This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Donald R. Carson,



Filed September 11, 2007


Shumaker, Judge


Mille Lacs County District Court

File No. CR-05-1662



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


Janice S. Kolb, Mille Lacs County Attorney, Mark J. Herzing, Assistant County Attorney, Courthouse Square, 525 2nd Street N.E., Milaca, MN 56353 (for respondent)


John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of gross-misdemeanor driving while impaired (DWI), arguing that he did not validly waive his right to a jury trial because he was not informed on the record of his right to stipulate to his prior DWI offenses.  Appellant also argues that because the district court failed to make written findings supporting its conclusion that appellant was guilty, the case must be remanded.   Because the district court did not err by failing to inform appellant of his right to stipulate to his prior offenses and any error in appellant’s failure to personally stipulate to those offenses was harmless, and because the district court’s contemporaneous oral findings are sufficient to allow appellate review, we affirm. 



            The state charged appellant Donald Carson with one count each of gross-misdemeanor, second-degree driving while impaired (DWI) under Minn. Stat. §§ 169A.20, subd. 1(1), .25 (2004); second-degree DWI with a blood-alcohol content of .10 or more under Minn. Stat. §§ 169A.20, subd. 1(5), .25 (2004); violation of a restricted driver’s license under Minn. Stat. § 171.09, subd. b(1) (2004); and misdemeanor careless driving under Minn. Stat. § 169.13, subd. 2 (2004).  

            Before trial, when Carson’s attorney stated on the record that Carson was ready to waive his right to a jury trial and proceed with a bench trial, the district court directed the attorney to inquire whether Carson understood the waiver.  The attorney explained to Carson the difference between a jury trial and a bench trial and asked Carson whether he wished to waive his right to a jury trial.  Carson replied, “Yeah.”  In response to further questioning by his attorney, Carson responded that no one had promised him anything to waive the jury trial and that he was comfortable proceeding with a bench trial.  The district court asked Carson whether he had had enough time to talk to his attorney and for the attorney to explain to him his rights.  Carson answered, “Y—yeah.”  The court then asked Carson whether he felt comfortable waiving a jury trial.  Carson’s attorney explained that a bench trial meant a trial to the judge without a jury and asked Carson whether he wished to proceed to trial to the judge without a jury.  Carson stated, “Yes, yes” and that he was “comfortable with that.”  In response to questions from the prosecutor about his medications, Carson replied that, although he was taking medications, they did not affect his ability to understand the waiver or the trial process.  Finally, on further questioning by both attorneys, Carson indicated that he wanted to plead not guilty and have a bench trial.  The district court accepted Carson’s waiver but did not ask Carson specifically whether he wished to waive a jury trial on the issue of his prior impaired-driving incidents as an element of the current DWI offenses.   

            At Carson’s court trial, a Mille Lacs County deputy sheriff testified that he was dispatched to investigate a white pickup truck located in a ditch at approximately County Road 5 and 120th Street.  The deputy testified that when he arrived at the scene he noticed Carson alone in the truck, sitting in the driver’s seat.  The deputy recognized Carson from contact a week earlier, when a friend of Carson’s had died in the same truck.  The deputy noticed a strong odor of an alcoholic beverage coming from the vehicle and that Carson was incoherent and unable to retrieve his wallet when asked for identification.  Carson was assisted to an ambulance and taken to the Princeton Hospital, where he was read the implied-consent advisory, and he agreed to a blood test.  The results of the test indicated an alcohol concentration of .26.  

            Carson also testified at trial.  He denied that he was present in the truck when the deputy arrived to investigate and stated that he was, instead, walking in a ditch after he had abandoned the truck about two-and-one-half miles further north.  Carson testified that he believed the deputy was trying to “set [him] up” because he had refused to continue acting as an informant in methamphetamine cases.  He acknowledged that he had been drinking alcohol the night of the incident, stating that he had been consuming alcohol because he had “a nervous breakdown” and was upset over his friend’s death, and he testified that he “woke up” in the hospital three days after the incident. 

            During the deputy’s testimony, on questioning by the prosecutor, the deputy replied that he had been advised by dispatch of Carson’s driving status.  The defense attorney interrupted, stating, “I forgot.  We would stipulate to those priors and that it was restricted.”  The state then introduced, without objection from the defense, Carson’s certified driving record and a 2000 conviction for DWI over .10. 

            The district court convicted Carson of all four counts.  The court did not issue written findings, but made oral findings on the record immediately after trial.  In these findings, the court referred to evidence that Carson’s alcohol-concentration test registered .26, that he was found alone in his vehicle, that he admitted consuming alcohol, and that he woke up in the hospital three days later.  The court found the deputy’s testimony to be more credible than Carson’s version of events and that the state had proven beyond a reasonable doubt “all the elements of the four charges.” 

            The district court sentenced Carson to one year and a $3,000 fine, with all but 90 days and $900 suspended on his compliance with certain conditions, including those of probation.  This appeal follows.  



            The United States and Minnesota Constitutions guarantee a criminal defendant the right to a jury trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  Minn. R. Crim. P. 26.01, subd. 1(2)(a), provides that a defendant may waive his right to a jury trial personally in writing or orally on the record “after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.”  The interpretation of the rules of criminal procedure is a question of law, which this court reviews de novo.  State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998). 

            A defendant’s waiver of the right to a jury trial must be knowing, intelligent, and voluntary.  In accepting a waiver, the district court “should be satisfied that defendant was informed of his rights and that the waiver was voluntary.”  State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn. 1979).  The district court questions the defendant to ensure that the defendant has an understanding of the basic elements of a jury trial.  State v. Ross, 472 N.W.2d 651, 654 (Minn. 1991).  

Carson argues that the district court erred by failing to inform him of his right to stipulate to the existence of his prior DWI convictions as elements of the charges against him, which could have influenced his decision on whether to waive a jury trial.[1] See State v. Berkelman,  355 N.W.2d 394, 397 (Minn. 1984)  (stating that when a prior conviction is an element of the charged offense, a defendant’s stipulation to the existence of the conviction operates as a waiver of the right to a jury trial on that element of the offense and removes potentially prejudicial evidence from the jury’s consideration).  But we have found no authority that requires the district court, as part of its inquiry as to a defendant’s waiver of a jury trial, to inform the defendant of the effect of a stipulation to a prior criminal record.  Such a requirement would tend to place the district court in the position of giving information about strategy, a role properly reserved to defense counsel.  We are reluctant to broaden the court’s waiver inquiry to include either information or advice as to the effect of an evidentiary stipulation.  As the supreme court has noted in jury-trial waivers, “[i]t is not the judge’s function to explore with the defendant an evaluation of the merits of his case; matters of trial strategy and tactics should be left to the defendant and his counsel.”  Ross, 472 N.W.2d at 654.  Thus, we conclude that the district court was not required, as part of its jury-trial waiver inquiry, to ask Carson whether he wished to stipulate to his prior offenses or to inform him of the evidentiary effect of such a stipulation. 

            We note that the district court’s questioning on Carson’s jury-trial waiver was not as thorough as it might have been.  For instance, the district court did not inform Carson that the jury’s decision had to be unanimous.  See United States v. Delgado, 635 F.2d. 889, 890 (7th Cir. 1981) (setting guidelines for accepting waivers in jury trials, including that the defendant may participate in jury selection and that the verdict of the jury must be unanimous).  But the Minnesota Supreme Court has held that while Delgado provides “helpful guidelines” to the district court, the omission of the guidelines was not “critical” and did not affect the validity of a waiver when the defendant “was advised by the court of the essential characteristics of a jury trial.”  Ross, 472 N.W.2d at 654.  Additionally, Carson’s prior experience with the judicial system weighs in favor of the validity of his jury-trial waiver.  See id. (holding that waiver was valid when defendant was “not unfamiliar with the judicial system”).  

            The record shows that, when Carson indicated that he wished to waive a jury trial, the district court’s inquiry sufficiently advised Carson of his rights and that Carson’s jury-trial waiver was knowing, voluntary, and intelligent.   

            Carson further argues that any error by the district court in failing to comply with jury-trial waiver requirements necessitates a new trial.  Cf. State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004) (holding that the district court erred byaccepting a stipulation to proof of an element of an offense without the defendant’s personal consent on the record orally or in writing, but that the error was harmless beyond a reasonable doubt), review denied (Minn. June 29, 2004).  Because we have determined that the district court did not err in conducting its inquiry on Carson’s jury-trial waiver, we need not consider this argument.  We also observe that Carson does not directly argue that the district court erred by accepting the stipulation to Carson’s prior offenses during trial without his personal consent on the record.  But even if we were to assume that such an error occurred during trial, even constitutional errors are subject to a harmless-error analysis unless they belong to a limited class involving structural errors.  See Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999); State v. Courtney, 696 N.W.2d 73, 79-80 (Minn. 2005) (applying harmless-error analysis to Confrontation Clause violation).  Although the complete denial of a defendant’s right to a jury trial amounts to structural error, an error that precludes the fact-finder from making a finding on an element of the offense is not structural error.  See Neder, 527 U.S. at 8-11, 119 S. Ct. at 1833-34 (providing examples of structural error and stating that omission of element in jury instructions is not structural error).  Therefore, the harmless-error standard articulated in Wright would apply to any error committed by the district court in accepting Carson’s stipulation on the prior-convictions element of the DWI charges.   

           Carson did not contest the accuracy of his driving record.  Even without the stipulation, the district court knew that Carson had five prior DWI convictions, which satisfied the prior-convictions element of his current DWI charges.  See State v. Hinton, 702 N.W.2d 278, 282 (Minn. App. 2005) (concluding that district court’s error in allowing stipulation of prior convictions without defendant’s personal waiver of his right to a jury trial was harmless when the record of prior convictions was accurate), review denied (Minn. Oct. 26, 2005).  Thus, even if there were error, it was harmless beyond a reasonable doubt. 



            Carson argues that a remand is necessary because the district court failed to make written findings as required by Minn. R. Crim. P. 26.01, subd. 2.  That rule states that the district court, within seven days after its finding of guilty in a bench trial in a felony or gross-misdemeanor case, “shall . . . specifically find the essential facts in writing on the record.”  Id. The purpose of requiring written findings within seven days after trial is to allow the court to take the matter under advisement and “to aid the appellate court in its review of [a] conviction resulting from a nonjury trial.”  State v. Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990).  

            This court has remanded for written findings when the district court failed to make the specific findings required by rule 26.01.  See State v. Taylor, 427 N.W.2d 1, 5 (Minn. App. 1988) (holding that remand was appropriate even when the record contained sufficient evidence to support the conviction), review denied (Minn. Sept. 28, 1988); State v. Thomas, 467 N.W.2d 324, 327 (Minn. App. 1991) (following Taylor).  But we conclude that the purpose of the rule is satisfied when, as here, the district court issues extensive oral findings on the record immediately after trial.  Because the district court’s findings are sufficient to allow appellate review, a remand is unnecessary.  See Nyberg v. R.N. Cardozo & Brother, Inc., 243 Minn. 361, 366, 67 N.W.2d 821, 824 (1954) (concluding that where record showed that all evidence was presented and considered, remand for additional findings would “serve no useful purpose”). 





[1] Carson’s charged offenses of second-degree DWI required the state to prove the existence of prior qualified impaired-driving convictions as elements of those offenses.  See Minn. Stat. § 169A.20. subs. 1(1), 1(5), 3 (2004); see also Minn. Stat. § 169A.25 (2004) (stating that second-degree driving while impaired requires existence of two or more aggravating factors); Minn. Stat. § 169A.03, subd. 3 (2004) (stating, as separate aggravating factor, each qualified prior impaired-driving incident within ten years immediately preceding current offense).