                                                              2017 WI 58

                  SUPREME COURT                OF   WISCONSIN
CASE NO.:              2014AP2701-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Robert Joseph Stietz,
                                 Defendant-Appellant-Petitioner.
                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 369 Wis. 2d 222, 880 N.W.2d 182
                                        (2016 – Unpublished)

OPINION FILED:         June 13, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         February 15, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Lafayette
   JUDGE:              James R. Beer

JUSTICES:
   CONCURRED:          R.G. BRADLEY, J. concurs, joined by ROGGENSACK,
                       C.J. (except part II) and KELLY, J.
  DISSENTED:           ZIEGLER, J. dissents, joined by GABLEMAN, J.
  NOT PARTICIPATING:   A.W. BRADLEY, J. did not participate.

ATTORNEYS:


       For the plaintiff-respondent there was a brief filed by and
an   oral       argument   by   Sarah   Lynn   Shaeffer,   assistant   attorney
general, with whom on the brief was Brad D. Schimel, attorney
general.
       For the defendant-appellant-petitioner, there were briefs
filed by Charles W. Giesen and Jessica J. Giesen and Giesen Law
Offices, S. C., Madison, and oral argument by Charles W. Giesen.
                                                                        2017 WI 58
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2014AP2701-CR
(L.C. No.    2012CF93)

STATE OF WISCONSIN                            :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                     FILED
      v.
                                                                JUN 13, 2017
Robert Joseph Stietz,
                                                                   Diane M. Fremgen
              Defendant-Appellant-Petitioner.                   Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                  Reversed and

cause remanded.


      ¶1      SHIRLEY S. ABRAHAMSON, J.1          This is a review of an

unpublished      per     curiam   decision   of    the     court      of    appeals



      1
       Four justices——Justice Rebecca Bradley, Chief Justice
Patience D. Roggensack and Justice Daniel Kelly (both of whom
join Justice Rebecca Bradley's concurrence), and I——join this
opinion holding that the decision of the court of appeals is
reversed and that the circuit court erred in failing to instruct
the jury regarding self-defense.     Justice Daniel Kelly joins
this opinion to the extent that it is not inconsistent with
Justice Rebecca Bradley's concurrence.

                                                                      (continued)
                                                          No.   2014AP2701-CR



affirming the judgment of conviction by the circuit court for

Lafayette County, James R. Beer, Judge.2            The criminal charges

arose   out    of   a   confrontation   between   the   defendant   and   two

Wisconsin Department of Natural Resources conservation wardens,

Joseph Frost and Nick Webster.

    ¶2        Following a three-day trial, a jury convicted Robert

Stietz, the defendant, of resisting a law enforcement officer,




     With regard to the trespass issue, Justice Rebecca G.
Bradley's concurrence is joined by Chief Justice Patience D.
Roggensack except for Section II and is joined by Justice Daniel
Kelly in full.    The concurrence would on remand "require the
circuit court to instruct the jury on trespass" but does "not
decide whether the language in Stietz's proposed trespass
instruction was appropriate." This aspect of Justice Rebecca G.
Bradley's concurrence has not garnered a majority of the
justices participating in the instant case.

     Justice Annette K. Ziegler is joined by Justice Michael J.
Gableman in dissent.

    Justice Ann Walsh Bradley did not participate.
    2
       State v. Stietz, No. 2014AP2701-CR, unpublished slip op.
(Wis. Ct. App. Apr. 14, 2016).


                                        2
                                                           No.   2014AP2701-CR



Wis. Stat. § 946.41(1) (2013-14),3 and intentionally pointing a

firearm at an officer, § 941.20(1m)(b).4

     ¶3    On   appeal,   the       court   of   appeals     rejected     the

defendant's argument that his constitutional right to present a

defense was denied by the circuit court's refusal to instruct

the jury on self-defense.           The court of appeals affirmed the

judgment of conviction.

     ¶4    The dispositive issue presented is whether the circuit

court erred when it refused to instruct the jury on self-defense




     3
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
     4
       The jury found the defendant guilty of two of the
following six offenses charged: (1) first-degree recklessly
endangering safety (Wis. Stat. § 941.30(1)); (2) resisting or
obstructing an officer (Warden Frost), use of a dangerous weapon
(Wis. Stat. §§ 946.41, 939.63(1)); (3) resisting or obstructing
an officer (Warden Webster), use of a dangerous weapon (Wis.
Stat. §§ 946.41, 939.63(1)); (4) negligent handling of a weapon
(Wis. Stat. § 941.20(1); (5) intentionally pointing a firearm at
a   law-enforcement   officer   (Warden   Frost)   (Wis.   Stat.
§ 941.20(1m)(b); (6) intentionally pointing a firearm at a law-
enforcement    officer    (Warden     Webster)    (Wis.    Stat.
§ 941.20(1m)(b)).

     The   defendant   filed    a    postconviction   motion       that   was
denied.

     The defendant's sentence included one year of initial
confinement and three years of extended supervision on the
felony and a consecutive two-year probation term on the
misdemeanor.   The defendant had served the confinement portion
of his sentence by the time his brief was filed in this court,
but he remained subject to extended supervision, probation, and
loss of civil rights.


                                      3
                                                                  No.     2014AP2701-CR



as the defendant requested.5             The dispute in the instant case

regarding the self-defense instruction centers on whether the

defense    of     self-defense   is    supported         by   sufficient    evidence.

State     v.    Head,     2002   WI    99,       ¶113,    255    Wis. 2d 194,       648

N.W.2d 413.

     ¶5        On viewing the record in the light most favorable to

the defendant, as we must,6            we conclude, contrary to the State's

position, that there was adequate evidence supporting a self-

defense instruction in the instant case and that the circuit

court     erred      in   refusing     the       defendant's     request     for   the

instruction.

     ¶6        The   evidence    was    sufficient        in    the     instant    case

because a reasonable fact-finder could have determined that the

defendant reasonably believed that the two men who accosted him


     5
       We need not and do not address the following issues that
the parties addressed:

     Did the law enforcement officers violate the defendant's
Second Amendment rights when they forcibly disarmed the
defendant of his loaded rifle?

     Did the defendant have the right to argue and instruct the
jury that the law enforcement officers who encountered the
defendant on his uncle's property were trespassers?

     Did the court of appeals contradict State v. Hobson, 218
Wis. 2d 350, 577 N.W.2d 825 (1998), by foreclosing a self-
defense claim against the wardens, whom the defendant did not
know were officers and who were not claiming to arrest the
defendant but were trying to disarm him?
     6
       State v. Head, 2002 WI 99, ¶¶9, 113, 255 Wis. 2d 194, 648
N.W.2d 413.


                                             4
                                                             No.    2014AP2701-CR



with weapons on his land and on land upon which he had an

easement   were   not   wardens   with    the   Wisconsin      Department       of

Natural Resources; that the defendant reasonably believed that

the two men were trespassers hunting illegally; that because the

two men forcibly wrested his rifle from him and then drew their

handguns on him, the defendant reasonably believed that the two

men were unlawfully interfering with his person; that the two

men pointing handguns at the defendant caused him to fear for

his life; and that the defendant pointed his handgun at the two

men believing he had to defend himself.7          In sum, the jury could

conclude   that   the   defendant    threatened    to   use        force   as   he

reasonably   believed    necessary       to   prevent   or     terminate        the

interference with his person.

    ¶7     Because we conclude that there was sufficient evidence

to support the privilege of self-defense, we conclude that the

circuit court erred in failing to instruct the jury on self-

defense as requested by the defendant.           We further conclude that

the circuit court's error affected the defendant's substantial
rights; it was not harmless error.

    ¶8     Accordingly, we reverse the decision of the court of

appeals and the judgment of conviction.           We remand the cause to

the circuit court for a new trial.




    7
       Intentionally pointing a firearm toward or at another
threatens use of force. State v. Watkins, 2002 WI 101, ¶56, 255
Wis. 2d 265, 647 N.W.2d 244.


                                     5
                                                       No.     2014AP2701-CR



    ¶9     We begin with a discussion of the statutory defense of

self-defense and the standard of review.           We then examine the

record.    We determine that there was sufficient evidence to

support a jury instruction on self-defense and that the circuit

court erred in refusing to give the instruction.               Lastly, we

assess the error and conclude that the circuit court's error in

refusing   to   instruct   the   jury   on   self-defense    affected   the

defendant's substantial rights.

                                    I

    ¶10    The defendant raised an affirmative defense of self-

defense.    The privilege of self-defense is set forth in Wis.

Stat. § 939.48(1) as follows:

    A person is privileged to threaten or intentionally
    use   force  against  another   for  the   purpose  of
    preventing or terminating what the person reasonably
    believes to be an unlawful interference with his or
    her person by such other person. The actor may
    intentionally use only such force or threat thereof as
    the actor reasonably believes is necessary to prevent
    or terminate the interference. The actor may not
    intentionally use force which is intended or likely to
    cause death or great bodily harm unless the actor
    reasonably believes that such force is necessary to
    prevent imminent death or great bodily harm to himself
    or herself. (Emphasis added.)




                                    6
                                                           No.   2014AP2701-CR



    ¶11     The pattern jury instruction for self-defense, Wis JI—

—Criminal   800,8   instructs    the   jury   on   the   elements   of   self-

defense as follows (footnotes omitted):

                                Self-Defense

    Self-defense is an issue in this case.      The law of
    self-defense allows the defendant to threaten or
    intentionally use force against another only if:

    • the defendant believed that there was an actual or
      imminent unlawful interference with the defendant's
      person; and,

    • the defendant believed that the amount of force the
      defendant used or threatened to use was necessary to
      prevent or terminate the interference; and

    • the defendant's beliefs were reasonable.

          Determining Whether Beliefs Were Reasonable

    A belief may be reasonable even though mistaken.9 In
    determining whether the defendant's beliefs were
    reasonable, the standard is what a person of ordinary
    intelligence and prudence would have believed in the
    defendant's position under the circumstances that
    existed at the time of the alleged offense.        The
    reasonableness of the defendant's beliefs must be
    determined from the standpoint of the defendant at the
    time of the defendant's acts and not from the
    viewpoint of the jury now.

    8
       The defendant also requested Wis JI——Criminal 810,
relating to whether the defendant had to retreat, and also
proposed adaptations of these pattern instructions. We need not
consider those formulations because we conclude that the record
supports   the  defendant's  request   for  this   pattern jury
instruction.
    9
       See Maichle v. Jonovic, 69 Wis. 2d 622, 628, 230
N.W.2d 789 (1975) ("The reasonableness of the actor's beliefs,
moreover, is not defeated by a subsequent determination that his
beliefs were mistaken.").


                                       7
                                                                        No.     2014AP2701-CR



       ¶12    A   circuit      court       has       broad    discretion       in    deciding

whether to give a requested jury instruction.                          State v. Coleman,

206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996).10                         The circuit court

must, however, exercise its discretion in order "to fully and

fairly inform the jury of the rules of law applicable to the

case and to assist the jury in making a reasonable analysis of

the    evidence."       State    v.        Vick,       104    Wis. 2d 678,          690,    312

N.W.2d 489 (1981) (quoting State v. Dix, 86 Wis. 2d 474, 486,

273 N.W.2d 250 (1979)).

       ¶13    A    court       must        determine          whether      a        reasonable

construction of the evidence will support the defendant's theory

"viewed in the most favorable light it will 'reasonably admit

from the standpoint of the accused.'"                          Head, 255 Wis. 2d 194,

¶113    (quoting       State    v.     Mendoza,         80    Wis. 2d 122,          153,    258

N.W.2d 260 (1977) (quoting Ross v. State, 61 Wis. 2d 160, 172,

211 N.W.2d 827 (1973))).

       ¶14    Whether    there       are    sufficient         facts    to     warrant      the

circuit      court's    instructing          the       jury    on   self-defense           is   a
question of law that this court decides independently of the

circuit court and court of appeals, but benefiting from their

       10
        "[A] criminal defendant is entitled to a jury instruction
on a theory of defense if: (1) the defense relates to a legal
theory of a defense, as opposed to an interpretation of
evidence; (2) the request is timely made; (3) the defense is not
adequately covered by other instructions; and (4) the defense is
supported by sufficient evidence."       State v. Coleman, 206
Wis. 2d 199, 212-13, 556 N.W.2d 701 (1996) (internal citations
omitted); Johnson v. State, 85 Wis. 2d 22, 28-29, 270 N.W.2d 153
(1978).


                                                 8
                                                                             No.   2014AP2701-CR



analyses.          Head, 255 Wis. 2d 194, ¶44 (citing State v. Mayhall,

195 Wis. 2d 53, 57, 535 N.W.2d 473 (1995)); State v. Sartin, 200

Wis. 2d 47, 53, 546 N.W.2d 449 (1996); State v. Chew, 2014 WI

App 116, ¶7, 358 Wis. 2d 368, 856 N.W.2d 541.

       ¶15     A    jury      must    be     instructed         on    self-defense         when    a

reasonable jury could find that a prudent person in the position

of the defendant under the circumstances existing at the time of

the incident could believe that he was exercising the privilege

of self-defense.              A circuit court may deny a requested self-

defense      instruction           when     no   reasonable          basis   exists    for      the

defendant's          belief          that        another        person       was   unlawfully

interfering         with      his    person       and    that    the     defendant     used       or

threatened         the   use    of     such      force     as    he    reasonably      believed

necessary to prevent or terminate the interference.                                   Head, 255

Wis. 2d 194, ¶¶112-113.

       ¶16     Wisconsin law establishes a "low bar" that the accused

must    surmount         to   be     entitled      to    a    jury     instruction         on   the

privilege of self-defense.                   State       v. Schmidt, 2012 WI App 113,
¶12, 344 Wis. 2d 336, 824 N.W.2d 839.                           The accused need produce

only    "some       evidence"        in     support      of     the    privilege      of    self-

defense.       Head, 255 Wis. 2d 194, ¶112; State v. Peters, 2002 WI

App     243,       ¶¶21-23,          27-29,       nn.4-5,        258     Wis. 2d 148,           653

N.W.2d 300.11


       11
       The evidence may be facts presented by the defense or the
State or through cross-examination.    Coleman, 206 Wis. 2d at
214.


                                                   9
                                                                No.    2014AP2701-CR



       ¶17   Evidence     satisfies    the     "some     evidence"     quantum     of

evidence even if it is "weak, insufficient, inconsistent, or of

doubtful credibility" or "slight."12

       ¶18   Crucial to applying the "some evidence" standard is

that a court is not to weigh the evidence.                 State v. Mendoza, 80

Wis. 2d 122, 152, 258 N.W.2d 260 (1977).                 A court does not "look

to the totality of the evidence," as that "would require the

court to weigh the evidence——accepting one version of facts,

rejecting another——and thus invade the province of the jury."

Mendoza, 80 Wis. 2d at 153; Ross v. State, 61 Wis. 2d 160, 172-

73,    211   N.W.2d 827    (1973)     ("This      test   does   not   call   for    a

weighing of the evidence by the trial judge.").13                     Rather, "the

question of reasonableness of a person's actions and beliefs,

when    a    claim   of   self-defense       is    asserted,     is    a   question

peculiarly     within     the   province     of    the    jury."       Maichle     v.




       12
       State v. Schuman, 226 Wis. 2d 398, 404, 595 N.W.2d 86
(Ct. App. 1999) (citing United States v. Sotelo-Murillo, 887
F.2d 176, 178 (9th Cir. 1989); United States v. Kessee, 992 F.2d
1001, 1003 (9th Cir. 1993)).
       13
       State v. Peters, 2002 WI App 243, ¶27 n.4, 258
Wis. 2d 148, 653 N.W.2d 300 ("The 'some' evidence standard is a
relatively low threshold, in part because of the distinct
functions of judge and jury."); Walter Dickey, David Schultz &
James Fullin, Jr., The Importance of Clarity in the Law of
Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323, 1347
(The "some" evidence standard is a relatively low threshold, in
part, because of the distinct functions of judge and jury——
evaluating the weight and credibility of the evidence is
traditionally a task reserved to the jury.).


                                        10
                                                             No.    2014AP2701-CR



Jonovic,   69   Wis. 2d 622,    630,     230   N.W.2d 789     (1975)     (citing

Higgins v. Minagham, 76 Wis. 298, 45 N.W. 127 (1890)).14

     ¶19   In the instant case, if "some evidence" were offered

at trial that the defendant reasonably believed that another

person was unlawfully interfering with his person and that he

used or threatened to use such force as he reasonably believed

necessary to prevent or terminate the interference, "then it is

for the jury, not for the [circuit] court or this court, to

determine whether to believe [the accused's] version of events."

Mendoza, 80 Wis. 2d at 153.

     ¶20   With   the   low    "some    evidence"       quantum    of   evidence

standard in mind, we turn to the record to determine whether

there was sufficient evidence to support an instruction to the

jury on self-defense.

     ¶21   The State argues that the defendant's testimony was

incredible   on   its   face   and     that,   as   a   matter     of   law,   the

evidence was insufficient to warrant a self-defense instruction,

and that any claim of self-defense was so discredited that no
reasonable jury would believe the defendant.15




     14
       See also State v. Jones, 147 Wis. 2d 806, 816, 434
N.W.2d 380 (1989) (citing State v. Mendoza, 80 Wis. 2d 123, 156,
258 N.W.2d 260 (1977)).
     15
       "If perfect self-defense is placed in issue by the trial
evidence, the state must prove beyond a reasonable doubt that
one of the defendant's beliefs was not reasonable."   Head, 255
Wis. 2d 194, ¶70.


                                       11
                                                                  No.     2014AP2701-CR



      ¶22   We   focus     on   the    encounter        from      the    defendant's

perspective.     We view the record favorably to the defendant, as

the case law requires, to assess whether a reasonable jury could

find that a person in the position of the defendant under the

circumstances    existing       at    the    time     of    the    incident     could

reasonably believe that he was exercising the privilege of self-

defense.

      ¶23   We do not present the defendant's one-sided picture of

the events as representing the entire story.                      The defendant's

testimony was not always consistent and it was contradicted.                         We

conclude, however, that the defendant's version of the events,

sometimes   supported      on   specific      points       by   the     two   wardens,

provided an adequate factual basis supporting the defendant's

explanation that he was exercising his right to defend himself.

The jury was not obliged to believe the defendant, but they

could have believed him.             Following is the evidence from the

defendant's perspective.

                                        II
      ¶24   The defendant was a 64-year-old farmer at the time of

the   incident   in   question.         He    owned     a    parcel      of   land    in

Lafayette   County    on    which     he     pastured       cattle,     hunted,      and

gathered morel mushrooms.             The land consists of grassy, open

areas, including pasture areas; rolling hills; and some wooded

areas.

      ¶25   The defendant's parcel of land is surrounded by land

owned by the defendant's uncle.              The defendant had the benefit


                                        12
                                                                       No.      2014AP2701-CR



of an easement (right-of-way) for ingress and egress over the

uncle's land to Highway 81.

    ¶26       A     fence    separates       the    defendant's        land       from    his

uncle's land on all sides, interrupted only by a metal, swinging

"cattle gate."            The gate marks the point where the easement,

recognizable as a two-track, dirt-road-like path, connects the

defendant's land to Highway 81.                   The fence keeps trespassers out

and cattle in.

    ¶27       The     uncle       testified       that     he    and      the     defendant

generally stayed off of each other's land.                          Occasionally, the

defendant and his uncle would enter each other's land to check

the fence line.

    ¶28       The defendant testified that, over the years, he has

had problems with trespassers.                    Many would hunt illegally, and

some would vandalize his property.                    He posted "no trespassing"

signs   and       asked     the   Lafayette       County   Sheriff      for      help    with

trespassers on numerous occasions.                   During deer season——when he

often had the worst trespassing problems——the defendant would
check his land for trespassers.                   He would be armed when he went

on the land, because he knew that anyone hunting illegally would

likely be armed.

    ¶29       On    the     afternoon   in    question,         Sunday,      November     25,

2012, the last day of gun deer season, the defendant patrolled

his property for trespassers and walked his fence line to make

sure that it had no holes.               Now that gun deer season was over,

he planned to pasture a longhorn cow.                    Because the defendant was
not going to hunt and would not have to haul a deer carcass
                                             13
                                                                  No.       2014AP2701-CR



home, he drove his wife's Chevrolet sedan.                  He parked the sedan

in a field near the gate to his land.

       ¶30     The defendant carried his rifle in a safe position16

with the safety on and kept a handgun in his coat pocket as he

always did.         Although the handgun held six rounds, he kept only

five rounds in it because the gun did not have a safety; he did

not   like     to    leave   a   round    in    the    cylinder    that       could    be

accidentally discharged.

       ¶31     The defendant wore a camouflage coat and hat.                     He did

not wear any blaze orange (as most hunters would) because he was

not hunting and was on his own private property.17

       ¶32     Wisconsin     Department        of     Natural     Resources         (DNR)

Wardens Frost and Webster were out on patrol on the afternoon in

question.       They were looking for hunters who were trying to nab

an eleventh-hour deer after the gun deer season ended at 4:45

p.m. (20 minutes after the 4:25 p.m. sunset).

       ¶33     They drove on the surface roads, using binoculars to

find hunters.         They saw no one and heard no signs of hunting.
At    around    4:58    p.m.,    the     two   wardens     noticed      a     car    (the

defendant's wife's Chevrolet sedan) parked in a field along a

       16
       The defendant described this safe position as holding the
rifle in front of his body, with one hand on the foregrip of the
rifle, and the other somewhere around the stock. Neither of his
hands was on the trigger. The muzzle was pointed up.
       17
       The defendant did have a blaze orange vest stuffed into a
coat pocket, which, he testified, remained in his pocket from
weeks before.   This vest was the "sliver" of blaze orange that
the wardens testified they saw on the defendant.


                                          14
                                                                No.     2014AP2701-CR



fence    line    about   a   quarter-mile      from   the    highway.      The    two

wardens drove their DNR pickup truck across the field and up to

the sedan.        As one of them peered into the sedan, he observed

what he concluded were signs of hunting: an empty gun case, a

bottle of "Buck Lure" (a scent-killer spray), and a camouflaged

tree seat.       The other warden checked the vehicle's registration

and found that the sedan was registered to Robert Stietz, the

defendant, and his wife, Susan Stietz.

       ¶34    Apparently concluding that whoever owned this sedan

was hunting after the gun deer season ended, the two wardens

decided to look around.           Before leaving their DNR pickup truck,

both     wardens      donned     their    blaze-orange,        department-issued

jackets.        Like their uniforms, their blaze-orange jackets bore

DNR insignia.         The DNR patch insignia on the shoulder of each

arm of the jacket were not, however, as conspicuous as the DNR

insignia on their uniforms.           Each warden also had a DNR badge on

his jacket and a hat bearing a DNR insignia patch.                         Although

neither      warden   had    a   rifle,   as   most   deer    hunters     do,    each
carried a handgun and a long flashlight.

       ¶35    The two wardens headed north and came upon a partially

open cattle gate.            They walked through the open cattle gate,

entered the defendant's fenced-in parcel, and followed a path in

the grass worn down by cattle's hooves.

       ¶36    The defendant testified that as he was walking on his

uncle's land checking the fence line, he saw blaze orange in the

woods.       He headed toward the cattle gate to enter his land and
identify these blaze-orange-clad figures.                    He testified:         "I
                                          15
                                                                            No.     2014AP2701-CR



encountered         two        people         in       orange        that        was        on      my

property . . . and I didn't know who they were."                              He stated:            "I

wondered     who    was        trespassing.            This     is    my    thought,         I    was

wondering who was trespassing in my land that I did not know."

      ¶37    The        two     wardens       testified         that       they        heard       the

defendant before they saw him.                         As they were walking on the

cattle path, they heard a stick snap behind them, turned around,

and saw the defendant walk a few steps, stop and look around,

and then continue walking.

      ¶38    It was "nearly completely dark," according to Warden

Webster, when the three men crossed paths.                             As the two wardens

approached    the       defendant         from     a   distance      of     about      20    or    30

yards, flashlights were shined at the defendant.

      ¶39    The defendant explained that he did not see the DNR

insignia or badges on the men's attire as the men approached.

The defendant testified that he did not notice the DNR insignia

on   their   jacket           sleeves     because       he    was    "wondering          who      was

trespassing        in    [sic]       my   land"        and    "trying       to    study          their
face[s]."      The blaze-orange jackets signified hunters to the

defendant and the darkness reduced the chance that the defendant

would identify the two men as wardens by their uniforms.

      ¶40    According          to      the    defendant,           neither       man       clearly

identified himself as a game warden as they approached him,

leading the defendant to suspect that the two were trespassers

hunting illegally on his land.                        The men did nothing to correct

the defendant's misunderstanding of their identity.                                Although he
testified that he heard one of the men mumble something about
                                                 16
                                                                    No.        2014AP2701-CR



"warden," and the other mumbled something about "Green County,"

the defendant said he thought the men were asking if he was or

had seen a warden.

      ¶41   The    defendant's         belief      that     the      two        men    were

trespassing       hunters        was    bolstered          by      the         defendant's

interpretation of their words and conduct.                      The two men inquired

into how many deer the defendant had seen that day and whether

he was hunting.         The defendant told the men he had seen seven

doe but that he was not hunting.

      ¶42   The defendant testified that when he told the two men

that he was looking for trespassers and was not hunting, one of

the   men   "threw      up   his   arms"    and     appeared       "riled"        by   this

statement.        The   defendant      testified      that       this     response      was

prompted because "I believe they took it for that they was [sic]

trespassing and that will be my feeling."

      ¶43   The defendant also testified that the two men appeared

to be circling him early on in the encounter as he attempted to

back away from them by ducking back through the gate and heading
towards his car to drive home.

      ¶44   One    of    them,     Warden       Webster,    asked        the     defendant

whether his rifle was loaded.                   The defendant said yes.                 The

other   man,   Warden        Frost,    twice     asked     for    the     rifle.        The

defendant said no both times.               The two men began to make the

defendant fear for his life.             According to the defendant, "That

is when they proceeded——I felt like I was being attacked right

at that time."


                                           17
                                                                 No.    2014AP2701-CR



       ¶45    Warden      Frost   initiated     physical     contact      with     the

defendant, grabbing the defendant by the front of his garment

while reaching for the rifle.

       ¶46    The other man, Warden Webster, entered the fray.                    The

men grappled over the rifle, pointing the barrel every which

way.    The rifle was wrested from the defendant.                      Warden Frost

ended   up     on   his    back   on   the    ground.      He    held    the     rifle

momentarily, considering whether to use it.                     He cast it aside

when he could not figure out how to turn the safety off.                          This

tussle ended when the defendant no longer had the rifle.

       ¶47    The defendant then saw Warden Webster fumbling to pull

a handgun from a holster on his hip.                  At trial, all three men

agreed that Warden Webster was the first to pull his handgun and

that he pointed it at the defendant.                Warden Frost then drew his

handgun and pointed it at the defendant.                The defendant reached

for his own handgun because, as he testified, he thought "my

God, he's going to shoot."              The three men agreed that Warden

Frost        and    the     defendant        drew    their      handguns         about
"simultaneously."          The defendant stated to the two men that he

had a right to protect himself.               There they were, three men with

handguns trained on each other.

       ¶48    The defendant testified he did not know the two men

were wardens at this point; he just knew he was scared and

feared for his life:

       I felt like I was being attacked right at that time.

              . . . .


                                         18
                                                                 No.    2014AP2701-CR


    [A]ll of a sudden I seen the pistol coming up.                         And I
    figured, my God, he’s going to shoot.

              . . . .

    I was scared, darn scared.

              . . . .

    At that very instant I had the pistol in my right
    pocket   and  I    drew  my   pistol  at  the  very——
    simultaneously.   I said, I have the right to protect
    myself which I am doing at this time.

              . . . .

    [S]omeone else pulled their pistol out and I was
    fearful for my life so I drew mine so I would not get
    shot.
    ¶49       The two wardens and the defendant testified that the

defendant     told   the    men     that    he   was    exercising   his    right   to

defend himself:         "I have the right to protect myself which I am

doing    at   this   time."       And      the   defendant    told   the    two    men,

repeatedly, that he would lower his handgun when they lowered

theirs because one of them, Warden Webster, drew first.

    ¶50       While pointing his gun at the defendant with one hand,

Warden    Webster    used     his    other       hand   to   activate   his    collar
microphone and call Lafayette County dispatch for assistance.

The defendant testified that even when he heard this call being

made, he still "really didn't know positive for sure [that they

were officers] . . . because I never seen no credentials."

    ¶51       The defendant testified he was relieved when the call

for help was made.          He began to realize, for the first time,

that the two men were wardens and that assistance in the form of
sheriff's deputies would soon arrive.                   The defendant then backed


                                            19
                                                                  No.   2014AP2701-CR



a few feet away from the two men, moving nearer to the gate.                      He

assumed this position and waited for the backup to arrive.

    ¶52     The defendant continued to point his handgun at the

men after they called for backup.                  He stated he did so only

because the two refused to lower their handguns first.

    ¶53     The defendant refused to lower his handgun because he

felt unsafe, even after realizing that the two men were wardens.

It was dark out, and the three of them were in an unpopulated

rural area.       The two men, who had earlier attacked him without

provocation,      held    their   handguns       pointed   at     the   defendant's

face.     The defendant, by contrast, held his gun in one hand near

his side and was leaning against a fence post.

    ¶54     The    defendant      saw   a    squad    car's     emergency    lights

flashing.        After the first deputy sheriffs arrived, the two

wardens backed away from the defendant with their handguns still

drawn.     They retreated to the squad car along with the deputy

sheriff.

    ¶55     A lengthy standoff ensued.               As more deputies arrived,
they spoke to the defendant to persuade him to disarm.                            The

defendant explained that after the deputies assured him that he

would not be "gang tackled," he lowered his gun to his side,

emptied the cartridges onto the ground, and dropped the gun to

the ground.

    ¶56     The defendant peaceably surrendered.                  He walked to the

squad car where he was arrested.

    ¶57     No    one    was   hurt.        No   weapons   were    ever   fired   by
anyone.     All three men acknowledged that the defendant never
                                        20
                                                                               No.     2014AP2701-CR



threatened         to    shoot     the    two    men;       he    never    raised         his   voice

during the encounter; he never used any profanity; he did not

try to prevent the two men from calling for help and backup; and

he did not try to prevent or discourage the retreat of the two

men to the squad car.

      ¶58         Insofar as the instruction on self-defense hinged on

the defendant's credibility, credibility is a question to be

resolved          by    the   jury,      not    the       circuit   court,        the     court    of

appeals, or this court.                  State v. Coleman, 206 Wis. 2d 198, 213-

14,     556       N.W.2d 701       (1996).            A    court    does       not      weigh     the

testimony.             The court focuses, instead, on whether there is

"some evidence" supporting the defendant's self-defense theory.

      ¶59         The evidence that the defendant was in fear for his

life and believed he was exercising the threat of reasonable

force     went         beyond    the      minimal         quantum     of       "some      evidence"

necessary          to     establish       the       defendant's           right      to     a    jury

instruction on self-defense.

      ¶60         We    conclude      that     an     adequate      basis       exists      in    the
record to support a self-defense instruction and to allow the

defense of self-defense to be argued to and considered by the

jury.         A    reasonable       jury       could       find    that    a    person      in    the

position of the defendant under the circumstances existing at

the time of the incident could reasonably believe that the two

men were unlawfully interfering with his person and that he was

threatening reasonable force in the exercise of his privilege of

self-defense.             Therefore, we conclude that the circuit court
erred in refusing to instruct the jury on self-defense.
                                                 21
                                                                        No.    2014AP2701-CR



                                              III

     ¶61        Because we conclude that the circuit court erroneously

refused to instruct the jury on self-defense, we next consider

whether      the          error    affected        the    defendant's         "substantial

rights."18           Wis.    Stat.      § 805.18(2).19        This      statute   codifies

Wisconsin's harmless error rule.20

     ¶62        The harmless error inquiry raises a question of law

that this court decides.                 State v. Magett, 2014 WI 67, ¶29, 355

Wis. 2d 617, 850 N.W.2d 42.

     ¶63        A    defendant's        substantial       rights     remain      unaffected

(that     is,       the    error   is    harmless)       if   it   is    clear    beyond   a

reasonable doubt that a rational jury would have come to the


     18
          Peters, 258 Wis. 2d 148, ¶29.
     19
       The harmless error rule set forth for civil actions
applies to criminal proceedings via Wis. Stat. § 972.11. State
v. Harvey, 2002 WI 93, ¶39, 254 Wis. 2d 442, 647 N.W.2d 189.

     Wisconsin Stat. § 805.18(2) provides:

      No judgment shall be reversed or set aside or new
     trial granted in any action or proceeding on the
     ground of selection or misdirection of the jury, or
     the improper admission of evidence, or for error as to
     any matter of pleading or procedure, unless in the
     opinion of the court to which the application is made,
     after   an  examination   of  the   entire  action  or
     proceeding, it shall appear that the error complained
     of has affected the substantial rights of the party
     seeking to reverse or set aside the judgment, or to
     secure a new trial. (Emphasis added.)
     20
       State v. Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248,
750 N.W.2d 500 (citing Harvey, 254 Wis. 2d 442, ¶39 (footnote
omitted)).


                                              22
                                                    No.   2014AP2701-CR



same conclusion absent the error or if it is clear beyond a

reasonable doubt that the error complained of did not contribute

to the verdict obtained.21

     ¶64   The jury's acquittal of the defendant on four of the

six charges (including the most serious felony count) in part

depended on the defendant's testimony that at times conflicted

with that of the wardens.    The acquittals suggest that the jury

believed all or some of the defendant's testimony and, if given

the self-defense instruction, might have acquitted the defendant

on one or both of the two charges upon which they convicted the

defendant.

     ¶65   We therefore conclude that the circuit court's error

in refusing to give the jury a self-defense instruction was not

harmless error.   It is clear beyond a reasonable doubt that a

rational jury would not have come to the same conclusion absent

the error; it is clear beyond a reasonable doubt that the error

complained of contributed to the guilty verdict.

     ¶66   Because self-defense could have absolved the defendant
of one or both of his convictions, the circuit court's refusal

to give the self-defense instruction affected the defendant's

substantial rights.   The error was not harmless.

                              * * * *



     21
       State v. Magett, 2014 WI 67, ¶29, 355 Wis. 2d 617, 850
N.W.2d 42; Nader v. United States, 527 U.S. 1, 15, 18 (1999);
Chapman v. California, 386 U.S. 18, 24 (1967); Harvey, 254
Wis. 2d 442, ¶46 (citing Nader, 527 U.S. at 18).


                                23
                                                                 No.    2014AP2701-CR



    ¶67    In sum, after viewing the record in the light most

favorable to the defendant, as we must, we conclude that there

was sufficient evidence supporting a self-defense instruction in

the instant case.          Accordingly, we conclude that the circuit

court erred in refusing to instruct the jury on self-defense.

    ¶68    A    reasonable     fact-finder      could      determine      that      the

defendant reasonably believed that the two men who accosted him

with weapons on his land and on land upon which he had an

easement   were    not     wardens     with   the   Wisconsin      Department       of

Natural Resources; that the defendant reasonably thought that

the two men were trespassers hunting illegally; that because the

two men forcibly wrested his rifle from him and then drew their

handguns on him, the defendant reasonably believed that the two

men were unlawfully interfering with his person; that the two

men pointing handguns at the defendant caused him to fear for

his life; and that the defendant pointed his handgun at the two

men believing he had to defend himself.               In sum, the jury could

conclude   that    the     defendant    threatened    to    used       force   as   he
reasonably      believed    necessary     to    prevent     or     terminate        the

interference with his person.

    ¶69    We    further     conclude    that   the   circuit      court's       error

affected the defendant's substantial rights; it was not harmless

error.

    ¶70    Accordingly, we reverse the decision of the court of

appeals and the judgment of the circuit court.                     We remand the

cause to the circuit court for a new trial.


                                         24
                                                           No.   2014AP2701-CR



    By    the   Court.—The   decision   of   the   court    of   appeals   is

reversed and the cause remanded.

    ¶71    ANN WALSH BRADLEY, J., did not participate.




                                   25
                                                               No.   2014AP2701-CR.rgb


       ¶72       REBECCA GRASSL BRADLEY, J.              (concurring).      I agree

with       the    majority     opinion's         analysis    supporting     Stietz's

entitlement to the self-defense jury instruction and join the

opinion.          I write separately because the circuit court also

erred when it refused to allow Stietz to present a defense based

on evidence that the DNR wardens were trespassers on private

property,        and   I   disagree   with       the   majority's    assertion    that

"[w]e need not" address this issue.                     Majority op., ¶4 n.5.        I

also write to reaffirm that the Fourth Amendment prohibits the

government from seizing a person on private property——including

open       fields——absent      consent,      a    warrant,   probable     cause    and

exigent circumstances, or another lawful basis for interfering

with a person's right to be free from governmental intrusion.

                                                 I

       ¶73       The Sixth Amendment guarantees a criminal defendant

the right to present a defense.                      See Chambers v. Mississippi,

410 U.S. 284, 302 (1973).1                "[A] fundamental element of due

process of law," the right to present a defense includes "the
right to present the defendant's version of the facts . . . to

the jury so it may decide where the truth lies."                      Washington v.

Texas, 388 U.S. 14, 19 (1967); see also State v. Dodson, 219

Wis. 2d 65,         ¶¶35-36,    580   N.W.2d 181          (1998).      "Whether    an

evidentiary ruling infringes upon a criminal defendant's right

to present a defense is a question of constitutional fact for

       1
       There are some limits on the right to present a defense
that are not relevant here.    See State v. St. George, 2002 WI
50, ¶15, 252 Wis. 2d 499, 643 N.W.2d 777.


                                             1
                                                         No.   2014AP2701-CR.rgb


independent review."         State v. Ward, 2011 WI App 151, ¶15, 337

Wis. 2d 655,    807     N.W.2d 23     (quoted   source     omitted).        The

majority opinion sets forth the proper standard of review as to

whether the circuit court erred when it refused to give the

requested jury instructions, and therefore I will not repeat it

here.      See majority op., ¶¶12-14 & n.10.              Stietz wanted to

testify he thought the DNR wardens were trespassers, and sought

to make that argument to the jury, but the circuit court limited

his testimony on trespassing,2 refused to allow his attorney's

argument, and denied his request for the jury to be instructed

on the law of trespass.         The circuit court erred.        These errors,

together     with     the    self-defense   error,       violated     Stietz's

constitutional right to present a defense.

    ¶74     A brief examination of the facts puts the trespass

issue into context.         Stietz had problems with trespassers in the

past and lodged numerous trespassing complaints with the local

sheriff's department.        One trespasser broke windows on a trailer

Stietz kept on the land.            At the time Stietz encountered the
wardens, he was checking for trespassers on his private, fenced

land marked by conspicuous "no trespassing" signs; he was also

inspecting the integrity of his fence because he intended to

    2
       The State filed a motion in limine asking the circuit
court to prohibit any testimony referring to the wardens as
trespassers.   The circuit court ruled:   "[Stietz] can say that
he was patrolling for trespassers, but he can't say that the
wardens were trespassing." When Stietz testified "I encountered
two trespassers on my property," the circuit court ordered the
statement "stricken from the record" and instructed the jury to
"dismiss it from your minds entirely and not consider it in your
deliberations at all, as though it was never said."


                                       2
                                                                    No.    2014AP2701-CR.rgb


pasture a longhorn cow there the following day.                           The sun had set

and   it    was     fairly      dark     as    64-year-old          Stietz      walked      his

property——alone.          He had not invited anyone onto his private

property and was not expecting any visitors.                               This property,

located approximately half a mile from the public road, was

surrounded by other private property, part of which belonged to

Stietz's uncle.           There was no formal or permanent walkway or

driveway inviting visitors onto the private land.

      ¶75   DNR Wardens Frost and Weber entered Stietz's private

land shortly after hunting hours ended on November 25, 2012,

while en route to a citizen complaint in another county.                                 While

driving     along       the    public     road       adjacent       to    privately-owned

property, the wardens saw a small sedan parked on the grassy

area of private property, about a quarter mile from the road.

The wardens decided to circle the area, which included Stietz's

private property, to check for hunters who might be hunting

after hours.         During this trip, the wardens listened for any

audible sound and used binoculars and a scope to scour the land
for hunters.        They heard nothing and saw no one.                       Nevertheless,

the   wardens     decided       to     drive       onto    the    private       property     to

investigate       the    legally       parked       car.         There    was    no    formal

driveway, but a portion of the grassy field suggested a "field

lane," which they used to reach the car.                         Warden Webster ran the

registration      on     the    car,    which       belonged       to     Robert      and   Sue

Stietz, the adjacent property owners.                      Warden Frost got out and

looked into the car's windows.                 He saw an empty rifle case, some
buck lure, and a tree seat.                    The wardens decided to proceed

                                               3
                                                              No.    2014AP2701-CR.rgb


further onto the private property to look for illegal hunters.

No attempt was made to contact the owners of the private land,

there was no evidence of dead or diseased wild animals on the

land, there was no audible noise suggesting illegal hunting or

suspicious activity, and there was no evidence that a crime had

been or was about to be committed.

       ¶76      While    checking     the   fence,   Stietz   saw    two   strangers

clad       in   orange   about   20    to   30   yards    away,     walking   on    his

property.         When the two men approached Stietz, they turned a

flashlight toward him and asked him to give them his rifle.

Stietz——an armed services veteran, a citizen with no criminal

record, and a hunter without violations in the past 50 years——

refused to turn his weapon over to two men he did not know who

appeared uninvited on his private land.                   At that point, Warden

Webster physically grabbed Stietz, and the two wardens forcibly

wrested the shotgun away from him.3               After the seizure, all three

men drew their handguns, resulting in the standoff that formed

the basis for the charges in this case.
       ¶77      Stietz, who testified on his own behalf, wanted to

tell the jurors that he believed the two men were trespassers,

and the circuit court erred in barring this part of Stietz's

testimony.         "All    relevant     evidence     is   admissible,      except    as

otherwise provided by the constitutions of the United States and

       3
       Stietz says Warden Webster grabbed his shirt before the
wardens grabbed his rifle.    Both wardens deny grabbing Stietz.
For the purpose of this court's review, however, we view the
facts in the light most favorable to Stietz. See State v. Head,
2002 WI 99, ¶9, 255 Wis. 2d 194, 648 N.W.2d 413.


                                            4
                                                             No.   2014AP2701-CR.rgb


the state of Wisconsin, by statute, by these rules, or by other

rules adopted by the supreme court."                   Wis. Stat. § 904.02.        A

defendant has a fundamental right to testify and give, in his

own words, his version of what happened.                  See State v. Nelson,

2014 WI 70,      ¶19, 355 Wis. 2d 722, 849 N.W.2d 317.                      Stietz's

testimony giving his version of events was relevant and should

have been admitted.        Excluding the trespass testimony prevented

Stietz from fully presenting his defense.

       ¶78    Stietz's attorney also sought to argue the wardens

were    in   fact   trespassers,       and     requested     a     trespass     jury

instruction, but the circuit court refused both requests.                         It

concluded the wardens were not trespassing.                  The law, however,

does   not   support     the   circuit       court's    decisions     and    instead

confirms Stietz's argument that the wardens were trespassing.

       ¶79   Wisconsin    Stat.     § 943.13     prohibits     any    person    from

entering the land of another without express or implied consent

of the owner or occupant.           The wardens did not have consent from

Stietz or his uncle.            Wisconsin Stat. § 29.924(5) allows DNR
wardens to enter private lands for the purpose of "retriev[ing]

or   diagnos[ing]   dead       or   diseased    wild     animals     and    tak[ing]

actions reasonably necessary to prevent the spread of contagious

disease in the wild animals," and wardens may enter the property

only "after making reasonable efforts to notify the owner or

occupant."     The wardens made no effort at all to notify Stietz

or his uncle before entering the private land, and there were no

dead or diseased wild animals in need of retrieval or diagnosis.



                                         5
                                                                       No.    2014AP2701-CR.rgb


       ¶80        Wisconsin    Stat.         § 23.58(1),        which        authorizes        DNR

wardens to conduct a Terry4 stop, provides that "an enforcing

officer," "having identified himself or herself as an enforcing

officer," "may stop a person in a public place for a reasonable

period of time when the officer reasonably suspects that such

person is committing, is about to commit or has committed a

violation" of any applicable laws or rules.                             (Emphasis added.)

The wardens here were not in a public place and, even if Terry

permitted investigatory stops on private property, the wardens

did not have reasonable suspicion that Stietz was breaking the

law    when       they     drove    onto      private       property     to      investigate.

Reasonable         suspicion       exists      when     a    law   enforcement            officer

possesses          "specific       and   articulable           facts     that        warrant    a

reasonable belief that criminal activity is afoot."                                      State v.

Young, 2006 WI 98, ¶21, 294 Wis. 2d 1, 717 N.W.2d 729.                                    The DNR

equivalent         would    require      a    reasonable       belief        that    a    hunting

violation is afoot.                A car legally parked on private property

does       not,    alone,     create     reasonable          suspicion        of     a    hunting
violation.          A mere "hunch" that the car means someone is hunting

illegally is also insufficient.                     See id.

       ¶81        Wisconsin    Stat.         § 23.59        authorizes       a      search     for

weapons during a § 23.58 Terry stop if there is a reasonable

suspicion of danger to the warden or another person.                                  But, once

again, these statutes apply only to a stop in a public place,

not a stop on private property.                     Wisconsin's codification of the


       4
           See Terry v. Ohio, 392 U.S. 1 (1968).


                                                6
                                                               No.   2014AP2701-CR.rgb


Terry stop in Wis. Stat. § 968.24 also specifies that a stop

under this statute must occur in a public place.                        See State v.

Stout, 2002 WI App 41, ¶15, 250 Wis. 2d 768, 641 N.W.2d 474

(holding     that     police    may   confront      citizens      only    in    public

places; private places require a warrant or "probable cause and

exigent circumstances or consent").                Stietz's 25-acre parcel of

fenced and posted land was not a public place.

      ¶82     At oral argument in this case, the State could not

identify any law authorizing the wardens to be on Stietz's land.

There is none.         The State asserted only that the "open fields"

doctrine justified the wardens' intrusion on private property,

reasoning that the doctrine made Stietz's secluded, remote land

a   "public    place"     on    which    the     wardens   were      privileged      to

traverse.      The State is wrong.             The open fields doctrine does

not transform private fields into public places that anyone is

free to enter uninvited or without reason.                 Nor does it convert

the act of trespassing into a lawful intrusion.                        See Oliver v.

United      States,    466     U.S.     170,     183    (1984)       ("The     law   of
trespass . . . forbids          intrusions       upon   land     that    the    Fourth

Amendment     would     not    proscribe.")         Rather,      the    open    fields

doctrine only prevents suppression of evidence gathered by law

enforcement officers who enter an open field without a warrant.

The open fields doctrine does not sanction the seizure of a

person, nor does it create the requisite constitutional basis

for seizing a person acting lawfully simply because the person

is standing in an open field.                  Significantly, the open fields
cases arose after law enforcement officers observed evidence of

                                          7
                                                                       No.      2014AP2701-CR.rgb


suspected      illegal        activity          conducted       upon      the     land    either

directly or indirectly, through an informant or tipster.                                      See

id. at 173-77 (police investigating a tip of marijuana farm saw

illegal plants in field; suppression not required); Hester v.

United States, 265 U.S. 57, 57 (1924) (police investigating a

tip of illegal activity chased suspects who ran when police

arrived;     suppression            of     evidence      tossed      in     open    field     not

required); State v. Martwick, 2000 WI 5, ¶¶9, 10, 12, 32, 37,

43, 231 Wis. 2d 801, 604 N.W.2d 552 (evidence admissible where

informant reports marijuana plants, police see plants in open

area    beyond     curtilage         that       is    not   fenced     in    or     posted    "no

trespassing,"        police         take    a    leaf    to   test,       and    police     later

obtain warrant).

       ¶83   The DNR wardens did not receive a tip or make a direct

observation that Stietz was engaged in illegal activity on his

property.          When       the     wardens         observed    the       property      before

entering, they saw no evidence of illegal activity.                                       Warden

Frost    testified        that       they       drove   completely        around      the    area
surrounding        Stietz's         private      property     and    used       binoculars     to

look for hunters, but they "didn't see any evidence that anybody

was out in the field at the time."                          Importantly, Stietz is not

seeking to suppress evidence taken from his property to be used

against      him    in    a     criminal          prosecution.            The     open    fields

exception to the Fourth Amendment's warrant requirement was not

intended     to    eliminate         property         owners'    rights      by    sanctioning




                                                  8
                                                              No.   2014AP2701-CR.rgb


entry onto open land at any time for any reason, or no reason at

all.5

        ¶84     The State's bald assertion in its brief that "wardens

do not need reasonable suspicion to believe that a crime has

been committed before they enter private land" is erroneous.

The     State    has   not   cited   and   I     cannot    locate    any    authority

permitting DNR wardens to traverse privately owned lands without

any     legal    justification.       As       already    noted,    the    reasonable

suspicion standard applies to public places, not an individual's

remote, secluded, fenced, and posted private land.                         Even if we

        5
       Multiple states reject the open fields doctrine with
respect to fenced, posted, or otherwise closed off private
lands, recognizing an expectation of privacy on the part of
landowners, particularly for land with "no trespassing" signs.
See State v. Dixson, 766 P.2d 1015, 1024 (Or. 1988) ("[I]f land
is fenced, posted or otherwise closed off, one does not enter it
without permission or, in the officers' situation, permission or
a warrant."); People v. Scott, 593 N.E.2d 1328, 1335-37 (N.Y.
1992) ("A constitutional rule which permits State agents to
invade private lands for no reason at all——without permission
and in outright disregard of the owner's efforts to maintain
privacy by fencing or posting signs——is one that we cannot
accept as adequately preserving fundamental rights of New York
citizens. . . . [T]he unbridled license given to agents of the
State to roam at will without permission on private property in
search of incriminating evidence is repugnant to the most basic
notions of fairness in our criminal law."); State v. Johnson,
879 P.2d 984, 993 (Wash. Ct. App. 1994) ("[P]olice should not be
empowered to invade land closed to the public . . . .'" (quoted
source omitted)); State v. Bullock, 901 P.2d 61, 75-76 (Mont.
1995) ("[A] person may have an expectation of privacy in an area
of land that is beyond the curtilage . . . , and . . . where
that expectation is evidenced by fencing, 'No Trespassing,' or
similar signs, or 'by some other means [which] indicate[s]
unmistakably that entry is not permitted,'. . . entry by law
enforcement   officers  requires   permission  or   a  warrant."
(citation and quoted source omitted; second and third brackets
in original)).


                                           9
                                                                        No.   2014AP2701-CR.rgb


applied the reasonable suspicion standard to private land, the

only information the DNR wardens possessed before intruding onto

private property was a legally parked car.                          This falls far short

of satisfying the reasonable suspicion standard.

       ¶85    The State also asserts that Stietz lacks standing to

invoke trespass as a defense because the physical confrontation

with    the   wardens       occurred         on    his    easement       just    outside      his

private property.           Stietz has not sued the wardens for trespass;

rather, he argues, in defense of his actions, that he did not

know    these      two     men     were     wardens       but      believed      them    to    be

trespassers         on    private      property          where     Stietz       was     lawfully

present (unlike the wardens).                      Whether the wardens confronted

and seized Stietz on the easement instead of Stietz's private

property does not change the fact that the wardens seized Stietz

on    private      property        rather       than     in    a   public     place,     absent

consent, a warrant, probable cause, exigent circumstances, or

any other lawful basis to intrude.

       ¶86    The        circuit      court's          ruling      on    self-defense         and
trespass denied Stietz the right to tell the jury his version of

events and therefore substantially impaired his right to present

a defense.         It appears the circuit court's reason for refusing

to instruct the jury on trespass arose from the court's mistaken

belief that the wardens had authority to be on the private land

and    therefore         could   not       be   trespassers.            The    circuit    court

erred.       Based on this record, there was no legal basis for the

wardens to be on Stietz's (or his uncle's) private property.                                  By
entering      it    merely       on    a    hunch,       the    wardens       exceeded    their

                                                  10
                                                       No.   2014AP2701-CR.rgb


authority under the law and should be treated as trespassers:

"[W]here an authority given by law is exceeded, the officer

loses the benefit of his justification, and the law holds him a

trespasser ab initio although to a certain extent he acted under

the authority given."           Wallner v. Fidelity & Deposit Co. of

Maryland, 253 Wis. 66, 70, 33 N.W.2d 215 (1948).             Stietz had the

right to present evidence and to argue that these two men——who

exceeded   their    lawful      authority   by   entering     private    land

uninvited, demanding he relinquish his rifle, grabbing him, and

forcibly wresting the rifle out of his hands——were trespassers.

    ¶87    The standard for giving a jury instruction requires

that the circuit court instruct the jury on an issue raised by

the evidence.      See State v. Kramar, 149 Wis. 2d 767, 792, 440

N.W.2d 317 (1989).     The evidence presented at trial supports the

conclusion that the wardens were trespassers.                By prohibiting

Stietz's counsel from arguing trespass and refusing to instruct

the jury on trespass law, the circuit court prevented Stietz

from presenting a full defense to the jury on the two counts of
which the jury convicted Stietz.

    ¶88    Count 3 required the State to prove that the wardens

were acting with lawful authority.          See Wis. Stat. § 946.41(1).

Part of Stietz's defense to Count 3 was that because the wardens

were trespassers, they acted without lawful authority.               Count 6

required   the     State   to    prove    that   the   wardens    were    law

enforcement officers acting in an official capacity and whom

Stietz had reason to believe were law enforcement officers.               See
Wis. Stat. § 941.20(1m)(b).         Setting aside Stietz's claim that

                                     11
                                                                   No.    2014AP2701-CR.rgb


the legislature did not include "conservation wardens" in those

listed as "law enforcement officers" for the purposes of this

section (which if correct could provide an independent basis for

reversal),     part    of    Stietz's      defense      to    Count       6    was    that   he

believed      the    wardens    were       trespassers,        not    law       enforcement

officers.       Whether      the   wardens       were    in    fact       trespassing        is

relevant to the reasonableness of Stietz's belief that these two

men were trespassers rather than wardens.

      ¶89     It is the jury's role to resolve factual disputes and

credibility issues.            See State v. Poellinger, 153 Wis. 2d 493,

506-07, 451 N.W.2d 752 (1990).                   This case was full of factual

disputes, which the jury evidently resolved in Stietz's favor by

acquitting him on four of the six counts.                      Indeed, the majority

correctly concludes that a reasonable jury could find that "the

defendant reasonably thought that the two men were trespassers

hunting illegally."            See majority op. ¶68.                 The circuit court

should have allowed the jury to consider trespass.                             The trespass

evidence and argument are also pertinent to the self-defense
theory      Stietz    attempted       to    present.          By   limiting           Stietz's

testimony on trespass, precluding Stietz's attorney from arguing

that the wardens were trespassing, and refusing to instruct the

jury on trespass law, the circuit court erroneously prevented

Stietz's attorney from fully presenting his defense.

      ¶90     The    majority      opinion       properly      analyzes          the     self-

defense error.         By not addressing trespass, however, it paves

the   way    for     the    circuit    court      on    remand       to       again    violate
Stietz's right to present his defense, which includes both self-

                                            12
                                                              No.   2014AP2701-CR.rgb


defense and trespass.         I would direct the circuit court to honor

Stietz's      fundamental     constitutional         right     by   allowing     his

testimony and argument that the wardens were trespassers who

therefore     acted    without     lawful      authority     and    requiring    the

circuit court to instruct the jury on trespass.6

                                          II

     ¶91      The Fourth Amendment guarantees "[t]he right of the

people   to    be    secure   in    their      persons,    houses,     papers    and

effects . . . against unreasonable searches and seizures," U.S.

Const. amend. IV.

     No right is held more sacred, or is more carefully
     guarded, by the common law than the right of every
     individual to the possession and control of his own
     person, free from all restraint or interference of
     others, unless by clear and unquestionable authority
     of law.
Terry, 392 U.S. at 9 (quoting Union Pac. R. Co. v. Botsford, 141

U.S. 250, 251 (1891).          "[W]henever a police officer accosts an

individual     and    restrains     his    freedom    to     walk   away,   he   has

'seized' that person."             Terry, 392 U.S. at 16.             There is no

authority under the law permitting DNR wardens to wander private

property in search of unknown violations of the law.                         Absent

legal authority, a DNR warden may not enter private property to

confront and seize an unsuspecting, law-abiding citizen who has

fenced in his property and posted "no trespassing" signs.




     6
       I do not decide whether the language in Stietz's proposed
trespass instruction was appropriate; rather, I hold the
evidence supported instructing the jury on trespass.


                                          13
                                                                            No.   2014AP2701-CR.rgb


       ¶92       The    open    fields       doctrine          "affords      no    protection         to

evidence         either    on    or    in    the     ground"       outside        of    houses    and

curtilage.         Conrad v. State, 63 Wis. 2d 616, 624-25, 218 N.W.2d

252    (1974)      (emphasis          added).           Even    though      "the       government's

intrusion upon the open fields is not one of those 'unreasonable

searches' proscribed by the text of the Fourth Amendment," see

Oliver, 466 U.S. at 177 (emphasis added), the Fourth Amendment

certainly protects a person from unreasonable seizures on an

open    field.           The    open    fields          exception      to    Fourth      Amendment

protection        has     never      been    applied       solely      to     a    seizure       of    a

person lawfully present on private property, without contraband.

To    the    contrary,          "[w]here      a      person      is,   there       also     is    the

protection of the Fourth Amendment."                           Conrad, 63 Wis. 2d at 628.

"[T]he Fourth Amendment protects people, not places."                                        United

States      v.    Jones,       565    U.S.    400,       406     (2012)      (quoting      Katz       v.

United States, 389 U.S. 347, 351 (1967)).                              Fifty years ago, the

Supreme Court recognized that "[w]herever a man may be, he is

entitled to know that he will remain free from unreasonable
searches and seizures," Katz, 389 U.S. at 359, acknowledging

that    Fourth         Amendment       protections         extend      beyond          property       to

"safeguard         the    privacy       and       security        of   individuals         against

arbitrary invasions by governmental officials," Berger v. New

York, 388 U.S. 41, 53 (1967) (quoting Camara v. Mun. Ct., 387

U.S. 523, 528 (1967)).

       ¶93       "The     touchstone            of       the      Fourth          Amendment           is

reasonableness."               Florida v. Jimeno, 500 U.S. 248, 250 (1991)
(citation omitted).                  "To determine the constitutionality of a

                                                   14
                                                                      No.   2014AP2701-CR.rgb


seizure    '[w]e      must    balance         the   nature      and     quality        of    the

intrusion on the individual's Fourth Amendment interests against

the importance of the governmental interests alleged to justify

the intrusion.'"             Tennessee v. Garner, 471 U.S. 1, 8 (1985)

(quoting    United      States       v.      Place, 462        U.S.    696,      703    (1983)

(brackets in original)).                The wardens in this case overlooked

Stietz's    right      to    be    secure      in   his   person       under     the    Fourth

Amendment by forcefully disarming him and seizing him and his

lawfully possessed rifle with no lawful basis for doing so.                                 The

governmental       interest        in       policing    hunting       violations        cannot

justify such an intrusion against an individual.                            These actions,

which led to the standoff and the charges against Stietz, are

swept under the rug and forgotten.                        But, had the wardens not

trespassed      and    had    they      not     forcibly       wrested      away    Stietz's

rifle,    the   standoff——leading              to   six    charges——would           not     have

occurred at all.

    ¶94     The people of Wisconsin entrust DNR wardens to protect

the state's many natural resources, including public forests and
land.     In order to enable wardens to fulfill their duties, the

people of Wisconsin confer powers on them.                       These powers are not

boundless;      they    are       circumscribed         both    constitutionally             and

statutorily and do not include free reign to trespass on private

lands at will.          The wardens in this case unlawfully entered

private    land,       demanded         a     legally     possessed         rifle      without

explanation, and seized Stietz and his rifle when he did not

comply.     Whether in an open field or on a public street, the
people    retain      their       Fourth      Amendment    right       to   be     free     from

                                               15
                                                     No.    2014AP2701-CR.rgb


"arbitrary and oppressive interference by enforcement officials

with [their] privacy and personal security."              United States v.

Martinez-Fuerte, 428 U.S. 543, 554 (1976).

                                    III

    ¶95     Stietz    has   a   fundamental   constitutional      right   to

present a defense grounded in the law governing self-defense and

trespass.       The circuit court erroneously prevented Stietz from

presenting his full defense to the jury, and he is entitled to a

new trial.      The actions precipitating the standoff in this case

implicate the right of the people to be free——particularly on

their     own    private    property——of   unreasonable      searches     and

seizures under the Fourth Amendment.          The Constitution prevents

DNR wardens from entering fenced and posted private property,

and from seizing law-abiding people, unless there is a legal

basis for doing so.          Here, there was none, which makes the

circuit     court's    decisions     on    self-defense     and    trespass

erroneous.

    ¶96     For these reasons, I respectfully concur.
    ¶97     I am authorized to state that Justice DANIEL KELLY

joins this concurrence, and that Chief Justice PATIENCE DRAKE

ROGGENSACK joins this concurrence, except as to Part II.




                                     16
                                                                   No.       2014AP2701-CR.akz


         ¶98    ANNETTE KINGSLAND ZIEGLER, J.                 (dissenting).             "It's

amazing in the circumstances we aren't sitting here over an

inquest        rather        [than]     these      charges,        because         in    most

jurisdictions that I know of with Mr. Stietz pulling a gun on

[an]     officer,       he    would     have    been     shot.     He    is     very,    very

fortunate that [the officer] didn't shoot him."                          So remarked the

circuit court below, in a case that arose after the defendant,

Robert Joseph Stietz ("Stietz"): (1) refused to surrender his

rifle to two Department of Natural Resources ("DNR") wardens

lawfully investigating potential hunting violations; (2) drew a

handgun on the wardens after being disarmed of the rifle against

his will; and (3) failed to surrender the handgun for over half

an hour despite repeated requests for compliance.

         ¶99    Arguments have been made that Stietz is not to blame

for the escalation of his interaction with the wardens into an

armed standoff.              But a jury considered those arguments, and

rendered a thoughtful verdict: it concluded that Stietz should

not be convicted for offenses pertaining to the initial struggle
over the rifle, but that Stietz's subsequent decision to hold

two wardens at gunpoint——despite Stietz's own admission that he

knew the wardens were law enforcement officers by that time——was

a bridge too far.            With regard to Stietz's actions toward one of

the two wardens, the jury found Stietz guilty of resisting an

officer, use of a dangerous weapon, in violation of Wis. Stat.

§ 946.41(1),        with        the     penalty         enhanced        by     Wis.     Stat.

§ 939.63(1)(a), and guilty of intentionally pointing a firearm
at   a    law    enforcement          officer,     in    violation       of     Wis.    Stat.

                                               1
                                                                No.    2014AP2701-CR.akz


§ 941.20(1m)(b).          With regard to Stietz's actions toward the

other warden, the jury found Stietz not guilty of resisting an

officer,     use    of    a    dangerous        weapon,      and      not     guilty     of

intentionally pointing a firearm at a law enforcement officer.

The jury also found Stietz not guilty of first degree recklessly

endangering safety, in violation of Wis. Stat. § 941.30(1), and

not guilty of negligent handling of a weapon, in violation of

§ 941.20(1)(a).

    ¶100 What is the likely reason for the jury to conclude

that Stietz was guilty of some offenses and not guilty of the

others?     The jury, considering all of the factors that this

court relies upon, concluded that Stietz was not endowed with

the authority to continue to point a firearm at law enforcement

under     these    circumstances.            This        conclusion     is     not     only

supportable, it is wise.             Imagine the unfortunate consequences

that might ensue if anytime someone does not believe that law

enforcement has the authority to be somewhere or the authority

to act, citizens could take the law into their own hands and
escalate a situation by pointing a firearm at the officers.

Right or wrong in belief, it is not difficult to understand the

unfortunate outcomes that would take place.

    ¶101 Stietz          now    appeals,       arguing      principally        that     the

circuit    court    erred      in   declining       to    instruct     the    jury     that

Stietz    might    have    been     acting     in   self-defense        and    that     the




                                           2
                                                             No.   2014AP2701-CR.akz


wardens might have been trespassing.1                 This is not a self-defense

case.      The    circuit    court   was       not   incorrect.        Moreover,   the

jury's verdict demonstrates that it found his reaction to law

enforcement       somewhat    excusable        with    respect    to    the   initial

contact.    The jury, however, found that the continued exhibition

of force was not.           In other words, the crimes for which he was

convicted do not support a self-defense instruction.

     ¶102 I dissent because I conclude that the circuit court

did not err in declining to instruct the jury on the issues of

self-defense and trespass.            First, Stietz's claim that he was

acting in self-defense was "so thoroughly discredited" by the

close of evidence "that no reasonable jury could conclude that

the state had not disproved it," State v. Head, 2002 WI 99,

¶115, 255 Wis. 2d 194, 648 N.W.2d 413; consequently, he was not

entitled to the corresponding instruction and the circuit court

properly exercised its discretion in declining to so instruct

the jury.

     ¶103 Second,       even    if   the        circuit   court    had     erred   in
neglecting to instruct the jury on self-defense, that error was

harmless.        As will be explained in detail below, in order to


     1
       Stietz contends that the circuit court additionally erred
in barring him from arguing that the wardens were trespassers.
The reasoning set forth in my discussion of the circuit court's
decision on the trespass jury instruction disposes of this
issue, so I will not otherwise address it. Further, given my
analysis, I need not address the State's argument that because
some of the property at issue in this case was owned by Stietz's
neighbor, Stietz lacks standing to assert that the wardens were
trespassing.   For purposes of this writing, I will refer to
property at issue as Stietz's property.


                                           3
                                                            No.   2014AP2701-CR.akz


have       convicted   Stietz    of    resisting    an   officer,     use     of     a

dangerous weapon, and intentionally pointing a firearm at a law

enforcement officer, the jury had to have found as elements of

those crimes that Stietz knew or had reason to know that Warden

Webster was a law enforcement officer.              In other words, the jury

plainly would have rejected Stietz's claims that he had no idea

the wardens were law enforcement officers and                     was acting in

self-defense.

       ¶104 Third,     Stietz    had    no    independent     legal       right     to

forcibly      resist   the   wardens     simply     because    he   thought        the

wardens lacked legal authority to seize or disarm him.                       Stietz

is badly mistaken in suggesting that the law authorizes citizens

to attack law enforcement officers whenever those officers may

have made a mistake of fact or law.                 Law enforcement officers

have entered houses, much less open fields, by accident; that

does not authorize lethal resistance.                If Stietz thought that

law enforcement was in error, his recourse was the judicial

system, not physical assault.                To hold otherwise is not only
incorrect as a legal matter; it would also disincentivize law

enforcement officers from doing their job.                    Most relevant to

this case, for example, the work of DNR wardens is critical to

ensuring the protection of Wisconsin wildlife and the safety of

Wisconsin hunters.2

       ¶105 Finally,      with    respect      to    trespass,      the     wardens

possessed both statutory authority to enter Stietz's property

       2
       Stietz also briefly makes a Second Amendment claim.                        As I
will discuss, I would reject that claim as undeveloped.


                                         4
                                                                              No.    2014AP2701-CR.akz


and     reasonable          suspicion        that       hunting          violations            were   in

progress.           The     circuit        court       did       not    err     in    declining        to

instruct the jury regarding the law of trespass.

       ¶106 This case is not about property rights, the right to

keep and bear arms, or the right to hunt.                                In no way should this

dissent be read to diminish those very important rights.                                            These

rights are cherished by the citizens of Wisconsin in a special

way, see, e.g., Wis. Const. art. I, § 26 ("The people have the

right    to    fish,        hunt,     trap,      and     take          game     subject        only    to

reasonable restrictions as prescribed by law."), and this court

is of course bound to uphold and protect them.                                        Instead, this

case is about an individual, Stietz, who put his own life and

the    life    of     two      DNR   wardens       at    risk          rather       than    peacefully

submit to a lawful request for his weapon.

       ¶107 This          case       was     fully           litigated          below,         and——not

surprisingly given the evidence——the jury found Stietz guilty of

resisting        an       officer,         use     of        a     dangerous             weapon,      and

intentionally pointing a firearm at a law enforcement officer.
I do not quarrel with the jury's determination to find Stietz

not guilty of one of the counts of resisting an officer, use of

a dangerous weapon, one of the counts of intentionally pointing

a firearm at a law enforcement officer, first degree recklessly

endangering         safety,          and    negligent             handling          of     a    weapon.

However, when this case goes back for another trial, the entire

case    will     not      be   retried,      rather          only       the    crimes       for     which

Stietz     was        found      guilty.           The        jury       already           placed     its
determination on the entire nucleus of fact and concluded that

                                                   5
                                                                       No.    2014AP2701-CR.akz


he was not guilty of resisting an officer, use of a dangerous

weapon,    with     regard      to     one   of       the    wardens,        not    guilty   of

intentionally pointing a firearm at a law enforcement officer

with    regard     to   the    same    warden,        not     guilty     of    first    degree

recklessly endangering safety, and not guilty of the negligent

handling of a weapon.

       ¶108 At the same time, the jury concluded that Stietz was

guilty of resisting an officer, use of a dangerous weapon, and

intentionally pointing a firearm at a law enforcement officer

with regard to the second warden.                     Regrettably, while this court

is required to give deference to the jury determination, it

instead upsets that jury determination even though the jury's

conclusions are supported by sufficient evidence in the record.

See,    e.g.,     State   v.     Poellinger,           153     Wis. 2d 493,         507,     451

N.W.2d 752       (1990)       ("[I]n    reviewing            the    sufficiency        of    the

evidence to support a conviction, an appellate court may not

substitute its judgment for that of the trier of fact unless the

evidence, viewed most favorably to the state and the conviction,
is so lacking in probative value and force that no trier of

fact,     acting    reasonably,         could         have     found     guilt      beyond    a

reasonable       doubt.").        Because         I    would       affirm     the    court   of

appeals (the trial court and the sound conclusions reached by

the jury upon the facts and the law), I respectfully dissent.

                                             I

       ¶109 I begin by setting forth the facts of this case as

established by the testimony of Warden Frost, Warden Webster,



                                             6
                                                              No.   2014AP2701-CR.akz


and Stietz at Stietz's jury trial.              As will be shown, this case

hinges in large part on the testimony presented to the jury.3

      ¶110 Warden Joseph Frost ("Warden Frost") testified that on

November 25, 2012, at about 4:30 p.m., he and Warden Nicholas

Webster ("Warden Webster") were on duty in a patrol truck on a

highway   near     Lamont,    Wisconsin.          Warden      Frost    "observed     a

vehicle north of the highway parked along the fence line"; in

his view it was "not typical for vehicles to be parked in the

field," though "typically during deer season that's where people

would park if they're out hunting."                Warden Frost consequently

thought   the    vehicle     might    belong      to    someone       hunting    deer,

whereas   Warden    Webster    thought      the    vehicle      might     have    been

abandoned.       It was the last day of deer season, and hunting

hours ended at 4:45 p.m.        The wardens "decided [they would] just

check around that section of land by driving the roads to see if

[they] could see anybody out hunting."                 The wardens did not see

anything of note, however, and eventually made their way to the

vehicle they had spotted.
      ¶111 At      about     4:58     p.m.,     Warden        Webster      ran    the

registration of the vehicle while Warden Frost "checked to see

if   there   was    any    evidence    of     hunting    in    the     vehicle     and

to . . . see if it was an abandoned vehicle or not."                            Warden

Frost saw an empty gun case on the front seat, scent killer

spray, and a camouflaged seat that could be used on a tree



      3
       Proof that the court is stretching to reach an outcome is
the court's incomplete and misleading presentation of the facts.


                                        7
                                                                 No.   2014AP2701-CR.akz


stand.    Warden Webster learned that the vehicle was registered

to Robert and Susan Stietz.

      ¶112 The wardens "decided that [they] would go in and see

if [they] could locate the hunter."                     The wardens were wearing

"blaze orange" jackets and hats.                 The jackets had identification

badges    or    patches    on    them,    as    did    the   hats.       Further,        the

wardens did not carry long guns; Warden Frost testified that

that is "usually a give away as to us not being hunters."                                The

wardens followed the fence line until they came to an open gate

and then headed through the gate.                     Eventually they saw a "box

blind up on an elevated box stand" and began heading toward it.

Shortly thereafter the wardens came upon Stietz, who was dressed

in full camouflage and carrying a "long gun."                           Stietz "would

take a few steps and stop, look around, take a few steps, stop

and   look     around."     It    was     dark    and    Stietz    "didn't        seem   to

acknowledge [the wardens] were there."                   Warden Frost "turned on

[his]    flashlight       and    shined    it     at    [Stietz]       and    announced,

'conservation       warden.'"             Warden       Webster     made       the      same
announcement.       The parties continued approaching each other and

Warden Frost saw what looked like a handgun in Stietz's pocket.

Warden Frost told Warden            Webster about the handgun.                      Warden

Webster      testified    that    "red    flags       were   starting        to   go   off,

starting to not seem right," because Stietz had "in his face a

kind of agitation, aggression" and because Stietz "went from

holding his gun off to the side and then turned his gun facing

straight on as [Warden Webster] was approaching him."



                                           8
                                                              No.    2014AP2701-CR.akz


      ¶113 Warden      Webster   was     the    first    to   make    contact,      and

asked Stietz if he had seen any deer.               Stietz responded that he

had "seen seven doe."       According to Warden Frost, Warden Webster

then asked Stietz "if the rifle he was carrying was loaded," and

Stietz affirmed that it was.              Warden Frost "asked [Stietz] if

[Warden Frost] could see the firearm," and Stietz refused.4

      ¶114 Warden Frost "changed the topic" and asked if Stietz

had any blaze orange with him.                Stietz "indicated towards" his

pocket, and Warden Frost "could see just a sliver of a piece of

orange clothing in there."              Warden Frost testified that "[t]he

fact that [Stietz was] carrying orange in his pocket, based on

my training and experience, would lead me to believe he was

actually   out    hunting."        At    some    point    during      the    parties'

interaction, Stietz explained that he had not been hunting, but

was instead looking for trespassers.                Warden Frost again asked

Stietz if he "could see the firearm."                   Warden Frost testified

that there were two reasons he asked to see the weapon:

      One, [Stietz] is dressed in camouflage, it's after
      hours, he said his firearm is loaded, which I guess
      gave me reason to believe he was potentially hunting
      after hours, hunting without blaze orange.   And then
      when he responded he wouldn't allow us to see the
      firearm.   I guess, at that point there is a concern
      for, I guess, our safety that I guess something could
      happen if he continues to have the firearm.
Warden Webster additionally explained that "[w]hen [the wardens]

are   working    and   enforcing    hunting      laws,    depending         on   what's

      4
       Warden  Webster's  testimony  differs   to  some extent
regarding the order of the questions asked and the identity of
the questioner. These variations will not be discussed.


                                          9
                                                                  No.    2014AP2701-CR.akz


being     hunted,       ammunition      type,      firearms       type,        amount    of

ammunition, are also parts that are regulated in hunting."

       ¶115 When he made his second request to obtain Stietz's

weapon, Warden Frost simultaneously "stepped forward and reached

[his] hand towards the firearm."                Stietz hit Warden Frost in the

stomach with the butt of the rifle.                     Warden Frost then grabbed

the    rifle   and    "drove     [his]    body        forward    towards       [Stietz]."

While    Stietz      and   Warden      Frost    grappled        for     control    of   the

weapon,    Warden     Webster     "yelled       out     that . . . the         barrel   was

pointed at him."           Warden Webster grabbed the muzzle of the gun

and "pulled it as hard as [he] could in the direction that

[Warden] Frost was pulling it," yelling "drop the gun."                            Warden

Frost ultimately "ended up with the firearm in [his] hands,

laying on [his] back."

       ¶116 Disarmed        of   the     rifle,       Stietz     began     drawing      his

handgun.       As he was doing so, Warden Webster yelled "don't do

it."    Warden Webster drew his handgun on Stietz before Stietz

had    fully    drawn      his   handgun.        Warden     Frost       also     drew   his
handgun, having thrown the rifle "to the side."                           Stietz "swung

[his handgun] by Warden Frost's direction," but then pointed it

towards Warden Webster.           "[T]he hammer was cocked with his right

thumb by the hammer, his trigger finger would have been inside

the    trigger    guard     basically      on     the    trigger."         The    wardens

ordered Stietz to lower his weapon, but Stietz refused.                            Warden

Webster "radioed to the Sheriff's Department" at 5:07 p.m.                              The

wardens repeatedly attempted to get Stietz to drop his weapon,
but he would not do so.                At various times during the standoff

                                           10
                                                                 No.   2014AP2701-CR.akz


Stietz commented, among other things, that he knew his rights,

that he was defending himself and his property, and that he

would lower his weapon if the wardens lowered their weapons.                         At

other times Stietz would not respond to the wardens at all.

      ¶117 At     5:17   p.m.,    Deputy      Brett    Broge      ("Deputy      Broge")

arrived in his "squad."          The wardens retreated to the squad car.

At that time Stietz had his handgun pointed "towards the squad."

Warden    Frost   left   the     parties,     returned      to    Warden     Webster's

squad, turned on its emergency lights, removed his blaze orange,

and obtained a rifle and shotgun from the vehicle.                        By the time

Warden Frost made contact with the parties again, Stietz had

lowered his handgun but would not put it down.                     Other members of

law   enforcement    arrived      but   Stietz      "still     basically        wouldn't

comply."        Finally,      about     "40    to     50    minutes"       "from    the

time . . . [the wardens] were initially there until it was all

over," Stietz put his weapon down and was placed in handcuffs.5

      ¶118 Stietz testified that on the date in question he had

not been hunting but was instead "checking for trespassers," a
recurring issue for Stietz.6             That evening Stietz "encountered

two people in orange" on his property and he "didn't know who

they were."       While Stietz saw the individuals' "faces and their

orange    clothing,"     he   denied    seeing      their    patches       or   badges.


      5
       Deputy Broge testified that Stietz lowered his weapon at
about 5:20 p.m. and that Stietz put his weapon on the ground at
about 6:00 p.m.
      6
       According to Stietz, the orange vest in his pocket had
been placed there days before.


                                         11
                                                                 No.    2014AP2701-CR.akz


According to Stietz, one of the individuals asked, "are you Bob

Stietz?"         Stietz replied "yes, I am.             The question is, who are

you?"      Stietz heard a response that was "kind of mumbled, but

sounded like one was saying Green, I didn't know if it was

County.          And    the    other     one   said——looked    at    him    and   said    a

Warden, but it was kind of mumbled, not real loud."                                 Next,

Stietz was asked if he was hunting and was told that he had to

be   in    orange       if    he   was   hunting    deer.      Stietz      informed   the

wardens that he was not hunting deer but was instead "checking

for trespassers."              When asked if he had seen any deer, Stietz

replied that he had seen seven of them.

       ¶119 According to Stietz, when Stietz said he was checking

for trespassers one of the wardens "got——kind of a little bit

riled."        Additionally, one of the wardens "threw up his arms

like this.         You've got to be in orange."                According to Stietz,

the wardens "c[a]me around [Stietz] in like a circle."                            At that

point Stietz "was wanting to go to [his] car and . . . would

have      been     heading         home."      "The    Wardens      proceeded      around
[Stietz] . . . asking [him] questions."                     One of the wardens said

"give me your gun."                Stietz said no and took a step back.                  At

that point he "felt like [he] was being attacked" because one of

the wardens grabbed his shirt and told the other warden to "grab

the gun."         Stietz denied swinging the butt of the rifle into

Warden Frost's stomach.                The three struggled for Stietz's rifle.

Stietz "lost [his] grip" and "all of a sudden [Stietz] [saw] the

rifle go, and . . . heard it hit the fence."                           The two wardens
"kind     of     lost    their       footing."        Stietz   saw     Warden     Webster

                                               12
                                                            No.    2014AP2701-CR.akz


"reaching for his pistol" and "all of a sudden . . . [saw] the

pistol coming up."         Stietz thought Warden Webster was going to

shoot and drew his pistol at the same time.                      Stietz said, "I

have the right to protect myself which I am doing at this time."

    ¶120 At this point in time all three individuals had their

handguns drawn.       Stietz was asked to put his weapon down several

times but refused, repeatedly stating that he would put his

handgun down if the wardens put their handguns down.                      Eventually

one of the wardens called for backup.                     At trial Stietz was

asked, "[W]hen did you know for the first time that these were

wardens?"    Stietz responded, "I really didn't know positive for

sure,   because    it   was    kind   of     dark   out    and     when    we——when

actually,    I    really      don't   know    because      I      never    seen    no

credentials or when he called for backup, that's when I knew

really."    (Emphasis      added.)      Stietz      testified       that    he    was

"scared, darn scared."         Backup arrived.       The following exchange

occurred at trial:

         Q: You said that you were                  relieved       when     the
    Sheriffs showed up; is that right?

            A: That is correct. Relieved.

         Q: But you weren't relieved enough to put your
    gun down at that point, were you?

         A: As I stated in my testimony, when the wardens
    put their guns down, because they draw on me first, I
    would put mine down.

            . . . .

         Q: Why didn't you put it down right away once
    Deputy Broge was on site?



                                       13
                                                                 No.    2014AP2701-CR.akz

           A: As I stated before, the Wardens would not put
      theirs down, and I wouldn't put mine down until they
      put theirs down, because they drew on me first.
Stietz eventually lowered his weapon because "when the Sheriffs

got there, that's when I felt halfway there'd be witnesses if

anything bad happened, there would be witnesses."

      ¶121 Relevant       to      Stietz's    testimony,        Warden    Webster         and

Warden Frost denied mentioning Green County in their initial

interaction      with     Stietz.          Warden      Webster        denied        grabbing

Stietz's shirt.         Warden Frost stated that he did not see Warden

Webster grab Stietz by the shirt and that Warden Webster had not

yelled at him to grab Stietz's rifle.                   Warden Webster and Warden

Frost denied getting "riled" when Stietz told them that he was

checking for trespassers, and Warden Frost denied throwing his

arms up in the air.

                                            II

      ¶122 On November 28, 2012, a criminal complaint was filed

against     Stietz      in     Lafayette         County     circuit      court.               On

December 11,     2012,       an    amended       complaint      was    filed        charging

Stietz with one count of first degree recklessly endangering

safety, in violation of Wis. Stat. § 941.30(1), two counts of

resisting an officer, use of a dangerous weapon, in violation of

Wis. Stat. § 946.41(1), and with the penalty enhanced by Wis.

Stat.    § 939.63(1)(a),          one    count    of   negligent       handling          of   a

dangerous weapon, in violation of Wis. Stat. § 941.20(1)(a), and

two     counts   of     intentionally        pointing       a   firearm        at    a    law

enforcement      officer,         in    violation      of   § 941.20(1m)(b).                  On
December 18, 2012, an information was filed.


                                            14
                                                          No.   2014AP2701-CR.akz


    ¶123 On   January    22,   2014,        Stietz    filed     requested    jury

instructions in anticipation of trial.               Stietz requested, among

other   things,   that   the   jury        be   instructed      regarding:   (1)

Stietz's putative Second Amendment right to refuse to surrender

his rifle to the wardens; (2) the possibility that the wardens

were trespassing on Stietz's land; and (3) the possibility that

Stietz was acting in self-defense.

    ¶124 On February 20, 2014, the State filed a motion in

limine requesting an order

    prohibiting the defendant from arguing any of the
    following at trial: that the DNR Wardens were armed
    trespassers; that the DNR Wardens were not authorized
    to enter his property; that the defendant had a Second
    Amendment right to resist the Wardens; any arguments
    by the defendant of self-defense of either person or
    property.
After a hearing on February 26, 2014, the court entered the

following order with respect to the State's motion:

         1. The Court will allow evidence (a) that Mr.
    Stietz was looking for trespassers, (b) that the
    wardens were armed, (c) of where the wardens walked
    and what they said and did, and (d) of where and how
    all relevant events occurred. In short, the facts of
    what happened are admissible;

         2. However, counsel for Mr. Stietz may not
    characterize the wardens' conduct as trespassing, at
    least absent a further ruling by the Court; and

         3. Further, counsel for Mr. Stietz may not argue
    that the Second Amendment permitted Mr. Stietz's
    conduct, or affords a legal defense here.
    ¶125 From March 11, 2014, to March 14, 2014, Stietz was

tried before a jury.     On March 14, 2014, at the jury instruction
conference, it was determined (based in part on prior rulings)


                                      15
                                                                    No.   2014AP2701-CR.akz


that the jury would not receive Stietz's requested instructions

regarding the Second Amendment, trespass, and self-defense.

       ¶126 While the charges filed against Stietz and considered

by    the   jury     included        one    count    of    first    degree      recklessly

endangering safety and one count of negligent handling of a

dangerous weapon, Stietz was also charged with                            one    count of

resisting an officer, use of a dangerous weapon, with respect to

Warden      Frost,      one    count   of    resisting       an    officer,     use       of    a

dangerous weapon, with respect to Warden Webster, one count of

intentionally pointing a firearm at a law enforcement officer

with respect to Warden Frost, and one count of intentionally

pointing a firearm at a law enforcement officer with respect to

Warden Webster.

       ¶127 Later that day, the jury returned its verdict. The

jury     found     Stietz       not    guilty       of    first     degree      recklessly

endangering safety; not guilty of resisting an officer, use of a

dangerous      weapon         with    respect       to    Warden    Frost;      guilty         of

resisting an officer, use of a dangerous weapon with respect to
Warden Webster; not guilty of negligent handling of a weapon;

not    guilty      of    intentionally          pointing     a     firearm      at    a    law

enforcement officer with respect to Warden Frost; and guilty of

intentionally pointing a firearm at a law enforcement officer

with respect to Warden Webster.

       ¶128 On March 24, 2014, Stietz filed a motion for acquittal

or a new trial.           On May 21, 2014, the court denied the motion.

On May 28, 2014, the circuit court sentenced Stietz to one year
of initial confinement and three years of extended supervision

                                              16
                                                                        No.    2014AP2701-CR.akz


on    the   charge    of    intentionally          pointing        a    firearm       at    a   law

enforcement      officer.            The     court       withheld        sentence          on   the

resisting an officer, use of a dangerous weapon charge, placing

Stietz on probation for two years consecutive to the sentence on

the    other    count.     A    judgment      of        conviction       was    entered,        and

Stietz filed a notice of intent to pursue postconviction relief

the same day.

       ¶129 On    April        14,   2016,       the     court     of    appeals       affirmed

Stietz's       judgment        of    conviction.             State       v.      Stietz,         No.

2014AP2701-CR,       unpublished           slip    op.     (Wis.       Ct.     App.   Apr.      14,

2016) (per curiam).             On May 16, 2016, Stietz filed a petition

for review in this court.                    On October 11, 2016, this court

granted the petition.

                                             III

       ¶130 The issues raised on appeal pertain largely to whether

the    circuit       court      erred       in     not      providing          certain          jury

instructions requested by Stietz.

       A circuit court has broad discretion in deciding
       whether   to  give   a   requested  jury   instruction.
       However, a circuit court must exercise its discretion
       in order "to fully and fairly inform the jury of the
       rules of law applicable to the case and to assist the
       jury in making a reasonable analysis of the evidence."
State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996)

(citation omitted) (quoting State v. Vick, 104 Wis. 2d 678, 690,

312 N.W.2d 489 (1981)).                Even if the circuit court errs, "an

'erroneous jury instruction warrants reversal and a new trial

only if the error was prejudicial.'"                             Kochanski v. Speedway
SuperAmerica,        LLC,       2014    WI        72,     ¶11,     356        Wis. 2d 1,         850


                                              17
                                                       No.   2014AP2701-CR.akz


N.W.2d 160 (quoting Fischer v. Ganju, 168 Wis. 2d 834, 849, 485

N.W.2d 10   (1992)).    Importantly,     "an   error    relating     to   the

giving or refusing to give an instruction is not prejudicial if

it appears that the result would not be different had the error

not occurred."     Id. (quoting Lutz v. Shelby Mut. Ins. Co., 70

Wis. 2d 743, 751, 235 N.W.2d 426 (1975)).

    ¶131 I first address the circuit court's decision not to

instruct the jury on self-defense.        I then address the circuit

court's decision not to instruct the jury on trespass.

                                   IV

    ¶132 Stietz    argues   that   the   circuit   court       should     have

instructed the jury that he was privileged to defend himself

against the wardens under certain circumstances.

    ¶133 The pattern jury instruction on self-defense entitled

"Privilege: Self-Defense: Force Less Than That Likely to Cause

Death or Great Bodily Harm——[Wis. Stat.] § 939.48" reads in part

as follows:

    Self-defense is an issue in this case. The law of
    self-defense allows the defendant to threaten or
    intentionally use force against another only if:

           the defendant believed that there was an actual
            or   imminent  unlawful  interference with  the
            defendant's person; and,

           the defendant believed that the amount of force
            the defendant used or threatened to use was
            necessary    to   prevent  or   terminate   the
            interference; and

           the defendant's beliefs were reasonable.

            Determining Whether Beliefs Were Reasonable


                                   18
                                                    No.   2014AP2701-CR.akz

      A belief may be reasonable even though mistaken.    In
      determining whether the defendant's beliefs were
      reasonable, the standard is what a person of ordinary
      intelligence and prudence would have believed in the
      defendant's position under the circumstances that
      existed at the time of the alleged offense. The
      reasonableness of the defendant's beliefs must be
      determined from the standpoint of the defendant at the
      time of the defendant's acts and not from the
      viewpoint of the jury now.
Wis   JI——Criminal   800   (footnotes   omitted).     Wisconsin     Stat.

§ 939.48(1) (the statute referenced by the instruction) itself

states:

      A person is privileged to threaten or intentionally
      use   force  against  another   for  the   purpose  of
      preventing or terminating what the person reasonably
      believes to be an unlawful interference with his or
      her person by such other person. The actor may
      intentionally use only such force or threat thereof as
      the actor reasonably believes is necessary to prevent
      or terminate the interference. The actor may not
      intentionally use force which is intended or likely to
      cause death or great bodily harm unless the actor
      reasonably believes that such force is necessary to
      prevent imminent death or great bodily harm to himself
      or herself.

§ 939.48(1).7
      ¶134 As an initial matter, it was Stietz's burden to place

self-defense in issue.     See Head, 255 Wis. 2d 194, ¶111.        "[I]f,

before trial, the defendant proffers 'some' evidence to support

her defense theory and if that evidence, viewed most favorably

to her, would allow a jury to conclude that her theory was not

disproved beyond a reasonable doubt, the factual basis for her

      7
       Stietz  requested   Wis   JI-Criminal  800   as well  as
"alternative self-defense formulations."       Stietz does not
develop arguments suggesting that any differences between these
formulations are material for purposes of this appeal.


                                  19
                                                                 No.   2014AP2701-CR.akz


defense theory has been satisfied."                Id., ¶115 (emphasis added).

On the other hand:

      [T]he standard for giving a jury instruction on self-
      defense may, in some circumstances, be higher than the
      standard for admitting self-defense evidence at trial,
      because a defendant's claim of self-defense may be so
      thoroughly discredited by the end of the trial that no
      reasonable jury could conclude that the state had not
      disproved it.
Id. (first emphasis added).

      ¶135 Stietz argues that he is entitled to a self-defense

instruction       because    the   evidence        viewed    in       the    light    most

favorable to him showed that he had been having problems with

trespassers; that on November 25, 2012, Stietz had been looking

for   trespassers;         and   that     Stietz    in    fact        encountered     two

"strangers dressed in blaze orange trespassing on his land" who

"demanded      his    rifle."      Stietz    claims       that    at    the    time   the

wardens ordered him to disarm "it was reasonable for him to

infer" based on the available information that the wardens were

"illegally trespassing hunters."              Stietz adds that the strangers

forcibly    obtained       his   weapon    and     that   one     of    the    strangers
pointed    a   handgun      at   him.      Under    the     circumstances,       Stietz

contends, self-defense was warranted.

      ¶136 Stietz's argument fails.                Stietz's assertion of self-

defense     was      "so   thoroughly      discredited"          by    the    close     of

evidence "that no reasonable jury could conclude that the state

had not disproved it."           Id.    As the State explains in its brief:

      It is undisputed that both wardens were wearing their
      issued uniforms: a "blaze orange" jacket; a DNR patch
      on the shoulder of each arm of the jacket; a DNR badge
      along either the middle zipper of the jacket or the
      left chest; and a "blaze orange" hat with a DNR patch.
                                 20
                                                                              No.    2014AP2701-CR.akz


The    wardens     did      not     carry         long       guns,        which          Warden       Frost

testified is "usually a give away as to us not being hunters."

Further, Stietz's own testimony confirms that he heard one of

the wardens say to him, "a Warden"; testimony self-evidently not

negated by Stietz's contention that the statement was "kind of

mumbled, not real loud."              The circuit court correctly stated at

the jury instruction conference that "[u]nder the circumstances,

if [Stietz] didn't know [that Warden Frost and Warden Webster]

were wardens, he should have, and he didn't have a right to

self-defense against a police officer."                                  See Wis JI——Criminal

800    ("In   determining           whether            the    defendant's                beliefs       were

reasonable,        the     standard          is        what        a     person          of    ordinary

intelligence and prudence would have believed in the defendant's

position under the circumstances that existed at the time of the

alleged offense.").

       ¶137 Nor      does    rejecting            Stietz's             claim        of    self-defense

require this court or the circuit court to improperly weigh the

evidence,     as    Stietz        argues.          As        our       case    law       makes     clear,
viewing evidence in the light most favorable to the defendant

does   not    mean       suspending          one's       disbelief             to    the      point     of

absurdity.         Cf.    State     v.       Mendoza,         80       Wis. 2d 122,           153,      258

N.W.2d 260           (1977)           ("Thus                 the              question             before

us . . . is . . . whether                a    reasonable                construction             of    the

evidence will support the defendant's theory 'viewed in the most

favorable light it will "reasonably admit of from the standpoint

of the accused."'" (emphasis added) (quoting Ross v. State, 61
Wis. 2d 160, 172, 211 N.W.2d 827 (1973))).                                     If "no reasonable

                                                  21
                                                                No.    2014AP2701-CR.akz


jury could conclude" on the evidence presented that the State

had   failed    to     disprove      a    claim     of    self-defense,          a     jury

instruction is not warranted.              Head, 255 Wis. 2d 194, ¶115; cf.

Mendoza, 80 Wis. 2d at 152-53.              To take one hypothetical raised

by the circuit court below that is not at all far off from the

facts of this case, if a defendant is pulled over by a uniformed

police   officer      at   night   and     resists       the   officer,     he       cannot

simply invoke the magic words of "self-defense" to obtain the

corresponding      jury      instruction.           Here,      the     circuit        court

properly exercised its discretion in refusing to instruct the

jury that Stietz might have been acting in self-defense, in

light of the fact that Stietz's claim had been sufficiently

"discredited."        Head, 255 Wis. 2d 194, ¶115.                If anything, the

wardens seem to have been defending themselves.

      ¶138 Regardless,        even       assuming    that      the     circuit        court

should have instructed Stietz's jury on self-defense, such error

was patently harmless; there is no doubt that even absent the

error the result would have been the same.                      See Kochanski, 356
Wis. 2d 1,     ¶11.        This   becomes       evident    when      one   reviews      the

crimes of which Stietz was acquitted and the crimes of which

Stietz was convicted, in light of the facts of the case.

      ¶139 The interaction between the three parties is divisible

into two parts: (1) the initial struggle between Stietz and the

two wardens over Stietz's rifle; and (2) the prolonged standoff

between the three during which the wardens pointed firearms at

Stietz and Stietz pointed his firearm at Warden Webster.



                                           22
                                                                       No.    2014AP2701-CR.akz


       ¶140 Stietz was acquitted of resisting Warden Frost and of

pointing a weapon at Warden Frost but convicted of resisting

Warden Webster and of pointing a weapon at Warden Webster.                                   In

other words, this means that the jury was unwilling to assign

guilt to Stietz regarding the initial struggle over Stietz's

rifle, but concluded that Stietz was guilty with regard to the

prolonged standoff.              This is hardly shocking, given that during

this second period: (1) Stietz continued to point his handgun at

Warden Webster even after, by his own admission, he knew that

the    two    officers       were      wardens;     and        (2)     Stietz     refused    to

surrender his firearm for over half an hour, despite being in

the     presence        of   multiple     additional           clearly-identified            law

enforcement officers cajoling him to submit peacefully.

       ¶141 Critically,           in    order      to    have        convicted     Stietz    of

resisting       Warden       Webster,     use      of      a     dangerous        weapon,    in

violation of Wis. Stat. § 946.41(1), and intentionally pointing

a     firearm      at    Warden     Webster,       in     violation          of   Wis.     Stat.

§ 941.20(1m)(b), the jury had to have found, as elements of the
crimes,      that       Stietz   knew   or   had        reason    to    know      that   Warden

Webster was a law enforcement officer.                           More specifically, the

elements of the crime of resisting an officer are:

              1.    The defendant resisted an officer. . . .

            2. The officer was doing an act in an official
       capacity. . . .

            3. The    officer                was        acting         with       lawful
       authority. . . .

            4. The defendant knew that (officer) was an
       officer acting in an official capacity and with lawful

                                             23
                                                           No.    2014AP2701-CR.akz

    authority and that the defendant               knew     (his)        (her)
    conduct would resist the officer.
Wis JI——Criminal 1765 (emphasis added).

    ¶142 The elements of the crime of intentionally pointing a

firearm at a law enforcement officer are:

         1. The defendant pointed a firearm at or toward
    (name of victim). . . .

         2. The defendant pointed the firearm                           at   or
    toward (name of victim) intentionally. . . .

         3. (Name    of   victim)       was    a     law     enforcement
    officer.

         4. (Name of victim) was acting in an official
    capacity.

         5. The defendant knew or had reason to know that
    (name of victim) was a law enforcement officer.

Wis JI——Criminal 1322A (emphasis added).
    ¶143 Consequently,    even    if    the   jury   had         been    instructed

regarding self-defense, it would not have made a difference.                      On

the evidence presented, the jury rejected Stietz's claim that he

did not know that Warden Webster was a warden and that Stietz's

ignorance was justifiable.       The jury's verdict makes clear that

it carefully considered the evidence before it.                    Even assuming

that omission of a self-defense jury instruction was error, this

court should not upset that verdict for the purpose of providing

an instruction that would not have had any effect.

    ¶144 Finally, Stietz could be read to argue that, aside

from the discussion above, he had a right to defend himself

against the wardens because they had no legal right to seize or

disarm him.   That is not the law.        In Hobson, for example, this
court abrogated the common law privilege "to forcibly resist an

                                   24
                                                                     No.    2014AP2701-CR.akz


unlawful arrest in the absence of unreasonable force."                               State v.

Hobson,     218   Wis. 2d 350,       353,          577    N.W.2d 825            (1998).        We

"adopt[ed] the conclusion" of another state supreme court that

had reasoned in part:

      [T]he legality of a peaceful arrest should be
      determined by courts of law and not through a trial by
      battle in the streets. It is not too much to ask that
      one believing himself unlawfully arrested should
      submit to the office[r] and thereafter seek his legal
      remedies in court.   Such a rule helps to relieve the
      threat of physical harm to officers who in good faith
      but mistakenly perform an arrest, as well as to
      minimize harm to innocent bystanders.
Id.   at   379-80      (quoting   Miller           v.    State,     462    P.2d     421,       427

(1969)).      We also quoted Judge Learned Hand, who eloquently

noted      that   "[t]he     idea         that          you   may     resist         peaceful

arrest . . . because        you     are       in    debate    about        whether        it   is

lawful or not, instead of going to the authorities which can

determine [lawfulness], . . . [is] not a blow for liberty but,

on the contrary, a blow for attempted anarchy."                                   Id. at 373

(alterations      in    original)    (quoting            Discussion        of    Model     Penal

Code (Tentative Draft No. 8), 35 A.L.I. Proc. 222, 254 (1958)).

And, finally, we analogized to the Supreme Court's discussion in

Walker v. City of Birmingham, where the Court referenced a "rule

of    law . . . reflect[ing]              a        belief     that         in      the      fair

administration of justice no man can be judge in his own case,

however exalted his station, however righteous his motives, and

irrespective of his race, color, politics, or religion."                                  Id. at

378 (quoting Walker v. City of Birmingham, 388 U.S. 307, 320-21
(1967)).


                                              25
                                                          No.    2014AP2701-CR.akz


      ¶145 Here, Warden Frost and Warden Webster were not even

arresting Stietz.      As will be discussed in greater detail below,

they were lawfully investigating potential hunting violations.

For their own safety and for the purpose of ensuring compliance

with applicable laws, the wardens peaceably asked or ordered

Stietz to disarm.           Stietz should have surrendered his firearm

rather than resist this demand, lawful or not.                   When he failed

to respond to the verbal instruction, unjustifiably intensifying

the pressures of the situation and the wardens' concerns for

safety, the wardens reasonably attempted to obtain the weapon

against     Stietz's   will.     Once   again,   Stietz    had        no     right   to

forcibly resist the actions of the wardens.

      ¶146 Much as some might wish it to be so, we are no longer

living    in   the   Wild    West.   Disputes    between        law    enforcement

officers and the citizens they serve are resolved in court.                          No

matter how in the right they may be, members of the general

public have no authority to take matters into their own hands.

Law enforcement officers make mistakes of law or fact every day.
There are judicial remedies for such errors, such as suppression

or   even   an   independent     lawsuit.    Stietz   could           have    availed

himself of such remedies rather than risking his own life and




                                        26
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the lives of Warden Frost and Warden Webster.                             His argument that

he was entitled to forcibly resist must be rejected.8

                                                 V

       ¶147 Stietz next argues that the circuit court erred in

declining to instruct the jury regarding the issue of whether

the wardens might have been trespassing on Stietz's property.

According         to    Stietz,    the    issue        is    relevant       because      if   the

wardens were trespassing, he argues, they were not acting "in an

official capacity" and "with lawful authority," one or both of

which are elements of the crimes of which Stietz was convicted.

See Wis. Stat. § 946.41(1) ("Except as provided in subs. (2m)

and    (2r),      whoever      knowingly       resists       or    obstructs        an   officer

while such officer is doing any act in an official capacity and

with       lawful      authority    is    guilty       of    a    Class     A    misdemeanor."

(emphasis           added));       Wis.        Stat.        § 941.20(1m)(b)           ("Whoever

intentionally points a firearm at or towards a law enforcement

officer,      a     fire   fighter,       an    emergency         medical       technician,     a

first responder, an ambulance driver, or a commission warden who

       8
       Stietz also asserts that the wardens' actions "violated
Stietz' Second Amendment rights and precludes his prosecution."
But Stietz does little more than cite the Second Amendment and
its counterpart in the Wisconsin Constitution. I agree with the
State that Stietz's argument is undeveloped. Stietz undeniably
possesses important constitutional rights to keep and bear arms.
But "[l]ike most rights, the right secured by the Second
Amendment is not unlimited.    From Blackstone through the 19th-
century cases, commentators and courts routinely explained that
the right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose."
District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
Stietz must do more than simply cite a constitutional provision
and wait for the court to formulate arguments on his behalf.


                                                27
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is acting in an official capacity and who the person knows or

has reason to know is a law enforcement officer, a fire fighter,

an emergency medical technician, a first responder, an ambulance

driver, or a commission warden is guilty of a Class H felony."

(emphasis added)).

      ¶148 Stietz's argument is meritless.                     It should be noted at

the outset that the court of appeals below concluded that the

entry     was    constitutional       under        the     open       fields       doctrine.

Stietz, unpublished slip op., ¶¶15-18; see also, e.g., Florida

v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1414 (2013) ("The

Fourth Amendment does not, therefore, prevent all investigations

conducted       on   private     property;       for     example,          an   officer   may

(subject to [Katz v. United States, 389 U.S. 347 (1967)]) gather

information in what we have called                 'open fields'——even if those

fields     are       privately     owned——because             such    fields       are    not

enumerated in the Amendment's text.").                        Stietz does not appear

to   contest     this    conclusion        (though       he    does        argue   that   the

wardens lacked reasonable suspicion to enter the property, a
matter discussed below).

      ¶149 Further,        a     number    of    statutes        establish         that   the

wardens     possessed          statutory        authority       to         enter    Stietz's

property.       For instance, Wis. Stat. § 23.10(1) provides in part:

      The department of natural resources shall secure the
      enforcement of all laws which it is required to
      administer . . . . The persons appointed by said
      department to exercise and perform the powers and
      duties heretofore conferred and imposed upon deputy
      fish and game wardens, shall be known as conservation
      wardens.
§ 23.10(1) (emphasis added).
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                                                             No.    2014AP2701-CR.akz


    ¶150 Next,      Wis.       Stat.     § 29.921,         entitled      "Warrants;

arrests; police powers," provides in part:

    The department and its wardens[9] . . . may arrest,
    with or without a warrant, any person detected in the
    actual violation, or whom the officer has probable
    cause to believe is guilty of a violation of any of
    the laws cited in this subsection,[10] whether the
    violation is punishable by criminal penalties or by
    forfeiture, and may take the person before any court
    in the county where the offense was committed and make
    a proper complaint. For the purpose of enforcing any
    of the laws cited in this subsection, any officer may
    stop and board any boat and stop any vehicle, if the
    officer reasonably suspects there is a violation of
    those sections.
§ 29.921(1).

    ¶151 Wisconsin        Stat.   § 29.924,        entitled    "Investigations;

searches,"   provides     in    part   that       "[t]he    department     and   its

wardens   shall,   upon    receiving      notice     or     information     of   the

violation of any laws cited in s. 29.921(1), as soon as possible

make a thorough investigation and institute proceedings if the

evidence warrants it."          § 29.924(1).         And Wis. Stat. § 29.931

orders    "[t]he   department      and      its    wardens"        to   "seize   and

confiscate any wild animal, carcass or plant caught, killed,

    9
       See Wis. Stat. § 24.01 ("In chs. 23 to 29, unless the
context     requires     otherwise    or     unless     otherwise
defined: . . . (3) 'Department' means department of natural
resources. . . . (11) 'Warden' means conservation warden, and
includes county, special and deputy conservation wardens.").
    10
       The subsection references "any law enumerated in ss.
23.50(1), 167.31, 346.19, 940.24, 941.20, 948.60, 948.605 and
948.61." Wis. Stat. § 29.921(1). Wisconsin Stat. § 23.50(1) in
turn references, among other things, "violations of . . . this
chapter, and chs. 26 to 31." This would include Wis. Stat. ch.
23 ("Conservation") and Wis. Stat. ch. 29 ("Wild animals and
plants").


                                       29
                                                             No.   2014AP2701-CR.akz


taken, had in possession or under control, sold or transported

in violation of any of the laws for which the department and its

wardens    have      enforcement        authority         under      s.     29.921."

§ 29.931(1).

      ¶152 This court has already recognized that "[t]he State

Conservation Commission and its deputies are given rather broad

police powers in the enforcement of the fish and game laws of

this state."       State v. Leadbetter, 210 Wis. 327, 330, 246 N.W.

443   (1933).11      There     is    much    to   commend    the     legislature's

approach in this regard.             The DNR is tasked with enforcing a

targeted set of laws, the violation of which will often occur on

private    land.       While    wardens      must    of     course    act    within

constitutional constraints, the statutory limitations on their

actions    are     relatively       permissive    and     enable     the    DNR   to




      11
       The conservation commission preceded the Department of
Natural Resources.   See, e.g., Prefatory Note, 1997 Wis. Act
248.


                                        30
                                                           No.   2014AP2701-CR.akz


effectively    address   violations         of   hunting   and   fishing   laws,

among others.12

     ¶153 In      this   case,   the        wardens    possessed     reasonable

suspicion that hunting violations were occurring.                  On the last

day of deer hunting season near the end of hunting hours, the

wardens spotted a vehicle parked out in a field.                 Warden Webster

thought the vehicle might be abandoned, whereas Warden Frost


     12
       Stietz points to Wis. Stat. § 23.58(1), a provision in
that chapter of the Wisconsin Statutes entitled "Conservation,"
which states in part that "an enforcing officer may stop a
person in a public place for a reasonable period of time when
the officer reasonably suspects that such person is committing,
is about to commit or has committed a violation of" certain
enumerated statutes.     § 23.58(1) (emphasis added).     Stietz
argues that the wardens were not in a "public place." But the
putative inapplicability of § 23.58(1) proves little.       That
subsection applies broadly to "enforcing officer[s]."        Id.
Unlike the statutes cited that apply specifically to "the
department and its wardens," § 23.58(1) applies to, among
others, "a person who has authority to act pursuant to a
specific statute."   See, e.g., State v. Iverson, 2015 WI 101,
¶41, 365 Wis. 2d 302, 871 N.W.2d 661 (state troopers).     Thus,
given that many different types of law enforcement officers fall
within the terms § 23.58(1), the legislature may sensibly have
wished to circumscribe the scope of the authority the subsection
provides.

     Stietz also suggests that Wis. Stat. § 29.924(5) supports
his argument.    That subsection reads as follows: "Access to
Private Land. The department may, after making reasonable
efforts to notify the owner or occupant, enter private lands to
retrieve or diagnose dead or diseased wild animals and take
actions reasonably necessary to prevent the spread of contagious
disease in the wild animals." § 29.924(5). Those circumstances
were not present here.        But section 29.924(5) does not
unambiguously purport to provide the only circumstances under
which wardens may enter private land.    Section 29.924(5) would
appear to be required as an independent source of authority
because the spread of contagion will not necessarily be tied to
any legal violation on the part of a landowner.


                                       31
                                                                         No.    2014AP2701-CR.akz


thought the vehicle might have belonged to a hunter.                                     Warden

Frost's     suspicions         were    confirmed           when    hunting-related        items

were spotted in the vehicle: an empty gun case, a camouflaged

seat, and scent killer spray.                      By that time hunting hours were

over.       The wardens were entitled to investigate whether the

individual       to    whom     the       car   belonged      was       indeed     engaged    in

illegal hunting.13            As the jury's verdict suggests, the wardens

were    indeed    acting       in     an    official        capacity       and    with   lawful

authority.        The        circuit       court     did    not    err     in    declining    to

instruct the jury regarding the law of trespass.14

       ¶154 In        sum,     Stietz's         arguments         on    appeal      should    be

rejected.15

                                                VI

       ¶155 DNR       wardens       are     tasked     with       the   protection       of   the

natural resources of this state and the enforcement of a special

subset of our laws.                 See, e.g., Wis. Citizens Concerned for

Cranes & Doves v. DNR, 2004 WI 40, ¶23, 270 Wis. 2d 318, 677

       13
       The wardens were probably correct in thinking that
illegal hunting was taking place.   Stietz was found in "full
camouflage" with blaze orange in his pocket and carrying two
weapons.   Numerous hunting-related items were found in his
vehicle.
       14
       As explained, the circuit court also barred Stietz from
arguing that the wardens were trespassing, and Stietz objects to
that ruling.     For the reasons already stated, the circuit
court's decision was not in error.
       15
       Stietz characterizes many of the errors that occurred
below as violating his constitutional right to present a
defense. Assuming Stietz has correctly invoked the right, that
invocation fails because Stietz's individual arguments, as
shown, fail.


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                                                                           No.   2014AP2701-CR.akz


N.W.2d 612 ("This court has previously recognized that the DNR

has   broad       authority        as    custodian         of    Wisconsin's           wildlife    to

enact regulations that maintain a balance between conserving and

exploiting        the    state's          wildlife.").                In     order       to     catch

offenders, DNR wardens must sometimes enter private lands; the

element of surprise is critical to their unique law enforcement

mission.

       ¶156 In this case, Warden Frost and Warden Webster entered

Stietz's land and questioned Stietz to verify whether illegal

hunting was taking place.                  Landowners and hunters alike depend

on    DNR   wardens      to    engage       in    this      type      of     activity.           Many

landowners do not have the resources to police their own land

for illegal hunters.               Nor would this be a desirable approach: if

landowners policed their own land looking for trespassers (as

Stietz was allegedly doing in this case), the result would be a

chaotic free-for-all.               The work of DNR wardens thus keeps both

hunters and landowners safe.                     Unfortunately, the court hinders

the    ability      of   DNR       wardens       to    act       in    the       way    they    have
traditionally been required to act.

       ¶157 As the circuit court noted, Stietz is fortunate that

he was not shot when he drew his handgun on Warden Frost and

Warden      Webster.          He    is    fortunate             the   wardens          showed    such

incredible restraint.               But a jury concluded on the evidence that

Stietz      was    not   blameless——that              he    should         not    have     resisted

Warden Webster and pointed a firearm at him.                                 There is nothing

unjust about the proceedings that occurred below; the circuit
court was within its discretion in declining to instruct the

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                                                    No.   2014AP2701-CR.akz


jury on self-defense and trespass.       Accordingly, I would reject

Stietz's claims and affirm the decision of the court of appeals.

    ¶158 For the foregoing reasons, I respectfully dissent.

    ¶159 I   am   authorized   to   state   that   Justice   MICHAEL    J.

GABLEMAN joins this opinion.




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