Sufficiency of evidence to support felony bail jumping conviction
The state and the defense stipulated to the fact that Castaneda had been charged with a felony and agreed the jury would be told only that Castaneda had committed a “crime.” (¶¶3-4, 7-9). A proposed instruction that defined a “crime” as being punishable by imprisonment in the state prison was apparently never read to the jury, nor was the jury was given any other instruction from which it could understand a “crime” to fit the definition of felony. (¶¶5-6, 16). “Unfortunately, the faulty stipulation before the jury never identified the crime or whether it was a misdemeanor or a felony. Yet the jury was told the ‘State does not have to put on any further proof to prove [the felony bail jumping charge].’ This was reversible error.” (¶17).
The court rejects the state’s argument that under Dickenson v. State, 75 Wis. 2d 47, 51-52, 248 N.W.2d 447 (1977), the remedy for this error is modification of the felony bail jumping conviction to the lesser misdemeanor bail jumping. That remedy is inconsistent with State v. Myers, 158 Wis. 2d 356, 363, 372, 461 N.W.2d 777 (1990), which held that “[w]hen a conviction is reversed because of insufficient evidence and no instruction on lesser included offenses had been given, a court should not use the guilty verdict as the basis for a conviction on a lesser included offense.”
¶20 Myers is directly on point here. Under the facts before us, the jury, knowing that Castaneda had been charged with a “crime,” could have found Castaneda guilty of misdemeanor bail jumping had it been properly instructed. However, the jury was not instructed on misdemeanor bail jumping. The verdict form states that the jury found Castaneda “guilty of bail jumping as charged in the first count of the information” (some capitalization omitted) and the only bail jumping charge in the information is a felony bail jumping charge. Like the defendant in Myers, see id., 158 Wis. 2d at 365, and unlike the defendant in Dickenson, see Myers, 158 Wis. 2d at 372, the jury trying Castaneda’s case was not instructed on the lesser-included charge. Therefore, simply modifying the conviction and remanding the case for resentencing is not appropriate.
Instead, the case is remanded with directions that a judgment of acquittal be entered on the bail jumping charge. (¶21).
Failure of trial counsel to seek self-defense instruction
Trial counsel’s failure to ask for a self-defense instruction did not prevent the real controversy from being tried where the defendant testified he “might” have struck the victim in the course of protecting himself and defense counsel argued in closing that the defendant did not intentionally hit the victim. (¶¶23-24, 29-32). The court does not consider the defendant’s ineffective assistance claim, holding the circuit court properly denied an evidentiary hearing because the postconviction motion made only conclusory, underdeveloped arguments. (¶36).