(concurring).
I concur in the result reached by the majority. I agree that the error here, if any, was not structural in character and I agree that Kuhlmann’s substantial rights were not violated.
I disagree, however, with the majority’s conclusion that the failure to obtain Kuhl-mann’s personal waiver was error.
I begin with the observation that a defendant may waive his right to a jury trial. Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930) (affirming a defendant’s right to waive a trial by jury), overruled on other grounds by Williams v. Florida, 399 U.S. 78, 92, 90 *854S.Ct. 1893, 26 L.Ed.2d 446 (1970); State v. Pietraszewski, 283 N.W.2d 887, 889-90 (Minn.1979) (citing Minn. R.Crim. P. 26.01, subd. l(2)(a)). A defendant’s waiver of his right to a jury trial on the elements of an offense must be knowing, intelligent, and voluntary. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); State v. Dettman, 719 N.W.2d 644, 651 (Minn.2006). The Minnesota Rules of Criminal Procedure state:
The defendant, with the approval of the court, may waive a jury trial on the issue of guilt provided the defendant does so 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 satisfaction of Minn. R.Crim. P. 26.01, subd. 1(2)(a), also meets the constitutional requirements of a knowing, intelligent, and voluntary waiver. See Dettman, 719 N.W.2d at 651.
Here, Kuhlmann argues that the district court failed to secure his personal waiver as required by Minn. R.Crim. P. 26.01, subd. l(2)(a), on the previous-conviction elements of the charged offenses.
While it is undisputed that Kuhlmann did not personally waive his right to a jury trial to determine whether he had been previously convicted, it is also well established that a defendant may be deemed to ratify and adopt as a personal act the actions of counsel performed in the defendant’s presence. State v. Prtine, 784 N.W.2d 303, 318 (Minn.2010); State v. Ford, 276 N.W.2d 178, 183 (Minn.1979); State v. Grilli, 304 Minn. 80, 95, 230 N.W.2d 445, 455 (1975). In Ford, we rejected appellant’s argument that the waiver of a jury trial on the issue of entrapment was invalid because the defendant did not waive the issue in open court. 276 N.W.2d at 183. The appellant argued that waiver was invalid because it did not conform with Grilli, 304 Minn, at 95, 230 N.W.2d at 455, which requires that a defendant who wishes the court to hear the issue of entrapment “must in open court or in writing waive a jury trial as to that issue.” Id. In Ford, rather than securing the defendant’s waiver, the defense counsel, in defendant’s presence, stated that he was submitting the issue to the court. Id. We held that waiver was sufficiently established, explaining that “[wjhile we intended [in Grilli] to make it clear that the waiver should be by defendant, not by his counsel, in this case defendant was present when his counsel made the waiver and defendant may well be said to have ratified the waiver and made it his personal act.” Id. We also noted that the language in Grilli requiring waiver “in open court or in writing” is similar to the language in Minn. R.Crim. P. 26.01, subd. 1(2)(a). Ford, 276 N.W.2d at 183 n.1.1
*855I conclude that the principle set forth in Ford is applicable here. Defense counsel repeatedly notified the district court, in the presence of Kuhlmann, of the intention to stipulate to Kuhlmann’s previous convictions. Specifically, on the first day of trial, defense counsel twice notified the district court of the intent to stipulate to the previous-conviction elements. On the second day of trial, defense counsel did not challenge the State’s verification of Kuhl-mann’s previous convictions or the district court’s amendment of the jury instructions excluding the previous-conviction elements. Defense counsel also argued against the State’s subsequent request to introduce evidence of Kuhlmann’s previous convictions to demonstrate modus operands common scheme, or common occurrence. Kuhlmann was present during each of these instances and he does not contend, nor does the record establish, that he was opposed to his counsel’s actions. Therefore, I would conclude that, under these facts, like Ford, Kuhlmann’s presence during his counsel’s stipulation to the previous-conviction elements of the charged offenses may well be said to have constituted Kuhlmann’s ratification of the stipulations making it his personal act. See 276 N.W.2d at 183.
Moreover, I would conclude that Kuhl-mann’s stipulation to his previous convictions served as a waiver of his right to a jury trial on the previous-conviction elements of the charged offenses. A defendant who wishes to keep prejudicial evidence of criminal history from the jury may stipulate to a previous-conviction element of a charged crime. See State v. Berkelman, 355 N.W.2d 394, 396-97 (Minn. 1984) (relying on Davidson to conclude that the trial court erred in refusing defendant’s stipulation to a previous-conviction element of a charged offense); State v. Davidson, 351 N.W.2d 8, 11-12 (Minn. 1984) (holding that the trial court erred in denying defendant’s motion to stipulate to his previous-conviction in order to keep the jury from learning he was a convicted felon). Both Davidson and Berkelman recognize that evidence of a defendant’s previous convictions may create unfair prejudice when introduced to the jury such that, unless the district court determines that the evidence is more probative than prejudicial, the district court must accept the defendant’s stipulation to a previous-conviction element. Berkelman, 355 N.W.2d at 396-97; Davidson, 351 N.W.2d at 12. We therefore concluded in Berkel-man that when a defendant stipulates to a conviction and asks the court not to submit the element of a previous conviction to the jury, the defendant “in effect offer[s] to waive his right to a trial by jury on [the] element of the offense and to judicially admit the existence of that element, thereby removing the issue from the case.” 355 N.W.2d at 397.
In this case, Kuhlmann was charged with two counts of domestic assault, in violation of Minn.Stat. § 609.2242, subd. 4 (2010), and one count of test refusal, in violation of Minn.Stat. § 169A.25, subd. 1(b) (2010). The statutes for these offenses contain previous-conviction elements and Kuhlmann’s attorney twice notified the district court of defendant’s intent to stipulate to those elements. Absent a finding that the evidence of Kuhlmann’s previous convictions was more probative than prejudicial, the district court was required to accept Kuhlmann’s stipulation to *856those elements and the previous-conviction elements were subsequently removed from the jury instructions. See Berkelman, 355 N.W.2d at 396-97. Accordingly, I would conclude that Kuhlmann’s stipulation to his previous convictions in effect waived his right to a jury trial on the previous-conviction elements. See id. at 397.
To be clear, I am in no way suggesting that a defendant’s silence may constitute a waiver of the right to a jury trial on the issue of guilt. State v. Osborne, 715 N.W.2d 436, 442 (Minn.2006) (“When it comes to the waiver of at least two fundamental rights, the right to a jury trial and the right to counsel, our law is clear that these rights cannot be waived by silence.”). In contrast to waiver by silence, a defendant’s stipulation to a previous-conviction element involves an affirmative act by the defendant. We also distinguish the situation presented here from a trial on stipulated facts. See Minn. R.Crim. P. 26.01, subd. 3. “The right of a trial by jury shall remain inviolate,” Minn. Const, art. 1, § 4, and our caselaw requires that a defendant’s waiver of that fundamental right be accompanied by “searching questions” in order for the court to be satisfied that “the defendant was informed of his rights and that his waiver was voluntary.” State v. Ross, 472 N.W.2d 651, 653 (Minn.1991). Consistent with our constitution and case-law, I would conclude that a defendant’s affirmative act of stipulating to a previous-conviction element meets the requirements of an informed and voluntary waiver of his right to a trial by jury on the previous-conviction element. ■
. In State v. Halseth, the court of appeals rejected the State's argument that defendant's presence during his attorney’s stipulation to defendant’s rights to cross-examination and presentation of evidence constituted defendant’s ratification of the waivers entered by his counsel. 653 N.W.2d 782, 785 (Minn.App.2002). In response to the State’s reliance on our decision in Ford, the court of appeals stated, in part, that: "Ford predates the provision in rule 26.01 that requires a defendant’s personal waiver of his or her trial rights. The rule specifically requires a personal waiver by a defendant and thus precludes any implied ratification of an attorney’s waiver by a defendant’s mere presence, as in Ford." Id.
But in Ford, we specifically referred to the language of Minn. R.Crim. P. 26.01, subd. l(2)(a):
The defendant, with the approval of the court may waive jury trial provided he does so personally in writing or orally upon the record in open court, after being advised by the court of his right to trial by jury and *855after having an opportunity to consult with counsel.
276 N.W.2d at 183 n. 1 (quoting Minn. R.Crim. P. 26.01, subd. l(2)(a)). Thus, the language of the rule was the same at the time of the decision in Ford as it was at the time of the court of appeals’ decision in Hcilseth, and remains the same today. Therefore, I reject the notion that our decision in Ford did not contemplate a personal waiver requirement as part of Minn. R.Crim. P. 26.01, subd. K2)(a).