We agree and therefore reverse his conviction. “Because the right to a jury trial is a fundamental constitutional right, the burden is on the [s]tate to show that [Overcash] made a knowing, intelligent and voluntary waiver of that right.” Balbosa v. State, 275 Ga. 574, 575(1), 571 S.E.2d 368 (2002) (citations omitted). The state argues that it has satisfied its burden by showing that Overcash indicated by check mark on the arraignment form a request for a nonjury trial.

” .Id. (punctuation omitted); accord Balbosa v. State, 275 Ga. 574, 575(1), 571 S.E.2d 368 (2002).Jones v. State, 294 Ga.App. 169, 170(1), 670 S.E.2d 104 (2008) (punctuation omitted; emphasis supplied).

A defendant's right to trial by a jury is a fundamental constitutional right that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. Balbosa v. State, 275 Ga. 574, 575(1), 571 S.E.2d 368 (2002); Thomas v. State, 297 Ga.App. 416, 419(2), 677 S.E.2d 433 (2009). “A defendant's consent to a trial without a jury need not be in any particular, ritualistic form; the trial court need only conduct an inquiry of the accused on the record so as to ensure that the waiver is knowing, voluntary and intelligent[.]” (Punctuation and footnote omitted.)

A defendant's right to trial by a jury is a fundamental constitutional right that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. Watson v. State, 274 Ga. 689, 691(2), 558 S.E.2d 704 (2002); Balbosa v. State, 275 Ga. 574, 575(1), 571 S.E.2d 368 (2002). “A defendant's consent to a trial without a jury need not be in any particular, ritualistic form; the trial court need only conduct an inquiry of the accused on the record so as to ensure that the waiver is knowing, voluntary and intelligent[.]” (Punctuation and footnote omitted.)

As Seitman correctly observes, a waiver by counsel, standing alone, cannot suffice for the State to meet its burden. Balbosa v. State, 275 Ga. 574, 575(1), 571 S.E.2d 368 (2002) (record showed only oral waiver by counsel in appellant's presence); Jones v. State, 294 Ga.App. 169, 169–170(1), 670 S.E.2d 104 (2008) (written waiver filed by attorney requesting nonjury trial insufficient in absence of any extrinsic evidence). “Essentially, the record must affirmatively show that the defendant made the decision to waive his right to a jury trial, or at least that he or she agreed with the decision.”

Merchant , 365 Ga. App. at 45-46 (2), 877 S.E.2d 361. Borroto cites a single case in support of his waiver argument: Balbosa v. State , 275 Ga. 574, 571 S.E.2d 368 (2002). In Balbosa , the Supreme Court of Georgia concluded that the State failed to carry its burden of showing that a defendant knowingly, intelligently, and voluntarily waived his right when "the State showed nothing more than a jury trial waiver by defense counsel in [the defendant's] presence."

Furthermore, the question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is "to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous."Id. (punctuation omitted); accord Balbosa v. State, 275 Ga. 574, 575 (1) (571 SE2d 368) (2002). Jones v. State, 294 Ga. App. 169, 170 (1) (670 SE2d 104) (2008) (punctuation omitted) (emphasis supplied).

(Citation omitted.) Balbosa v. State , 275 Ga. 574, 575 (1), 571 S.E.2d 368 (2002). Moreover, to ensure that a defendant has waived the right to a jury trial "voluntarily, knowingly and intelligently," the trial court should conduct a colloquy with the defendant personally.

See also United States v. Dominguez Benitez , 542 U.S. 74, 81, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ("It is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake's effect on the proceeding.... Otherwise, relief for error is tied in some way to prejudicial effect."). Structural errors usually are based on a violation of a constitutional right; a few examples include the failure to give a constitutionally acceptable jury instruction on the reasonable-doubt standard in a criminal case, Sullivan v. Louisiana , 508 U.S. 275, 281-282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ; the improper denial of a right to self-representation, see Oliver v. State , 305 Ga. 678, 680, 827 S.E.2d 639 (2019) ; and the denial of a right to a trial by jury absent a valid waiver, Balbosa v. State , 275 Ga. 574, 575, (571 S.E.2d 368) (2002). See also Weaver v. Massachusetts , ––– U.S. ––––, 137 S.Ct. 1899, 1911-1912, 198 L.Ed.2d 420 (2017) ("This Court ... has granted automatic relief to defendants who prevailed on claims alleging race or gender discrimination in the selection of the petit jury ... though the Court has yet to label those errors structural in express terms[.]

The constitutional right to a jury trial may be waived only if the State proves beyond a reasonable doubt that a defendant did so knowingly, voluntarily, and intelligently. See Balbosa v. State , 275 Ga. 574, 575 (1), 571 S.E.2d 368 (2002) (jury trial waiver by defense counsel in the presence of the defendant was not enough to constitute the defendant's own knowing, intelligent, and voluntary jury trial waiver). The State can do so by either (1) showing on the record that the defendant was cognizant of the right being waived; or (2) supplementing the record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly, voluntarily, and intelligently made.