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Wisconsin Supreme Court: Jury instruction that added a requirement for proof that is not in the statutes was harmless error

Authored by J. Roggensack

State v. Courtney C. Beamon, 2013 WI 47, on review of published court of appeals decision; case activity; majority opinion by Justice Roggensack

Beamon was tried for fleeing an officer under § 346.04(3), which requires proof that the person knowingly fled or attempted to elude an officer in one of three ways:  1) by willful or wanton disregard of a visible or audible signal so as to interfere with or endanger the operation of the police officer or other vehicles or pedestrians; or 2) by increasing speed; or 3) by extinguishing the vehicle’s lights. (¶¶29-32). The trial court, however, instructed on this element in the conjunctive, telling the jury it had to find both that Beamon acted with willful and wanton disregard and that he did so by increasing the speed of his vehicle. (¶¶33, 35-36). On appeal, Beamon argued the evidence was insufficient under the jury instructions, which constituted the “law of the case, because there was no testimony Beamon increased his speed. (¶¶7-9, 16). The court of appeals disagreed, concluding the instruction was erroneous but that the error was harmless. 336 Wis. 2d 438, ¶¶6-11. The supreme court now affirms the court of appeals.

Sufficiency claims are usually decided by reference to the jury instructions; however, the court holds, when the instructions “do not accurately reflect the statute enacted by the legislature,” sufficiency of the evidence must be measured against the statutorily defined elements, not the erroneous instructions. (¶¶22-23, 28). Using the erroneous instructions “would, in effect, allow the parties and the circuit court in that case to define an ad hoc, common law crime,” contrary to the rule that crimes are defined by statute. (¶¶23, 45). Moreover, the due process right to proof beyond a reasonable doubt of every element of the offense carries the corollary that a defendant does not have a right to proof beyond a reasonable doubt of something that is not an element. (¶¶22, 28).

Because only statutes create crimes, an instruction that does not accurately state the statutory elements is erroneous. (¶24). Erroneous instructions are subject to harmless error analysis, “so long as the error at issue does not categorically vitiate all the jury’s findings.” (¶24, quoting Neder v. United States, 527 U.S. 1, 11 (1999)). Instructions that err by  leaving something out, or by taking judicial notice of an element, have been found harmless, e.g., State v. Smith, 2012 WI 91, ¶¶60-63, 342 Wis. 2d 710, 817 N.W.2d 410; State v. Harvey, 2002 WI 93, ¶47, 254 Wis. 2d 442, 647 N.W.2d 189. Therefore, the court concludes, “[i]f 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 subject to harmless error analysis.” (¶25). If the erroneous instruction is harmless under the standard test, which asks whether it is “‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error'” (¶27, quoting Harvey, 254 Wis. 2d 442, ¶49 , and Neder, 527 U.S. at 18), the court should then go on to review the sufficiency of the evidence “by comparing the evidence with the statutory requirements of the crime.” (¶28).

Applying these holdings to Beamon’s case, the court concludes the instruction erroneously combined two alternative methods of proving or committing the second element of the offense, and thus “had the effect of creating an additional requirement for the offense….” (¶¶35-36). It then concludes the error was harmless, citing both the evidence and the language from the information, which was read to the jury as part of the instructions and correctly stated the three methods for fleeing in the disjunctive. (¶¶38-39). That same evidence is also sufficient to convict under the statutory elements of the method charged in the information. (¶40).

An unusual issue, for how often will the state ask for an instruction that requires it to prove more than the applicable statute requires? And it was the state that requested the instruction, a fact mentioned only in passing in the majority (¶47) but made clearer in the dissent by Justices Bradley and Abrahamson (¶¶66,68, 88). The majority also misses a fact noted by the dissent (¶80):  The trial court, as is standard, told the jurors they must follow the law given in its instructions. Why then didn’t the instructions become the “law of the case” for determining sufficiency, as Beamon claimed (336 Wis. 2d 438, ¶6) and the dissent concludes (¶¶71-78)? The majority’s answer is that the elements are created by statute, not the instructions, and applying erroneous instructions creates crimes not recognized by statute. (¶¶23, 45). In addition, Wisconsin has not explicitly applied the “law of the case” doctrine to jury instructions, unlike the jurisdictions cited by the dissent, (¶¶77, 78 n.8)–though a few cases have applied a functionally similar analysis. State v. Courtney, 74 Wis. 2d 705, 247 N.W.2d 714 (1976); State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997). Courtney is closest to this case, for there an “element” was added to the instruction. The court addressed the defendant’s sufficiency claim by reference to the the instruction with the erroneous element, though without invoking “law of the case.” 74 Wis. 2d at 713-15. It also found the erroneous inclusion of the extra element to be harmless, however. Id. at 715-16. (On Wulff, see below.)

The dissent questions whether the instruction is erroneous, suggesting the additional language about Beamon increasing his speed was “a factual theory of prosecution” that proved to be inadvisable because unsupported by the evidence. (¶¶65-68). If it’s a factual theory, though, not an element, can the defendant claim there’s insufficient proof of that factual theory? After all, due process doesn’t require proof of a specific theory of guilt, in addition to the elements, and including something in the instruction doesn’t transform it into an element. Ultimately, though, it isn’t clear why the state asked for the language in this case, and its mimicry of another statutory method for proving the element suggests it was added by mistake.

Assuming the instruction is erroneous, then, the next step is the well-established harmless error standard for assessing instructional error. But the court doesn’t stop there; it goes on to do a  sufficiency analysis. Why? A finding of harmless error will not just “typically” mean the sufficiency claim will fail, as the court says (¶28); it means the sufficiency claim will necessarily fail because a finding beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the instructional error necessarily means the evidence a rational fact-finder could have found guilt. Perhaps the court felt compelled to address the issue actually raised by Beamon, but the extra sufficiency analysis is superfluous.

Finally, a note about Wulff, where the evidence consisted of testimony about a sexual assault defendant’s attempt to commit fellatio, but the jury was instructed that intercourse was defined as anal or genital intrusion; fellatio was not included as an alternative. Because there was no evidence of attempted anal or genital intrusion, the evidence was insufficient in light of the instructions. 207 Wis. 2d at 147-54. The court distinguishes Wulff because the instructions there were correct: They omitted one alternative, but didn’t mistakenly add something not in the statute. (¶44). Somewhat ominously, however, the court notes Wulff was decided before  Neder and Harvey, though the court doesn’t decide whether the instruction in Wulff would be subject to harmless error analysis. (¶46). One must ask how it could be if, as the court just said, the instruction “conveyed a correct statement of the law, and thereby informed the jury of the requirements of an actual statutory offense.” (¶44). Being correct, there’s no error, and no harmless error analysis. This discussion should serve as warning: Insist that legally correct instructions not supported by the evidence are governed by Wulff, not this case, and resist any argument that an instruction is somehow “incorrect” because it doesn’t match the evidence showing the crime was committed by some method other than the one the jury was instructed on.

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