*1 Plaintiff-Respondent, Wisconsin, State
v. Courtney C. Beamon, Defendant-Appellant-Petitioner.
Supreme Court 5, 2012. argument No. Oral November 2010AP2003-CR. May Decided 47WI (Also 681.) reported in N.W.2d *5 For the defendant-appellant-petitioner, there were Hintze, by briefs Donna L. assistant state de- public fender, and oral L. argument by Donna Hintze.
For the plaintiff-respondent, cause argued was L. by Sally Wellman the brief was Rebecca Rapp John, St. attorneys assistant with on general, whom the Hollen, brief attorney was J.B. Van general.
An amicus curiae brief filed by was Robert R. Henak S.C., and Henak Law Milwaukee, on behalf of Office, the Wisconsin Association of Criminal Defense Law- yers. 1. PATIENCE DRAKE J. ROGGENSACK, This is of a published review decision of the court of appeals1
that affirmed the of conviction judgment entered Beamon, App State v. 2011 WI 336 Wis. 2d N.W.2d706. appeal, *6 County to this Circuit Court.2 Relevant
Racine fleeing Courtney of convicted defendant C. Beamon was attempting officer, in violation of or to elude traffic 346.04(3) (2009-10).3 argues § that, Beamon Wis. Stat. given jury particular case, in this instructions under the fleeing to convict him of there insufficient evidence was Specifically, attempting elude a officer. or to traffic required jury the the instructions Beamon claims that prove beyond doubt that Beamon State to a reasonable 346.04(3) "by increasing speed § of the the violated flee," that there was no evidence that vehicle to and speed the his vehicle after law Beamon increased began pursue him. enforcement officers to 346.04(3) § the out two 2. Wisconsin Stat. sets requirements necessary for commission of offense charged. may proven requirement in The second be 346.04(3) ways. That does not is, three different attempt require flight to that the defendant's elude increasing accomplished have been the defendant given speed his flee, vehicle to as instructions provided. argument, therefore, in this case Beamon's sufficiency rests on his contention that comparison with the evidence must be evaluated though jury actually given, those even instructions statutory requirement to the defi- instructions added a nition of the crime. that add 3. We conclude necessary
requirements to sets out as what statute prove erroneous; commission are of a crime evidence therefore, examine the we Emily presided. The Honorable S. Mueller are to Statutes subsequent references to the Wisconsin All version unless otherwise indicated. the 2009-10 by comparison requires this case to what the statute by comparison requirement and not additional instructions. Furthermore, instruction subject analysis, errors are to harmless error which we apply analysis A here. whether, harmless error asks totality based beyond circumstances, on the it is clear jury, properly a reasonable that a doubt rational guilty. instructed, would have found defendant totality ¶ 4. We conclude that under the of cir- beyond cumstances, it is clear a reasonable doubt the guilty would have found Beamon attempting to elude an officer absent the erroneous unquestionably sup- instruction. The at trial evidence ported jury's *7 verdict that Beamon violated the eluding Accordingly, statute. conclude we that there was sufficient Beamon, evidence to convict and appeals. we affirm the decision of the court of
I. BACKGROUND early morning ¶ 5. In the hours of November off-duty Racine Police Officer Dennis Cecchini working private security and another officer were as guards Legion at American Bar Racine. At approximately multiple a.m., 12:45 heard officers gunshots. radioing police dispatch, After the two offic- investigate. ers left bar to Officer Cecchini heard gunshots, parked two more took and cover behind a vehicle. figure
¶ 6. Officer Cecchini then a male observed porch nearby run from the of a house in a crouched position parked and enter a vehicle near house. again dispatch Cecchini radioed to describe vehicle provide and to about information the vehicle's direction noting driving of travel, vehicle north, was headlights extinguished. with its speaking dispatcher, ¶ 7. As he to the Cec- was chini heard Racine Police Officer Frank Miller remark on the radio that he saw the vehicle that Cecchini had point, described. At that Miller activated his Officer emergency lights began following and siren and travelling approximately vehicle, which he noted was per miles-per-hour 50 miles hour a 30 zone. began pursuit, ¶ 8. When Officer Miller he was approximately three-quarters of a block behind the speeding negotiate vehicle. As the vehicle slowed to right turn, soft Officer Miller closed the distance be- squad nego- tween his tiating car and the other vehicle. After driving turn, the vehicle continued toward by four-way stop sign. an intersection controlled lights through vehicle, off, still with its drove stopping slowing intersection without down. Immediately passed through ¶ 9. after the vehicle suspect the intersection, Officer Miller saw the roll out vehicle, driver's-side door of the which was then travelling approximately per 25 miles hour. The vehicle legs suspect's then ran over the and collided with a parked car. suspect
¶ 10. After the run was over his ve- up began running away hicle, he stood from Officer squad time, Miller's car. For a short Officer Miller *8 squad pursued suspect, in remained his car as he the lights coming the with and sirens still activated. After suspect, within a few feet of the Officer Miller exited his began pursuing During chase, vehicle and on foot. suspect, Officer Miller issued various orders to the all of suspect disregarded. lengthy chase, which the After a finally ground, suspect placed Miller knocked the to the hospital handcuffs, him in him for and took to the medical treatment. suspect, Beamon, 11. The later identified as was including
charged eight-count information, re- peater charge enhancements for all counts. The rel- appeal evant to Beamon's current is Count Vehicle Operator Officer, violation of Wis. Stat. Flee/Elude 346.04(3). charge, provided For that the information [defendant Bea- that: "On or about 11-19-2007... unlawfully feloniously, operator did] mon and as the having vehicle, or audible a signal after received visual police officer, vehicle, marked from a traffic knowingly attempt any traffic officer flee or elude disregard signal such so as to willful or wanton endanger operation police interfere with pedes- vehicle, or the traffic officer or other vehicles or speed trians, or did increase the of the vehicle or extinguish lights attempt of the vehicle in an elude or flee ...." testimony trial, 12. At heard from Of- describing suspect's gunshots
ficer Cecchini and headlights subsequent flight in extin- a vehicle with its testimony guished. heard Officer Miller's also regarding suspect's chase, exit from his the car ending moving vehicle, and the foot chase with Beamon's arrest. Additionally, testi- heard Beamon's
mony, generally the officers' testi- which corroborated having example, testified to been monies. For Beamon having gotten fired; near the of the shots into location headlights away extin- the car and driven with his guished; having it rolled out of the vehicle while moving. challenge Beamon also did not Officer was still testimony Miller had his emer- Miller's activated during pursuit; gency lights instead, and siren seeing or that he did not remember Beamon asserted hearing emergency signals approached the until he *9 stop sign, point at which he rolled out of his vehicle. extremely Beamon also testified that he had been night. intoxicated During jury trial, the course of the twice charge against eluding,
heard the Beamon for exactly as set forth in the information. The first charge during jury heard the selection, when assistant attorney district Sharon Riek read the entire informa- tion. The second time the heard the information Judge charge, was when Mueller read the as set forth immediately reading statute, before in- charged structions for the offense.
¶ 15. The instructions that the heard imme- diately following Judge reading Mueller's of the infor- language mation did not track the used in either Wis. 346.04(3) Stat. Instead, the information. provided that: 346.04(3)
Sec. of the Wisconsin Statutes is violated by person operates highway who a motor vehicle on a receiving after signal a visual or audible from a marked police knowingly vehicle and any by flees traffic officer disregard willful signal of such so to interfere as with or endanger the traffic officer increasing speed you may vehicle to Before find the defendant flee. guilty offense, of this prove by the State must evidence you beyond which satisfies a reasonable doubt that the following present. two elements were
First, operated the defendant a motor vehicle on a highway receiving signal after a visual and audible police from a marked vehicle.
Secondly, knowingly the defendant fled a marked squad disregard car willful of the visual or audible signal endanger so as interfere with or traffic by increasing speed officer the vehicle to flee. added.) (Emphases guilty found Beamon *10 fleeing eluding officer, as as the other or a traffic well subsequently charged. The circuit court seven counts jury judgment verdict, of conviction on the entered a and Beamon was sentenced. fleeing appealed his conviction for 16. Beamon alleging eluding, that the evidence was insufficient
or Namely, jury him, on the instructions. convict based argued no that he had Beamon that there was evidence speed after Officer Miller increased the of his vehicle showing, began pursuing such a him, and that without eluding prove fleeing as that failed to or the State had charge jury stated in the instructions. was published opinion, Beamon, v. In a State App 706, the 131, 336 Wis. 2d 804 N.W.2d 2011 WI appeals conviction, conclud affirmed Beamon's court of ing fleeing eluding jury on or were that the instructions jury any discrepancy erroneous, between but charged harmless. and the offense was instructions sufficient to concluded that the evidence was court also against the of measured affirm the conviction when petitioned charged. ¶¶ Id,., this 11-12. Beamon fense granted. review, court for which we II. DISCUSSION A. Standard of Review presented argues that the evidence 18. Beamon eluding fleeing him to convict was insufficient charge requirements as traffic officer under the in- instructions. Because stated requirements to the did not conform structions eluding set forth Wis. Stat. as offense of § 346.04(3), challenge requires to deter- us Beamon's matter, instruc mine, as a threshold whether correctly statutory requirements tions stated the for conviction of the crime. Whether accurately applicable presents question state the law independently law, which we review of the circuit appeals, benefiting court and the court of from their analyses. Fonte, ¶77, See State v. WI 2dWis. 698 N.W.2d594. accurately
¶ 19. Where instructions do not controlling law, state the we will examine the erroneous error, instructions under the standard for harmless *11 presents question independent which a of law for our Harvey, ¶93, 18, review. See State v. 2002 254 WI 442, Wis. 2d 647 N.W.2d189. Finally,
¶ 20.
if we determine the
instruction
sufficiency
harmless,
error was
we will evaluate the
legal
the
under
standard,
evidence
the correct
and
applying
standard,
when
that
we will not overturn the
jury's
evidence,
verdict "unless the
viewed most favor
ably
lacking
to the state and
conviction,
the
is so
probative
acting
value
fact,
and force that no trier of
reasonably,
guilt beyond
could have found
a reasonable
statutory requirements
doubt" based on the
of the
(quoting
Fonte,
offense. See
281 Wis. 2d
10
State
Poellinger,
v.
493, 507,
153 Wis. 2d
B. of the Evidence Legal principles sufficiency reviewing ¶ 21. The standard for the highly jury's verdict, of the evidence is deferential to a
571 may appellate provides not overturn that an court jury's evidence, most favor the viewed a ably verdict unless sustaining conviction, "is so insufficient probative a matter that it can be said as value and force reasonably, acting fact, could have that no trier of of law Poellinger, guilt beyond a reasonable doubt." found challenging Accordingly, a defendant 2d at 501. Wis. heavy sufficiency burden to evidence bears of the reasonably supported not have the evidence could show finding guilt. Hanson, 31, 338 v. 2012 WI State Wis. 2d 808 N.W.2d challeng heavy for defendants 22. This burden begs sufficiency
ing
evidence, however,
question
question presented
Here,
in this case.
according to what
the evidence is sufficient
whether
actually
used, the statu
instructions
standard:
legal
tory requirements
crime,
or some other
complaint or the information?
standard, such as the
Generally,
to the
conform
instructions
when
statutory requirements
offense,
review
we will
by comparison
those
the evidence
e.g.,
Witkowski,
See,
State v.
instructions.
1991).
(Ct. App.
How
985, 991,
2d
473 N.W.2d
Wis.
accurately
reflect
do not
ever,
where
*12
legislature,
review
we cannot
enacted
the statute
sufficiency
with the
of the evidence
Zelenka,
34,
2d
v.
130 Wis.
See State
as our standard.
(1986);
v. Vir
see also Jackson
48-49,
572
When
of the evi
reviewing
dence, we cannot
on an
statement
rely
erroneous
statute in the jury
standard,
instructions as our
because
would,
effect,
so
doing
parties
allow
and the
hoc,
circuit court in that case
define
ad
to
common
crime.
Baldwin,
441,
law
State v.
101 Wis. 2d
Cf.
(1981)
446-47,
vitiate all
(1999)) (internal quotation
States,
1, 11
527 U.S.
United
omitted). Often,
errors involve omissions
such
marks
whereby
jury
relieved
instructions,
the State is
from the
requirements
proving
of
more
one or
burden
e.g.,
Smith,
91,
See,
v.
2012 WI
an offense.
State
(reaffirming
¶¶
410
60-63,
2d
817 N.W.2d
342 Wis.
jury
analysis applies
instruc
where
that harmless error
erroneously
requirement
that, under
omitted a
tions
re
Amendment,
should have been
the Sixth
(2012).
find),
quired
denied,
¶ 26. Given harmless error jury statutory in the context of instructions that omit requirements, Harvey, 442, see 2d 254 Wis. as well jury as instructions that include extra considerations beyond requires, Hedgpeth, what statute see analysis U.S. at 61, we conclude that harmless error is appropriate require- where instructions include a ment in addition to that in statute, set forth a such as occurred in illustrate, Beamon's case. To in Beamon's case, the was asked whether Beamon interfered endangered "byincreasing with or the traffic officer added.) speed [his] (Emphasis vehicle to flee." Be- suggests cause such a connection that the had to endangered find that the defendant interfered with or by engaging particular type the officer conduct, this requirement distinguishable requirements from that are not related conduct; to the defendant's for example, requirement for an offense that would direct "deadly weapon." to find that a firearm is a Cf. (2006) Washington Recuenco, v. 548 U.S. 215-16 (concluding may apply that harmless error where sen- tencing court determined that "firearm" enhancement id. See at 715-16. We concluded that the evidence was sufficient proved, show that the offense had heen and that the additional id. at requirement was, effect, See harmless. Accord- 713-16. Courtney supports ingly, our decision in our conclusion here. applied, although had used a found defendant "firearm"). "deadly weapon," Nonetheless, rather than a subject errors are to harmless because instructional analysis, jury error instructions that add additional analys subject requirement to harmless error also are Hedgpeth, at is.5 See 555 U.S. juiy Therefore, instruction errone where
ously applicable statute, must determine states the we totality circumstances, the whether, under the instruction constituted harmless error. See erroneous Mayo, Harvey, 46; see also State v. 254 Wis. 2d *15 ¶ 115 78, 48, 642, 301 Wis. 2d 734 N.W.2d 2007 WI (listing appropriate harmless considerations for several evaluating analysis). for harm error Under standard based on a error, less when a court reviews a conviction require instruction that included an erroneous " beyond it is 'clear a ment, the court must ask whether doubt that a rational would have found reasonable Harvey, guilty 254 absent the error.'" See the defendant 18). (quoting Neder, 442, 49 527 U.S. at Wis. 2d instructions are deter- 28. Where the erroneous totality harmless, based on the mined to have been 5 applying harmless error persuasive One rationale for can many instructional errors analysis in this context is statutory easily mischaracterizing a just as be described as they imposing an additional requirement as can be described as (1996) (per requirement. curiam) Roy, v. 519 U.S. 5 Cf. California ("The here —an error specific error at issue easily crime —is ... as character instruction that defined the crime, it is 'misdescription of an element' of the as ized as a 'omission.'"). Accordingly, a when characterized as an error requirement, not itself imposes an additional instruction statute, to have instruction can be said required by the of the offense accord incorrectly requirements the actual stated crime. See id. ing that sets forth the to the statute 576 sufficiency circumstances, a court should review the by comparing the evidence with the the evidence statutory requirements Zelenka, 130 of the crime. See grounded in is Wis. 2d at 48-52. This conclusion right "proof beyond a defendant's constitutional necessary every to constitute reasonable doubt of fact charged." Winship, In re 397 the crime with which he is (1970). corollary principle to this U.S. right proof beyond that a defendant does not have required a reasonable doubt for facts that are not statutory the crime. United States v. statement of See (8th 2009). Inman, Therefore, 558 F.3d Cir. challenges sufficiency where a defendant challenge and the rests on an inaccurate evidence jury instructions, statement of the in the but the law inaccurate statement of is determined to the law have harmless, been the defendant's of the evi challenge typically Zelenka, dence will fail. See Wis. 2d at 48-52. Application that, 29. Beamon in- claims based on the attempting case,
structions for to elude in his finding support there was insufficient evidence to *16 guilt beyond a Because a reasonable doubt. requires
of the evidence review us first to ascertain in whether the instructions were accord with controlling begin analysis law, our of Beamon's claim we controlling statute, Wis. with examination of 346.04(3). entirety: § provides, Stat. That statute its vehicle, operator having of a after received a
No officer, signal or marked visual or audible from a traffic vehicle, attempt to elude police knowingly flee or shall disregard of such any traffic officer willful or wanton signal endanger operation so as to interfere with or vehicle, police of the or the traffic officer or other pedestrians, operator vehicles or nor shall the increase operator's extinguish speed of the vehicle or lights attempt of the vehicle in an or flee. to elude In 171, 9, State v. 2002 WI Sterzinger, App ¶ 256 Wis. 2d 649 N.W.2d the court of appeals examined the of the offense of statutory requirements 346.04(3). or under Wis. Stat. fleeing eluding court of the offense as appeals explained follows:
(1) vehicle, operator having of a after received a No officer, signal visual or from a traffic or marked audible vehicle, police
(2) knowingly attempt any shall flee or to elude officer, traffic
(3) by disregard signal wilful or wanton of such so endanger operation as to interfere with or of the vehicle, police or the traffic officer or other vehicles or pedestrians.
Id. noted, the court the first Sterzinger 31. As after a receiving vehicle
requirement having operated — visual or audible from a traffic officer or marked signal to the first corresponds requirement police vehicle — id.; See see also Wis eluding. the crime of 2630. The court also noted that the second JI —Criminal act knowing (fleeing requirement "encompasses officer), in crimi- to elude the which results attempting if it is one liability accompanied by nal under statute 256 Wis. 2d Sterzinger, of three additional facts." ex- is, That the second and third requirements in Sterzinger (2) knowingly fleeing/attempting plained — (3) disregard to elude and willful or wanton *17 endanger signal officer, interfere with or so as to pedestrians comprise one of the three vehicles, or — requirement satisfying methods of second JI —Criminal 2630. offense. See Wis pattern and both the statute Under however, other instructions, there are also two methods by statutory requirement of the which the second requires offense can satisfied. Each of these methods be beyond proof that "the a reasonable doubt defendant knowingly attempted officer," a fled or to elude traffic by provides each a method but then different which attempted eluding may knowing flight or be shown. showing fleeing attempt- methods of or The two other ing "by increasing speed of the elude are vehicle" "by lights extinguishing the the vehicle." See Wis JI —Criminal 2630. These are alternatives and also separate "disregarding the visual or audible from signal endanger" so as to interfere with or method previously. discussed statutory understanding 33. With this 346.04(3),
requirements of Wis. Stat. we turn to the Beamon's case determine they properly whether the terms of stated the statute. provide, part: Those instructions in relevant Statutory Definition Crime 346.04(3) of the
Section Wisconsin Statutes is vio- by operates a person lated who a motor vehicle on signal highway receiving a or audible from after visual any knowingly flees police marked vehicle traffic disregard signal so officer willful of such as to endanger interfere officer increas- with traffic ing speed the vehicle to flee.
State's Burden of Proof may guilty find you
Before the defendant of this *18 offense, prove by the State must evidence which satis- you beyond fies a reasonable doubt following that the present. two elements were Elements of the Crime That the State Must Prove
1. The operated defendant a motor vehicle on a highway receiving after a visual and signal audible from police a marked vehicle.
2. The defendant knowingly fled a squad marked by disregard car willful of the visual or signal audible so as to endanger interfere with or the traffic officer by increasing speed the the vehicle to flee. added.)
(Emphases Upon ¶ 34. review of the instructions used in this case, properly we conclude that the instructions did not statutory requirements eluding state the for or 346.04(3). § under Wis. Stat. First, the instructions required that the find that the defendant received signal police "a visual and audible from a marked 346.04(3), phrase vehicle." Section however, does not requirement conjunctive, may in the and instead be by finding satisfied that the defendant received either signal. a visual or an audible importantly, Second, and more the instruc- proving tions combined two alternative methods of requirement second of the reiterate, offense. To 346.04(3) requirement second of Wis. Stat. —that knowingly attempted defendant fled or to elude an may be demonstrated in one of three officer— (1) ways: disregard signal willful of the so as to endanger interfere with or officer, vehicles, (2) pedestrians; increasing speed vehicle; (3) extinguishing lights of the vehicle. In in- structions in case, Beamon's the first and second meth- knowingly showing fled or ods of attempted that the defendant erroneously though as set out elude were required. asked not The was therefore both were by only attempted his fled or to elude Beamon whether disregard signal with or so as to interfere willful endanger, interference or endan- but also whether such having germent in- turn caused Beamon was speed of his vehicle. creased proving the second instructions for predi- statutory requirement factual different two *19 require- creating cates the of an additional had effect fleeing eluding. of or This is ment for the offense separation contrary legislature's of to the clear the by which the could show that a methods State statutory re- satisfied the second defendant's conduct quirement fleeing attempting of or to elude an officer. legislature methods which chose alternative 346.04(3) § may contravened; and there- Wis. Stat. be requirement fore, conclude that the instructions’ we proof by two methods was erroneous. jury errone- 37. Because the instructions were
ous, error harmless. we determine whether the was totality circumstances, in the as shown the Under jury instruc- record, are satisfied that the erroneous we beyond tions it is a reasonable were harmless: clear jury Beamon of doubt that the fleeing would have convicted given. eluding proper if had been jury in- We note the erroneous first that only the the statement of law structions were not jury eluding therefore, received; the and may it instruc- be said that the effect of erroneous jury having heard mul- tions were ameliorated jury tiple is, That statements of the law. was correct charge information, in as forth twice read set statutory requirements properly which stated 346.04(3). Notably, Wis. readings Stat. one of those immediately came before the court read the erroneous noteworthy instructions. This is because the verdict required form that the was to submit directed the jurors' attention to the criminal information, rather than the instructions, and stated that "Wethe Courtney Guilty find defendant, C. Beamon, Operating Attempt a Motor Vehicle to Flee or In an charged Elude an Officer as in Count One added.) (Emphasis Accordingly, the mul- Information." tiple properly instances which the was told the statutory requirements are a factor our harmless analysis. error in-depth 39. Furthermore, heard ac- including
counts of the events of November Officer seeing Miller's statements about Beamon's vehicle speeding away shooting lights from the scene with its extinguished; activating squad's the officer's emer- gency lights following siren; and his Beamon's closely during vehicle the car chase. Officer Miller rolling moving related Beamon's out of his car after *20 running stop sign seeing and then the driverless car parked run into a car. The also heard Beamon's attempt version events, which did not to dis- credit the officers' accounts of the chase, but instead simply attempted to cast Beamon's actions in a more light by suggesting favorable that, when he left the shooting merely trying get scene of the he was home family. light testimony, to his In of all the we conclude beyond it is clear a reasonable doubt that a jury, properly statutory rational requirements instructed on the fleeing eluding, would have found guilty. Beamon analysis Accordingly,
¶
shift our
as we
40.
challenge,
sufficiency
the evidence
we
Beamon's
provide
cannot
that the
conclude
analysis.
proper
chal-
Rather, Beamon's
standard for
statutory
lenge
in the context of the
must be reviewed
eluding
requirements
under
Stat.
Wis.
346.04(3). Applying
requirements,
§
Beamon's
those
challenge
high
meet the
standard for reversal
does not
sufficiency
jury's
under a
of the evidence
of a
verdict
light
trial,
adduced at
it
is,
That
in
of the facts
review.
reasonably
that no
be said "as a matter of law
cannot
reasonably,
guilt
acting
could
found
fact,
trier of
have
alleged
beyond
a reasonable doubt" for
violation
346.04(3).
Poellinger,
two in State v. 207 Wis. 2d 557 N.W.2d Wulff, (1997), requires conviction; and reversal of Beamon's (2) proffering of the erroneous instructions State's challenge to the instruc- constituted forfeiture of its tions as erroneous. argues is re- First, Beamon that reversal
quired
in
that,
in
based on our statement Wulff
challenge,
we
of the evidence
context of
"only
uphold
if there
the defendant's conviction
would
charge
support guilt on the
was sufficient evidence to
Id. at 153.
in the instructions."
submitted to
facially
Although
seems
contra-
our statement Wulff
dictory
holding today,
our decision
to our
Wulff
distinguishable
case on at least two bases.
from this
presented
with evi-
In
was
Wulff,
including
regarding
alleged
assault,
sexual
dence
*21
attempted
some evidence that the defendant had
fellatio
victim,
with the
which constitutes sexual intercourse
940.225(5)(b).
under Wis. Stat.
However, there was no
attempted genital
evidence that the defendant had
or
Notwithstanding
anal intrusion. See id. at 152.
the trial
testimony,
jury
instructions asked whether the de-
second-degree
fendant committed
sexual assault
at-
tempted genital
intrusion,
or anal
but not whether the
by attempted
assault was committed
fellatio. See id. at
jury
guilty
Nonetheless,
147-49.
returned a verdict of
charge
attempted
by genital
on the
sexual assault
any
anal intrusion. See id. at 149. Based on the lack of
attempted genital
evidence of
intrusion,
anal
this
court reversed Wulffs conviction. See id. at 154.
primary
¶ 44. The
distinction between
and
Wulff
today
our decision
is the nature of the
in each case. In
the instructions did
Wulff,
not add a
requirement
applicable
law; instead,
the instruc-
properly
tions
stated one of the methods
which a
second-degree
defendant could commit
sexual assault
completely
and
omitted the method for which there was
testimony.
Therefore, in
was asked
Wulff,
apply the correct law to the
trial,
facts adduced at
and
contrary
reached
conclusion
to the evidence. In that
proper
evaluating
situation, the
standard for
the suffi-
ciency
of the evidence
instructions,
was the
because
conveyed
the instructions
law,
a correct statement of the
thereby
requirements
informed the
of an
statutory
actual
offense. Under that standard, the court
acting reasonably,
fact,
concluded that "no trier of
could
guilt beyond
have found
a reasonable doubt" for the
upon
Poellinger,
offense
which the
was instructed.
¶ 45. In contrast to inWulff, which we stated that uphold "only we could the conviction if there was *22 charge guilt support sub- on to evidence sufficient jury," here, 153, 2d at 207 Wis. mitted to the charge requirement does that created a of a addition sufficiency of If evaluated in the statutes. we exist not given, against would we instructions the evidence sanctioning not crime that was of a new the creation be contrary legislature. Stat. to Wis. This is created § There- crimes. common law 939.10, which outlaws sufficiency can- in Beamon's case fore, of the evidence against justifiably instruc- be measured not tions. distinguishable because ¶ Second, is Wulff Although we harmless error. did not address
decision
in
instructions
here
need
decide
whether
not
analysis,
subject
error
we
to harmless
would be
Wulff
Harvey,
preceded
in
254
decision
our
note that Wulff
adopted
the now-
442,
49, in which we
2dWis.
analysis.
controlling
In
error
standard for harmless
largely
analysis
in
rests
on
deed, our
this case
jury instructions, in that
harmlessness of the erroneous
beyond
rational
doubt that a
it
clear
a reasonable
statutory requirements
jury, properly
instructed on
eluding,
found
would have
of the offense
guilty.6 Therefore,
was sufficient
the evidence
Beamon
charge.
him on that
to convict
support
argument
ana
final
47. Beamon's
challenge
sufficiency
lyzing
under
of the evidence
his
for
is that the State
the erroneous
doctrine distin
error
applicability
of the harmless
in which
multiple civil cases
from the
this criminal case
guishes
"is
of the evidence
may
suggested
that
we
have
D.L. Anderson's
See
light
instructions."
evaluated
Anderson,
Leisure Co. v.
Lakeside
2008 WI
2d
feited its that the instructions were errone by proffering ous, first the instructions and then failing object at the instructions conference. Beamon upon 805.13(3),7 relies Wis. Stat. which is entitled provides "Instruction Conference," and Verdict "[flailure object at the conference constitutes a any proposed waiver of error in the instructions or adopt argu verdict."8 We decline to Beamon's forfeiture ment for two reasons. *23 allowing First, 48. the instructions to control
would cause the instructions’ erroneous statement
to
contrary
create a criminal statute. This is
to the
legislature's
authority
exclusive
to enact criminal stat
precept
utes, and would undermine the
that there are
no common
Second,
law crimes Wisconsin.
as the
responsibility
resort,
state court of last
our
is "to
implement
development
oversee and
the statewide
Schumacher,
the law."See
v.
388,
State
144
405,
Wis. 2d
(1988) (quoting
Mosley,
586 question deny important of an we need not review party's issue to raise the below. law based on a failure will mean, however, that we use See id. "This does not power discretionary-review indiscrimi- this broad nately." Id. at 407. unobjected-to Accordingly, but erroneous per is not of the law in the
statement parties failed to se this court where unreviewable Zelenka, raise the issue the trial court. See Rather, 2d 43-45. have discretion disre Wis. at we gard alleged or waiver and consider the forfeiture any issue of forfeiture and merits of because rules power." not of waiver are rules of "administration and 119, 124, 2d Riekkoff, See State v. 112 Wis. N.W.2d (1983); Zelenka, see also 130 Wis. 2d at There apply fore, we decline to the doctrine of forfeiture to presented situation in this case.
III. CONCLUSION ¶ 50. We conclude that instructions that add necessary requirements to what the statute sets out as *24 prove erroneous; a and to the commission of crime are sufficiency therefore, the of the evidence in we examine by comparison requires this statute case to what the by comparison requirement and an not additional actually given. jury jury Furthermore, the subject analy- errors to harmless error instruction sis, are apply analysis A which we here. harmless error asks totality whether, circumstances, on of it is based the the jury, beyond clear a doubt that a rational reasonable properly instructed, have found the defendant would guilty. totality
¶ cir- that under the of 51. We conclude beyond a the cumstances, it is clear reasonable doubt jury guilty fleeing would have found Beamon of attempting to elude an officer absent the erroneous unquestionably sup- The instruction. evidence at trial ported jury's the verdict that violated Beamon the eluding Accordingly, statute. we conclude that there was sufficient Beamon, evidence convict appeals. we affirm the decision court of the By appeals the Court.—The decision of the court of is affirmed. participate.
¶ PROSSER, J., 52. DAVIDT. did not Gdissenting). ¶ BRADLEY, 53. ANN WALSH J. The precipitating wording error at trial lies not in the of a precipitating Rather, instruction. at error trial request lies in the State's decision to instruction theory prosecution that contains factual for which supporting there was no evidence. majority compounds 54. that error treat-
ing theory prosecution a factual as an element of the concluding offense, thus instruction is It is erroneous. not. throughout out, Week in and week courts regularly give jury
this state instructions that contain prosecution. factual theories of To a factual transform theory prosecution into element the offense regular question legitimacy calls into of that state- practice. wide Even if instruction is to be consid- majority additionally compounds erroneous,
ered any by changing error the law when it untethers analysis jury's evidence from by measuring against statutory verdict claim given rather than Thus, elements instruction. it *25 reviewing jury's by the a criminal not affirms conviction theory presented to the not but on the basis of verdict jury. altering the statewide In addition to flaws consequences
practice changing the the law, and the (1) analysis majority's misplaced it are substantial: judicial process integrity because undermines the of the ignore permits court's instruc- it the to the circuit long appellate some later date tion so as an court at given and that the instruction is erroneous determines (2) right by to a trial it violates the constitutional requires jury, subsequent which that a rather than finding "guilty." requisite appellate court, reach the challenging. clear 58. This case is Because it is prove to the that there sufficient evidence elements was tempt- required underlying statute, it the criminal is ing not harmful and to conclude that the instruction is proceed then against to of the evidence measure required by elements the statute rather jury. given by the to the than those court Such analysis, integrity however, undermines process not law in and is Wisconsin. integrity process
¶ I conclude that the of the jury following depends on the the court's instruction judges, As we which establishes the law of the case. expect and indeed command the follow given by it the court. Now as instruction law you majority saying that, essence, "sometimes law, on have to follow court's instruction integrity process you The also sometimes don't." charged guardians requires as that as courts we act right protecting the of trial with basic constitutional regards. Accordingly, jury. majority I fails both respectfully dissent.
I correctly identifying ¶ 60. After the standard for a sufficiency analysis, majority opin- of the evidence the evaluating sufficiency ion turns to whether the against given evidence claim should be measured statutory Majority op., instruction or the elements. acknowledges general ¶ 22. It that the rule is to com- pare the evidence the instruction used at Id. trial.
¶ However, 61. it states that "where the in- accurately structions do not reflect the statute enacted legislature, we cannot review the the evidence with the as our stan- relying Id., ¶ dard." 22. This is because on an "errone- would, effect, ous statement of the . statute .. allow parties and circuit court in case to that define an hoc, Id., ¶ ad common law crime." 23. reviewing Upon
¶ 62. the elements of Wis. Stat. 346.04(3) § comparing them instruction, to the majority [in the case] determines that "the instructions this properly statutory requirements
did not state the 346.04(3)." § fleeing eluding Id., for under Wis. Stat. effectively It 34. concludes that the instruction added an element to the it offense when set forth an additional requirement proving endangerment interference or "by increasing speed Id., of the vehicle to flee." Consequently, majority opines ¶¶ 33, 35. that the instruction is erroneous because it addi- creates "an requirement eluding" tional for the offense of contrary legislature's Id., that to clear intent. ¶ 36. subsequent analysis
¶ 63. In its whether majority sufficient, evidence is determines challenge compares Beamon's it fails when the evidence 346.04(3). Id., to Ultimately, elements of Wis. Stat. instruc- it the erroneous concludes that Id., tion is harmless.
II A. *27 majority Although opinion to ¶ refers the the eluding fleeing parts of or as of the crime constituent "requirements," "requirements" the its use of word "require- really doing. it is The word what obfuscates commonly synonymous defined with what are ment" Dictionary as "elements" of the crime. See Black's Law (7th 1999) (defining crime" as 538 "[t]he ed. "elements of prosecu- parts
constituent a crime . . . the of conviction."); majority op., prove tion must to sustain a (describing parts ¶ of a as "the the constituent crime 23 crime"). requirements necessary constitute a to majority ¶ it a factual 65. The errs when treats theory prosecution of as an element of offense wrong erroneously something is thus concludes that with the instruction. charged of with violation 66. Beamon was contrary eluding to Wis. Stat. or officer 346.40(3).1
§ requested by the State instruction may provided the offense be that the second element of 1 346.04(3) following: Stat. states Wisconsin (3) operator vehicle, having or a visual No of a after received vehicle, officer, signal police or shall from a traffic marked audible any or knowingly attempt willful to elude traffic officer flee or endanger disregard signal as to interfere with or of such so wanton vehicle, police or other operation or the traffic officer of operator speed of pedestrians, increase the or nor shall the vehicles lights in an operator's extinguish the vehicle vehicle or attempt flee. elude or proven only if the found that Beamon acted disregard signal "willful of the visual or as to audible so endanger interfere with the traffic officer" and that "byincreasing speed he did so of the vehicle to flee."2 though may required by 67. Even it not be theory prosecution requested by statute, the factual the State was that Beamon with interfered or endan gered "by increasing speed the traffic officer employed vehicle to flee." The State could other have prosecution. appeals factual theories As court argued observed, the State could have that the traffic endangered by officer was interfered with Beamon failing yield "stop, [the officer] or slow when was pursuing "blast[ing] right through[] him" or Beamon four-way sign." stop App Beamon, State v. 2011 WI n.2, 336 Wis. 2d State, N.W.2d 706. The Subsequent however, chose this one instead. insufficient support theory prosecution evidence to this factual not does render the instruction incorrect. *28 following exchange argument 68. The from oral request underscores that the made the State subse- quently proved contrary to be to its interest. It chose to request theory with a instruction factual prosecution required prove that it to the manner endangered which Beamon interfered with or traf- the "by increasing speed fic his vehicle": officer— Ziegler: Why you Justice think do would State want - to mean, you tie its hands like .... I that? aas prosecutor, five, you prove could this six case different ways, I Why they think. to would limit it increased speed? get I don’t that.
2 The eluding second element of the offense of attempt officer is that "knowingly the defendant must flee or to 346.04(3). any elude traffic officer." Wis. Stat. attorney's I can't the district Counsel: read Defense thing I of is why. only The can think I don't know mind. attorney .. that there anticipated. that the district speed his testimony that he further increased would be hap- That didn't warning signals given. were once the anticipated may attorney pen. It that the district ... be should testimony that come. But then what she didn't changed at done is ask to have instruction have and did not. the end Ziegler: Right, the come at instructions
Justice times, they end, testimony A lot of all the is in. after get I testimony just in. don't conform to as it comes way to to with this one why they would want stick prove the case. You don't know? I
Defense Counsel: don't know.3 out, courts Week in and week circuit this tailored give state throughout Questions that contain factual theories of prosecution. recognized at oral that tailor- argument appropriately fit ing theory prosecution instruction to does make not the instruction erroneous: different, only I Ziegler: thing that's
Justice officer," stopped "police period, if traffic mean it after "by increasing speed phrase and didn't have the flee," basically a standard the vehicle that would be instruction. Right. for the State:
Counsel just they explaining are Ziegler: isn't it Justice So theory of case?" I [] "here's State's at recording argument is available A video oral *29 http://www.wiseye.org/ProgrammingWideoArchive/EventDetail. 2013). (last quoted The ex- May aspx?evhdid=6868 visited change occurs at 1:08:40.
593 mean, you pick a lot of to specific language times have to conform the of the case or facts to show how the going prove State's case. That in a lot happens its of So, different why wrong?4 trials. does that make it majority's analysis The this calls common practice question. into It is now what unclear to extent pat circuit courts should standardized, deviate from a tern each instruction in individual case lest the theory prosecution factual be transformed into an thereby element of offense instruction be deemed erroneous.5
B. ¶ 71. Even if the instruction is to be consid- majority compounds any erroneous, ered error untethering sufficiency analysis of the evidence jury's by measuring against from the verdict the claim statutory given elements rather than the instruc- tion. A a court "cannot affirm criminal on conviction theory presented jury." basis of a not to the Chiarella v. (1980). States, United 445 U.S. 236 Yet that exactly majority appears by ignoring what to do law of case in a favor of evidence analysis theory prosecution that uses another not presented jury. to the
4A
recording
argument
video
oral
is available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.
(last
2013).
aspx?evhdid=6868
May 3,
quoted
visited
ex-
change occurs at 1:12:20.
relying
Circuit courts have
cautioned against
solely
been
pattern jury
on
fashioning
specific
instead of
instruction
jury instruction:
"Standard
are to assist the
instructions
court but should not be
as a
for the
used
substitute
court
developing appropriate
specific
relating
to the
facts
Inc.,
Agri,
each case.” Anderson
v.
Wis. 2d
Alfa-Laval
(Ct.
1997).
345-46,
App.
Members you in upon principles of law which are to follow reaching your in verdict. considering the evidence and instructions, duty of your It is to follow all these may regardless any opinion you about what of have your must base verdict on the You ought law is to be. I give you law these instructions.
Apply to the in the which have been that law facts case only the the evidence. Consider properly proven given this trial and the law as evidence during received alone, guided you these by these instructions from your reach by your judgment, and best soundest reason verdict. any impression my
If member has an opinion guilty or not as to whether the defendant guilty, disregard entirely and decide impression that solely you of fact as view the evidence. the issues You, facts, jury, judges are and the the sole judge only. Court is the the law Criminal Wis-JI The circuit court's instruction followed that is (2000), regularly 100 a instruction pattern jury the state. throughout criminal trials given Courtney, In State v. Wis. 2d 247 a (1976), sufficiency court conducted N.W.2d 714 even a instruction analysis against the evidence element to the added an when the instruction applied juries principle It offense. must follow they as law are instructed the circuit court. Id. Likewise, as State v. Wulff, 207 Wis. 2d 557 N.W.2d (1997) demonstrates, instruction should be analysis for basis of the evidence even *31 support if the evidence is sufficient to a conviction theory prosecution given under another of not to the jury. allegation
¶ In 74. which Wulff, involved an second-degree jury assault, sexual the was instructed to "guilty" return a verdict of if it found that the defendant attempted multiple had one of methods which a person can commit sexual assault. Id. at The 149. State presented prosecution three different theories of at theory trial, but none of them was related to the on jury which result, the was instructed. Id. As a the State produce did meet its not burden to sufficient evidence jury despite at Id. trial. convicted Wulff the State's failure to meet its burden. Id. analyzing sufficiency
¶ In the evidence, of the acknowledged this court had been that in on structed the State's theories, alternative there was sufficient evidence to sustain the conviction. Id. at 152. despite sufficiency However, the fact that a broader require analysis the evidence would it to affirm the explained conviction, the court that it could Wulff "uphold only Wulff s if conviction there was sufficient support guilt charge evidence to on the submitted to the jury in the instructions."6 Id. at
6 Supreme The United recently analyzed States Court a similar situation in the context of double jeopardy a issue in case, Michigan, v. Evans 568 In U.S. __ (2013). trial court, using law, interpretation erroneous determined that the evidence was insufficient to sustain a conviction. Id. at ruling predicated 6. The trial court's was on a misunder- "clear
596 explained recently year, as last this court 76. As "misleading," instruction that even where sufficiency in the must be considered evidence given where the the instruction context of objection at Best Price no trial. instruction received Exchange, Plumbing, 44, ¶ 40, WI Inc. v. Erie Ins. 2012 (citing v. 307, Kovalic DEC 2d 814 N.W.2d419 340 Wis. International, Inc., 863, n.7, 873 469 161Wis. 2d N.W.2d (Ct. 1991)); App. see also D.L. Anderson's Lakeside Anderson, Co., Inc. 2008 WI Leisure v. (when accuracy of a
Wis. 2d
C. consequences 79. The of the majority's mis- placed analysis begin, are substantial. To it undermines
7
§805.18,
procedure statute,
Wisconsin Stat.
a civil
sets
forth a
error
It
applicable
harmless
standard.
made
to
972.11(1).
Harvey,
State v.
§
cases
In
criminal
Wis. Stat.
2002
39,
93,
442,
189,
case,
WI
254
2dWis.
647 N.W.2d
a criminal
recognized
this court
that Wisconsin's harmless error standard
Sherman,
805.18. See
State v.
also
flows from Wis. Stat.
2008
57,
8,
App
248,
WI
2d
310 Wis.
750 N.W.2d
8 Multiple
additionally
state and federal courts have
con
may
cluded that
the law the case
be established even where
See,
e.g.,
United States v.
instruction
is erroneous.
(1st
Johnson,
Zanghi,
United States v.
1999);
vised give you and that in law that I reaching to in these instructions" only the
a verdict the shall consider you by given instruc- evidence and "the law as to these majority Nevertheless, the in essence concludes tions." to the instructions and sometimes has follow here, it the sometimes it doesn't—and need not follow circuit court's instruction. premise responsi-
¶ 81. The that it is the court's bility law, to instruct the on the and that the apply firmly-established instructed, must as is a law principle jurisprudence, of American and we should principle. early continue to follow that As as writing Supreme Harlan, Justice for the United States allowing jury against perils Court, to warned ignore the court's instruction of the law: if private safety peril and alike would be in
Public principle juries in criminal cases be established that may, expounded them right, disregard the law as court, unto themselves. and become a law firmly We must hold to the doctrine that the courts duty juries in criminal of the United States it is the court, apply cases to take the law from the that law they from the evidence. to the facts as find them to be declaring Upon responsibility court rests law; upon jury, responsibility applying con- they, upon as their law so declared the facts science, believe them to be. (1895).
Sparf v. States, 156 U.S. 101-03 United *34 ¶ case, In this some of Justice Harlan's admo- 82. acknowledge display. All nitions are on full that there is speed in no evidence whatsoever of an increase after the lights only question at siren were activated. The resounding trial which addressed the issue resulted negative: you
Defense Counsel: And stated that the car was already your opinion, speed did the car speeding. So up any quicker you got once behind the car? - No, sped
Officer Miller: it was it's -1 don't believe it No, up any got more once I behind the vehicle. sir. any Although complete testi there was a absence of mony indicating in evidence that Beamon other speed vehicle, creased the of his still returned "guilty."9 despite It did so the circuit court's verdict "guilty," it instruction that in order to find Beamon speed must find that Beamon increased the of his lights vehicle after the and sirens were activated. majority's analytical ¶ framework, 83. Under the disregard is free to the circuit court's instruc- disregard be harmless to tion. How can such sanctioned integrity judicial process? Likewise, it harmless when how can be right have a there is a violation of Beamon's majority's analysis guilty? determine he is whether consequence violating the consti has the additional by jury requires right trial that a tutional to a which jury, subsequent appellate court, reach rather than a requisite finding "guilty." Amendment the right The Sixth important by jury most
of trial includes "as its appeal on the evidence at The State has conceded Beamon, v. satisfy trial did not instruction. State 438, 131, 6, App 336 Wis. 2d 804 N.W.2d WI right jury, element, the to have the rather than judge, 'guilty.'" requisite finding v. reach the State Harvey, 2002 WI 254 Wis. 2d 647 N.W.2d *35 (quoting Louisiana, 189 (1993)). Sullivan v. 508 U.S. jury ultimately It is the found Beamon
"guilty,"supposedly
presented.
on the evidence
Accord-
ingly,
appellate
court should affirm his
conviction
analysis only
of the evidence
if the evi-
theory
dence at trial was sufficient to
on the
of
convict
prosecution
jury
as set forth in the
instruction that was
requested by the State.
¶ 86. the conviction on a of prosecution presented jury requires not to the majority speculate jury might what the done if have given hypothetical another In instruction. essence it appellate finding allows the "guilty" court to make the of jury. on behalf of the "guilty" ¶ 87. The found Beamon based on any the instruction of court, the circuit not on other theory prosecution. may of This court not affirm a verdict that the did not render. To do so violates right finding "guilty" by Beamon's to a of itself. consequences ¶ 88. The substantial majority's misplaced analysis glaring all are the more extraordinary steps because of the it takes in order to accuracy review the in the instruction first place. requested Here, the State the instruction it now argues purported is erroneous. The error received no objection Furthermore, before the circuit court. Bea- any mon never asserted error in the instruction and in appeal, only fact relies on it. On he asserted an insuffi- ciency Curiously, of the evidence. it is the State that abandoning appeals, raised the issue before the court of previously the same instruction that it embraced when specifically requested that the circuit court tailor it theory prosecu- fit the State's factual instruction to tion. "[fail legislature has mandated that 89. The object [jury instruction] con conference
ure to at the any proposed in the instruc stitutes a waiver of error 805.13(3). However, rather tions or verdict." Wis. Stat. majority statutory takes directive, the than follow that exercising power extraordinary step this court's Schumacher, discretionary v. review. State (1988). power 388, 407, 2d 424 N.W.2d672 Wis. is not to be issues that are waived this court to review power "indiscriminately," to be but instead "it is a used exceptional sparingly, only in circumstances." used added). (emphasis Id. majority's to review the It is the decision exceptional, *36 in this case that is not instruction charged itself. Beamon was
circumstances of the case arising eight the automobile chase counts from with eight on all counts and its aftermath. He was convicted eight only appeal. challenges counts, one on Of the and among eluding charge fleeing the least or ranks egregious examples criminal conduct.10 of Beamon's By choosing instruction, to review the effectively defining majority bar, lowers "exceptional circumstance" crimi- to include a mine-run following: fleeing or elud- charged with the Beamon was 346.04(3), of a contrary possession § ing an officer to Wis. Stat. 941.28(2), § re- shotgun contrary to Wis. Stat. short-barreled 946.41(1), attempting contrary § sisting an officer to Wis. Stat. 941.21, § contrary to Stat. peace officer Wis. to disarm 946.41(1), contrary § unau- obstructing an officer to Wis. Stat. contrary to entity's identifying information thorized use of an contrary 943.203, a firearm a felon possession § Wis. Stat. property 941.29(2), damage criminal § to Wis. Stat. 943.01(1). contrary to Stat. Wis. indiscriminately nal It utilizes this court's conviction. arguably discretion order to affirm what is the least egregious eight go This court convictions. should not extraordinary lengths to such to avoid a analysis against the evidence measured instruc- is, end, tion that in the a correct statement of the law.
Ill appeal, ¶ 92. The issue that Beamon raised on him, whether the evidence is sufficient to convict easily Here, addressed. was instructed that "guilty" eluding order to return a verdict of for "knowingly an officer, it must find that Beamon fled a squad disregard marked car willful visual signal endanger audible so as to interfere with or by increasing speed traffic officer of the vehicle to suggesting flee." There is no evidence that Beamon speed increased the of his vehicle. favorably
¶ 93. The here, evidence viewed most sustaining conviction, is so insufficient that as a acting reasonably, matter of no fact, law trier of could guilt beyond have found a reasonable doubt. State v. (1990). Poellinger, 153 493, 501, Wis. 2d 451 N.W.2d752 insufficient, Because the evidence is I conclude that Beamon's conviction on this offense must be reversed. Accordingly, respectfully I dissent.
¶ 94. I am authorized to state that CHIEF JUS- joins TICE SHIRLEY S. this dissent. ABRAHAMSON