2013 WI 47
SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP2003-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
Courtney C. Beamon,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 336 Wis. 2d 438, 804 N.W.2d 706
(Ct. App. 2011 - Published)
PDC No: 2011 WI App 131
OPINION FILED: May 29, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 5, 2012
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Emily S. Mueller
JUSTICES:
CONCURRED:
DISSENTED: Bradley, J., dissents; Abrahamson, C. J. joins.
NOT PARTICIPATING: Prosser, J., did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Donna L. Hintze, assistant state public defender, and oral
argument by Donna L. Hintze.
For the plaintiff-respondent, the cause was argued by Sally
L. Wellman and the brief was by Rebecca Rapp St. John, assistant
attorneys general, with whom on the brief was J.B. Van Hollen,
attorney general.
An amicus curiae brief was filed by Robert R. Henak and
Henak Law Office, S.C., Milwaukee, on behalf of the Wisconsin
Association of Criminal Defense Lawyers.
2013 WI 47
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP2003-CR
(L.C. No. 2007CF1499)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. MAY 29, 2013
Courtney C. Beamon, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, J. This is a review of a
published decision of the court of appeals1 that affirmed the
judgment of conviction entered by the Racine County Circuit
Court.2 Relevant to this appeal, defendant Courtney C. Beamon
was convicted of fleeing or attempting to elude a traffic
officer, in violation of Wis. Stat. § 346.04(3) (2009-10).3
1
State v. Beamon, 2011 WI App 131, 336 Wis. 2d 438, 804
N.W.2d 706.
2
The Honorable Emily S. Mueller presided.
3
All subsequent references to the Wisconsin Statutes are to
the 2009–10 version unless otherwise indicated.
No. 2010AP2003-CR
Beamon argues that, under the particular jury instructions given
in this case, there was insufficient evidence to convict him of
fleeing or attempting to elude a traffic officer. Specifically,
Beamon claims that the jury instructions required the State to
prove beyond a reasonable doubt that Beamon violated § 346.04(3)
"by increasing the speed of the vehicle to flee," and that there
was no evidence that Beamon increased the speed of his vehicle
after law enforcement officers began to pursue him.
¶2 Wisconsin Stat. § 346.04(3) sets out the two
requirements necessary for commission of the offense charged.
The second requirement may be proven in three different ways.
That is, § 346.04(3) does not require that the defendant's
flight or attempt to elude have been accomplished by the
defendant increasing the speed of his vehicle to flee, as the
instructions given in this case provided. Beamon's argument,
therefore, rests on his contention that the sufficiency of the
evidence must be evaluated by comparison with the jury
instructions actually given, even though those instructions
added a requirement to the statutory definition of the crime.
¶3 We conclude that jury instructions that add
requirements to what the statute sets out as necessary to prove
the commission of a crime are erroneous; and therefore, we
examine the sufficiency of the evidence in this case by
comparison to what the statute requires and not by comparison to
an additional requirement in the jury instructions.
Furthermore, jury instruction errors are subject to harmless
error analysis, which we apply here. A harmless error analysis
2
No. 2010AP2003-CR
asks whether, based on the totality of the circumstances, it is
clear beyond a reasonable doubt that a rational jury, properly
instructed, would have found the defendant guilty.
¶4 We conclude that under the totality of circumstances,
it is clear beyond a reasonable doubt the jury would have found
Beamon guilty of fleeing or attempting to elude an officer
absent the erroneous jury instruction. The evidence at trial
unquestionably supported the jury's verdict that Beamon violated
the fleeing or eluding statute. Accordingly, we conclude that
there was sufficient evidence to convict Beamon, and we affirm
the decision of the court of appeals.
I. BACKGROUND
¶5 In the early morning hours of November 19, 2007, off-
duty Racine Police Officer Dennis Cecchini and another officer
were working as private security guards at the American Legion
Bar in Racine. At approximately 12:45 a.m., the officers heard
multiple gunshots. After radioing police dispatch, the two
officers left the bar to investigate. Officer Cecchini heard
two more gunshots, and took cover behind a parked vehicle.
¶6 Officer Cecchini then observed a male figure run from
the porch of a nearby house in a crouched position and enter a
vehicle parked near the house. Cecchini again radioed dispatch
to describe the vehicle and to provide information about the
vehicle's direction of travel, noting that the vehicle was
driving north, with its headlights extinguished.
¶7 As he was speaking to the dispatcher, Cecchini heard
Racine Police Officer Frank Miller remark on the radio that he
3
No. 2010AP2003-CR
saw the vehicle that Cecchini had described. At that point,
Officer Miller activated his emergency lights and siren and
began following the vehicle, which he noted was travelling
approximately 45 to 50 miles per hour in a 30 miles-per-hour
zone.
¶8 When Officer Miller began pursuit, he was
approximately three-quarters of a block behind the speeding
vehicle. As the vehicle slowed to negotiate a soft right turn,
Officer Miller closed the distance between his squad car and the
other vehicle. After negotiating the turn, the vehicle
continued driving toward an intersection controlled by a four-
way stop sign. The vehicle, still with its lights off, drove
through the intersection without stopping or slowing down.
¶9 Immediately after the vehicle passed through the
intersection, Officer Miller saw the suspect roll out of the
driver's-side door of the vehicle, which was then travelling
approximately 25 miles per hour. The vehicle then ran over the
suspect's legs and collided with a parked car.
¶10 After the suspect was run over by his vehicle, he
stood up and began running away from Officer Miller's squad car.
For a short time, Officer Miller remained in his squad car as he
pursued the suspect, with the lights and sirens still activated.
After coming within a few feet of the suspect, Officer Miller
exited his vehicle and began pursuing on foot. During the
chase, Officer Miller issued various orders to the suspect, all
of which the suspect disregarded. After a lengthy chase, Miller
4
No. 2010AP2003-CR
finally knocked the suspect to the ground, placed him in
handcuffs, and took him to the hospital for medical treatment.
¶11 The suspect, later identified as Beamon, was charged
in an eight-count information, including repeater enhancements
for all counts. The charge relevant to Beamon's current appeal
is Count 1, Vehicle Operator Flee/Elude Officer, in violation of
Wis. Stat. § 346.04(3). For that charge, the information
provided that: "On or about 11-19-2007 . . . [defendant Beamon
did] unlawfully and feloniously, as the operator of a vehicle,
after having received a visual or audible signal from a traffic
officer, or marked police vehicle, knowingly flee or attempt to
elude any traffic officer by willful or wanton disregard of such
signal so as to interfere with or endanger the operation of the
police vehicle, or the traffic officer or other vehicles or
pedestrians, or did increase the speed of the vehicle or
extinguish the lights of the vehicle in an attempt to elude or
flee . . . ."
¶12 At trial, the jury heard testimony from Officer
Cecchini describing the gunshots and the suspect's subsequent
flight in a vehicle with its headlights extinguished. The jury
also heard Officer Miller's testimony regarding the car chase,
the suspect's exit from his moving vehicle, and the foot chase
ending with Beamon's arrest.
¶13 Additionally, the jury heard Beamon's testimony, which
generally corroborated the officers' testimonies. For example,
Beamon testified to having been near the location of the shots
fired; having gotten into the car and driven away with his
5
No. 2010AP2003-CR
headlights extinguished; and having rolled out of the vehicle
while it was still moving. Beamon also did not challenge
Officer Miller's testimony that Miller had activated his
emergency lights and siren during the pursuit; instead, Beamon
asserted that he did not remember seeing or hearing the
emergency signals until he approached the stop sign, at which
point he rolled out of his vehicle. Beamon also testified that
he had been extremely intoxicated that night.
¶14 During the course of the trial, the jury twice heard
the charge against Beamon for fleeing or eluding, exactly as set
forth in the information. The jury first heard the charge
during jury selection, when assistant district attorney Sharon
Riek read the entire information. The second time the jury
heard the information was when Judge Mueller read the charge, as
set forth in the statute, immediately before reading the jury
instructions for the charged offense.
¶15 The instructions that the jury heard immediately
following Judge Mueller's reading of the information did not
track the language used in either Wis. Stat. § 346.04(3) or in
the information. Instead, the instructions provided that:
Sec. 346.04(3) of the Wisconsin Statutes is
violated by a person who operates a motor vehicle on a
highway after receiving a visual or audible signal
from a marked police vehicle and knowingly flees any
traffic officer by willful disregard of such signal so
as to interfere with or endanger the traffic officer
by increasing the speed of the vehicle to flee.
Before you may find the defendant guilty of this
offense, the State must prove by evidence which
satisfies you beyond a reasonable doubt that the
following two elements were present.
6
No. 2010AP2003-CR
First, the defendant operated a motor vehicle on
a highway after receiving a visual and audible signal
from a marked police vehicle.
Secondly, the defendant knowingly fled a marked
squad car by willful disregard of the visual or
audible signal so as to interfere with or endanger the
traffic officer by increasing the speed of the vehicle
to flee.
(Emphases added.) The jury found Beamon guilty of fleeing or
eluding a traffic officer, as well as the other seven counts
charged. The circuit court subsequently entered a judgment of
conviction on the jury verdict, and Beamon was sentenced.
¶16 Beamon appealed his conviction for fleeing or eluding,
alleging that the evidence was insufficient to convict him,
based on the jury instructions. Namely, Beamon argued that
there was no evidence that he had increased the speed of his
vehicle after Officer Miller began pursuing him, and that
without such a showing, the State had failed to prove fleeing or
eluding as that charge was stated in the jury instructions.
¶17 In a published opinion, State v. Beamon, 2011 WI App
131, 336 Wis. 2d 438, 804 N.W.2d 706, the court of appeals
affirmed Beamon's conviction, concluding that the jury
instructions on fleeing or eluding were erroneous, but that any
discrepancy between the jury instructions and the charged
offense was harmless. The court also concluded that the
evidence was sufficient to affirm the conviction when measured
against the offense charged. Id., ¶¶11–12. Beamon petitioned
this court for review, which we granted.
7
No. 2010AP2003-CR
II. DISCUSSION
A. Standard of Review
¶18 Beamon argues that the evidence presented was
insufficient to convict him of fleeing or eluding a traffic
officer under the requirements of the charge as stated in the
jury instructions. Because the jury instructions did not
conform to the requirements of the offense of fleeing or eluding
as set forth in Wis. Stat. § 346.04(3), Beamon's challenge
requires us to determine, as a threshold matter, whether the
jury instructions correctly stated the statutory requirements
for conviction of the crime. Whether jury instructions
accurately state the applicable law presents a question of law,
which we review independently of the circuit court and the court
of appeals, benefiting from their analyses. See State v. Fonte,
2005 WI 77, ¶9, 281 Wis. 2d 654, 698 N.W.2d 594.
¶19 Where jury instructions do not accurately state the
controlling law, we will examine the erroneous instructions
under the standard for harmless error, which presents a question
of law for our independent review. See State v. Harvey, 2002 WI
93, ¶18, 254 Wis. 2d 442, 647 N.W.2d 189.
¶20 Finally, if we determine the jury instruction error
was harmless, we will evaluate the sufficiency of the evidence
under the correct legal standard, and when applying that
standard, we will not overturn the jury's verdict "unless the
evidence, viewed most favorably to the state and the conviction,
is so lacking in probative value and force that no trier of
fact, acting reasonably, could have found guilt beyond a
8
No. 2010AP2003-CR
reasonable doubt" based on the statutory requirements of the
offense. See Fonte, 281 Wis. 2d 654, ¶10 (quoting State v.
Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990))
(internal quotation marks omitted).
B. Sufficiency of the Evidence
1. Legal principles
¶21 The standard for reviewing the sufficiency of the
evidence is highly deferential to a jury's verdict, and provides
that an appellate court may not overturn a jury's verdict unless
the evidence, viewed most favorably to sustaining the
conviction, "is so insufficient in probative value and force
that it can be said as a matter of law that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable
doubt." Poellinger, 153 Wis. 2d at 501. Accordingly, a
defendant challenging the sufficiency of the evidence bears a
heavy burden to show the evidence could not reasonably have
supported a finding of guilt. State v. Hanson, 2012 WI 4, ¶31,
338 Wis. 2d 243, 808 N.W.2d 390.
¶22 This heavy burden for defendants challenging the
sufficiency of the evidence, however, begs the question
presented in this case. Here, the question is whether the
evidence is sufficient according to what standard: the jury
instructions actually used, the statutory requirements of the
crime, or some other legal standard, such as the complaint or
the information? Generally, when the jury instructions conform
to the statutory requirements of that offense, we will review
the sufficiency of the evidence by comparison to those jury
9
No. 2010AP2003-CR
instructions. See, e.g., State v. Witkowski, 163 Wis. 2d 985,
991, 473 N.W.2d 512 (Ct. App. 1991). However, where the jury
instructions do not accurately reflect the statute enacted by
the legislature, we cannot review the sufficiency of the
evidence with the jury instructions as our standard. See State
v. Zelenka, 130 Wis. 2d 34, 48–49, 387 N.W.2d 55 (1986); see
also Jackson v. Virginia, 443 U.S. 307, 318 (1979) (recognizing
that "the critical inquiry on review of the sufficiency of the
evidence . . . must be not simply to determine whether the jury
was properly instructed, but to determine whether the record
evidence could reasonably support a finding of guilt beyond a
reasonable doubt.").
¶23 When reviewing the sufficiency of the evidence, we
cannot rely on an erroneous statement of the statute in the jury
instructions as our standard, because doing so would, in effect,
allow the parties and the circuit court in that case to define
an ad hoc, common law crime. Cf. State v. Baldwin, 101 Wis. 2d
441, 446–47, 304 N.W.2d 742 (1981) (holding that conviction
required proof beyond a reasonable doubt of statutory
requirements of a criminal offense, rather than requirements as
set forth in the complaint and information). Allowing parties
or courts to establish the requirements necessary to constitute
a crime is contrary to the established principle in Wisconsin
that there are no common law crimes and that all crimes are
defined by statute. See Wis. Stat. § 939.10 (abolishing common
law crimes); Wis. Stat. § 939.12 (defining crime as "conduct
which is prohibited by state law").
10
No. 2010AP2003-CR
¶24 Accordingly, a jury instruction that does not
accurately state the statutory requirements for the crime
charged constitutes an erroneous statement of the law. See
Zelenka, 130 Wis. 2d at 48; State v. Ferguson, 2009 WI 50, ¶44,
317 Wis. 2d 586, 767 N.W.2d 187 (noting that even a jury
instruction "that is incomplete, but is in all other respects a
correct statement of the law, may be erroneous"). Such
instructional errors are presumed to be subject to harmless
error analysis, see Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008)
(noting that "while there are some errors to which harmless-
error analysis does not apply, they are the exception and not
the rule") (internal quotation marks and alterations omitted).
Harmless error analysis is appropriate when examining erroneous
jury instructions "so long as the error at issue does not
categorically vitiate all the jury's findings." Id. (quoting
Neder v. United States, 527 U.S. 1, 11 (1999)) (internal
quotation marks omitted). Often, such errors involve omissions
from the jury instructions, whereby the State is relieved of the
burden of proving one or more requirements of an offense. See,
e.g., State v. Smith, 2012 WI 91, ¶¶60–63, 342 Wis. 2d 710, 817
N.W.2d 410 (reaffirming that harmless error analysis applies
where jury instructions erroneously omitted a requirement that,
under the Sixth Amendment, the jury should have been required to
find), cert. denied, 133 S. Ct. 635 (2012).
¶25 If an error that relieves the State of part of its
burden can be harmless, then, logically, a jury instruction that
directs the State to prove additional requirements also may be
11
No. 2010AP2003-CR
subjected to a harmless error analysis. See Zelenka, 130
Wis. 2d at 48–49; State v. Courtney, 74 Wis. 2d 705, 715–16, 247
N.W.2d 714 (1976). These types of errors typically attempt to
increase the State's burden by requiring the State to prove,
beyond a reasonable doubt, certain facts that are not part of
the statutory definition of the relevant offense. See Courtney,
74 Wis. 2d at 716 (upholding guilty verdict where jury
instructions required additional finding, not required by the
offense charged).4 Accordingly, as the United States Supreme
Court has stated, because harmless error analysis can apply
where a statutory requirement is withdrawn from the jury's
consideration, refusing to allow harmless error analysis where
the jury instructions include additional requirements would be
"patently illogical." See Hedgpeth, 555 U.S. at 61 (holding
that harmless error analysis applies where jury was instructed
on alternative theories of guilt).
4
Our discussion in State v. Courtney, 74 Wis. 2d 705, 247
N.W.2d 714 (1976), did not decide the proper standard by which
to review the sufficiency of the evidence when a jury
instruction includes an additional requirement beyond those set
forth in the statute. Rather, in Courtney, the defendant's
sufficiency of the evidence challenge was separate from his jury
instruction error argument. Id. at 713-16. In his sufficiency
of the evidence challenge, Courtney asserted that one of the
requirements——as stated in the controlling administrative code
section——had not been proved at trial. See id. at 713–15. His
separate argument asserting that the jury instruction was
erroneous simply alleged that the addition of that requirement
entitled him to reversal. See id. at 715–16. We concluded that
the evidence was sufficient to show that the offense had been
proved, and that the additional requirement was, in effect,
harmless. See id. at 713–16. Accordingly, our decision in
Courtney supports our conclusion here.
12
No. 2010AP2003-CR
¶26 Given that harmless error analysis applies in the
context of jury instructions that omit statutory requirements,
see Harvey, 254 Wis. 2d 442, ¶47, as well as jury instructions
that include extra considerations beyond what the statute
requires, see Hedgpeth, 555 U.S. at 61, we conclude that
harmless error analysis is appropriate where jury instructions
include a requirement in addition to that set forth in a
statute, such as occurred in Beamon's case. To illustrate, in
Beamon's case, the jury was asked whether Beamon interfered with
or endangered the traffic officer "by increasing the speed of
[his] vehicle to flee." (Emphasis added.) Because such a
connection suggests that the jury had to find that the defendant
interfered with or endangered the officer by engaging in
particular conduct, this type of requirement is distinguishable
from requirements that are not related to the defendant's
conduct; for example, a requirement for an offense that would
direct the jury to find that a firearm is a "deadly weapon."
Cf. Washington v. Recuenco, 548 U.S. 212, 215–16 (2006)
(concluding that harmless error may apply where sentencing court
determined that "firearm" enhancement applied, although jury
found defendant had used a "deadly weapon," rather than a
"firearm"). Nonetheless, because instructional errors are
subject to harmless error analysis, jury instructions that add
an additional requirement also are subject to harmless error
analysis.5 See Hedgpeth, 555 U.S. at 61.
5
One persuasive rationale for applying harmless error
analysis in this context is that many instructional errors can
13
No. 2010AP2003-CR
¶27 Therefore, where a jury instruction erroneously states
the applicable statute, we must determine whether, under the
totality of the circumstances, the erroneous instruction
constituted harmless error. See Harvey, 254 Wis. 2d 442, ¶46;
see also State v. Mayo, 2007 WI 78, ¶48, 301 Wis. 2d 642, 734
N.W.2d 115 (listing several appropriate considerations for
harmless error analysis). Under the standard for evaluating
harmless error, when a court reviews a conviction based on a
jury instruction that included an erroneous requirement, the
court must ask whether it is "'clear beyond a reasonable doubt
that a rational jury would have found the defendant guilty
absent the error.'" See Harvey, 254 Wis. 2d 442, ¶49 (quoting
Neder, 527 U.S. at 18).
¶28 Where the erroneous instructions are determined to
have been harmless, based on the totality of the circumstances,
a court should review the sufficiency of the evidence by
comparing the evidence with the statutory requirements of the
crime. See Zelenka, 130 Wis. 2d at 48–52. This conclusion is
grounded in the defendant's constitutional right of "proof
just as easily be described as mischaracterizing a statutory
requirement as they can be described as imposing an additional
requirement. Cf. California v. Roy, 519 U.S. 2, 5 (1996) (per
curiam) ("The specific error at issue here——an error in the
instruction that defined the crime——is . . . as easily
characterized as a 'misdescription of an element' of the crime,
as it is characterized as an error of 'omission.'").
Accordingly, when a jury instruction imposes an additional
requirement, not itself required by the statute, the instruction
can be said to have incorrectly stated the actual requirements
of the offense according to the statute that sets forth the
crime. See id.
14
No. 2010AP2003-CR
beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged." In re Winship, 397 U.S.
358, 364 (1970). The corollary to this principle is that a
defendant does not have a right to proof beyond a reasonable
doubt for facts that are not required by the statutory statement
of the crime. See United States v. Inman, 558 F.3d 742, 748
(8th Cir. 2009). Therefore, where a defendant challenges the
sufficiency of the evidence and the challenge rests on an
inaccurate statement of the law in the jury instructions, but
the inaccurate statement of the law is determined to have been
harmless, the defendant's sufficiency of the evidence challenge
typically will fail. See Zelenka, 130 Wis. 2d at 48–52.
2. Application
¶29 Beamon claims that, based on the jury instructions for
fleeing or attempting to elude in his case, there was
insufficient evidence to support a finding of guilt beyond a
reasonable doubt. Because a sufficiency of the evidence review
requires us first to ascertain whether the jury instructions
were in accord with controlling law, we begin our analysis of
Beamon's claim with an examination of the controlling statute,
Wis. Stat. § 346.04(3). That statute provides, in its entirety:
No operator of a vehicle, after having received a
visual or audible signal from a traffic officer, or
marked police vehicle, shall knowingly flee or attempt
to elude any traffic officer by willful or wanton
disregard of such signal so as to interfere with or
endanger the operation of the police vehicle, or the
traffic officer or other vehicles or pedestrians, nor
shall the operator increase the speed of the
15
No. 2010AP2003-CR
operator's vehicle or extinguish the lights of the
vehicle in an attempt to elude or flee.
¶30 In State v. Sterzinger, 2002 WI App 171, ¶9, 256
Wis. 2d 925, 649 N.W.2d 677, the court of appeals examined the
statutory requirements of the offense of fleeing or eluding
under Wis. Stat. § 346.04(3). The court of appeals explained
the offense as follows:
(1) No operator of a vehicle, after having
received a visual or audible signal from a traffic
officer, or marked police vehicle,
(2) shall knowingly flee or attempt to elude any
traffic officer,
(3) by wilful or wanton disregard of such signal
so as to interfere with or endanger the operation of
the police vehicle, or the traffic officer or other
vehicles or pedestrians.
Id.
¶31 As the court in Sterzinger noted, the first
requirement——having operated a vehicle after receiving a visual
or audible signal from a traffic officer or marked police
vehicle——corresponds to the first requirement of the crime of
fleeing or eluding. See id.; see also Wis JI—Criminal 2630.
The court also noted that the second requirement "encompasses a
knowing act (fleeing or attempting to elude the officer), which
results in criminal liability under the statute if it is
accompanied by one of three additional facts." Sterzinger, 256
Wis. 2d 925, ¶9. That is, the second and third requirements
explained in Sterzinger——(2) knowingly fleeing/attempting to
elude and (3) by willful or wanton disregard of the signal so as
to interfere with or endanger the officer, vehicles, or
16
No. 2010AP2003-CR
pedestrians——comprise one of the three methods of satisfying the
second requirement of the offense. See Wis JI—Criminal 2630.
¶32 Under both the statute and the pattern instructions,
however, there are also two other methods by which the second
statutory requirement of the offense can be satisfied. Each of
these methods requires proof beyond a reasonable doubt that "the
defendant knowingly fled or attempted to elude a traffic
officer," but each then provides a different method by which
knowing flight or attempted eluding may be shown. The two other
methods of showing fleeing or attempting to elude are "by
increasing the speed of the vehicle" or "by extinguishing the
lights of the vehicle." See Wis JI—Criminal 2630. These are
alternatives and also separate from the "disregarding the visual
or audible signal so as to interfere with or endanger" method
discussed previously.
¶33 With this understanding of the statutory requirements
of Wis. Stat. § 346.04(3), we turn to the jury instructions in
Beamon's case to determine whether they properly stated the
terms of the statute. Those instructions provide, in relevant
part:
Statutory Definition of the Crime
Section 346.04(3) of the Wisconsin Statutes is
violated by a person who operates a motor vehicle on a
highway after receiving a visual or audible signal
from a marked police vehicle and knowingly flees any
traffic officer by willful disregard of such signal so
as to interfere with or endanger the traffic officer
by increasing the speed of the vehicle to flee.
17
No. 2010AP2003-CR
State's Burden of Proof
Before you may find the defendant guilty of this
offense, the State must prove by evidence which
satisfies you beyond a reasonable doubt that the
following two elements were present.
Elements of the Crime That the State Must Prove
1. The defendant operated a motor vehicle on a
highway after receiving a visual and audible signal
from a marked police vehicle.
2. The defendant knowingly fled a marked squad
car by willful disregard of the visual or audible
signal so as to interfere with or endanger the traffic
officer by increasing the speed of the vehicle to
flee.
(Emphases added.)
¶34 Upon review of the instructions used in this case, we
conclude that the instructions did not properly state the
statutory requirements for fleeing or eluding under Wis. Stat.
§ 346.04(3). First, the instructions required that the jury
find that the defendant received "a visual and audible signal
from a marked police vehicle." Section 346.04(3), however, does
not phrase the requirement in the conjunctive, and instead may
be satisfied by a finding that the defendant received either a
visual or an audible signal.
¶35 Second, and more importantly, the instructions
combined two alternative methods of proving the second
requirement of the offense. To reiterate, the second
requirement of Wis. Stat. § 346.04(3)——that the defendant
knowingly fled or attempted to elude an officer——may be
demonstrated in one of three ways: (1) willful disregard of the
signal so as to interfere with or endanger the officer,
18
No. 2010AP2003-CR
vehicles, or pedestrians; (2) increasing the speed of the
vehicle; or (3) extinguishing the lights of the vehicle. In the
instructions in Beamon's case, the first and second methods of
showing that the defendant knowingly fled or attempted to elude
were erroneously set out as though both were required. The jury
was therefore asked not only whether Beamon fled or attempted to
elude by his willful disregard of the signal so as to interfere
with or endanger, but also whether such interference or
endangerment was in turn caused by Beamon having increased the
speed of his vehicle.
¶36 The jury instructions directions for proving the
second statutory requirement by two different factual predicates
had the effect of creating an additional requirement for the
offense of fleeing or eluding. This is contrary to the
legislature's clear separation of the methods by which the State
could show that a defendant's conduct satisfied the second
statutory requirement of fleeing or attempting to elude an
officer. The legislature chose alternative methods by which
Wis. Stat. § 346.04(3) may be contravened; and therefore, we
conclude that the instructions requirement of proof by two
methods was erroneous.
¶37 Because the jury instructions were erroneous, we
determine whether the error was harmless. Under the totality of
the circumstances, as shown in the record, we are satisfied that
the erroneous jury instructions were harmless: it is clear
beyond a reasonable doubt that the jury would have convicted
19
No. 2010AP2003-CR
Beamon of fleeing or eluding if proper instructions had been
given.
¶38 We first note that the erroneous jury instructions
were not the only statement of the law of fleeing or eluding
that the jury received; and therefore, it may be said that the
effect of the erroneous instructions were ameliorated by the
jury having heard multiple correct statements of the law. That
is, the jury was twice read the charge as set forth in the
information, which properly stated the statutory requirements of
Wis. Stat. § 346.04(3). Notably, one of those readings came
immediately before the court read the erroneous instructions.
This is noteworthy because the verdict form that the jury was
required to submit directed the jurors' attention to the
criminal information, rather than the jury instructions, and
stated that "We the jury find the defendant, Courtney C. Beamon,
Guilty of Operating a Motor Vehicle to Flee or In an Attempt to
Elude an Officer as charged in Count One of the Information."
(Emphasis added.) Accordingly, the multiple instances in which
the jury was properly told the statutory requirements are a
factor in our harmless error analysis.
¶39 Furthermore, the jury heard in-depth accounts of the
events of November 19, including Officer Miller's statements
about seeing Beamon's vehicle speeding away from the shooting
scene with its lights extinguished; the officer's activating the
squad's emergency lights and siren; and his following Beamon's
vehicle closely during the car chase. Officer Miller related
Beamon's rolling out of his moving car after running a stop sign
20
No. 2010AP2003-CR
and then seeing the driverless car run into a parked car. The
jury also heard Beamon's version of the events, which did not
attempt to discredit the officers' accounts of the chase, but
instead simply attempted to cast Beamon's actions in a more
favorable light by suggesting that, when he left the scene of
the shooting he was merely trying to get home to his family. In
light of all the testimony, we conclude that it is clear beyond
a reasonable doubt that a rational jury, properly instructed on
the statutory requirements of fleeing or eluding, would have
found Beamon guilty.
¶40 Accordingly, as we shift our analysis to Beamon's
sufficiency of the evidence challenge, we conclude that the jury
instructions cannot provide the proper standard for analysis.
Rather, Beamon's challenge must be reviewed in the context of
the statutory requirements of fleeing or eluding under Wis.
Stat. § 346.04(3). Applying those requirements, Beamon's
challenge does not meet the high standard for reversal of a
jury's verdict under a sufficiency of the evidence review. That
is, in light of the facts adduced at trial, it cannot reasonably
be said "as a matter of law that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt"
for the alleged violation of § 346.04(3). See Poellinger, 153
Wis. 2d at 501. Therefore, Beamon's challenge to the
sufficiency of the evidence must fail.
¶41 Nonetheless, we briefly address Beamon's two primary
arguments, which are that (1) our decision in State v. Wulff,
207 Wis. 2d 143, 557 N.W.2d 813 (1997), requires reversal of
21
No. 2010AP2003-CR
Beamon's conviction; and (2) the State's proffering of the
erroneous instructions constituted forfeiture of its challenge
to the instructions as erroneous.
¶42 First, Beamon argues that reversal is required based
on our statement in Wulff that, in the context of a sufficiency
of the evidence challenge, we would uphold the defendant's
conviction "only if there was sufficient evidence to support
guilt on the charge submitted to the jury in the instructions."
Id. at 153. Although our statement in Wulff seems facially
contradictory to our holding today, our decision in Wulff is
distinguishable from this case on at least two bases.
¶43 In Wulff, the jury was presented with evidence
regarding an alleged sexual assault, including some evidence
that the defendant had attempted fellatio with the victim, which
constitutes sexual intercourse under Wis. Stat. § 940.225(5)(b).
However, there was no evidence that the defendant had attempted
genital or anal intrusion. See id. at 152. Notwithstanding the
trial testimony, the jury instructions asked whether the
defendant committed second-degree sexual assault by attempted
genital or anal intrusion, but not whether the assault was
committed by attempted fellatio. See id. at 147–49.
Nonetheless, the jury returned a verdict of guilty on the charge
of attempted sexual assault by genital or anal intrusion. See
id. at 149. Based on the lack of any evidence of attempted
genital or anal intrusion, this court reversed Wulff's
conviction. See id. at 154.
22
No. 2010AP2003-CR
¶44 The primary distinction between Wulff and our decision
today is the nature of the jury instructions in each case. In
Wulff, the instructions did not add a requirement to the
applicable law; instead, the instructions properly stated one of
the methods by which a defendant could commit second-degree
sexual assault and completely omitted the method for which there
was testimony. Therefore, in Wulff, the jury was asked to apply
the correct law to the facts adduced at trial, and reached a
conclusion contrary to the evidence. In that situation, the
proper standard for evaluating the sufficiency of the evidence
was the jury instructions, because the instructions conveyed a
correct statement of the law, and thereby informed the jury of
the requirements of an actual statutory offense. Under that
standard, the court concluded that "no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt"
for the offense upon which the jury was instructed. Poellinger,
153 Wis. 2d at 507.
¶45 In contrast to Wulff, in which we stated that we could
uphold the conviction "only if there was sufficient evidence to
support guilt on the charge submitted to the jury," 207 Wis. 2d
at 153, here, the addition of a requirement created a charge
that does not exist in the statutes. If we evaluated
sufficiency of the evidence against the instructions given, we
would be sanctioning the creation of a new crime that was not
created by the legislature. This is contrary to Wis. Stat.
§ 939.10, which outlaws common law crimes. Therefore,
23
No. 2010AP2003-CR
sufficiency of the evidence in Beamon's case cannot justifiably
be measured against the jury instructions.
¶46 Second, Wulff is distinguishable because the decision
did not address harmless error. Although we need not decide
here whether the jury instructions in Wulff would be subject to
harmless error analysis, we note that Wulff preceded our
decision in Harvey, 254 Wis. 2d 442, ¶49, in which we adopted
the now-controlling standard for harmless error analysis.
Indeed, our analysis in this case rests largely on the
harmlessness of the erroneous jury instructions, in that it is
clear beyond a reasonable doubt that a rational jury, properly
instructed on the statutory requirements of the offense of
fleeing or eluding, would have found Beamon guilty.6 Therefore,
the evidence was sufficient to convict him on that charge.
¶47 Beamon's final argument in support of analyzing his
sufficiency of the evidence challenge under the erroneous jury
instructions is that the State forfeited its argument that the
instructions were erroneous, first by proffering the
instructions and then by failing to object at the instructions
conference. Beamon relies upon Wis. Stat. § 805.13(3),7 which is
6
The applicability of the harmless error doctrine
distinguishes this criminal case from the multiple civil cases
in which we may have suggested that sufficiency of the evidence
"is evaluated in light of the jury instructions." See D.L.
Anderson's Lakeside Leisure Co. v. Anderson, 2008 WI 126, ¶22,
314 Wis. 2d 560, 757 N.W.2d 803.
7
Wisconsin Stat. § 805.13(3) is made applicable to criminal
cases by operation of Wis. Stat. § 972.11(1).
24
No. 2010AP2003-CR
entitled "Instruction and Verdict Conference," and provides that
"[f]ailure to object at the conference constitutes a waiver of
any error in the proposed instructions or verdict."8 We decline
to adopt Beamon's forfeiture argument for two reasons.
¶48 First, allowing the instructions to control would
cause the instructions erroneous statement to create a criminal
statute. This is contrary to the legislature's exclusive
authority to enact criminal statutes, and would undermine the
precept that there are no common law crimes in Wisconsin.
Second, as the state court of last resort, our responsibility is
"to oversee and implement the statewide development of the law."
See State v. Schumacher, 144 Wis. 2d 388, 405, 424 N.W.2d 672
(1988) (quoting State v. Mosley, 102 Wis. 2d 636, 665, 307
N.W.2d 200 (1981)) (internal quotation marks omitted). As we
recognized in Schumacher, the "power to review an error, even
one technically waived, is essential for this court to properly
discharge its functions." Id. at 406. Therefore, we have a
responsibility to declare what the correct law is, and we need
not deny review of an important question of law based on a
party's failure to raise the issue below. See id. "This does
8
Based on our case law discussing the doctrines of waiver
and forfeiture, we conclude that such failure to object is more
properly labeled forfeiture than waiver. See State v. Ndina,
2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 ("Whereas
forfeiture is the failure to make the timely assertion of a
right, waiver is the intentional relinquishment or abandonment
of a known right.") (quoting United States v. Olano, 507 U.S.
725, 733 (1993)) (internal quotation marks omitted).
25
No. 2010AP2003-CR
not mean, however, that we will use this broad discretionary-
review power indiscriminately." Id. at 407.
¶49 Accordingly, an unobjected-to but erroneous statement
of the law in the jury instructions is not per se unreviewable
by this court where the parties failed to raise the issue in the
trial court. See Zelenka, 130 Wis. 2d at 43–45. Rather, we
have discretion to disregard alleged forfeiture or waiver and
consider the merits of any issue because the rules of forfeiture
and waiver are rules of "administration and not of power." See
State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983);
see also Zelenka, 130 Wis. 2d at 44. Therefore, we decline to
apply the doctrine of forfeiture to the situation presented in
this case.
III. CONCLUSION
¶50 We conclude that jury instructions that add
requirements to what the statute sets out as necessary to prove
the commission of a crime are erroneous; and therefore, we
examine the sufficiency of the evidence in this case by
comparison to what the statute requires and not by comparison to
an additional requirement in the jury instructions actually
given. Furthermore, jury instruction errors are subject to
harmless error analysis, which we apply here. A harmless error
analysis asks whether, based on the totality of the
circumstances, it is clear beyond a reasonable doubt that a
rational jury, properly instructed, would have found the
defendant guilty.
26
No. 2010AP2003-CR
¶51 We conclude that under the totality of circumstances,
it is clear beyond a reasonable doubt the jury would have found
Beamon guilty of fleeing or attempting to elude an officer
absent the erroneous jury instruction. The evidence at trial
unquestionably supported the jury's verdict that Beamon violated
the fleeing or eluding statute. Accordingly, we conclude that
there was sufficient evidence to convict Beamon, and we affirm
the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶52 DAVID T. PROSSER, J., did not participate.
27
No. 2010AP2003-CR.awb
¶53 ANN WALSH BRADLEY, J. (dissenting). The
precipitating error at trial lies not in the wording of a jury
instruction. Rather, the precipitating error at trial lies in
the State's decision to request a jury instruction that contains
a factual theory of prosecution for which there was no
supporting evidence.
¶54 The majority compounds that error by treating a
factual theory of prosecution as an element of the offense, thus
concluding that the jury instruction is erroneous. It is not.
¶55 Week in and week out, courts throughout this state
regularly give jury instructions that contain factual theories
of prosecution. To transform a factual theory of prosecution
into an element of the offense calls into question the
legitimacy of that regular statewide practice.
¶56 Even if the jury instruction is to be considered
erroneous, the majority additionally compounds any error by
changing the law when it untethers the sufficiency of the
evidence analysis from the jury's verdict by measuring the claim
against the statutory elements rather than the given
instruction. Thus, it affirms a criminal conviction not by
reviewing the jury's verdict but on the basis of a theory not
presented to the jury.
¶57 In addition to the flaws of altering statewide
practice and changing the law, the consequences of the
majority's misplaced analysis are substantial: (1) it undermines
the integrity of the judicial process because it permits the
jury to ignore the circuit court's instruction so long as an
1
No. 2010AP2003-CR.awb
appellate court at some later date determines that the given
instruction is erroneous and (2) it violates the constitutional
right to a trial by jury which requires that a jury, rather than
a subsequent appellate court, reach the requisite finding of
"guilty."
¶58 This case is challenging. Because it is clear that
there was sufficient evidence to prove the elements required by
the underlying criminal statute, it is tempting to conclude that
the instruction is not harmful and then proceed to measure the
sufficiency of the evidence against the elements required by the
statute rather than those given by the court to the jury. Such
an analysis, however, undermines the integrity of the process
and is not the law in Wisconsin.
¶59 I conclude that the integrity of the process depends
on the jury following the court's instruction which establishes
the law of the case. As judges, we expect and indeed command
the jury to follow the instruction of the law as given to it by
the court. Now the majority is saying that, in essence,
"sometimes you have to follow the court's instruction on the
law, and sometimes you don't." The integrity of the process
also requires that as courts we act as guardians charged with
protecting the basic constitutional right of trial by jury. The
majority fails in both regards. Accordingly, I respectfully
dissent.
I
¶60 After correctly identifying the standard for a
sufficiency of the evidence analysis, the majority opinion turns
2
No. 2010AP2003-CR.awb
to evaluating whether the sufficiency of the evidence claim
should be measured against the given instruction or the
statutory elements. Majority op., ¶22. It acknowledges that
the general rule is to compare the evidence to the instruction
used at trial. Id.
¶61 However, it states that "where the jury instructions
do not accurately reflect the statute enacted by the
legislature, we cannot review the sufficiency of the evidence
with the jury instructions as our standard." Id., ¶22. This is
because relying on an "erroneous statement of the statute . . .
would, in effect, allow the parties and the circuit court in
that case to define an ad hoc, common law crime." Id., ¶23.
¶62 Upon reviewing the elements of Wis. Stat. § 346.04(3)
and comparing them to the jury instruction, the majority
determines that "the instructions [in this case] did not
properly state the statutory requirements for fleeing or eluding
under Wis. Stat. § 346.04(3)." Id., ¶34. It concludes that the
instruction effectively added an element to the offense when it
set forth an additional requirement of proving interference or
endangerment "by increasing the speed of the vehicle to flee."
Id., ¶¶33, 35. Consequently, the majority opines that the
instruction is erroneous because it creates "an additional
requirement for the offense of fleeing or eluding" that is
contrary to the legislature's clear intent. Id., ¶36.
¶63 In its subsequent analysis of whether the evidence is
sufficient, the majority determines that Beamon's challenge
fails when it compares the evidence to the elements of Wis.
3
No. 2010AP2003-CR.awb
Stat. § 346.04(3). Id., ¶40. Ultimately, it concludes that the
erroneous jury instruction is harmless. Id., ¶51.
II
A.
¶64 Although the majority opinion refers to the
constituent parts of the crime of fleeing or eluding as
"requirements," its use of the word "requirements" obfuscates
what it is really doing. The word "requirement" is synonymous
with what are commonly defined as "elements" of the crime. See
Black's Law Dictionary 538 (7th ed. 1999) (defining "elements of
crime" as "[t]he constituent parts of a crime . . . that the
prosecution must prove to sustain a conviction."); majority op.,
¶23 (describing the constituent parts of a crime as "the
requirements necessary to constitute a crime").
¶65 The majority errs when it treats a factual theory of
prosecution as an element of the offense and thus erroneously
concludes that something is wrong with the jury instruction.
¶66 Beamon was charged with a violation of fleeing or
eluding an officer contrary to Wis. Stat. § 346.40(3).1 The
instruction requested by the State provided that the second
1
Wisconsin Stat. § 346.04(3) states the following:
(3) No operator of a vehicle, after having
received a visual or audible signal from a traffic
officer, or marked police vehicle, shall knowingly
flee or attempt to elude any traffic officer by
willful or wanton disregard of such signal so as to
interfere with or endanger the operation of the police
vehicle, or the traffic officer or other vehicles or
pedestrians, nor shall the operator increase the speed
of the operator's vehicle or extinguish the lights of
the vehicle in an attempt to elude or flee.
4
No. 2010AP2003-CR.awb
element of the offense may be proven only if the jury found that
Beamon acted in "willful disregard of the visual or audible
signal so as to interfere with or endanger the traffic officer"
and that he did so "by increasing the speed of the vehicle to
flee."2
¶67 Even though it may not be required by the statute, the
factual theory of prosecution requested by the State was that
Beamon interfered with or endangered the traffic officer "by
increasing the speed of the vehicle to flee." The State could
have employed other factual theories of prosecution. As the
court of appeals observed, the State could have argued that the
traffic officer was interfered with or endangered by Beamon
failing to "stop, yield or slow when [the officer] was pursuing
him" or by Beamon "blast[ing] right through[] a four-way stop
sign." State v. Beamon, 2011 WI App 131, ¶9 n.2, 336 Wis. 2d
438, 804 N.W.2d 706. The State, however, chose this one
instead. Subsequent insufficient evidence to support this
factual theory of prosecution does not render the jury
instruction incorrect.
¶68 The following exchange from oral argument underscores
that the request made by the State subsequently proved to be
contrary to its interest. It chose to request a jury
instruction with a factual theory of prosecution that required
it to prove the manner in which Beamon interfered with or
2
The second element of the offense of fleeing or eluding an
officer is that the defendant must "knowingly flee or attempt to
elude any traffic officer." Wis. Stat. § 346.04(3).
5
No. 2010AP2003-CR.awb
endangered the traffic officer——"by increasing the speed of his
vehicle":
Justice Ziegler: Why do you think the State would
want to tie its hands like that? . . . . I mean, you –
as a prosecutor, you could prove this case five, six
different ways, I think. Why would they limit it to
increased speed? I don't get that.
Defense Counsel: I can't read the district attorney's
mind. I don't know why. The only thing I can think
of is that the district attorney anticipated . . .
that there would be testimony that he further
increased his speed once the warning signals were
given. That didn't happen. . . . It may be that the
district attorney anticipated testimony that didn't
come. But then what she should have done is ask to
have the jury instruction changed at the end and did
not.
Justice Ziegler: Right, the instructions come at the
end, after all the testimony is in. A lot of times,
they conform to the testimony as it comes in. I just
don't get why they would want to stick with this one
way to prove the case. You don't know?
Defense Counsel: I don't know.3
¶69 Week in and week out, circuit courts throughout this
state give tailored jury instructions that contain factual
theories of prosecution. Questions at oral argument
appropriately recognized that tailoring a jury instruction to
fit the theory of prosecution does not make the instruction
erroneous:
Justice Ziegler: The only thing that's different, I
mean if it stopped after "police or traffic officer,"
period, and didn't have the phrase "by increasing the
3
A video recording of oral argument is available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=6868 (last visited May 3, 2013). The quoted exchange
occurs at 1:08:40.
6
No. 2010AP2003-CR.awb
speed of the vehicle to flee," that would be basically
a standard instruction.
Counsel for the State: Right.
Justice Ziegler: So isn't it just that they are
explaining to the jury []"here's the State's theory of
the case?" I mean, a lot of times you have to pick
specific language to conform to the facts of the case
or to show how the State's going to prove its case.
That happens in a lot of different trials. So, why
does that make it wrong?4
¶70 The majority's analysis calls this common practice
into question. It is now unclear to what extent circuit courts
should deviate from a standardized, pattern jury instruction in
each individual case lest the factual theory of prosecution be
transformed into an element of the offense and the instruction
thereby be deemed erroneous.5
B.
¶71 Even if the jury instruction is to be considered
erroneous, the majority compounds any error by untethering the
sufficiency of the evidence analysis from the jury's verdict by
measuring the claim against the statutory elements rather than
the given instruction. A court "cannot affirm a criminal
conviction on the basis of a theory not presented to the jury."
4
A video recording of oral argument is available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=6868 (last visited May 3, 2013). The quoted exchange
occurs at 1:12:20.
5
Circuit courts have been cautioned against relying solely
on a pattern jury instruction instead of fashioning a specific
jury instruction: "Standard jury instructions are to assist the
court but should not be used as a substitute for the court
developing appropriate instructions relating to the specific
facts of each case." Anderson v. Alfa-Laval Agri, Inc., 209
Wis. 2d 337, 345-46, 564 N.W.2d 788 (Ct. App. 1997).
7
No. 2010AP2003-CR.awb
Chiarella v. United States, 445 U.S. 222, 236 (1980). Yet that
is exactly what the majority appears to do by ignoring the law
of the case in favor of a sufficiency of the evidence analysis
that uses another theory of prosecution not presented to the
jury.
¶72 A court's instruction to the jury establishes the law
of the case, which the jury must accept in making its findings.
State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App.
1989) ("We presume that the jury follows the instructions given
to it."). Indeed, the jury in this case was instructed to base
its verdict on the law that the circuit court set forth in its
instructions:
Members of the jury, the court will now instruct you
upon the principles of law which you are to follow in
considering the evidence and in reaching your verdict.
It is your duty to follow all of these instructions,
regardless of any opinion you may have about what the
law is or ought to be. You must base your verdict on
the law I give you in these instructions.
Apply that law to the facts in the case which have
been properly proven by the evidence. Consider only
the evidence received during this trial and the law as
given to you by these instructions and from these
alone, guided by your soundest reason and best
judgment, reach your verdict.
If any member of the jury has an impression of my
opinion as to whether the defendant is guilty or not
guilty, disregard that impression entirely and decide
the issues of fact solely as you view the evidence.
You, the jury, are the sole judges of the facts, and
the Court is the judge of the law only.
The circuit court's instruction followed Wis-JI Criminal 100
(2000), a pattern jury instruction that is regularly given in
criminal trials throughout the state.
8
No. 2010AP2003-CR.awb
¶73 In State v. Courtney, 74 Wis. 2d 705, 247 N.W.2d 714
(1976), the court conducted a sufficiency of the evidence
analysis against a jury instruction even when the jury
instruction added an element to the offense. It applied the
principle that juries must follow the law as they are instructed
by the circuit court. Id. Likewise, as State v. Wulff, 207
Wis. 2d 143, 557 N.W.2d 813 (1997) demonstrates, a jury
instruction should be the basis for a sufficiency of the
evidence analysis even if the evidence is sufficient to support
a conviction under another theory of prosecution not given to
the jury.
¶74 In Wulff, which involved an allegation of second-
degree sexual assault, the jury was instructed to return a
verdict of "guilty" if it found that the defendant had attempted
one of multiple methods by which a person can commit sexual
assault. Id. at 149. The State presented three different
theories of prosecution at trial, but none of them was related
to the theory on which the jury was instructed. Id. As a
result, the State did not meet its burden to produce sufficient
evidence at trial. Id. The jury convicted Wulff despite the
State's failure to meet its burden. Id.
¶75 In analyzing the sufficiency of the evidence, this
court acknowledged that had the jury been instructed on the
State's alternative theories, there was sufficient evidence to
sustain the conviction. Id. at 152. However, despite the fact
that a broader sufficiency of the evidence analysis would
require it to affirm the conviction, the Wulff court explained
9
No. 2010AP2003-CR.awb
that it could "uphold Wulff's conviction only if there was
sufficient evidence to support guilt on the charge submitted to
the jury in the instructions."6 Id. at 153.
¶76 As recently as last year, this court explained that
even where a jury instruction is "misleading," the sufficiency
of the evidence must be considered in the context of the
instruction given to the jury where the instruction received no
objection at trial. Best Price Plumbing, Inc. v. Erie Ins.
Exchange, 2012 WI 44, ¶40, 340 Wis. 2d 307, 814 N.W.2d 419
(citing Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 873
n.7, 469 N.W.2d 224 (Ct. App. 1991)); see also D.L. Anderson's
Lakeside Leisure Co., Inc. v. Anderson, 2008 WI 126, ¶22, 314
Wis. 2d 560, 757 N.W.2d 803 (when the accuracy of a jury
instruction is not properly contested on appeal, a challenge to
the sufficiency of the evidence is evaluated "in light of the
jury instruction[].").
¶77 Without any citation to authority the majority
suggests that the law of the case doctrine does not apply in
criminal cases in Wisconsin. Majority op., ¶46 n.6. As
6
The United States Supreme Court recently analyzed a
similar situation in the context of a double jeopardy issue in
Evans v. Michigan, 568 U.S. ___ (2013). In that case, the trial
court, using an erroneous interpretation of the law, determined
that the evidence was insufficient to sustain a conviction. Id.
at 6. The trial court's ruling was predicated on a "clear
misunderstanding" of the law because it required an element of
an offense that "was not actually a required element at all."
Id. at 1, 6. Despite the error that added an element to the
offense, the United States Supreme Court determined that the
trial court's ruling constituted an acquittal that precluded
retrial. Id.
10
No. 2010AP2003-CR.awb
explained above, both Courtney and Wulff are criminal cases that
rely on law of the case principles. Additionally, this court
has acknowledged in criminal proceedings that a previous court
of appeals decision or a previous decision of this court may
establish the law of the case. State v. Moeck, 2005 WI 57, 280
Wis. 2d 277, 695 N.W.2d 783; State v. Stuart, 2003 WI 73, 262
Wis. 2d 620, 664 N.W.2d 82. Likewise, the United States Supreme
Court has recognized that in criminal cases, the law of the case
may be established by instructing the jury. U.S. v. Wells, 519
U.S. 582, 487 (1997) (acknowledging that the law of the case may
be established by jury instructions); see also United States v.
Killip, 819 F.2d 1542, 1548-49 (10th Cir. 1987); United States
v. Tapio, 634 F.2d 1092, 1094-95 (8th Cir. 1980); United States
v. Spletzer, 535 F.2d 950, 954 (5th Cir. 1976).7
7
Wisconsin Stat. § 805.18, a civil procedure statute, sets
forth a harmless error standard. It is made applicable to
criminal cases by Wis. Stat. § 972.11(1). In State v. Harvey,
2002 WI 93, ¶39, 254 Wis. 2d 442, 647 N.W.2d 189, a criminal
case, this court recognized that Wisconsin's harmless error
standard flows from Wis. Stat. § 805.18. See also State v.
Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248, 750 N.W.2d 500.
11
No. 2010AP2003-CR.awb
¶78 All of the above cases indicate that jury instructions
become the law of the case in Wisconsin.8 This court should not
change the law and should not affirm a conviction based upon a
theory of prosecution that was never heard by the jury.
Erroneous or not, the jury instruction is the law of the case
and must be the basis for evaluating the sufficiency of the
evidence.
C.
¶79 The consequences of the majority's misplaced analysis
are substantial. To begin, it undermines the integrity of the
judicial process because it permits the jury to ignore the
circuit court's instruction so long as an appellate court at
some later date determines the given instruction is erroneous.
¶80 The circuit court clearly and forcefully advised the
jury that "you must base your verdict on the law that I give to
you in these instructions" and that in reaching a verdict the
jury shall consider only the evidence and "the law as given to
8
Multiple state and federal courts have additionally
concluded that the law of the case may be established even where
a jury instruction is erroneous. See, e.g., United States v.
Zanghi, 189 F.3d 71 (1st Cir. 1999); United States v. Johnson,
652 F.3d 918, 922 n.2 (8th Cir. 2011); United States v.
Williams, 376 F.3d 1048, 1051 (10th Cir. 2004) ("[T]he
government [has] the burden of proving each element of a crime
as set out in a jury instruction to which it failed to object,
even if the unchallenged jury instruction goes beyond the
criminal statute''s requirements."); State v. Azure, 186 P.3d
1269, 1275 (Mont. 2008) (a failure to object to a proposed jury
instruction becomes the law of the case once delivered, whether
or not it includes an unnecessary element); State v. Willis, 103
P.3d 1213, 1217 (Wash. 2005); State v. Rogers, 730 N.W.2d 859,
863 (N.D. 2007) (an unchallenged jury instruction becomes the
law of the case); see also Weeks v. Angelone, 528 U.S. 225, 234
(2000) ("A jury is presumed to follow its instructions.").
12
No. 2010AP2003-CR.awb
you by these instructions." Nevertheless, the majority in
essence concludes that sometimes a jury has to follow the
instructions and sometimes it doesn't——and here, it need not
follow the circuit court's instruction.
¶81 The premise that it is the court's responsibility to
instruct the jury on the law, and that the jury must apply the
law as instructed, is a firmly-established principle of American
jurisprudence, and we should continue to follow that principle.
As early as 1895, Justice Harlan, writing for the United States
Supreme Court, warned against the perils of allowing a jury to
ignore the court's instruction of the law:
Public and private safety alike would be in peril if
the principle be established that juries in criminal
cases may, of right, disregard the law as expounded to
them by the court, and become a law unto themselves.
. . . .
We must hold firmly to the doctrine that in the courts
of the United States it is the duty of juries in
criminal cases to take the law from the court, and
apply that law to the facts as they find them to be
from the evidence. Upon the court rests the
responsibility of declaring the law; upon the jury,
the responsibility of applying the law so declared to
the facts as they, upon their conscience, believe them
to be.
Sparf v. United States, 156 U.S. 51, 101-03 (1895).
¶82 In this case, some of Justice Harlan's admonitions are
on full display. All acknowledge that there is no evidence
whatsoever of an increase in speed after the siren and lights
were activated. The only question at trial which addressed the
issue resulted in a resounding negative:
13
No. 2010AP2003-CR.awb
Defense Counsel: And you stated that the car was
already speeding. So in your opinion, did the car
speed up any quicker once you got behind the car?
Officer Miller: No, it was -– it's – I don't believe
it sped up any more once I got behind the vehicle.
No, sir.
Although there was a complete absence of any testimony or other
evidence indicating that Beamon increased the speed of his
vehicle, the jury still returned a verdict of "guilty."9 It did
so despite the circuit court's instruction that in order to find
Beamon "guilty," it must find that Beamon increased the speed of
his vehicle after the lights and sirens were activated.
¶83 Under the majority's analytical framework, the jury is
free to disregard the circuit court's instruction. How can such
sanctioned disregard be harmless to the integrity of the
judicial process?
¶84 Likewise, how can it be harmless when there is a
violation of Beamon's right to have a jury determine whether he
is guilty? The majority's analysis has the additional
consequence of violating the constitutional right to a trial by
jury which requires that a jury, rather than a subsequent
appellate court, reach the requisite finding of "guilty." The
Sixth Amendment right of trial by jury includes "as its most
important element, the right to have the jury, rather than the
judge, reach the requisite finding of 'guilty.'" State v.
Harvey, 2002 WI 93, ¶20, 254 Wis. 2d 442, 647 N.W.2d 189
(quoting Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)).
9
The State has conceded on appeal that the evidence at
trial did not satisfy the jury instruction. State v. Beamon,
2011 WI App 131, ¶6, 336 Wis. 2d 438, 804 N.W.2d 706.
14
No. 2010AP2003-CR.awb
¶85 It is the jury that ultimately found Beamon "guilty,"
supposedly on the evidence presented. Accordingly, an appellate
court should affirm his conviction in a sufficiency of the
evidence analysis only if the evidence at trial was sufficient
to convict on the theory of prosecution as set forth in the jury
instruction that was requested by the State. Wulff, 207 Wis. 2d
at 152.
¶86 Affirming the conviction on a theory of prosecution
not presented to the jury requires the majority to speculate
what the jury might have done if given another hypothetical
instruction. In essence it allows the appellate court to make
the finding of "guilty" on behalf of the jury.
¶87 The jury found Beamon "guilty" based on the
instruction of the circuit court, not on any other theory of
prosecution. This court may not affirm a verdict that the jury
did not render. To do so violates Beamon's right to a finding
of "guilty" by the jury itself.
¶88 The substantial consequences of the majority's
misplaced analysis are all the more glaring because of the
extraordinary steps it takes in order to review the accuracy of
the jury instruction in the first place. Here, the State
requested the instruction it now argues is erroneous. The
purported error received no objection before the circuit court.
Furthermore, Beamon never asserted any error in the instruction
and in fact relies on it. On appeal, he asserted only an
insufficiency of the evidence. Curiously, it is the State that
raised the issue before the court of appeals, abandoning the
15
No. 2010AP2003-CR.awb
same instruction that it previously embraced when it
specifically requested that the circuit court tailor the
instruction to fit the State's factual theory of prosecution.
¶89 The legislature has mandated that a "[f]ailure to
object at the [jury instruction] conference constitutes a waiver
of any error in the proposed instructions or verdict." Wis.
Stat. § 805.13(3). However, rather than follow that statutory
directive, the majority takes the extraordinary step of
exercising this court's power of discretionary review. State v.
Schumacher, 144 Wis. 2d 388, 407, 424 N.W.2d 672 (1988). The
power of this court to review issues that are waived is not to
be used "indiscriminately," but instead "it is a power to be
used sparingly, and only in exceptional circumstances." Id.
(emphasis added).
¶90 It is the majority's decision to review the jury
instruction in this case that is exceptional, not the
circumstances of the case itself. Beamon was charged with eight
counts arising from the automobile chase and its aftermath. He
was convicted on all eight counts and challenges only one on
appeal. Of the eight counts, the fleeing or eluding charge
16
No. 2010AP2003-CR.awb
ranks among the least egregious examples of Beamon's criminal
conduct.10
¶91 By choosing to review the jury instruction, the
majority lowers the bar, effectively defining an "exceptional
circumstance" to include a mine-run criminal conviction. It
indiscriminately utilizes this court's discretion in order to
affirm what is arguably the least egregious of eight
convictions. This court should not go to such extraordinary
lengths to avoid a sufficiency of the evidence analysis measured
against a jury instruction that is, in the end, a correct
statement of the law.
III
¶92 The issue that Beamon raised on appeal, whether the
evidence is sufficient to convict him, is easily addressed.
Here, the jury was instructed that in order to return a verdict
of "guilty" for fleeing or eluding an officer, it must find that
Beamon "knowingly fled a marked squad car by willful disregard
of the visual or audible signal so as to interfere with or
endanger the traffic officer by increasing the speed of the
vehicle to flee." There is no evidence suggesting that Beamon
increased the speed of his vehicle.
10
Beamon was charged with the following: fleeing or eluding
an officer contrary to Wis. Stat. § 346.04(3), possession of a
short-barreled shotgun contrary to Wis. Stat. § 941.28(2),
resisting an officer contrary to Wis. Stat. § 946.41(1),
attempting to disarm a peace officer contrary to Wis. Stat.
§ 941.21, obstructing an officer contrary to Wis. Stat.
§ 946.41(1), unauthorized use of an entity's identifying
information contrary to Wis. Stat. § 943.203, possession of a
firearm by a felon contrary to Wis. Stat. § 941.29(2), and
criminal damage to property contrary to Wis. Stat. § 943.01(1).
17
No. 2010AP2003-CR.awb
¶93 The evidence here, viewed most favorably to sustaining
the conviction, is so insufficient that as a matter of law no
trier of fact, acting reasonably, could have found guilt beyond
a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501,
451 N.W.2d 752 (1990). Because the evidence is insufficient, I
conclude that Beamon's conviction on this offense must be
reversed. Accordingly, I respectfully dissent.
¶94 I am authorized to state that CHIEF JUSTICE SHIRLEY S.
ABRAHAMSON joins this dissent.
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No. 2010AP2003-CR.awb
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