¶1 concurring separately.
¶2 Although I concur in the judgment rendered by this court, I am not convinced that the trial court’s withdrawal of the prior conviction element from the jury’s consideration was even harmless error.
¶3 R.C. 2945.05 and Crim.R. 23(A) speak to waiver of trial by jury. Except as to one element, Riley had a trial by jury. The single element kept from the jury was kept from the jury at Riley’s request. In Tate and Smith, there were no jury trials as to any elements.
¶4 I would not interpret either the statute or the rule to require a written waiver of trial by jury as to a single element upon which a defendant wishes to prevent the state from offering proof in the presence of the jury, when the defendant stands upon his or her right to trial by jury on all other elements that the state must prove, and where — as here — the record reflects a stipulation, at the defendant’s request, of the element the defendant wishes to keep from the jury.
¶5 I realize that requiring a defendant to sign a written waiver of trial by jury on a single element, or to sign the court reporter’s stenographic notes of the waiver, would not impose an unreasonable additional burden on trial courts. However, I cannot conceive of how a defendant could be prejudiced on a state of facts such as is presented here, as the majority indeed recognizes. Thus, I find it unnecessary to impose a written waiver requirement, even though the requirement would not be onerous.