravating factor for purposes of establishing second-degree test refusal).  Because the prior driving-while-impaired convictions are an element of the offense, Moore has a constitutional right to a jury determination of the issue, and he must personally waive his jury-trial right when stipulating to the element.  Moore, however, did not waive his right to a jury determination of the prior-convictions element either in writing or on the record.  In the absence of Moore’s personal waiver, the district court erred by accepting Moore’s stipulation to an element of the charged crime.

When a defendant erroneously stipulates to an element of the charge without a valid waiver of his right to a jury trial, we consider the error under the harmless-error test to determine whether it was prejudicial to the defendant.  Wright, 679 N.W.2d at 191; see also Hinton, 702 N.W.2d at 281-82 (applying harmless-error analysis when defendant stipulated to element of offense but did not personally waive his right to jury trial).  On appeal, the state bears the burden of establishing beyond a reasonable doubt that the error was harmless and that a new trial is therefore unwarranted.  Wright, 679 N.W.2d at 191.  An error is harmless beyond a reasonable doubt if the verdict was “surely unattributable to the error.”  Id.

Moore asserts that a harmless-error analysis is not appropriate in this context and that Wright was decided incorrectly.  We disagree.  Constitutional errors are subject to a harmless-error analysis except in the limited class of cases that involve structural errors.  Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999); see also State v. Courtney, 696 N.W.2d 73, 79-80 (Minn. 2005) (applying harmless-error analysis to constitutional errors).  Although the complete denial of a defendant’s right to a jury trial amounts to structural error, an error that precludes the jury from making a finding on an element of the offense is not a structural error that vitiates all of the jury’s findings.  See Neder, 527 U.S. at 8-11, 119 S. Ct. at 1833-34 (citing examples of structural error and stating that omission of element in jury instructions is not structural error).  This reasoning is particularly well founded when the defendant affirmatively and tactically elects to stipulate to the offense element to avoid the potentially prejudicial effect of allowing the jury to hear evidence of his prior convictions.

To determine whether the erroneous acceptance of a stipulation without a personal waiver of a jury determination is harmless, we consider whether the jury’s verdict is surely unattributable to this error.  Without the stipulation, the state would have presented Moore’s driving record, which had already been marked as an exhibit, and the officers’ testimony to establish the existence of Moore’s prior convictions.  The validity of the prior convictions is uncontested, and the record contains a copy of the complaint, which specifies that Moore’s license was previously revoked because of two alcohol-related offenses and that his license was suspended at the time of his arrest.  Thus, the absence of the stipulation would have resulted in the jury receiving the uncontested evidence of Moore’s prior convictions, which would not only have supported the jury’s determination of guilt on the charge of second-degree test refusal, but would have unfairly prejudiced his case.  The error in accepting the stipulation without an accompanying waiver was therefore harmless beyond a reasonable doubt.  See Hinton, 702 N.W.2d at 282 (concluding that district court’s error in allowing stipulation of prior convictions without defendant’s personal waiver of his right to jury trial was harmless when record of prior convictions was accurate).