Fleeing, § 346.04(3) – Elements
¶4 …. In State v. Sterzinger, 2002 WI App 171, ¶9, 256 Wis. 2d 925, 649 N.W.2d 677, this court separated the language of § 346.04(3) into segments: (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. This second segment “encompasses a knowing act (fleeing or attempting to elude the officer), which results in criminal liability if it is accompanied by one of three additional facts.” Sterzinger, 256 Wis. 2d 925, ¶9. Thus the State can prove the second element—that the person knowingly fled or attempted to elude an officer—in one of three ways: 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 by increasing speed or by extinguishing the vehicle’s lights in an attempt to elude or flee. Sterzinger, 256 Wis. 2d 925, ¶9 & n.3.
The court goes on to say, as suggested by the emphases, that the State is not required to prove willful or wanton disregard of signal, etc., and increased speed (nor, and extinguished lights). Rather, these are alternative methods of proving a single element.
Instructions – “Law of the Case” – As Measure of State’s Proof – Harmless Error
The trial court, without objection from either party, instructed the jury on an element that was both superfluous and unsupported by sufficient proof. In particular, the jury was instructed that it must find Beamon acted with willful and wanton disregard and that he did so by increasing his vehicle’s speed. On the one hand, there was no proof that Beamon increased speed, but on the other, this alternative wasn’t necessary to the crime, willful and wanton disregard itself adequately defining that element of the offense. The court rejects Beamon’s argument that under the law of the case doctrine, the instructions define the crime for purposes of reviewing sufficiency of the evidence.
¶7 Instead we look to State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, for guidance. There, the court held that an improper jury instruction which results in constitutional error is subject to the application of the harmless error rule. Id., ¶35 (citing Neder v. United States, 527 U.S. 1, 4 (1999)) ….
A defendant has no due process right, however, to proof beyond a reasonable doubt of elements not necessary to constitute the crime charged, including elements erroneously or unnecessarily charged to the jury. If, for example, a jury is charged that it must find three statutory elements and a fourth element not required by applicable law, that the evidence is insufficient to prove the fourth non-statutory element does not mean that a conviction that is properly supported under the applicable law deprives the defendant of his right to due process.
Inman, 558 F.3d at 748 (second emphasis added); see also id. at 749 (citing United States v. Guevara, 408 F.3d 252, 258 (5th Cir. 2005) and United States v. Zanghi, 189 F.3d 71, 77, 79 (1st Cir. 1999) (both holding that the law of the case does not apply when a jury convicts based upon a patently erroneous jury instruction that varies from the charge as correctly set forth in the indictment by adding an unnecessary element, and the government’s prosecution of the case is based on the correct charge)). Consistent with the due process analysis employed by these courts, we conclude that the evidence is to be measured by the applicable law, not as set forth in the erroneous jury instructions which required an additional finding of fact not essential to the offense. …
¶10 (A)s clarified in Sterzinger, the State need not prove that the defendant actually interfered with or endangered the operation of the police vehicle, traffic officer, other vehicles or pedestrians, but only that the defendant’s actions were likely to produce that result. See Sterzinger, 256 Wis. 2d 925, ¶21.
¶11 Turning to the evidence presented at Beamon’s trial, it is clear beyond a reasonable doubt that a rational jury would have found him guilty absent the error. See Harvey, 254 Wis. 2d 442, ¶49 (citing Neder, 527 U.S. at 18). Miller testified that he was in a marked police vehicle when he followed Beamon with both his emergency lights and siren activated. While being pursued, Beamon drove forty-five to fifty miles per hour in a thirty-mile per hour zone, at night, with his lights extinguished. He proceeded through a four-way stop sign without yielding or stopping, and then rolled out of the car at twenty-five miles per hour, leaving the abandoned vehicle to crash into a parked car. Based on this uncontested and overwhelming evidence, any rational trier of fact would have found beyond a reasonable doubt that Beamon operated a vehicle on a highway after receiving both visual and audible signals from a marked police vehicle and willfully disregarded that signal so as to interfere with or endanger the pursuing officer.