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Appellate Procedure – Harmless Error Review – Conclusive Presumption

State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger

Issue/Holding: Instructional error due to mandatory conclusive presumption wasn’t harmless:

¶28      As we have explained, the trial error consisted of an instruction that the jury must accept as true the elemental facts that Schultz acted inconsistently with the duties of her office and intended to obtain a dishonest disadvantage if the jury found that Schultz used state resources to promote a candidate or to raise money for political campaign purposes.  And, as we have concluded, this operated as mandatory conclusive presumptions in violation of Wis. Stat. § 903.03(3) because the court did not instruct the jury that it may, but need not, accept the elemental facts as true.  Thus, the instruction required the jury to find the intent and duty elements were met upon finding that Schultz participated in campaign activities on state time.  We conclude that Schultz’s substantial rights were affected because the instruction operated to relieve the State of its burden of proving beyond a reasonable doubt that Schultz acted inconsistently with her duties and with the intent to obtain a dishonest advantage for herself or another.  As the supreme court explained in Dyess, 124 Wis.  2d at 548:

It is apparent that a reviewing court cannot say that the loss of a jury right on a crucial issue guaranteed by the rules is of so little consequence as to be insubstantial.  Sec. 903.03(3) guarantees to criminal defendants that all presumptions used will have a permissive effect only—that only the jury can find the presumed fact upon the inferences from basic facts which themselves must be proved to the jury beyond a reasonable doubt.  This court cannot ignore its own rules and conclude that the deprivation of a substantial procedural and statutory right caused by faulty jury instructions did not, to a degree of reasonable possibility, contribute to the verdict of guilty.

In other words, the error contributed to Schultz’s conviction beyond a reasonable doubt.  See Harvey, 254 Wis.  2d 442, ¶47.


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