State v. Courtney C. Beamon

• Court: Wisconsin Supreme Court
• Decided: May 29, 2013
• Docket: 2010AP002003-CR
• Status: Published

Opinion

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

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

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.

18 No. 2010AP2003-CR.awb