{dissenting). I dissent from the mandate affirming the conviction in this case because I believe that the circuit court erroneously modified the substantive instruction on aggravated battery in this case. Since I conclude that the modification constitutes plain error, Glenn should be granted a new trial.
Although the circuit court properly instructed the jury with regard to party to a crime involvement in a criminal offense, it inadvertently erroneously modified the aggravated battery instruction in this case. Following an instructions conference, the circuit court indicated that it was going to modify the standard instruction. Regarding pattern jury instruction 1227 (Battery under § 940.19(lm)) [intermediate aggravated battery], the court stated, "that will read, because this is charged party to a crime, first that the defendant or another caused great bodily harm, and throughout it will be the defendant or another, . . ." With no objection from the parties, the circuit court changed instruction 1227 which originally read:1
If you are satisfied beyond a reasonable doubt that the defendant caused great bodily harm to Robert Massaro without Robert Massaro's consent, that the defendant acted with the intent to cause bodily harm to Robert Massaro, and that the defendant knew that Robert Massaro did not consent, you should find the defendant guilty.
to:
*595If you are satisfied beyond a reasonable doubt that the defendant or another caused great bodily harm to Robert Massaro without Robert Massaro's consent, that the defendant or another acted with the intent to cause bodily harm to Robert Massaro, and that the defendant or another knew that Robert Massaro did not consent, you should find the defendant guilty. (Emphasis added.)
The circuit court clearly was attempting to modify the instruction to cover the defendant's potential role as a party to a crime. However, instead of the instruction telling the jury that it should convict the defendant if he either directly committed aggravated battery or if another with whom the defendant acted as a party to a crime committed aggravated battery, the instruction, as given, told the jury to convict the defendant even if another person committed the crime.
In this case, there is no dispute that someone committed the crime. The only issue the State and defense presented to the jury was whether this defendant, either directly or as a party to a crime, committed the aggravated battery. Based on the facts in this record, if the jury followed this instruction, it would have had to convict the defendant whether or not the jurors believed he was party to the crime.
Despite an erroneous jury instruction, we will uphold a jury verdict when, "the jury instructions, when considered as a whole and in their entirety, render the error harmless because the overall meaning communicated by the instruction was a correct statement of the law,..." State v. Paulson, 106 Wis. 2d 96, 108, 315 N.W.2d 350 (1982). However, in this case, the clear instruction to the jury was to convict this defendant even if the jury was convinced beyond a *596reasonable doubt that "another" had committed the crime of intermediate aggravated battery.
Although this court rarely reviews an issue not raised by the parties, I would have requested that the parties brief what appears to be a fundamental error affecting Glenn's rights under the Due Process Clause of the United States Constitution. Despite the fact that failure to make a timely objection to erroneous instructions is considered waiver, this court may choose to review jury instructions "which raise federal constitutional questions going to the integrity of the fact-finding process." State v. Zelenka, 130 Wis. 2d 34, 44, 387 N.W.2d 55 (1986). I feel that review of this issue is warranted despite waiver because the instruction given clearly impinged on the integrity of the fact-finding process.
Further, where the gravity of the erroneous instruction is so great that it goes to the heart of the defense, reversal is warranted. See, e.g., State v. Brown, 118 Wis. 2d 377, 384, 348 N.W.2d 593 (1984); Werner v. State, 66 Wis. 2d 736, 750, 226 N.W.2d 402 (1975). Since the majority chooses not to request rebriefing on this issue, based on the record before us, I believe that the defendant should be granted a new trial.
I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this opinion.
Wis JI — Criminal 1227 was withdrawn in 1994 and replaced with Wis JI — Criminal 1224 (Battery under § 940.19 (4)).