State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0268

State of Minnesota,
Respondent,

vs.

Warren Patrick Banks, Jr.,
Appellant.

Filed January 22, 2019
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-17-19591

Keith M. Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neil Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judg e ; a n d S m i t h ,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Warren Patrick Banks Jr. appeals from his conviction for possessing
ammunition while being ineligible to do so. He argues that the district court committed

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structural error by instructing the jury that it must accept th at Banks was ineligible to
possess ammunition. Because Banks waived his right to a jury trial on that element and did
not effectively withdraw his waiver, we affirm.
FACTS
In August 2017, police officers responded to a report of a van emitting loud music.
They found Banks sleeping in the van and, in the course of their interaction with him, found
a gun and ammunition in the vehic le. Banks was charged with one count of being an
ineligible person in possession of a firearm and one count of being an ineligible person in
possession of ammunition.
On the record, before beginning jury selection, the parties di scussed a potential
stipulation that Banks was ineligible to possess either a firearm or ammunition. Banks was
agreeable to the stipulation, but it was not finalized at that time.
The parties subsequently stipulat ed that Banks was ineligible to possess a firearm
or ammunition. In response to questioning by the district court , Banks agreed that he was
waiving the requirement of proof beyond a reasonable doubt on t hat element. The court
indicated that it would read the stipulation, saying that the j ury “must accept” Banks’s
ineligibility, both at the close of the state’s case-in-chief and in the jury instructions. Banks
did not object.
Based on the parties’ stipulati on, the state did not introduce evidence of Banks’s
past convictions that made him ineligible to possess firearms or ammunition. At the close
of the state’s case-in-chief, the court described the stipulati on to the jury: “So, ladies and
gentlemen of the jury, the parties have stipulated in this case —the parties have stipulated

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and therefore you must accept, that on August 6, 2017, the defe ndant, Mr. Banks, could
not legally possess a firearm or ammunition.” Banks again did not object.
Then, while discussing jury ins tructions, the state asked the court to include an
instruction that the second element of both counts—Banks’s inel igibility to possess a
firearm or ammunition—had been proved beyond a reasonable doubt. Banks objected. The
court told Banks that he had already stipulated to the instruction. Banks responded: “Right.
Now [the prosecutor is] asking you to say to them something tha t’s already . . . been said
and done.” The court reiterated t h a t B a n k s h a d a g r e e d t o t h e i nstruction, and Banks
continued to object that the information had already been given to the jury. The discussion
became side-tracked and ended without Banks re-agreeing to the instruction.
As part of its final instructions to the jurors, the court tol d them that they “must
accept” that Banks could not lega lly possess a firearm or ammun ition on the day in
question.
The jury found Banks guilty of being an ineligible person in p ossession of
ammunition but not guilty of being an ineligible person in possession of a firearm. Banks
appeals, arguing that he “only agreed that the jury would hear evidence that he stipulated
that he was ineligible.” He argues that he never waived his right to a jury trial on the issue
of his ineligibility and that the mandatory instruction on that element therefore violated his
“right to have the jury determine that every element of the cha rged offense has been
established.” State v. Moore, 699 N.W.2d 733, 738 (Minn. 2005). He argues that the error
was structural, requiring reversal without consideration of whether it was harmless.

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D E C I S I O N
Whether Banks properly waived his right to a jury trial is an i ssue that is reviewed
de novo. See State v. Kuhlmann, 806 N.W.2d 844, 848-49 (Minn. 2011). Waivers of jury
trials are controlled by Minn. R. Crim. P. 26.01. See State v. Fluker, 781 N.W.2d 397, 400
(Minn. App. 2010). For a waiver to be valid, a defendant must waive the right “personally,
in writing or on 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). The district court must approve the waiver. Id. These requirements
are strictly construed. Fluker, 781 N.W.2d at 402.
The district court asked Banks whether he understood “that typi cally, the State
would be required to prove each and every element with proof beyond a reasonable doubt,”
and whether he was “agreeing to give up or waive that requireme nt for [the] element [of
his ineligibility].” Banks replied affirmatively to both questions. When asked whether he
had had enough time to discuss th e stipulation with his attorne y, Banks again replied,
“yeah.” The court said that it intended to include the stipulation both in the jury instructions
and at the end of the state’s cas e-in-chief, and Banks did not object. Banks made these
statements himself, on the record, in open court. This was a va lid waiver of Banks’s right
to have a jury find beyond a rea sonable doubt that he was ineli gible. Minn. R. Crim. P.
26.01, subd. 1(2)(a).
However, Banks subsequently objec ted to the inclusion of the st ipulation as an
instruction to the jury. On appeal, he relies on that objection, arguing that it shows that “he
only agreed that the stipulation was a piece of evidence that would be presented to the jury

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during the evidentiary portion of the trial.” That argument ign ores the language of his
earlier statements, in which he e xpressly waived the right to h ave a jury find the element
beyond a reasonable doubt. Because Banks’s initial comments wer e a valid waiver of his
right to a jury trial, the most liberal interpretation of his l ater comments is that they were
an attempt to withdraw the initial waiver.1
A defendant may withdraw the waiver of a jury trial any time before the trial begins.
Minn. R. Crim. P. 26.01, subd. 1(3). The comments to the rules reflect that trial begins
when jeopardy attaches—that is, when the jury is sworn. Minn. R . Crim. P. 26.01,
subd. 1(3) cmt.; see State v. Yeboah , 691 N.W.2d 87, 91 (Minn. App. 2005) (“Jeopardy
attaches as soon as the jury is sworn.”), review denied (Minn. Apr. 19, 2005).
Though phrased permissively—a defendant “may withdraw the waiver . . . any time
before trial begins”—the negativ e implication of Minn. R. Crim. P. 26.01, subd. 1(3), is
that a defendant may not withdraw a waiver after trial begins. The negative implication is

1 It is also plausible to interpret Banks’s comments as demanding that the issue be wholly
removed from the jury. See State v. Davidson , 351 N.W.2d 8, 11 (Minn. 1984) (“We
believe that generally in a prosecution for being a felon in po ssession of a weapon the
defendant should be permitted to remove the issue of whether he is a convicted felon by
stipulating to that fact.”). Caselaw suggests that the jury sho uld be instructed that the
defendant has already been deter mined to be ineligible, and tha t jurors need not concern
themselves with that element. See, e.g., id. at 12 (“The [district] court should have . . .
instructed the jury to the effect that [the] defendant had stip ulated that under Minnesota
law he was not entitled to posse ss a pistol and that therefore the jury should direct its
attention to the issue of [possession] . . . .”). Such an instruction would differ from the one
given here because the jury would not be instructed to make any findings; it would simply
be told that the element had already been proved. But regardless of which instruction was
given, the jury could not have made an independent finding that the state had failed to
prove that Banks was ineligible to possess a firearm or ammunition. Because the effect of
the two instructions would be the same, any error that occurred was harmless.

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supported by caselaw. In State v. Johnson, this court relied on that subdivision in holding
that a defendant could not withdraw his waiver of the right to a jury trial after trial and
sentencing. 689 N.W.2d 247, 252-53 (Minn. App. 2004), review denied (Minn. Jan. 20,
2005). The only temporal reference in Rule 26.01, subd. 1(3), is to the start of trial. Neither
the rule itself nor any published case differentiates between withdrawal after trial has begun
but before it has ended—as in this case—and withdrawal after tr ial has begun and after it
has ended—as in Johnson. See Johnson, 689 N.W.2d at 252-53. Thus, once a jury is sworn,
a defendant may not withdraw a waiver of the right to trial by jury. Banks did not object to
the instruction until after the ju ry had been sworn and after t he prosecution had already
rested. In reliance on the stipul ation and waiver, the state di d not introduce evidence of
Banks’s previous criminal convictions. Even if his comments are interpreted as an attempt
to withdraw his waiver, they were too late to be effective.
When a criminal defendant waives the right to a jury trial on a n element, the court
may direct a verdict on that element. State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984)
(stating that the general rule against directing a verdict on an element does not apply where
there has been “a judicial admission by the defendant”). Banks properly waived his right
to a jury trial on the element of his ineligibility and did not withdraw his waiver. The district
court therefore did not err in i nstructing the jury that it “mu st accept” that Banks was
prohibited from possessing ammunition on the relevant date.
Because the district court’s instruction was not erroneous, we do not consider
whether the purported error would have been structural.
Affirmed.