¶ 71. {concurring). The jury convicted Louis LaCount of committing securities fraud in violation of Wis. Stat. § 551.41 by making false representations while selling John Wills an "investment contract." An "investment contract" is identified as a type of security in Wis. Stat. § 55l.02(l3)(a).1 A witness for the State, Attorney David Cohen of the Wisconsin Department of Financial Institutions, was permitted, at trial, to define "investment contract" and to testify that the transaction between LaCount and Wills was "consistent with" an *124investment contract. The circuit court also defined "investment contract" when it instructed the jury. In order to find that LaCount sold a security, an element of the crime of securities fraud, the jury was required to find that LaCount sold Wills an investment contract.
¶ 72. I join the majority opinion, but I write separately to point out the following: (1) it was an erroneous exercise of discretion to permit an expert witness, Cohen, to define "investment contract," which is a legal term of art, because explaining the law to the jury is the exclusive province of the circuit court; (2) it was also an erroneous exercise of discretion to permit Cohen to testify that LaCount committed an element of the crime — here, the sale of a security in the form of an investment contract. However, because I also conclude that the circuit court's errors were harmless, a new trial is not warranted. Accordingly, I respectfully concur.
I. BACKGROUND
¶ 73. A key question in LaCount's trial was whether he sold Wills a "security," as that term is defined by Wisconsin law. It was the State's theory that LaCount sold Wills an "investment contract," which is a type of security. Wis. Stat. § 551.02(13)(a). At trial, LaCount testified that he did not offer an investment to Wills involving Northland Turkey Farms or take any money from him. Before us, LaCount maintains that he merely facilitated a joint venture.
¶ 74. The background of this case is set out by the majority opinion.2 However, relaying more of the record is helpful to my assessment of Cohen's testimony relative to the law that was applied to LaCount's conduct. Cohen was asked and answered as follows:
*125Q. ... Like one of the things you mentioned already was a stock. Is that an investment contract?
A. Yes. I mean investment contract is a very, very broad category. It basically covers everything. You label something like stock and notes because you can figure out what those are, but an investment contract is basically what you can't figure out you call an investment contract. It covers everything, you know, including the stocks, the notes, and then whatever else we can't think of because we just, you know—
Q. Did you review any documents in connection with this case involving Mr. Louis LaCount?
A. Yes, I did.
Q. Do you recall what kind of documents you reviewed?
A. I looked at statements made by the investor. I looked at testimony. I looked at some bank records, the court files, and I'm trying to think what else.
Q. Any other kind of legal documents like mortgage assignments?
A. I looked at some mortgage assignments. We looked at some things off of CCAE We looked at, was it, bank records I think that was.
Q. And based on the documents that you indicated that you reviewed, are you aware that Mr. Wills invested some sixty-four to sixty-nine thousand dollars with Mr. Louis LaCount to acquire some real estate in Northland Turkey Farms?
*126A. According to the documents I have in the file, yes. That is I'm aware of that, yes.
Q. And when you reviewed those documents, what else did you learn through those documents about the facts of this case?
A. Well, I learned about the investment, I learned about what his expectations were when he handed over the money, and I think that's — what else — and to some degree what the background was as to the truthfulness of what he was told or wasn't told at that time.
Q. Based upon your training and experience as well as your knowledge of those facts that you learned, are the things that you learned about this Wills-LaCount transaction consistent with an investment contract?
A. Yes.
¶ 75. In its instructions to the jury in regard to the securities fraud for which LaCount was tried, the circuit court instructed, in relevant part:
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 three elements were present.
First, the item sold was a security as defined by Wisconsin law. An investment contract that meets the following definition is a security.
An investment contract is any investment in a common enterprise with the expectation of profit to be *127delivered through the essential managerial efforts of someone other than the investor. A "common enterprise" means an enterprise in which the fortunes of the investor are tied to the effectiveness of the efforts of those seeking the investment [or] of a third party. If an investor uses his own efforts to achieve a profit, rather than relying on the efforts of a promoter or third party, the investment does not constitute a security.
II. DISCUSSION
A. Standard of Review
¶ 76. Whether to admit evidence is a decision committed to the sound discretion of the circuit court. State v. Franklin, 2004 WI 38, ¶ 6, 270 Wis. 2d 271, 677 N.W.2d 276. We will not overturn a discretionary determination of a circuit court, if the court considered the relevant facts and applied the proper standard of law. Rodak v. Rodak, 150 Wis. 2d 624, 631, 442 N.W.2d 489 (Ct. App. 1989). Applying an incorrect legal standard is an erroneous exercise of discretion. State v. Carlson, 2003 WI 40, ¶ 24, 261 Wis. 2d 97, 661 N.W.2d 51.
¶ 77. We independently review whether an erroneous exercise of discretion is harmless. See State v. Mayo, 2007 WI 78, ¶ 47, 301 Wis. 2d 642, 734 N.W.2d 115; State v. Harvey, 2002 WI 93, ¶ 49, 254 Wis. 2d 442, 647 N.W.2d 189.
B. Cohen's Testimony
¶ 78. The majority opinion asserts that Wis. Stat. § 907.02 and Wis. Stat. § 907.04 permit testimony in the form of an opinion or inference that embraces the ultimate fact; and therefore, it was permissible for *128Cohen to define investment contract in his testimony.3 The majority opinion also characterizes Cohen's testimony that the transaction between LaCount and Wills was "consistent with" an investment contract as having been given in response to a "hypothetical" question.4 I consider both portions of Cohen's testimony in turn.
¶ 79. While it is true that Wis. Stat. § 907.04 permits the admission of opinion testimony, it does not authorize testimony on the ultimate fact when that testimony embraces "a legal concept for which a definitional instruction was required." Lievrouw v. Roth, 157 Wis. 2d 332, 352, 459 N.W.2d 850 (Ct. App. 1990). As the court of appeals explained,
[A] witness' opinion that there was an 'emergency' (which is permissible under Rule 907.04) differs from a [witness'] conclusion that someone was 'negligent' (which is not permissible under Rule 907.04) because, unlike 'emergency,' which the law does not define for juries .. . 'negligence' has prerequisite terms-of-art elements about which the jury must be instructed.
Id. Lievrouw's interpretation of § 907.04 is consistent with the federal courts' interpretation of Federal Rule 704, the federal analogue to § 907.04. Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990); Strong v. E.I DuPont de Nemours Co., 667 F.2d 682, 685-86 (8th Cir. 1981); U.S. Information Sys., Inc. v. Int'l Bhd. of Elec. Workers Local Union No. 3, 313 F. Supp 2d 213, 240-41 (S.D.N.Y. 2004).
¶ 80. The majority opinion does not address the limitation that Lievrouw places on Wis. Stat. § 907.04 opinion testimony. Here, Cohen defined "investment *129contract," a type of security identified in Wis. Stat. § 551.02(13)(a), when he opined:
I mean investment contract is a very, very broad category. It basically covers everything. You label something like stock and notes because you can figure out what those are, but an investment contract is basically what you can't figure out you call an investment contract. It covers everything, you know, including the stocks, the notes, and then whatever else we can't think of.
At the conclusion of the trial, the circuit court instructed the jury on the law in the state of Wisconsin in regard to the meaning of an investment contract. The circuit court explained:
An investment contract is any investment in a common enterprise with the expectation of profit to be delivered through the essential managerial efforts of someone other than the investor. A "common enterprise" means an enterprise in which the fortunes of the investor are tied to the effectiveness of the efforts of those seeking the investment [or] of a third party. If an investor uses his own efforts to achieve a profit, rather than relying on the efforts of a promoter or third party, the investment does not constitute a security.
¶ 81. Cohen's testimony was inconsistent, at least in part, with the instruction given by the circuit court. His testimony described wide and non-specific parameters for transactions that are investment contracts, when he opined that "an investment contract is basically what you can't figure out.... It covers everything." By comparison, the circuit court carefully limited the scope of an investment contract to a "common enterprise" where the profit is expected to be achieved through the "essential managerial efforts" of someone *130other than the investor. The admission of Cohen's testimony in this regard invaded the province of the circuit court, which is the jury's exclusive source of the law that the jury will apply. Wis. Stat. § 805.13(3).
¶ 82. Cohen also testified to his view that the transaction LaCount proposed was "consistent with" a security, an investment contract. He thereby testified that LaCount's conduct satisfied an element of the crime of securities fraud. He did not testify in response to a hypothetical question, but rather, he gave his opinion in response to a question about the specific transaction between LaCount and Wills:
Q. And based on the documents that you indicated that you reviewed, are you aware that Mr. Wills invested some sixty-four to sixty-nine thousand dollars with Mr. Louis LaCount to acquire some real estate in Northland Turkey Farms?
A. According to the documents I have in the file, yes. That is I'm aware of that, yes.
Q. And when you reviewed those documents, what else did you learn through those documents about the facts of this case?
A. Well, I learned about the investment; I learned about what his expectations were when he handed over the money, and I think that's — what else — and to some degree what the background was as to the truthfulness of what he was told or wasn't told at that time.
Q. Based upon your training and experience as well as your knowledge of those facts that you learned, are *131the things that you learned about this Wills-LaCount transaction consistent with an investment contract?
A. Yes.
¶ 83. The circuit court applied an incorrect legal standard in permitting Cohen to define an investment contract and in permitting him to testify that the transaction between LaCount and Wills was consistent with an investment contract. See Lievrouw, 157 Wis. 2d at 352. In the first instance, the court permitted Cohen to testify to what the law is, thereby invading the province of the circuit court; and in the second instance, the court permitted Cohen to reach an ultimate fact, which is an element of the crime that required court instruction for its determination. Id. In applying an incorrect legal standard to Cohen's testimony, the circuit court erroneously exercised its discretion. Carlson, 261 Wis. 2d 97, ¶ 24.
C. Harmless Error
¶ 84. Wisconsin statutory law provides that no judgment shall be reversed, set aside or a new trial granted for the erroneous admission of evidence unless a substantial right of the party claiming error has been affected. Wis. Stat. § 805.18(2).5 In regard to the erroneous admission of evidence, we determine whether a substantial right has been affected by application of Wisconsin's common law harmless error analysis. See State v. Shomberg, 2006 WI 9, ¶ 18, 288 Wis. 2d 1, 709 N.W.2d 370.
*132¶ 85. Although harmless error has been subjected to many types of analyses in many jurisdictions,6 we apply the harmless error analysis set out in Harvey. Mayo, 301 Wis. 2d 642, ¶ 47. We do so regardless of "whether the error is constitutional, statutory, or otherwise." Carlson, 261 Wis. 2d 97, ¶ 46. The burden of proving the error was harmless is on the party who benefited from the error, in this case the State. State v. Stuart, 2005 WI 47, ¶ 40, 279 Wis. 2d 659, 695 N.W.2d 259. In order to conclude that an error was harmless, the beneficiary of the error in a criminal trial must prove that it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Harvey, 254 Wis. 2d 442, ¶ 49 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).
¶ 86. In applying the harmless error test, we examine the totality of the circumstances of each individual case, including but not limited to:
the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State's case, and the overall strength of the State's case.
Mayo, 301 Wis. 2d 642, ¶ 48 (citing State v. Hale, 2005 WI 7, ¶ 61, 277 Wis. 2d 593, 691 N.W.2d 637). What factors are employed in conducting each harmless analysis depends on "the nature of the error that *133occurred" and the harm the error "is alleged to have caused." Carlson, 261 Wis. 2d 97, ¶ 88 (Sykes, J., dissenting).
¶ 87. In the case before us, both errors involve erroneously admitted evidence. First, the circuit court erroneously admitted Cohen's description of the parameters of an investment contract, and his description was not a correct statement of the law. Cohen's definition was overly inclusive. However, the court properly instructed the jury on the definition of an investment contract in Wisconsin. Jurors are presumed to follow the instructions of the circuit court. State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992). Furthermore, while Cohen's definition of an investment contract is too broad, Wills' uncontradicted testimony, set out below, fits well within the definition of an investment contract given by the circuit court.
¶ 88. The second erroneously admitted evidence is Cohen's testimony that the transaction between LaCount and Wills was "consistent with" an investment contract. At trial, LaCount testified that he did not offer any deal to or take any money from Wills. Therefore, Wills' testimony about the characteristics of the investment he made with LaCount is unexplained by the other person to the transaction, LaCount. Wills set out his understanding of what he was purchasing as follows:
Q. What else did he tell you about Northland Turkey Farms?
A. ... They had — they owned the property, and I forget how many acres, a hundred, two hundred acres or something like that, and it was a fairly nice looking piece of property.... Mr. LaCount was looking for investors to invest in — to act as a bank *134and take over the mortgage before it was foreclosed on and — it would be up to the turkey farm to buy it back eventually as their business progressed. If they couldn't, then the property would be probably sold as he explained it to me at a sheriffs sale, and at that point in time the sheriffs sale would bring in "X" amount of dollars, and that would be divied up between the five investors, one of which I was going to be a fifth of the investors' group.
Q. Did he represent to you what the property was likely worth and could be sold for?
A. Yes, in the neighborhood of three-quarters of a million to a million dollars. ...
Q. ... [D]id Mr. LaCount indicate to you how much money he needed from you for this investment?
A. Yes. ... I guess that number would come out to around $70,000.
Q. Did Mr. LaCount, did he make any representations to you about the certainty of this investment or the security of the investment?
A. Yes. ... [H]e explained to me that because they hold all the finances for the company, they are overseeing all their financial matters, when the money comes in, they personally or he will personally go and purchase the mortgage of the property and that there's no way we can lose on this property because it's worth well over the $350,000 that we're putting into this.
Q. So Mr. LaCount would be the one who would be managing the—
*135A. Correct.
Q. —the operation?
A. Correct.
Q. Let's talk a little more specifically about what you're claiming Mr. LaCount told you. As I understand it, you're saying you were told that five people were each going to invest about $70,000 to buy out a $300,000 mortgage, isn't that right, or $350,000 mortgage?
A. Correct.
Q. Okay. And then the investors would either be able to sell that land. If it did come to the point of a foreclosure, they'd either be able to sell it to a developer at a profit or it would get sold at a sheriffs sale for a profit?
A. Correct.
Q. So in essence you and the other investors were going to act as a developer for the property, true?
A. As it was explained to me, I wasn't going to have anything to have to do with it other than reap the benefit. Mr. LaCount was going to be the one that was going to spearhead the whole — the whole deal.
¶ 89. Wills' testimony supports the jury's determination that LaCount sold Wills a security because LaCount sold Wills an investment contract. Wills described his participation in the common enterprise of purchasing some type of rights in property owned by Northland Turkey Farms. His testimony fits within the framework of an investment contract as the circuit *136court described investment contract to the jury because of Wills' passive participation in the investment and his reliance on the efforts of LaCount for the expected profit. For example, Wills described LaCount as saying that he, personally, would do what needed to be done to get the deal underway and that Wills would have no role in the investment, except providing one-fifth of the money and then waiting to "reap the benefit."
¶ 90. Cohen's testimony that the transaction between LaCount and Wills was "consistent with" an investment contract is not at odds with Wills' testimony. Furthermore, the State's case against LaCount was very strong, in part because Wills' testimony about the terms of the investment LaCount proposed was uncon-tradicted, but also because other witnesses established a money trail into accounts to which LaCount had access. The money trail testimony gave credibility to Wills' testimony about the payments he said he made to LaCount and it contradicted LaCount's trial testimony that he did not take any money from Wills.
¶ 91. Accordingly, I conclude that it is clear beyond a reasonable doubt that a rational jury would have found LaCount guilty absent the erroneous admission of Cohen's flawed definition of an investment contract and absent the admission of Cohen's opinion that the transaction between LaCount and Wills was "consistent with" an investment contract.7 Therefore, the errors were harmless.
*137III. CONCLUSION
¶ 92. In sum, I conclude as follows: (1) it was an erroneous exercise of discretion to permit an expert witness, Cohen, to define "investment contract," which is a legal term of art, because explaining the law to the jury is the exclusive province of the circuit court; (2) it was also an erroneous exercise of discretion to permit Cohen to testify that LaCount committed an element of the crime — here, the sale of a security in the form of an investment contract. However, because I also conclude that the circuit court's errors were harmless, a new trial is not warranted.
¶ 93. Accordingly, I respectfully concur.
¶ 94. I am authorized to state that Justice LOUIS B. BUTLER, JR. joins this concurrence.
Majority op., ¶¶ 5-14.
Majority op., ¶¶ 18, 20.
Majority op., ¶ 21.
Wisconsin Stat. § 805.18(2) is made applicable to criminal cases by Wis. Stat. § 972.11(1).
See, e.g., Fry v. Pliler,_U.S._, 127 S. Ct. 2321, 2325 (2007) (concluding that an error that is not of constitutional dimension "is harmless unless it 'had substantial and injurious effect or influence in determining the jury's verdict.'" (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)).
The majority opinion asserts that because the circuit court instructed the jury that it was not bound by an expert's opinion (Crim. J. Ins. 205), any error in Cohen's testimony was harmless. Majority op., ¶ 23.1 cannot subscribe to this view of the effect of Instruction 205 because to do so would immunize from any claim of error in all statements made by expert witnesses.