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Appellate Procedure – Harmless Error – Jury Instructions – Misconduct Evidence

State v. Timothy M. Ziebart, 2003 WI App 258
For Ziebart: Robert R. Henak

Issue/Holding:

¶26. Where the trial court incorrectly instructs the jury, this court must set aside the verdict unless that error was harmless; that is to say, unless there is no reasonable possibility that the error contributed to the conviction. State v. Neumann, 179 Wis. 2d 687, 703, 508 N.W.2d 54 (Ct. App. 1993); see also Wis. Stat. § 805.18(2). In this inquiry, the State has the burden of establishing, beyond a reasonable doubt, that there is no reasonable possibility that the error contributed to the conviction. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). An error is harmless if it is “`clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'” State v. Harvey, 2002 WI 93, ¶46, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). This presents a question of law we review de novo. State v. Harris, 199 Wis. 2d 227, 256-63, 544 N.W.2d 545 (1996). In determining whether an error is harmless, we weigh the effect of the trial court’s error against the totality of the credible evidence supporting the verdict. Id. at 255.¶27. Here, Ziebart could have no complaint if the trial court, instead of instructing the jury that Daryl’s testimony could be considered to evaluate consent and non-consent, had simply advised that it could be considered to evaluate credibility. See State v. Parr, 182 Wis. 2d 349, 361, 513 N.W.2d 647 (Ct. App. 1994) (other-acts evidence was relevant because it “bore directly on the truthfulness of [the defendant’s] and [the victim’s] competing and conflicting versions of the event”). And here, consent/non-consent and credibility were virtually interchangeable. The issue simply was whether Mary’s account, in her trial testimony, or Ziebart’s account, presented to police, was true. That determination reduced to whether Mary consented to Ziebart’s actions. Therefore, assuming that the trial court had not uttered the challenged “consent/non-consent” words, the jury, having been properly instructed to determine the credibility of witnesses, see Wis JI-Criminal 300, still would have evaluated Daryl’s testimony as it bore on Mary’s credibility and, perforce, on her declaration of non-consent.

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