                                                                   2018 WI 80

                  SUPREME COURT                  OF   WISCONSIN
CASE NO.:               2014AP2187-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Cross-Appellant,
                             v.
                        Kyle Lee Monahan,
                                  Defendant-Appellant-Cross-Respondent-
                                  Petitioner.

                              REVIEW OF DECISION OF THE COURT OF APPEALS
                             Reported at 375 Wis. 2d 796, 899 N.W.2d 737
                                         (2017 – unpublished)

OPINION FILED:          June 28, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 14, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Lafayette
   JUDGE:               William D. Johnston

JUSTICES:
   CONCURRED:
   DISSENTED:           R.G. BRADLEY, J., dissents, joined by
                        ABRAHAMSON, J., and A.W. BRADLEY, J. (opinion
                        filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For        the   defendant-appellant-cross-respondent-petitioner,
there    were       briefs    filed   and   an   oral   argument    by   Andrew   R.
Hinkel, assistant state public defender.


       For the plaintiff-respondent-cross-appellant, there was a
brief filed and an oral argument by Jeffrey J. Kassel, assistant
attorney general, with whom on the brief was Brad D. Schimel,
attorney general.
    An amicus curiae brief was filed on behalf of Wisconsin
Association of Criminal Defense Lawyers by Robert R. Henak and
Henak Law Office, S.C., Milwaukee.




                                2
                                                                             2018 WI 80
                                                                     NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.       2014AP2187-CR
(L.C. No.    2012CF72)

STATE OF WISCONSIN                              :               IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent-Cross-Appellant,

      v.
                                                                          FILED
Kyle Lee Monahan,                                                    JUN 28, 2018

          Defendant-Appellant-Cross-Respondent-                         Sheila T. Reiff
                                                                     Clerk of Supreme Court
Petitioner.




      REVIEW of a decision of the Court of Appeals.                     Affirmed.



      ¶1      MICHAEL    J.   GABLEMAN,    J.   This       is    a     review      of    an

unpublished, authored decision of the court of appeals affirming

the   Lafayette     County    Circuit     Court's1     judgment        of    conviction




      1
          The Honorable William D. Johnston, presiding.
                                                       No.       2014AP2187-CR



against Kyle Lee Monahan.2       State v. Monahan, No. 2014AP2187-CR,

unpublished slip op. (Wis. Ct. App. Apr. 27, 2017).                  Monahan

raises    a   single   issue   for   our   review:   was   the     erroneous

exclusion of data from a portable GPS unit harmless?

     ¶2       We hold that the circuit court's erroneous exclusion

of the GPS data was harmless, and therefore affirm the decision

of the court of appeals.

                 I.    FACTUAL AND PROCEDURAL BACKGROUND

     ¶3       Monahan was involved in a single-vehicle crash that

took place on August 20, 2011, in Shullsburg, Wisconsin.                As a

result of this crash, Monahan was seriously injured and his

girlfriend, R.C., who was also in the vehicle, was killed.                The

State subsequently charged Monahan with three counts of criminal

conduct:      (1) homicide by intoxicated use of a motor vehicle

contrary to Wis. Stat. § 940.09(1)(a) (2011-12)3; (2) homicide by




     2
       The court of appeals also reversed a circuit court order
granting Monahan's postconviction motion to relieve Monahan from
paying the DNA surcharge. State v. Monahan, No. 2014AP2187-CR,
unpublished slip op., ¶56 (Wis. Ct. App. Apr. 27, 2017).
Monahan states in his petition for review that he does not raise
this issue for our review.   Accordingly, we do not consider it
further.    See State v. Sulla, 2016 WI 46, ¶7 n.5, 369
Wis. 2d 225, 880 N.W.2d 659 (quoting Jankee v. Clark Cty., 2000
WI 64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297) ("If an issue is not
raised in the petition for review or in a cross petition, 'the
issue is not before us.'").
     3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                      2
                                                                   No.      2014AP2187-CR



intoxicated use of a vehicle contrary to § 940.09(1)(b)4; and (3)

homicide by negligent operation of a vehicle contrary to Wis.

Stat.    § 940.10(1).         The    only       factual    dispute     at    trial    was

whether it was Monahan or R.C. who was driving at the time of

the crash.

    ¶4      Monahan and R.C. met in early summer 2011 and started

dating    shortly    thereafter.        R.C.         worked   as   a   nanny    in    the

Chicago    suburb    of     Glenview,       and      she   would   often      drive    to

Shullsburg on weekends to visit Monahan.                       The crash occurred

during one such weekend.

    ¶5      R.C. arrived in Shullsburg at approximately 12:30 p.m.

on Saturday, August 20, 2011.                   The couple engaged in several

social activities during the course of that day.                       One such event

was a birthday party for Monahan's cousin, which was held at

that cousin's farm.           Monahan and R.C. arrived at the farm in

R.C.'s    Saab   9-5       station   wagon          at   approximately      6:30     p.m.

Monahan    and      R.C.     each    had        a    couple    drinks,       but     left

approximately 45 minutes later at about 7:15 p.m. because R.C.




    4
       Though count one and two have the same title, they are
based on different statutory provisions.    Count one prohibits
"[c]aus[ing] the death of another by operation or handling of a
vehicle while under the influence of an intoxicant." Wis. Stat.
§ 940.09(1)(a).   Count two prohibits "[c]aus[ing] the death of
another by the operation or handling of a vehicle while the
person    has   a   prohibited  alcohol   concentration . . . ."
§ 940.09(1)(b). See also infra note 9.


                                            3
                                                                No.   2014AP2187-CR



was exhausted from the day.5               Multiple eyewitnesses testified

that Monahan was in the passenger seat when he left in the Saab

with R.C.

       ¶6        After   leaving   the   party,    the   Saab     experienced    a

catastrophic rollover event.             Both Monahan and R.C. were ejected

from       the   vehicle.     At   the   scene,   emergency     personnel   asked

Monahan multiple times how many people were in the Saab in order

to ensure there were no others to be found (first responders

were especially concerned by an empty child seat they found in

the back of the Saab, which R.C. kept in her vehicle due to her

job as a nanny).

       ¶7        Multiple   emergency    personnel   asked    Monahan    who    was

driving.         To each, he initially stated that he did not know, but

then stated that he probably was the driver.6                    Throughout the




       5
       Between the time R.C. arrived in Shullsburg and the start
of the party, Monahan and R.C. had socialized at his home and a
local restaurant, and assisted his cousin in preparing for the
party.
       6
       While Monahan was still lying on the ground after the
crash, he told Shullsburg firefighter Timothy Corley "I was
driving, I guess."

     After Monahan was placed on a backboard at the side of the
road, Lafayette County Sheriff's Deputy Paul Klang walked
towards him to question him.     While walking towards Monahan,
Deputy Klang heard him say "that is the last time I will drink
and drive."     When Deputy Klang questioned Monahan directly,
Monahan did not remember who was driving. After being informed
a female was also in the vehicle, Monahan said "I was probably
driving, then."

                                                                      (continued)
                                          4
                                                                       No.       2014AP2187-CR



following several hours, Monahan's recollection of who had been

driving at the time of the crash continued to evolve, eventually

adhering    to      the    conclusion      that    he,    in    fact,       had    been      the

driver.         While     in   a   medical     helicopter       on    the        way    to   the

hospital, Monahan unequivocally stated that he was driving the

Saab.      At    the      hospital,    after      undergoing      emergency            surgery,

Monahan——unprompted——asked for a pen and pad of paper and wrote

that he remembered the accident and that he had been driving.

However, on January 13, 2012, while signing a DNA sample consent

form, Monahan told Wisconsin State Trooper Ryan Zukowski, "[i]t

doesn't matter, you know, I wasn't driving."                          Ten months after

the accident, in July 2012, Monahan told Wisconsin State Trooper

Thomas Parrott "[i]t's not like I meant [it to] F'ing happen."

At   trial,      Monahan       testified     that    he     did      not     remember        the

accident and did not remember ever admitting that he was the

driver.

      ¶8      The    State     and    Monahan     engaged      their       own    respective

experts.        Trooper Parrott prepared a report and testified on


     After Monahan was moved to a gurney, while being treated by
EMS personnel, Lafayette County Sheriff's Deputy Michael Gorham
asked Monahan who was driving.      Monahan responded, "I don't
know, I might have been."   Shortly after this exchange, Deputy
Gorham returned with a digital recorder at the instruction of
Lafayette County Sheriff's Sergeant Darrell Morrissey.    Deputy
Gorham again asked Monahan, "were you the driver?"       Monahan
responded, "yeah, I guess."     After informing Monahan that a
firefighter reported seeing Monahan driving the car out of
Shullsburg, Deputy Gorham asked Monahan "so you were the
driver?"   Monahan responded "yeah."    Gorham followed up "you
were?" Monahan again responded "yeah."


                                             5
                                                                  No.       2014AP2187-CR



behalf of the State.           Paul Erdtmann, a Licensed Professional

Engineer, prepared a report and testified on behalf of Monahan.

       ¶9     Erdtmann and Trooper Parrott both came to some of the

same   conclusions.         Both    experts      agreed    that       the     Saab   was

traveling between approximately 87 and 100 miles per hour when

the crash sequence began.             The crash sequence began when the

Saab's      wheels   left   the    pavement      and   fell     onto     the     grassy

shoulder.       After   leaving     the       pavement,   the     Saab      "furrowed"

towards the passenger's side——that is, the Saab moved sideways

through the grassy shoulder area such that the passenger's side

(and not the front) of the Saab was leading the path of travel.

The Saab went airborne after "tripping" on something on the

shoulder and rolled multiple times with the passenger's side

leading the rolls.

       ¶10    Both   experts   also   agreed      that    at    the     time    of   the

crash, the passenger's side window was open, the sunroof was

open, the driver's side window was closed, neither occupant wore

their seatbelt, and both occupants were ejected from the Saab.
The experts further agreed that R.C. had been ejected from the

vehicle before Monahan based on each occupant's resting position

at the crash scene.

       ¶11    The two experts disagreed, however, as to the ultimate

conclusion to be drawn from the physical evidence.                              Trooper

Parrott concluded that Monahan was the driver.                        He based this

conclusion on a number of pieces of physical evidence.                           First,

the amount of dirt on both R.C. and Monahan's clothing indicated
that R.C. had been in the passenger's seat.                R.C.'s clothes were
                                          6
                                                                     No.     2014AP2187-CR



covered in dirt; conversely, Monahan's clothes were relatively

clean.      This indicated to Trooper Parrott that R.C. was in the

passenger's       seat     because     the     Saab       would     have     kicked    up

substantial amounts of dirt that would have entered the vehicle

through     the    open     passenger's        side       window.          Further,   the

passenger's       side    windowsill     had    an    area     where   the     dirt   was

rubbed off.        Based on the amount of dirt on each occupant's

clothing, Trooper Parrott concluded that R.C. rubbed the dirt

off the windowsill while she exited the Saab.

      ¶12    Next, Trooper Parrott testified that the physics of

the crash showed that R.C. had been ejected through the open

passenger's side window, making it likely she had been seated in

the passenger's seat and not the driver's seat at the time of

the   crash.       He    further   testified         that    the    positions    of   the

driver's seat and front passenger's seat in the Saab indicated

that Monahan was driving.

      ¶13    Finally, Trooper Parrott testified that the driver's

side airbag was covered in blood.                  Analysts at the State Crime
Lab found Monahan's DNA in this blood.                      Analysts found a second

DNA   profile      in     the   blood,       but     it     was     insufficient      for

identification.          This indicated that Monahan had to be in the

driver's seat, as his blood would not have covered the airbag

had he been in the passenger's seat.

      ¶14    On the other hand, Erdtmann testified that he could

not determine, to a reasonable degree of engineering certainty,

who had been driving at the time of the accident.                             He agreed
with Trooper Parrott that R.C. had been ejected first, but he
                                          7
                                                                   No.    2014AP2187-CR



concluded that R.C. could have been ejected through the open

sunroof and therefore could have been the driver.                        He testified

that it was equally likely that R.C. was ejected through the

sunroof from the driver's seat as it was that she was ejected

through the passenger's side window from the passenger's seat.

    ¶15       In regard to the seat positions, Erdtmann conducted a

test on an exemplar Saab that was the same model and year as

R.C.'s.       He placed the seats in the exact positions at which

they were found after the crash.                He then found individuals to

serve    as   models     who   were    approximately      the   same      height    and

weight as Monahan and R.C.             The R.C. model was able to reach the

pedals    and    steering      wheel    from    the     driver's     seat    with    no

"physical       constraints."          The     Monahan    model      was    able    to

"comfortably" sit in the passenger's seat.                      On rebuttal, the

State offered the testimony of R.C.'s mother, who testified that

R.C. "would always have her seat as close up to the steering

wheel as she possibly could" and that the R.C. model was "much

farther back than [R.C.] would have been."
    ¶16       Erdtmann    also   testified       that    he   inferred      that    the

second DNA profile found on the driver's side airbag was R.C.'s.

He testified that, given the jostling that occurred inside the

Saab while it was rolling, the DNA was inconclusive as to seat

position——meaning that Monahan's DNA could have fallen on the

driver's side airbag from the passenger's seat when the Saab was

rolling.

    ¶17       It is against this factual backdrop that we come to
the evidentiary crux of this matter——the erroneously excluded
                                          8
                                                           No.   2014AP2187-CR



GPS data.     R.C. owned a portable GPS unit that she kept in the

Saab.   The GPS unit recorded timestamped coordinates when it was

powered on.     This allowed both Erdtmann and Trooper Parrott to

recreate the Saab's movements and calculate its speed on the

date of the accident.

    ¶18     The data extracted from the GPS unit for the trip

commencing at approximately 7:15 p.m. on August 20, 2011, from

the farm to the crash site showed that the Saab was driving at a

high rate of speed——sometimes in excess of 100 miles per hour——

after leaving the farm.          It also showed that after leaving the

farm, the Saab stopped for approximately two minutes in downtown

Shullsburg before resuming the trip.              Neither party presented

any direct evidence as to what happened during this stop.               After

resuming the trip, the Saab again traveled at a high rate of

speed——again sometimes exceeding 100 miles per hour——during the

time period between the two-minute stop and the crash.

    ¶19     Both   the   State    and   Monahan   filed   pretrial    motions

regarding the GPS data for the portion of the trip between the
farm and the two-minute stop.           Monahan moved for its admission,

intending to use the GPS data of the entire trip between the

farm and the crash to show that the same person was likely

driving both before and after the stop in Shullsburg.                He based

this argument on the fact that the GPS data revealed similar

driving patterns both before and after the stop.                 He reasoned

that combined with eyewitness testimony that R.C. was driving

when the pair left the farm, the jury could reasonably conclude
that R.C. was driving at the time of the crash.
                                        9
                                                   No.   2014AP2187-CR



     ¶20   The State opposed admission of the GPS data detailing

the portion of the trip between the farm and Shullsburg, arguing

that only the GPS data of the segment between Shullsburg and the

crash should be admitted.      The State argued that admitting the

GPS data relating to the trip between the farm and Shullsburg

would constitute other acts evidence used to show propensity.

See Wis. Stat. § 904.04(2).7    The State argued that, if Monahan's

motion was granted, the GPS data would be improperly used to

show that R.C. had a propensity for driving above the speed

limit, and thus must have been driving at the time of the crash.

See id.

     ¶21   The circuit court denied Monahan's motion and admitted

only the GPS data relating to the period of time between the




     7
       Wisconsin Stat. § 904.04(2) states, in relevant part:
"[E]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that the
person acted in conformity therewith."


                                 10
                                                                      No.   2014AP2187-CR



two-minute        stop    in    Shullsburg        and   the    crash.8      This   ruling

reflected the circuit court's determination that the GPS data

between     the    farm    and       two-minute     stop      constituted    other   acts

evidence offered to show R.C.'s propensity for driving fast.                          In

the   circuit      court's       view,     the     continuum     of   relevant     events

leading to the crash started at the two-minute stop, not the

farm.

      ¶22    Although          the   GPS   data    relating      to   the   time   period

between the two-minute stop and the crash was admitted, it did

not become the centerpiece of either party's case.                             In fact,

after its introduction into evidence, it was not discussed again


      8
       The pretrial motions filed by Monahan and the State also
addressed GPS data that would show the Saab traveled at a high
rate of speed on the way to the farm; a period during which the
parties agree R.C. was driving. The circuit court excluded this
GPS data for the same reasons it excluded the GPS data of the
trip between the farm and Shullsburg.      The extent to which
Monahan appeals exclusion of the trip to the farm is unclear——at
various points in briefing, he appears to challenge only the
exclusion of the trip from the farm to Shullsburg, but at other
points, he appears to also challenge the exclusion of the trip
to the farm.   The scope of the State's confession of error is
similarly unclear.   In its brief to the court of appeals——the
first point at which the State confessed error in this case——the
State conceded error only as to the trip between the farm and
Shullsburg. However, other areas of briefing and oral arguments
to this court indicate that the State may also confess error as
to the trip to the farm.   Neither party offers analysis of the
trip to the farm separate from its analysis of the trip from the
farm to Shullsburg.

     We determine that separately addressing the exclusion of
the GPS data relating to the trip to the farm is unnecessary
because our analysis and holding would remain the same even if
we assumed error regarding that trip.


                                             11
                                                               No.    2014AP2187-CR



until the State's closing argument.               In closing argument, the

State asserted that it did not "make sense that a young girl who

doesn't know the area is driving on some rural road and driving,

no less, after she'd been drinking[,] and at speeds of 40 to 50

miles    per    hour     over   the   speed   limit[.]   That        doesn't   make

sense."

     ¶23       The jury returned verdicts of guilty as to all three

counts.9

     ¶24       Monahan    appealed,     arguing   that   the    circuit        court

erroneously excluded the GPS data relating to the time period

between the farm and the two-minute stop in Shullsburg.                          The

State conceded——and the court of appeals accepted for purposes

of appeal——that the circuit court's exclusion of the GPS data




     9
        The circuit court dismissed count two by operation of
Wis. Stat. § 940.09(1m), which states in relevant part:      "[a]
person may be charged with and a prosecutor may proceed upon an
information based upon a violation of any combination of sub.
(1)(a) . . . or (b) . . . for acts arising out of the same
incident or occurrence. . . . If the person is found guilty of
more than one of the crimes so charged for acts arising out of
the same incident or occurrence, there shall be a single
conviction for purposes of sentencing . . . ."        The circuit
court dismissed count three by operation of Wis. Stat.
§ 939.66(2),   which  states,   in   relevant   part:     "[u]pon
prosecution for a crime, the actor may be conviction of either
the crime charged or an included crime, but not both.          An
included crime may be . . . [a] crime which is a less serious
type of criminal homicide than the one charged."


                                         12
                                                                      No.     2014AP2187-CR



was erroneous.10         Monahan, 2014AP2187-CR, ¶2.               However, the court

of appeals concluded that the error was harmless.                                Id.     In

explaining its conclusion, the court of appeals emphasized the

strength of the State's case.                 Id., ¶17.

       ¶25     First, the court of appeals noted that Monahan's many

admissions that he had been driving at the time the accident

provided strong evidence for the State.                     Id., ¶¶19-26.

       ¶26     Next,     the   court    of    appeals     noted     that    Monahan     had

never       substantially      contradicted          Trooper      Parrott's     testimony

that Monahan had been the driver.                  Id., ¶33.       The court observed

that    Erdtmann       testified       that    "it    was      possible     that    either

Monahan or R.C. was the driver."                   Id, ¶37.       It further observed

that        Erdtmann's     testimony         regarding      his     exemplar       of   the

vehicle's seats and his conclusions therefrom had been rebutted

by the testimony of R.C.'s mother, which would have allowed the

jury to accept Trooper Parrott's reconstruction.                       Id., ¶¶38-39.

       ¶27     Finally, the court of appeals chastised the State for

exploiting the excluded GPS data in closing argument.                           Id., ¶29.
However, it concluded that the State's discussion was harmless

because its argument concerning the excluded evidence comprised


       10
       The State agreed with Monahan that "[t]he vehicle's speed
after it left the cousin's residence was not other acts
evidence[,] but part of the continuum of facts relevant to the
crime" pursuant to State v. Dukes, 2007 WI App 175, ¶28, 303
Wis. 2d 208, 736 N.W.2d 515.    The court of appeals did not
"weigh in on whether the [circuit] court erroneously excluded
the GPS data," but rather accepted the State's concession for
purposes of the appeal. Monahan, 2014AP2187-CR, ¶2.


                                              13
                                                                    No.     2014AP2187-CR



an    aggregate       of    five      sentences       out     of   approximately      70

transcript pages of closing argument.                  Id.

      ¶28        The court of appeals determined that "even if the jury

heard the excluded GPS data evidence, the GPS data would have

paled in comparison to the strong evidence that Monahan was

driving at the time of the accident."                   Id., ¶40.         Consequently,

the court of appeals saw "no reason to think that, in light of

all the evidence that Monahan was the driver, admission of the

excluded evidence would have changed the outcome of this case."

Id.

      ¶29        Monahan   petitioned     this    court      for   review,    which   we

granted on November 13, 2017.

                               II.   STANDARD OF REVIEW

      ¶30        Circuit court evidentiary decisions are reviewed for

an erroneous exercise of discretion.                        State v. Hunt, 2014 WI

102, ¶20, 360 Wis. 2d 576, 851 N.W.2d 434.                         However, in this

case,      the    State    concedes    that     the   circuit      court    erroneously

exercised its discretion in excluding the GPS data from the farm
to the two-minute stop.11

      ¶31        Whether   a    circuit    court's      erroneous         exclusion   of

evidence is harmless is a question of law we review de novo.

Id., ¶21.


      11
       We are not          bound by a party's concession of law.   State
v. Anderson, 2014          WI 93, ¶19, 357 Wis. 2d 337, 851 N.W.2d 760.
For purposes of             this opinion, however, we assume without
deciding that the          circuit court's exclusion of the GPS data was
erroneous.


                                           14
                                                                   No.    2014AP2187-CR



                                  III.    ANALYSIS

    ¶32     We    first    set   forth     and     discuss   the    harmless      error

rule.     We next apply the rule to Monahan.                We then hold that the

circuit     court's     erroneous        exclusion     of    the    GPS    data     was

harmless, and consequently affirm the decision of the court of

appeals.

                          A.   The Harmless Error Rule

    ¶33     An erroneous evidentiary ruling is reversible only if

"a substantial right of the party is affected."                           Wis. Stat.

§ 901.03(1).      We construe this to mean that an error is harmless

if the party benefitted by the error shows "beyond a reasonable

doubt that the error complained of did not contribute to the

verdict obtained."         Hunt, 360 Wis. 2d 576, ¶26 (quoting State v.

Harris, 2008 WI 15, ¶42, 307 Wis. 2d 555, 745 N.W.2d 397).                           In

the present case, the State has the burden to prove "beyond a

reasonable doubt that a rational jury would have found [Monahan]

guilty absent the error."           Id. (quoting State v. Harvey, 2002 WI

93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189).
    ¶34     The harmless error rule originated in response to the

perception       that     appellate       courts     were     "applying      a    rule

approximating automatic reversal" when trial error was found.

John M. Greabe, The Riddle of Harmless Error Revisited, 54 Hous.

L. Rev. 59, 67 (2016); see also 7 Wayne R. LaFave, et al., Crim.

Proc. § 27.6(a) (4th ed. 2017).                The United States Supreme Court

aptly   described       the    problem:        "So   great   was    the    threat   of

reversal, in many jurisdictions, that criminal trial became a
game for sowing reversible error in the record, only to have
                                          15
                                                                    No.    2014AP2187-CR



repeated the same matching of wits when a new trial had been

thus obtained."          Kotteakos v. U.S., 328 U.S. 750, 759 (1946).

The   goal   of    the   harmless    error      rule   is    to   "inject      reasoned

judgment . . . into appellate review" to ensure retrials occur

only when the error actually affected the original trial.                            Id.

at 759-60; see also Harry T. Edwards, To Err is Human, but not

Always Harmless:          When Should Legal Error be Tolerated?, 70

N.Y.U. L. Rev. 1167, 1174 (1995).

      ¶35    We    use    several    non-exclusive          factors       to   aid   our

application       of   the     harmless    error   rule      in     the    evidentiary

context:     (1) the frequency of the error; (2) the importance of

the    erroneously        included        or    excluded      evidence         to    the

prosecution's or defense's case; (3) the presence or absence of

evidence corroborating or contradicting the erroneously included

or excluded evidence; (4) whether erroneously excluded evidence

merely   duplicates       untainted       evidence;    (5)    the    nature     of   the

defense; (6) the nature of the State's case; and (7) the overall

strength of the State's case.              State v. Martin, 2012 WI 96, ¶46,
343 Wis. 2d 278, 816 N.W.2d 270; State v. Norman, 2003 WI 72,

¶48, 262 Wis. 2d 506, 664 N.W.2d 97; see also Hunt, 360 Wis. 2d

576, ¶27; State v. Nelson, 2014 WI 70, ¶46, 355 Wis. 2d 722, 849

N.W.2d 317.

                          B.    Application to Monahan

                          1.    Frequency of the error

      ¶36    This factor requires us to consider whether the error

scarcely appeared in the record or pervaded it.                           Martin, 343
Wis. 2d 278, ¶47.            An error that pervades the record is more
                                           16
                                                     No.       2014AP2187-CR



likely to be harmful than an error that appears only a few

times, though an error may be so prejudicial that reversal is

required despite appearing in the record only once.              See id.;

see also United States v. Impson, 531 F.2d 274, 278 (5th Cir.

1976).

      ¶37   In this case, the error manifested in the record once.

The GPS data was not a centerpiece of the State's case, but

rather was mentioned only briefly in closing argument, when the

State argued that it did not make sense that a driver who was

unfamiliar with the area would operate a vehicle at the speed

the Saab was traveling at the time of the crash.                While the

excluded GPS data would have undoubtedly undercut this argument

because it would have allowed the jury to conclude that R.C.

had, in fact, been operating the Saab at a high rate of speed

over (presumptively) unfamiliar roadways, the argument was not

central to the State's theory of the case.        The State's theory

of the case rested on Trooper Parrott's crash reconstruction;

the argument that R.C. would not have driven so recklessly given
her   unfamiliarity   with   the    area   constituted     a     miniscule

percentage of a 70-page closing argument transcript.12
      12
       The court of appeals considered five sentences in the
State's closing argument to be objectionable.           Monahan,
2014AP2187-CR, ¶29; see also infra, ¶27.   Depending on how one
classifies certain sentences in the State's closing argument,
the objectionable portion of the State's closing argument could
constitute up to three paragraphs or 24 lines of the transcript.
See dissent, ¶3.   This would add up to approximately one full
page of transcript (the transcript pages from closing arguments
contain 25 lines of text each) out of 70 pages of closing
arguments, or approximately 1.4 percent.


                                   17
                                                                      No.    2014AP2187-CR



       ¶38    This    is    in    contrast    to    Martin,      where      erroneously-

admitted testimony constituted the bulk of the State's case.

Id.    The testimony was "discussed at length in both the State's

opening statement and closing argument."                      Id.       The error was

repeated      often    in   the    record     and    was   "the       backbone   of   the

State's argument."           Id.     The extent to which the State relied

upon the excluded GPS data in the present case simply did not

rise anywhere close to that level of repetition, duration, or

extent.       We conclude that this factor weighs in favor of the

State.

         2.    Importance of the erroneously excluded evidence

       ¶39    This factor considers the extent to which the excluded

evidence      impacted      the    verdict.        Hunt,   360    Wis. 2d 576,        ¶29;

Nelson, 355 Wis. 2d 722, ¶47; see also Martin, 343 Wis. 2d 278,

¶51.     Exclusion of evidence that would go to the foundation of

the verdict is less likely to be harmless than exclusion of

evidence that would have little impact on the verdict.                                See

Martin, 343 Wis. 2d 278, ¶51.
       ¶40    The excluded GPS data did not go to the foundation of

the verdict.          Rather, the excluded GPS data is direct evidence

of a fact that is not of consequence:                      how fast the Saab was

traveling between the farm and the two-minute stop.                           Given the

other evidence presented——and emphasized——by the parties, the

GPS data would have been largely inconsequential to the verdict.

       ¶41    Hunt,    while      factually      disparate,      is    instructive     on

this question. 360 Wis. 2d 576.                  In that case, the defendant,
Hunt, was convicted of causing a child under 13 to view or
                                            18
                                                                 No.     2014AP2187-CR



listen to sexual activity based on an incident in which Hunt

showed his adopted daughter a video of sexual intercourse.                         Id.,

¶¶1-2, 4.      At the preliminary hearing, the victim testified that

Hunt referred to the video as stuff that he received from a

certain friend, Venske.         Id., ¶5.     Hunt admitted that the victim

may have seen an image of a testicular hernia sent by Venske,

but     denied     ever   showing    the    victim     a     video       of    sexual

intercourse.       Id., ¶8.     Hunt argued that the victim embellished

the story due to an ongoing custody dispute.                Id., ¶9.

       ¶42    Consistent with that defense, Hunt proffered testimony

from Venske that he sent Hunt an image of a testicular hernia,

but never sent Hunt a video of sexual intercourse.                        Id., ¶12.

The circuit court excluded Venske's testimony.                     Id., ¶13.          We

held that the circuit court erroneously exercised its discretion

when it excluded Venske's testimony because the testimony would

have corroborated Hunt's testimony.               Id., ¶25.            We held the

error    to   be    harmless,    however,    because       the    source      of     the

sexually explicit content was not an element of the crime.                         Id.,
¶30.     Stated differently, the excluded testimony did not go to

the foundation of the verdict because it would have demonstrated

a fact that was irrelevant to the crime charged.                  See id., ¶34.

       ¶43    Similarly, in the present case, the excluded GPS data

would have bolstered Monahan's contention that R.C. may have

been driving the Saab at the time it crashed.                    For this reason,

excluding that portion of the GPS data was error.                      See id., ¶29.

Establishing       that   the   evidence    was   admissible       does       not,   of
course, answer the harmless error question.                      Id.     Though the
                                      19
                                                             No.   2014AP2187-CR



excluded GPS data should have been admitted, it nonetheless did

not impact the verdict because it bears little relation to the

elements of homicide by intoxicated use of vehicle.                     See Wis.

Stat. § 940.09(1)(a).13         Because neither the speed of the Saab

between the farm and two-minute stop, nor who was driving it

during     that   time   period,   were      "required    element[s]      of   the

State's case, the value of [the excluded GPS data] lay solely in

its   potential    to    corroborate    [Monahan]'s      version   of    events."

Hunt, 360 Wis. 2d 576, ¶34.

      ¶44    Thus, while the excluded GPS data may have added some

credibility to Monahan's defense, it was not a fact that was

important to the verdict.          Accordingly, we conclude that this

factor weighs in favor of the State.

      3.    The presence or absence of evidence corroborating or
             contradicting the erroneously excluded evidence
      ¶45    This factor is closely related to the preceding one,

the importance of the erroneously excluded evidence.                    Hunt, 360

Wis. 2d 576,      ¶30.     If   other   evidence    demonstrates        what   the

excluded GPS data was offered to show, or if the excluded GPS
data would not contradict any of the State's evidence, then its

erroneous exclusion is more likely harmless.                 See Martin, 343

Wis. 2d 278, ¶54.



      13
       A person commits homicide by intoxicated use of a vehicle
if he "[1] causes the death of another [2] by the operation or
handling of a vehicle [3] while under the influence of an
intoxicant." Wis. Stat. § 940.09(1)(a).


                                        20
                                                                       No.     2014AP2187-CR



       ¶46    The     excluded      GPS   data    was   neither       corroborated        nor

contradicted because no other evidence was admitted to establish

the speed of the vehicle between the farm and the two-minute

stop.        Again,    Hunt   is     helpful      to    our    understanding        of    the

application of this factor.                360 Wis. 2d 576.           In Hunt, Venske's

excluded      testimony       did    not    contradict         any    of     the   State's

evidence because the State did not offer any evidence of the

source of the sexually explicit video.                        Id., ¶33.        In holding

the     error       harmless,        we      reasoned          that     "the       excluded

evidence . . . would not have served to weaken the State's case

on the issue of where Hunt obtained the sexually explicit video,

because the State never alleged it was sent by Venske."                             Id.     A

similar reasoning applies here:                  the excluded GPS data would not

have served to weaken the State's case on the issue of how fast

the Saab was traveling between the farm and the two-minute stop

because      the    State   never     alleged      that       the   Saab     was   speeding

during that segment.             Consequently, this factor weighs in favor

of the State.

       4.    Whether the erroneously excluded evidence duplicates
                            untainted evidence.
       ¶47    This factor reflects our understanding that the error

is more likely harmless if the excluded evidence would serve

only to duplicate admitted evidence.                      Nelson, 355 Wis. 2d 722,

¶50.        Conversely, if the erroneously excluded evidence would

have been the only evidence to support a factual finding by the

jury, then the error is more likely prejudicial.                              See Martin,
343 Wis. 2d 278, ¶57.

                                            21
                                                                  No.    2014AP2187-CR



       ¶48     Literal application of this factor leads us to observe

that the GPS data does not duplicate any evidence because no

other evidence regarding the speed of the Saab between the farm

and two-minute stop was offered.                 The State did not offer any

evidence as to either how fast the Saab was traveling or who was

driving it between the farm and two-minute stop.                         Conversely,

Monahan offered evidence in the form of eyewitness testimony

that    R.C.    was   driving   when     the    couple    left    the    farm.      The

excluded GPS data, had it been admitted, would have constituted

circumstantial evidence that the same person was driving both

before and after the two-minute stop.                    While the excluded GPS

data    would    have    fractionally      overlapped      with    the    eyewitness

testimony, we cannot say that the erroneously excluded GPS data

would   have     duplicated     the   eyewitness     testimony——or        any     other

untainted evidence.           The result of our consideration is that

this factor weighs in favor of Monahan.

                        5.    The nature of the defense

       ¶49     If the erroneously excluded evidence closely fits the
defense theory of the case, then its exclusion is more likely

prejudicial.          See State v. Deadwiller, 2013 WI 75, ¶43, 350

Wis. 2d 138, 834 N.W.2d 362; see also Martin, 343 Wis. 2d 278,

¶59.    Conversely, if the erroneously excluded evidence would not

have    furthered       the   defense,     its     exclusion      is    more     likely

harmless.       Nelson, 355 Wis. 2d 722, ¶49.

       ¶50     Monahan's defense was that either he or R.C. could

have been driving at the time of the crash.                      Stated otherwise,
Monahan      argues    that   the   jury   could    not   have    found    beyond     a
                                           22
                                                                     No.       2014AP2187-CR



reasonable doubt that Monahan was driving at the time of the

crash.       The excluded GPS data could have raised an inference

that the same person was driving both before and after the two-

minute stop.          When combined with the eyewitness testimony that

R.C. was driving at the time the couple left the farm, this

inference could have supported a jury determination that R.C.

was driving at the time of the crash.

       ¶51     Although the weight, if any, the jury would have given

to such an inference is (by definition) impossible to know, it

is     clear        that    the    excluded         evidence      would         have     been

complementary to the nature of the defense.                         Accordingly, this

factor weighs in favor of Monahan.

                       6.    The nature of the State's case

       ¶52     If    the    erroneously       excluded     evidence       is    consistent

with    the     State's      case,     then    its      exclusion    is    more        likely

harmless.       See Martin, 343 Wis. 2d 278, ¶60.

       ¶53     The GPS data is irrelevant to the State's case.                           The

State focused its evidence on who was driving at the time of the
crash; its theory of the case is compatible with either Monahan

or R.C. driving between the farm and the two-minute stop.                                The

State's evidence that Monahan was driving at the time of the

crash——Trooper             Parrott's     crash          reconstruction,          Monahan's

admissions, and the DNA found on the driver's side airbag——are

not affected by who was driving between the farm and the two-

minute stop.           The GPS data would have neither bolstered nor

undercut       the    State's     case   had       it   been   admitted        because   the
State's evidence was consistent with either Monahan driving the
                                              23
                                                               No.     2014AP2187-CR



whole way or Monahan and R.C. switching seats during the two-

minute stop.

       ¶54     Because the GPS data was not inconsistent with the

State's case, this factor weighs in favor of the State.

               7.    The overall strength of the State's case

       ¶55     If   the   State's   case     was   strong   notwithstanding     the

erroneous exclusion of the GPS data, then the error is more

likely harmless.          Hunt, 360 Wis. 2d 576, ¶35.             Conversely, if

the State relied heavily on the exclusion of the GPS data, then

the    error    is    more   likely    to    be    prejudicial.      Martin,    343

Wis. 2d 278, ¶62.

       ¶56     We first address Monahan's complaint that considering

the strength of the State's case improperly transforms harmless

error analysis into sufficiency-of-the-evidence analysis.                        We

begin by noting that the strength of the State's case has long

been     considered        an   appropriate——and          important——factor      in

harmless error analysis.              E.g., Delaware v. Van Arsdall, 475

U.S. 673, 684 (1986) ("These factors include . . . ,of course,
the overall strength of the prosecution's case."); United States

v. Wilson, 134 F.3d 855, 867 (7th Cir. 1998) ("[Van Arsdell]

recognize[ed] that, 'of course,' an important factor to consider

is 'the overall strength of the prosecution's case.'"); State v.

Fishnick, 127 Wis. 2d 247, 267, 378 N.W.2d 272 (1985); State v.

Drusch,      139    Wis. 2d 312,      324   n.1,    407   N.W.2d 328    (Ct.   App.

1987).       Second, we understand that courts cannot properly answer

the core question——whether the State proved "beyond a reasonable
doubt that the error complained of did not contribute to the
                                            24
                                                                      No.      2014AP2187-CR



verdict      obtained"——without         considering          the    strength         of     the

State's case.        See United States v. Littrell, 439 F.3d 875, 883

(8th Cir. 2006).          Finally, we note that error is less likely to

have a "substantial influence" on the verdict where the State

presented        overwhelming     evidence      of    guilt.        United        States     v.

Lane, 474 U.S. 438, 450 (1986).

      ¶57    For these reasons, consideration of the strength of

the   State's      case   has    been——and       remains——a        proper      and      useful

factor      in    evaluating     whether     a       circuit       court's      error      was

harmless.

      ¶58    This    factor      cuts   decisively          in   favor    of      the     State

because the State's case was strong, and would have remained

strong even if the excluded GPS data had been admitted.                                   First

and foremost, Monahan's numerous admissions that he was driving

provide substantial evidence of his guilt.                         He told Shullsburg

firefighter Timothy Corley "I was driving, I guess" while lying

in the cornfield.           He then said "that is the last time I will

drink and drive" within earshot of Deputy Klang.                               When Deputy
Klang    told     Monahan    that   a   female        was    also    in     the    vehicle,

Monahan     said    "I    was   probably     driving,        then."         Once     on     the

gurney, Monahan responded "yeah" when Deputy Gorham asked him

"so you were the driver."               While in the medical helicopter en

route to the hospital, Monahan again unequivocally admitted to

driving the Saab.           While at the hospital, he again admitted to

being the driver.           He wrote that he remembered the crash and

that he was driving.            At the time of this writing, the attending
nurse described him as "neurologically . . . intact."                              Finally,
                                           25
                                                                           No.        2014AP2187-CR



ten   months     after       the    accident,         Monahan    told      Trooper        Parrott

"[i]t's not like I meant [it to] F'ing happen."

      ¶59      Even    if    the     jury      had    discounted      all        of     Monahan's

admissions,       Trooper          Parrott's         crash    reconstruction             provided

compelling evidence for the State.                           Trooper Parrott testified

unequivocally         that    all        of   the    physical     evidence            pointed   to

Monahan as the driver.                   Ertdmann, on the other hand, did not

contradict      Trooper       Parrott's         conclusion.           In    fact,        Erdtmann

concluded that Monahan could have been the driver.                                       Erdtmann

merely disagreed as to whether that was the only reasonable

conclusion one could draw from the physical evidence.

      ¶60      Moreover, the physical evidence supported the State's

assertion that Monahan was the driver.                           The seat positions——

coupled with the testimony of R.C.'s mother that the driver's

seat was found "much farther back than [R.C.] would have been"——

indicated that Monahan was driving.                      The position of the bodies

at the crash scene, the closed driver’s side window, and the

open passenger's side window indicated that R.C. was ejected
first    and    from    the    passenger's           seat.      The     dirt      patterns      on

R.C.'s    clothing——and            the    relative      lack    of    dirt       on     Monahan's

clothing——indicated that R.C. was in the passenger's seat, next

to the open window.

      ¶61      All of these factors lead us to conclude that the

State's case was very strong——and would have remained so even if

the excluded GPS data had been admitted into evidence.                                    Because

of the strength of the State's case, we are not surprised that
the jury came to the only reasonable conclusion:                                  Monahan was
                                                26
                                                                     No.     2014AP2187-CR



driving at the time of the crash; this factor weighs in favor of

the State.

                                         ***

      ¶62   Applying the relevant circumstances of Monahan's case

to these factors leads to the conclusion that the erroneous

exclusion of the GPS data was harmless; that is, the State has

met   its   burden     to    prove    "beyond     a   reasonable       doubt       that   a

rational    jury     would    have    found     [Monahan]      guilty       absent      the

error."     Hunt,     360     Wis. 2d 576,        ¶26     (quoting         Harvey,      254

Wis. 2d 442, ¶49).

      ¶63   Though we utilize the seven factors to aid in our

analysis,      harmless       error    is      not      subject      to      a    precise

mathematical formula.           See State v. Bolstad, 124 Wis. 2d 576,

589-90, 370 N.W.2d 257 (1985); see also State v. Anthony, 2015

WI 20, ¶104, 361 Wis. 2d 116, 860 N.W.2d 10; State v. Grant, 139

Wis. 2d 45,     77,    406    N.W.2d 744       (1987)     (Day,      J.,    concurring)

(describing the underlying rationale of the harmless error test

to be "eliminating prejudicial error but not becoming bogged
down in endless formulas for determining harmless error.").

      ¶64   Factors four and five weigh in favor of Monahan, as

the excluded GPS data would have bolstered Monahan's theory of

defense that R.C. was driving.                  Supra, ¶¶47-51.            However, it

would   have    done    so    by     demonstrating       a    fact     that       was   not

necessary for conviction.             Hunt, 360 Wis. 2d 576, ¶34; see also

supra, ¶46.

      ¶65   Though     the    excluded      GPS   data       would    have       bolstered
Monahan's theory of defense, the factors weighing in favor of
                                         27
                                                                       No.     2014AP2187-CR



the    State——especially     the      final       factor,      the   strength      of    the

State's case——"tip the scales in support of harmless error."

Anthony, 361 Wis. 2d 116, ¶104.                   As in Hunt, the State's case

did not hinge on establishing who was driving the Saab, and how

fast it was traveling, between the farm and two-minute stop.

See Hunt, 360 Wis. 2d 576, ¶36.                    Rather, the strength of the

State's case rested largely on Monahan's five admissions that he

was driving at the time of the accident, Trooper Parrott's crash

reconstruction testimony, and the DNA evidence.                              See id.     The

State never raised at trial the issue of who was driving the

Saab between the farm and two-minute stop, nor how fast it was

traveling during that segment, in proving the essential elements

of the crime for which Monahan was convicted.                        See id.      We agree

with the court of appeals that "the [excluded] GPS data would

have paled in comparison to the strong evidence that Monahan was

driving at the time of the accident."                      Monahan, 2014AP2187-CR,

¶40.

       ¶66    Based on the foregoing, we conclude that "it is beyond
a     reasonable    doubt   that      the        error    complained         of   did    not

contribute to the verdict obtained."                     Hunt, 360 Wis. 2d 576, ¶26

(quoting Harris, 307 Wis. 2d 555, ¶42).

                                IV.    CONCLUSION

       ¶67    We hold that the circuit court's erroneous exclusion

of the GPS data was harmless, and therefore affirm the decision

of the court of appeals.

       By    the   Court.—The   decision          of     the   court    of     appeals    is
affirmed.
                                            28
                                                                No.   2014AP2187-CR.rgb


      ¶68   REBECCA GRASSL BRADLEY, J.                   (dissenting).       In this

court, everyone agrees the circuit court erred in excluding the

GPS   data,    which    revealed     the       excessive        speeds    R.C.'s   car

traveled both on the way to the party and on the way from the

party to the stop in Shullsburg.                   The only question is whether

this erroneous exclusion of evidence was harmless.                       It was not.

If the jury had heard that R.C.'s car grossly exceeded the speed

limit both on the way to the party and while traveling from the

party to Shullsburg——when independent witnesses testified that

R.C. drove away from the party——the State could not have made

the same closing argument and Monahan would have had evidence to

support his defense.           The excluded evidence plus the State's

argument——unrefuted       at    trial     as       a   result    of   the   erroneous

evidentiary ruling——that R.C. never would have driven that fast

on unfamiliar roads, create reasonable doubt as to whether a

rational jury would have found Monahan guilty absent the error.

Accordingly,     I     conclude     the       error     was     not     harmless   and

respectfully dissent.
                                               I

      ¶69   There      were    no   eyewitnesses          to     this    single    car

accident.     Only two people actually knew what happened.                     One of

them did not survive the accident; the other, Monahan, testified

he does not remember anything between the time he and R.C. left

the party and the time he woke up in the hospital.                          The car's

GPS unit does give some information about the car's speed and

location on the day of the accident.                       The GPS data allowed
Monahan's accident reconstruction expert to calculate how fast

                                          1
                                                                  No.    2014AP2187-CR.rgb


the car was driven both on the way to the party and on the way

from the party to Shullsburg.                 The GPS data also showed a two-

minute      stop    in   Shullsburg.          Finally,      the   data    allowed     both

Monahan's      and       the     State's      accident      reconstructionists          to

calculate the speed the car was traveling after the two-minute

stop until the crash.               The speed calculations estimated the

car's speed on the way to the party at 79-93 miles per hour.

The car's estimated speed during the segment from the party to

the Shullsburg stop was 82-105 miles per hour.                          After the brief

stop in Shullsburg, the car's speed reached 97-120 miles per

hour during the trip from Shullsburg until the crash.1                           The GPS

unit listed the "max speed" the car had traveled as 123 miles

per hour.      The only estimated speed evidence the jury heard was

that at the time of the crash, the car's speed was 87-98 miles

per hour.          We also know that both occupants were ejected from

the   car    during      the    crash   and       neither   Monahan      nor   R.C.   were

wearing seatbelts.              The sunroof and the front passenger side

window were open.              Finally, it is undisputed that both Monahan
and R.C. had been drinking.                   Both had blood alcohol content

above the legal limit.

      ¶70     The    State's      entire      case    depended     on     proving     that

Monahan was in fact driving at the time R.C.'s car crashed.

There were no eyewitnesses to the crash itself and no eyewitness


      1
       These numbers come from Monahan's expert engineer's
report.   The State's expert calculated only the speed at the
time of the crash, and told the jury the car was traveling at
87-98 miles per hour.


                                              2
                                                         No.   2014AP2187-CR.rgb


put Monahan behind the wheel.             To prove its case, the State

presented     testimony    from   State    Trooper   Thomas      Parrott     who

prepared a reconstruction of the accident.           Parrott testified he

believed Monahan was driving based on where Monahan's and R.C.'s

bodies landed after ejection.        Parrott believed R.C. was ejected

through the open passenger window before the airbags deployed.

The State also introduced evidence showing that the driver's

seat    was   positioned     four   inches     farther      back    than     the

passenger's seat.         Using this information, together with the

fact that Monahan was taller than R.C., the State argued Monahan

was the driver at the time of the crash.                   Additionally, the

State relied on evidence showing the driver's side airbag had a

major   and   a   minor    contributor    of   DNA   and    that   the     major

contributor was Monahan.          The State also introduced Monahan's

numerous statements.       In some of these statements, Monahan said

he was the driver.         The only GPS evidence the circuit court

admitted showed that the car stopped for just over two-minutes

in Shullsburg, and Parrott testified that he estimated the car's
speed at the time of the crash to be between 87-98 miles per

hour based upon the GPS data.         The prosecutor seized upon this

speed evidence to argue during closing:

       [Monahan] testified he knew the hills, knew the
       curves, knew the terrain of that road.   Why would a
       young woman from Maine who's living in Chicago, who
       doesn't know the roads, who by all accounts hadn't
       been on that road and if -- had been maybe once or
       twice, why would she be driving? She didn't know the
       area.
The prosecutor further emphasized this point by arguing:


                                     3
                                                                No.   2014AP2187-CR.rgb

    [R.C.] didn't know her way around.       So using your
    common sense, you need to ask yourself, does it make
    sense that a young girl who doesn't know the area, is
    driving on some rural road and driving, no less, after
    she'd been drinking and at speeds of 40 to 50 miles
    per hour over the speed limit?       That doesn't make
    sense . . . . Using your common sense, that tells you
    it's the defendant behind the wheel.
And, later, the State emphasized again:

    If it's [R.C.] who was driving that night, again we'd
    have to believe she's driving on that rural country
    road in a place she's not familiar with on a road
    she's not familiar with. Despite the fact that she's
    not familiar with that road, we have to believe that
    she's traveling -- after having some drinks, traveling
    40 to 50 miles per hour over the speed limit on a road
    she has no experience or familiarity with.
    ¶71     Without the pre-Shullsburg stop GPS speed calculations

in evidence, Monahan could not refute the State's "common sense"

and persuasive argument.             Now, on appeal, the State concedes

that excluding the pre-Shullsburg stop GPS-calculated speeds was

in fact error, but it asserts the exclusion was harmless error.

The majority agrees with the State that this error was harmless—

—that it had no impact on the verdict and even if the jury heard

the complete GPS evidence, the jury still would have convicted

Monahan.      In     reaching       its   harmless         error   conclusion,        the
majority     improperly         applied    the       harmless      error      standard.

Applying the harmless error standard correctly, I conclude the

exclusion    of    the    GPS   evidence       was   not    harmless    and    I   would

reverse the decision of the court of appeals and remand for a

new trial.

                                          II
    ¶72     Before       Congress   adopted      the   harmless       error    rule    in

1919, criminal cases were retried with some regularity when an
                                           4
                                                                 No.    2014AP2187-CR.rgb


error occurred during the trial, regardless of whether the error

was minimal or material.            See, e.g., Kotteakos v. United States,

328 U.S. 750, 759 (1946) ("[Appellate courts] tower above the

trials       of     criminal      cases     as        impregnable        citadels      of

technicality"        (quoting      Marcus       A.     Kavanagh,       Improvement     of

Administration of Criminal Justice by Exercise of Judicial Power

11 A.B.A.J. 217, 222) (1925)).                  The federal harmless error rule

was    codified      "to    prevent    matters          concerned      with   the    mere

etiquette of trials and with the formalities and minutiae of

procedure from touching the merits of a verdict."                             Bruno v.

U.S., 308 U.S. 287, 294 (1939).                      The rule, versions of which

have   been       enacted   in    Wisconsin       and    other   states,      "block[s]

setting aside convictions for small errors or defects that have

little, if any, likelihood of having changed the result of the

trial."       Chapman v. California, 386 U.S. 18, 22 (1967).                          The

error in Monahan's trial cannot be fairly characterized as "mere

etiquette" nor minutiae of procedure.                     The error precluded him

from presenting his defense with respect to the main issue at
trial:       who was driving the car.

       ¶73    Whether an error is harmless beyond a reasonable doubt

is a question of law.            See State v. Nelson, 2014 WI 70, ¶18, 355

Wis. 2d 722, 849 N.W.2d 317.              The harmless error test is easily

defined but difficult to apply.                 The test requires the State to

prove "beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained" by showing "that a

rational jury would have found the defendant guilty absent the
error."       State v. Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851

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N.W.2d 434.        The reviewing court looks at the effect the error

had on the verdict.             Id.    In applying the harmless error test,

we   consider      several      factors.           As     relevant       here,      the    court

examines:         (1)     the   importance         of     the     erroneously         excluded

evidence;        (2)     whether      there       is     evidence        corroborating       or

contradicting the erroneously excluded evidence; (3) "the nature

of the defense"; (4) "the nature of the State's case"; and (5)

"the overall strength of the State's case."                        Id., ¶27.2

      ¶74       Factor (1), the importance of the excluded evidence,

cannot be disputed, particularly given the State's exploitation

of it during closing argument.                    Monahan's only defense was that

he was not driving at the time of this accident.                                 The excluded

evidence would have supported that defense.                                   If all the GPS

evidence had been admitted, the jury would have learned R.C.

drove     her    car    excessively      fast.           It     would     have     shown    that

despite her unfamiliarity with the area, she drove far above the

posted    55     miles    per   hour    speed          limit.     Applying         factor    (1)

demonstrates the harmfulness of excluding the GPS data.


      2
       The majority considers two additional factors——frequency
of the error and whether the excluded evidence would have been
duplicative. These extra factors are referenced in a 2012 case,
State v. Martin, 2012 WI 96, ¶46, 343 Wis. 2d 78, 816
N.W.2d 270, cited by the majority. Majority op., ¶35. The list
of factors considered under the harmless error test are non-
exhaustive.    See State v. Hunt, 2014 WI 102, ¶27, 360
Wis. 2d 576, 851 N.W.2d 434. In any event, the frequency-of-an-
error factor is of limited value when the error was exclusion of
evidence and thus I do not address it. As for the duplicative
factor, the majority concedes that this favors Monahan as it is
undisputed that exclusion of the complete GPS speed evidence was
not duplicative of other admitted evidence. Majority op., ¶48.


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      ¶75       As to factor (2), Monahan would have used the GPS

evidence to show R.C. drove at high rates of speed.                             There was

no evidence in the record to that effect.                      The State did not and

could not present any direct evidence or eyewitness testimony to

disprove Monahan's defense that R.C. was driving her car and

refused     to    let    anyone    else    drive        it.      The   main      evidence

contradicting this defense was Parrott's supposition, bolstered

by   the    State's      closing   argument       that    R.C.    never    would       have

driven     so    fast    on   unfamiliar       roads.     Admitting       all    the   GPS

evidence would have supported Monahan's defense and poked holes

in the State's argument.                Applying factor (2) illustrates how

excluding this evidence was harmful.

      ¶76       Factor    (3)   looks     to    the     nature    of    the      defense.

Monahan presented contrary expert witness testimony from                                his

engineering        expert,      Paul     Erdtmann,        who    reconstructed          the

accident.        Erdtmann opined that it is impossible, based on the

physical evidence, to discern who was driving at the time of the

crash.          Erdtmann      refuted    each     of     the     factors      underlying
Parrott's opinion that Monahan was driving.                       Erdtmann presented

a photo showing a woman of R.C.'s height could comfortably reach

the controls to operate the same type of car with the driver's

seat in the same position.               Another photo showed that a man of

Monahan's height would fit comfortably in the passenger side of

the same type of car with the seat in the same position as the

subject car's passenger seat.                  Erdtmann offered an explanation

for the major and minor DNA located on the driver's airbag——the
bodies were moving around during the rollover and both could

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leave DNA on the airbag regardless of which seat each occupied.

Moreover,       State-witness,             Dr.       Robert       Corliss,        a     forensic

pathologist who performed R.C.'s autopsy, testified on cross-

examination that, in a rollover accident during which the car's

occupants were not wearing seatbelts and were ejected from the

car, it is not possible to discern whether R.C. was in the

driver's or passenger's seat.

       ¶77    Monahan       also        testified      in     his     own    defense.           He

explained      he    had    no     memory     of     the    accident.        He       remembered

leaving the party with R.C., who was driving him in her car.

She had driven him to the party and she drove him after the

party.       He told the jury that he never drove R.C.'s car because

she never let anyone else drive it.

       ¶78    One eyewitness testified R.C. was driving when the two

arrived at the party.               No witness contradicted that testimony.

Two    other    independent             eyewitnesses        who     were     at       the    party

testified they recalled R.C. driving when she and Monahan left

the party.          One remembered Monahan flashing a big smile at her
from   the     passenger         seat    as   the     car     drove    away.          The    other

testified that Monahan and R.C. walked by him on the way to her

car and the witness saw R.C. get in the driver side and saw

Monahan in the passenger seat.                        No witness contradicted that

testimony.          A    third     independent        witness       testified         that    R.C.

never let anyone drive her car.                       No witness contradicted that

testimony.

       ¶79    The defense case was not weak, and admission of the
excluded      GPS       evidence    certainly         would     have    strengthened           it,

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lending     credibility          to        Monahan's       testimony         and      raising

reasonable       doubt.          Applying         factor      (3)     necessitates          the

conclusion that the erroneous exclusion was harmful.

    ¶80     Factors (4) and (5) each address the State's case and

will be considered together.                 The State's case was likewise not

weak.      Its     accident       reconstructionist            put     Monahan        in    the

driver's seat at the time of the crash.                         The State presented

Monahan's multiple statements to the effect that he was driving

through    live     testimony         of    the    eyewitnesses            who   heard      the

statements.       These statements consisted of (1) statements at the

scene, (2) statements in the helicopter transporting him to the

hospital, (3) statements at the hospital, and (4) statements

after recovery.       First, at the scene:

         When emergency personnel found Monahan in a cornfield, he

          was     unconscious         and     unrecognizable.               When      Monahan

          regained       consciousness,            he    repeatedly          asked         "what

          happened"; he did not know who he was or how many people

          were in the car or where he had been.                            EMTs repeatedly
          asked    him    who     was      driving,     but    received          no   answer.

          Monahan eventually responded, "I was driving, I guess."

         The   Chief     of    Police,      Richard       Moyer,     asked      Monahan      if

          there was anyone else in the car and Monahan said he did

          not    know;    when    Moyer       asked     who    was    driving,        Monahan

          responded that he did not know.

         Sergeant Darrell Morrissey testified that when he asked

          Monahan who was driving, Monahan said he did not remember
          or did not know.            When Morrissey asked Monahan if there

                                              9
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    was anyone else in the car besides R.C., Monahan answered

    he was not sure.

   Deputy Sheriff Paul Klang testified he asked Monahan if

    he was the driver and Monahan replied that he did not

    remember.      When Klang told Monahan there was a female in

    the car, Monahan said, "I probably was driving, then."

    Monahan   told    Klang   he   did   not   remember     where    he    was

    coming from.      Klang also told the jury that he overheard

    Monahan say to an EMT or firefighter, "that is the last

    time I will drink and drive."

   An EMT, who was also a religious minister, testified he

    heard Monahan say "I fell asleep" and "I'll never drink

    again."

   Sheriff Deputy Michael Gorham testified he spoke with

    Monahan   at     the   scene   while   Monahan    was    lying    on     a

    backboard and being tended to by emergency personnel.

    Gorham asked how many people were in the car.                   Monahan

    answered:      "It depends who's asking" and subsequently
    said that he and "his girlfriend" were in the car.                    When

    Gorham asked who was the driver, Monahan said "I might

    have been, I guess."

   Gorham again approached Monahan, this time with a digital

    tape recorder to get a more definitive statement.                     When

    Gorham asked, "Were you the driver?", Monahan answered,

    "Yeah, I guess."        Gorham told Monahan a fireman said he

    saw Monahan driving the car out of Shullsburg and asked
    "so you were the driver?"              Monahan replied, "Yeah, I

                                   10
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         guess."    When Gorham asked, "You're not BSing or anything

         right?",    Monahan      answered,      "I   don't    think    so."     The

         audio-recording was played for the jury and Monahan can

         be heard groaning in pain.            Medical personnel interrupted

         Gorham's questioning to insert an IV.                 Monahan expressed

         he was in pain.          Gorham resumed the questioning, asking

         if Monahan could "explain what happened," and Monahan

         replied, "No."         Gorham pressed, "You don't remember how

         the crash occurred?" to which Monahan replied,                   "My tires

         went off the side of the road and I believe it was I lost

         control." [sic] When Gorham followed up by asking about

         the tires, Monahan asked, "Can we talk tomorrow?"3

    ¶81    During the flight to the hospital, Monahan told the

flight   nurse     and    medic   he    remembered     what    happened——he      was

driving and he was wearing his seatbelt.                 Prior to the flight,

Monahan had been given Fentanyl, a pain medication.

    ¶82    At the hospital, Monahan signaled to his nurse that he

wanted paper and pencil.               He could not speak because he was
intubated.       Monahan wrote he remembered the accident——he was

going too fast over a hill and lost control.

    ¶83    During        an   interview   with    a   state   trooper     ten   days

after the crash and after Monahan had been released from the

hospital, Monahan said he had "no idea" who was driving at the

time of the crash and he "did not have memory of the crash at

    3
       No firefighter testified to making the statement to Gorham
and Gorham told the jury he was not able to locate the
firefighter.


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all."      Monahan also told the trooper that the car belonged to

R.C. and he had never driven her car.                           Five months after the

crash, the state trooper interviewed Monahan again.                                     Monahan

told the trooper he still had no recollection of the crash.

Monahan said R.C. was an aggressive, "kind of nuts" driver.                                  The

trooper     asked    Monahan       to    give      a    DNA    sample   so     it    could    be

compared to physical evidence collected from the car.                                   Monahan

agreed, saying, "It doesn't matter, you know, I wasn't driving."

At   the    time    of   this      statement,          Monahan    was     still      seeing    a

neurologist.        He was not cleared to return to work until nine

months after the accident.

      ¶84    The    State's        case      relied       on     Monahan's      statements,

Parrott's reconstruction opinion, and the DNA airbag evidence.

In addition, R.C.'s mother testified during the State's rebuttal

case that R.C. drove as close to the steering wheel as possible.4

Although     this       evidence        is   certainly         sufficient       to      convict

Monahan,     it    is    by   no   means      overwhelming.             First,       Monahan's

statements are far from conclusive.                           Most could be accurately
described     as    equivocal.           Many      of    his    statements       were     given

within minutes of a high-speed car crash, which caused serious

injury,     including         immediate         unconsciousness           and       a    later-




      4
       The actual testimony was: "She would always have her seat
as close up to the steering wheel as she possibly could." And
when shown Erdtmann's photo she said:       "The model is much
farther back than [R.C.] would have been."


                                              12
                                                                     No.   2014AP2187-CR.rgb


diagnosed head injury.5                 One of Monahan's statements was given

only       after       being   told    he     was    the   driver.         Many    of   these

statements were given while Monahan was in severe pain.                                    His

statement in the helicopter admitting that he was driving was

given at the same time he either lied or mistakenly stated he

was wearing his seatbelt.                It could easily be discounted.

       ¶85       Second, Parrott was not the only reconstructionist to

testify at trial.              Monahan's expert refuted Parrott's testimony

in every regard.                 And, the jury heard that Parrott's report

included false information.                   Namely, his report said he excluded

R.C.       as    the    driver      because    lab    results   analyzing         the   car's

window fragments did not contain R.C.'s DNA.                          At trial, Parrott

admitted that this was an error——no glass fragments were ever

tested in this case.                Parrott explained this mistake appeared in

his report because he "cut and pasted" it from another report

for a different "who was the driver" reconstruction case; he

inserted R.C.'s name in place of the person from his other case.

Moreover, Parrott's opinion that Monahan was driving was based
on   his        comparison     of     Monahan's      and   R.C.'s    shoes    to    what    he

claimed were "little flecks" on the gas and brake pedal.                                But,

he admitted he was not a footprint expert.                            He conceded that

Karley Hujet of the Wisconsin State Crime Lab, who performed the

official analysis of the pedals and the shoes, was the footprint

       5
       Monahan's medical records show he had surgery on his
spleen, was hospitalized for six days, and his injuries included
traumatic shock, lung contusion, fractures to the cervical,
lumbar, and thoracic vertebrae, rib fracture, and a concussion
with loss of consciousness.


                                                13
                                                          No.    2014AP2187-CR.rgb


expert.     Hujet testified that she could not conclusively say

there was a footwear impression and in comparing the pedals to

the shoes, she could not say who was driving.               Parrott told the

jury the reason he could opine that Monahan's shoes were on the

pedals    when   Hujet   could   not   was    because    Hujet    was    bound   by

industry standards, which did not apply to him.

    ¶86     Third, Monahan's expert gave an explanation regarding

the DNA on the airbag, which refuted Parrott's opinion on seat

position and dirt evidence.        Parrott's reconstruction theory had

R.C. ejecting from the car before the airbags deployed, leaving

unanswered the question of why the driver's airbag had a second

person's DNA on it.

    ¶87     Finally, R.C.'s mother's testimony that her daughter

would drive with her seat as close to the steering wheel as

possible cannot prove that R.C. did so while driving her car on

the day of the crash nor can it establish that Monahan was

driving.     We simply do not know, and the mother's testimony

alone cannot make the erroneous exclusion of the complete GPS
evidence harmless.

    ¶88     There   certainly     are       cases   in   which     the    State's

evidence is so overwhelming and uncontested that a reviewing

court can say, as a matter of law, the evidentiary error had no

impact.    But this is not one of those cases.                  Factors (4) and

(5) do not demonstrate beyond a reasonable doubt that excluding

the GPS evidence had no impact on the verdict or that the jury

would have convicted Monahan absent the error.



                                       14
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       ¶89    Application             of        the    Hunt       factors       shows       that       the

erroneous exclusion of evidence in this case was not harmless.

This    was       a    close    case.             Excluding         the    complete         GPS       data

prevented Monahan from introducing evidence to corroborate his

expert's      opinion       and       his        defense.          At     the       same    time,       its

exclusion allowed the State to persuasively argue in favor of

its    expert's         theory.            We    do    not    know      which        theory       a   jury

presented with all the GPS evidence would believe.                                            But, its

exclusion,            exploited       by    the       State       in    its     closing,          creates

reasonable doubt as to whether a rational jury would have found

Monahan guilty absent the error; the State has failed to prove

"beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained."                              Therefore, the error was

not harmless and Monahan should get a new trial during which he

can present the GPS evidence to support his defense.

                                                      III

       ¶90    The       trial     court's             erroneous        exclusion       of     evidence

prevented Monahan from fully presenting his defense, which is a
constitutional            error.            A     criminal         defendant          has     a       Sixth

Amendment right to present his defense.                                   Washington v. Texas,

388    U.S.       14,    18-19        (1967)          (discussing         criminal         defendant's

"right       to       present     a        defense,         the     right       to     present         the

defendant's version of the facts" so the jury can compare to the

State's      version       to     "decide          where      the      truth        lies.").          "The

evidence      the       defendant          seeks      to    introduce,          however,       must     be

'both material and favorable to his defense.'"                                       State v. Ward,
2011 WI App 151, ¶16, 337 Wis. 2d 655, 807 N.W.2d 23 (quoting

                                                      15
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United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).

The evidence excluded in this case is material and favorable to

Monahan's defense, satisfying both criteria.                   By excluding this

evidence, the circuit court violated Monahan's right to present

a defense.      A new trial would give him a fair opportunity to

defend     against         the     State's      accusations.           Chambers       v.

Mississippi, 410 U.S. 284, 294 (1973) ("The right of an accused

in a criminal trial to due process is, in essence, the right to

a fair opportunity to defend against the State's accusations.").

    ¶91     The trial court committed a constitutional error in

depriving the jury of evidence material to Monahan's defense and

the majority errs in denying Monahan a new trial in which he

could    present     it.         Because   it   is   far    from     clear   beyond   a

reasonable doubt that a rational jury would have found Monahan

guilty if it had heard the excluded evidence, I respectfully

dissent.

    ¶92     I   am   authorized       to     state   that   Justices      SHIRLEY     S.

ABRAHAMSON and ANN WALSH BRADLEY join this dissent.




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