                                                             2014 WI 57

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2011AP2548-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Luis M. Rocha-Mayo,
                                 Defendant-Appellant-Petitioner.




                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                                348 Wis. 2d 262, 831 N.W.2d 824
                                 (Ct. App. 2013 – Unpublished)

OPINION FILED:         July 11, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         February 4, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Kenosha
   JUDGE:              Wilbur W. Warren III

JUSTICES:
   CONCURRED:          ZIEGLER, ROGGENSACK, GABLEMAN, JJJ., concur.
                       (Opinion filed.)
  DISSENTED:           ABRAHAMSON, C.J. dissents. (Opinion filed.)
                       PROSSER, J., ABRAHAMSON, C.J., BRADLEY, J.,
                       dissent. (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Rex R. Anderegg and Anderegg & Associates, Milwaukee, and
oral argument by Rex R. Anderegg.




       For the plaintiff-respondent, the cause was argued by Sally
L. Wellman, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.
                                                                       2014 WI 57
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.       2011AP2548-CR
(L.C. No.    2008CF660)

STATE OF WISCONSIN                           :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                    FILED
      v.
                                                               JUL 11, 2014
Luis M. Rocha-Mayo,
                                                                  Diane M. Fremgen
              Defendant-Appellant-Petitioner.                  Clerk of Supreme Court




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



      ¶1      N.   PATRICK   CROOKS,   J.   This     is    a    review      of     an
unpublished court of appeals decision that upheld Luis M. Rocha-

Mayo's convictions for first-degree reckless homicide by use of

a dangerous weapon, homicide by intoxicated use of a vehicle,

first-degree reckless endangerment by use of a dangerous weapon,

and operating a motor vehicle without a valid license causing

death to another person.1       The convictions stem from a high-speed

collision involving Rocha-Mayo's car and two motorcycles.                        The

      1
       State v. Rocha-Mayo, No. 2011AP2548-CR, unpublished slip
op. (Wis. Ct. App. Apr. 24, 2013).
                                                        No.     2011AP2548-CR



collision resulted in the death of one motorcyclist as well as

injuries to Rocha-Mayo.

    ¶2    During   trial,   the   State   introduced    the    preliminary

breath   test   (PBT)   result    obtained    from   Rocha-Mayo      by    an

emergency room (ER) nurse for diagnostic purposes.             The Kenosha

County   Circuit   Court,   the   Honorable    Wilbur   W.     Warren     III

presiding, utilized Wis JI——Criminal 11852 in instructing the

    2
       Wisconsin JI——Criminal 1185 addresses the charge of
"Homicide by Operation of a Vehicle While Under the Influence."
Utilizing a slightly modified version of the instruction, the
circuit court instructed the jury, in part,

    If you are satisfied beyond a reasonable doubt that
    there was .08 grams or more of alcohol in 210 liters
    of the defendant's breath at the time the test was
    taken, you may find that the defendant was under the
    influence of an intoxicant at the time of the alleged
    operating, but you are not required to do so. You the
    jury are here to decide this question on the basis of
    all the evidence in this case, and you should not find
    that the defendant was under the influence of an
    intoxicant at the time of the alleged operating,
    unless you are satisfied of that fact beyond a
    reasonable doubt.

     In contrast, the same passage            from   the      standard
Wisconsin JI——Criminal 1185 provides,

    If you are satisfied beyond a reasonable doubt that
    there was .08 grams or more of alcohol in 210 liters
    of the defendant's breath at the time the test was
    taken, you may find from that fact alone that the
    defendant was under the influence of an intoxicant at
    the time of the alleged operating, but you are not
    required to do so.    You the jury are here to decide
    this question on the basis of all the evidence in this
    case, and you should not find that the defendant was
    under the influence of an intoxicant at the time of
    the alleged operating, unless you are satisfied of
    that fact beyond a reasonable doubt.

                                    2
                                                                    No.     2011AP2548-CR



jury on the PBT result.           Over Rocha-Mayo's objection, the State

also offered testimony from Dr. William Falco, an ER physician

who treated Rocha-Mayo.           The physician testified that Rocha-Mayo

appeared    to   be    intoxicated       at    the     time    he    was    undergoing

treatment in the ER.

    ¶3      Rocha-Mayo     asks    this       court    to   review       three    issues.

First,     whether    Wisconsin     statutes          governing      breath       alcohol

testing     allow     admission     of    a    PBT     result       as    evidence      of

intoxication in operating while intoxicated (OWI) related trials

when the results are not obtained by law enforcement.                             Second,

whether    the   circuit   court     improperly         instructed        the    jury   in

regard to the PBT result.                Third, whether the circuit court

erred in allowing an ER physician to testify that Rocha-Mayo

appeared intoxicated while being treated in the ER.                             The State

asserts that the circuit court did not err in any regard.                               In

the alternative, the State contends that any circuit court error

was harmless.

    ¶4      Since we conclude that this case can and should be
resolved by application of a harmless error analysis, we assume,

without deciding, that the circuit court erred when it allowed

the State to admit, as evidence, the PBT result obtained by a

medical    professional     for     diagnostic        purposes.           Likewise,     we

assume, without deciding, that the circuit court erred under

these     circumstances    in     utilizing       Wis       JI——Criminal         1185   to

instruct the jury on its use of the PBT evidence.                         We conclude,


    (Emphasis added.)

                                          3
                                                                           No.     2011AP2548-CR



however,        that       the     circuit        court     did    exercise        appropriate

discretion when it allowed Dr. Falco to testify that, based on

his     observations              and     medical        experience,       Rocha-Mayo         was

intoxicated while undergoing treatment in the ER.                                We agree with

the court of appeals that "[t]he legal concept at issue was

whether Rocha-Mayo was under the influence of an intoxicant at

the time he operated the motor vehicle."3                          Dr. Falco's testimony

related only to his observations of Rocha-Mayo in the ER, and he

did not testify about Rocha-Mayo's driving ability on the night

of the accident.             In fact, Dr. Falco specifically testified that

he    could      not       give    any    indication       of     Rocha-Mayo's       level    of

intoxication at the time of the accident.

       ¶5       Although we assume without deciding that the circuit

court      erred      in    admitting      the     PBT    result      as   evidence    and    in

instructing the jury in regard to the PBT, we conclude that

these alleged errors were harmless beyond a reasonable doubt.

Even without the PBT evidence, the jury heard evidence of Rocha-

Mayo's level of intoxication from witnesses and from Rocha-Mayo
himself.         Rocha-Mayo admitted that he                      consumed two or three

beers at home and an additional five or six beers at a bar, and

that       he   was    drinking         alcohol    in     his   car   just   prior     to     the

collision.         Dr. Falco and Steven Edwards, an ER nurse, testified

that they could smell alcohol on Rocha-Mayo's breath in the ER.

Finally,        Dr.    Falco      testified       that     Rocha-Mayo      appeared      to   be


       3
       State v. Rocha-Mayo, No. 2011AP2548-CR, unpublished slip
op., ¶15 (Wis. Ct. App. Apr. 24, 2013).

                                                  4
                                                                         No.        2011AP2548-CR



intoxicated       while       being    treated      in     the    ER.          We     therefore

conclude,     beyond      a     reasonable        doubt,   that     any    error        by   the

circuit court did not contribute to the verdict.

                                       I. Background

    ¶6       At trial, the facts leading up to the collision were

disputed.     We discuss only those facts relevant to our decision.

    ¶7       On June 22, 2008, Rocha-Mayo left El Rodeo,4 a bar in

Kenosha, Wisconsin, at approximately 2:00 a.m., around the time

of the bar's closing.5                 He left the bar in his vehicle and

started traveling west on 52nd Street.                           Shortly after leaving

the bar, Rocha-Mayo encountered three motorcyclists.                                One of the

motorcycles in the group also carried a passenger.

    ¶8       At    that       point,    the    descriptions         of     what        happened

diverge; however, a road-rage type incident unfolded in which

Rocha-Mayo        and   the     motorcyclists        were    driving           within     close

proximity to one another.               At one point one of the motorcyclists

threw    a   metal      baton    through      Rocha-Mayo's         rear    window.           The

motorcycle carrying two people turned off of 52nd Street.                                    The
other two motorcyclists and Rocha-Mayo continued traveling on

52nd Street at high rates of speed upwards of 70 miles per hour

(mph).



    4
       Rocha-Mayo also referred to this bar in a statement to
police and during his testimony as "Alas de Oro" and "Oro."
    5
       The bar's owner and Rocha-Mayo testified that he left
around bar closing time, which occurs at 2:30 a.m.      However,
police reports and witness accounts of the accident suggest that
Rocha-Mayo left the bar closer to 2:00 a.m.

                                              5
                                                           No.      2011AP2548-CR



      ¶9    At the intersection of 52nd Street and Green Bay Road,

Rocha-Mayo's    vehicle    struck   one   of    the   motorcycles.           That

motorcyclist later died of his injuries.          The other motorcyclist

was uninjured and left the scene of the accident.                       Rocha-Mayo

also sustained injuries and was taken to St. Catherine's Medical

Center.

      ¶10   Dr. Falco and Edwards attended to Rocha-Mayo in the ER

and examined him for a possible head injury.                  Dr. Falco and

Edwards both testified that they could smell alcohol on Rocha-

Mayo's breath.    Dr. Falco also testified that he observed Rocha-

Mayo talking rapidly on his phone upon arrival, and that Rocha-

Mayo had a diminished memory of the accident.              Rocha-Mayo also

told Dr. Falco that he had been drinking alcohol.

      ¶11   Due to these observations, Dr. Falco ordered Edwards

to   test   Rocha-Mayo's   breath   for   the   presence      of    alcohol     to

determine    whether   Rocha-Mayo's       symptoms    might        be     alcohol-

related.     Edwards performed the PBT and recorded a result of

0.086.6
      ¶12   Rocha-Mayo sought to exclude the PBT test result from

his trial.     He argued that Wis. Stat. § 343.3037 prohibits the

use of PBT results in OWI-related trials.               The circuit court

      6
       Since 2003, the legal limit for driving in Wisconsin has
been 0.08 BAC. See Wis. Stat. § 346.63; 2003 Wis. Act 30, § 1.
However, Wis. Stat. § 346.63(1)(a) generally prohibits driving
under the influence of any intoxicant, which "renders him or her
incapable of safely driving . . . ."
      7
       This and all subsequent references to the Wisconsin
statutes are to the 2007-08 version unless otherwise indicated.

                                     6
                                                                         No.     2011AP2548-CR



denied his motion to suppress the result.                             The circuit court

reasoned that Wis. Stat. § 343.303 must be read in its entirety,

and   that    the     plain    language       of       the   statute        applies    to   PBT

results obtained by law enforcement.                           Therefore, the circuit

court found that the PBT result was admissible because it was

taken by a medical professional for diagnostic purposes.                                    In

addition, the PBT was not taken at the direction of, or at the

request of, law enforcement.               The circuit court pointed out that

no law enforcement officers were present in the ER at the time

Edwards administered the PBT.

       ¶13    Rocha-Mayo proceeded to trial on the charges of first-

degree reckless homicide by use of a dangerous weapon, homicide

by    intoxicated      use     of    a   vehicle,        and       first-degree       reckless

endangerment by use of a dangerous weapon.                             Before trial, he

pleaded      guilty    to     the    charge       of    operating       a    motor    vehicle

without a valid license causing death to another person.

       ¶14    At trial, the State presented several witnesses who

observed the motorcyclists and Rocha-Mayo on 52nd Street prior
to the collision.             These witnesses consistently estimated that

the vehicles were traveling upwards of 70 mph.                          A police officer

on patrol observed the vehicles just prior to the accident and

testified that all three were driving "recklessly and at a high

rate of speed" that he estimated as between 70 and 80 mph.

       ¶15     The    State     also     elicited        other       testimony     regarding

Rocha-Mayo's        level     of    intoxication.              A    police     officer      who

obtained a statement from Rocha-Mayo read the statement during
her trial testimony.               In this statement Rocha-Mayo admitted to
                                              7
                                                                           No.     2011AP2548-CR



drinking three beers at his home between 7 p.m. and 9 p.m.

before going to El Rodeo, where, he admitted, he drank another

six beers.8         Rocha-Mayo's statement also provided information

that he purchased two six-packs of beer from the bar as he left

and that he continued to drink an open beer in his car as he

drove away from the bar.                  A third officer testified that he

inspected Rocha-Mayo's car following the accident and that he

observed     one    empty       beer    bottle       and      five    full       beer    bottles

scattered on the front floorboard of the car.

      ¶16    The State also called El Rodeo's owner, who worked as

a   bartender      on    the    night     in   question,         as    a     witness.         She

testified that she did not recall serving alcohol to Rocha-Mayo

and   that    she       could    not     remember       selling       him        any    packaged

alcohol.      On cross-examination, the bar owner testified that

Rocha-Mayo      did     not     appear    to       be   intoxicated,         but        she   then

admitted that her recollection of the evening was poor.                                       When

pressed,     she      testified        that    she      did    not    recall           Rocha-Mayo

exhibiting any obvious signs of intoxication, such as falling
down.

      ¶17    The State also presented testimony from Dr. Falco and

Edwards who both testified that they could smell alcohol on

Rocha-Mayo's breath.            In addition, Dr. Falco testified that, in




      8
       Rocha-Mayo testified at trial. His testimony was largely
consistent with his prior statement to police.     He testified
that he drank two or three beers at home and then consumed an
additional five or six beers at the bar.

                                               8
                                                                          No.     2011AP2548-CR



his professional opinion, Rocha-Mayo was intoxicated at the time

he was treated in the ER.

    ¶18     A jury found Rocha-Mayo guilty of all charges.9

    ¶19     The       court    of    appeals       affirmed.             Like    the    circuit

court, it found that the plain language of Wis. Stat. § 343.303

applies only to PBT results obtained by law enforcement.                                       It

concluded that the circuit court's decision to allow the PBT

result    was    a    proper       exercise      of    discretion.              The    court    of

appeals    also      rejected       Rocha-Mayo's        argument         that    the    circuit

court erred in utilizing Wis JI——Criminal 1185 when instructing

the jury that it could rely on the PBT result as evidence of

intoxication         because       the     instruction           allowed,       but    did     not

require,    the      jury     to    find    that      the    defendant      was       under    the

influence of an intoxicant at the time of the alleged operating.

Finally, the court of appeals found that Dr. Falco's testimony,

that Rocha-Mayo appeared intoxicated while in the ER, was not

error because he offered no opinion on Rocha-Mayo's state of

intoxication at the time of the accident.
    ¶20     This case presents four issues.                            First, whether Wis.

Stat. § 343.303 prohibits the admission of a PBT test result

obtained    by    a    medical       professional           in    an   OWI-related       trial.

Second, whether the circuit court erred in utilizing Wis JI——

Criminal    1185      to    instruct       the     jury      on    its    use    of    the     PBT

evidence.       Third, whether Dr. Falco's testimony, that Rocha-Mayo

    9
       As previously noted, Rocha-Mayo had pleaded guilty to the
charge of operating a motor vehicle without a valid license
causing death to another person prior to his trial.

                                              9
                                                                    No.     2011AP2548-CR



was   intoxicated     while      in     the       ER,   was   improper      because   it

embraced a "legal concept for which a definitional instruction

was required." Finally, whether circuit court error, if any, was

harmless.

      ¶21    We   assume    without      deciding        that   the    circuit    court

erred when it admitted the PBT result and instructed the jury on

that result.       Therefore, we first address whether the circuit

court erred in allowing Dr. Falco's testimony.                        We then turn to

the parties' harmless error arguments.

                           II. Standard of Review

      ¶22    We review a prior court's admission of evidence under

the erroneous exercise of discretion standard.                        State v. Doss,

2008 WI 93, ¶19, 312 Wis. 2d 570, 754 N.W.2d 150.                         That means we

will not overturn the prior court's determination unless there

is a clear showing of such discretion having been exercised in

an erroneous manner.            Id.      "A proper exercise of discretion

requires that the circuit court rely on facts of record, the

applicable    law,   and,       using    a    demonstrable       rational      process,
reach a reasonable decision."             Id.

      ¶23    Our harmless error analysis requires us to determine

whether     the   error    in   question          affected    the   jury's     verdict.

State v. Weed, 2003 WI 85, ¶29, 263 Wis. 2d 434, 666 N.W.2d 485.

Therefore, we ask, "Is it clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the

error?"     State v. Harvey, 2002 WI 93, ¶46, 254 Wis. 2d 442, 647

N.W.2d 189 (quoting Neder v. U.S., 527 U.S. 1, 18 (1999)).


                                             10
                                                                   No.   2011AP2548-CR


                                      III. Analysis
                  A. Admissibility of Dr. Falco's Testimony

      ¶24    Rocha-Mayo argues that the circuit court erred when,

over his objection, it allowed Dr. Falco to testify that, in his

expert opinion, Rocha-Mayo was intoxicated at the time he was

treated in the ER.            Rocha-Mayo's argument is that Dr. Falco's

testimony was improper because it "embraced a legal concept for

which   a   definitional       instruction        was    required."       The    legal

concept to which Rocha-Mayo refers is the definition of "under
the influence of an intoxicant," which was one element of the

charge of homicide by intoxicated use of a vehicle.                      As to this

charge,     the   circuit     court     instructed        the    jury,   "The    third

element     is    the    defendant      was     under     the     influence     of   an

intoxicant at the time the defendant operated a vehicle.                        'Under

the   influence     of   an    intoxicant'        means    that    the   defendant's

ability to operate a vehicle was materially impaired because of

consumption of an alcoholic beverage."                  (Emphasis added.)

      ¶25    In contrast, the State argues that Dr. Falco never

offered any opinion as to Rocha-Mayo's condition or level of
intoxication at the time of the accident.                       In fact, the State

points out that Dr. Falco specifically testified that he could

not make any judgment as to Rocha-Mayo's blood alcohol content

at the time he operated his vehicle or his ability to operate a

vehicle.

      ¶26    Wisconsin Stat. § 907.04 governs "opinion on ultimate

issue."     It states, "[t]estimony in the form of an opinion or
inference otherwise admissible is not objectionable because it

                                          11
                                                                 No.    2011AP2548-CR



embraces an ultimate issue to be decided by the trier of fact."

Wis.    Stat.     §   907.04.      Both   parties    agree      that   Dr.    Falco's

testimony was permissible under Wis. Stat. § 907.04.                         However,

Rocha-Mayo argues that the circuit court erred in allowing Dr.

Falco to testify in regard to his level of intoxication because

the    definitional         instruction   for   "under    the    influence     of   an

intoxicant" was required.

       ¶27    The court of appeals has explained that the "ultimate

issue" described in Wis. Stat. § 907.04 cannot "be one that is a

legal       concept     for      which    the      jury    needs       definitional

instructions."         Lievrouw v. Roth, 157 Wis. 2d 332, 351-52, 459

N.W.2d 850 (1990).

       ¶28    Here, we conclude that Dr. Falco's testimony complies

with both Wis. Stat. § 907.04 and Lievrouw.                  This is because the

ultimate issue at stake was whether Rocha-Mayo was intoxicated

at the time of the collision.              Furthermore, a significant part

of the defense was that even if Rocha-Mayo was intoxicated while

driving, the accident would have occurred regardless of that
fact.10

       ¶29    Dr. Falco's testimony was permissible because it did

not     embrace       the     ultimate    issue:    whether       Rocha-Mayo        was


       10
       As we noted previously, Wis JI——Criminal 1185, addresses
the charge of "Homicide by Operation of a Vehicle While Under
the Influence."    From this instruction the jury was told,
"Wisconsin law provides that it is a defense to this crime if
the death would have occurred even if the defendant had been
exercising due care and had not been under the influence of an
intoxicant." Wis JI——Criminal 1185.

                                          12
                                                                  No.    2011AP2548-CR



intoxicated at the time of the accident.                     As previously noted,

Dr. Falco's testimony related only to his belief that Rocha-Mayo

was    intoxicated         while     undergoing       treatment     in     the     ER.

Furthermore, Dr. Falco did not give any opinion as to Rocha-

Mayo's ability to drive his vehicle safely.                    In fact, on cross-

examination Rocha-Mayo's counsel specifically asked Dr. Falco if

he could opine on Rocha-Mayo's level of intoxication at the time

of    the    accident.       After    explaining      that    Rocha-Mayo's       blood

alcohol level on the night of the accident would have fluctuated

depending on the rate his body metabolized the alcohol, Dr.

Falco responded, "I cannot."              Therefore, we conclude that the

circuit court acted appropriately within its discretion when it

allowed      Dr.   Falco    to     testify    about    Rocha-Mayo's        state   of

intoxication while he was being treated in the ER.

                                   B. Harmless Error

       ¶30    Rocha-Mayo argues that any circuit court error related

to the PBT evidence or the instruction to the jury regarding the

PBT results cannot be harmless error.                  We disagree.        While we
assume without deciding that admission of the PBT result and the

jury instruction at issue was error, we conclude that these

errors were harmless beyond a reasonable doubt.                   In other words,

we conclude that admission of the PBT result and the use of

Wisconsin JI——Criminal 1185, in regard to the PBT evidence, did

not affect the jury's verdict.               It is clear beyond a reasonable

doubt that the jury would have found the defendant guilty absent

the alleged errors.


                                         13
                                                                    No.     2011AP2548-CR



    ¶31     Under Wisconsin statutes and precedent, harmless error

analysis     is     applicable       to    this     case.         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 . . . the improper admission of evidence . .
    . 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.)        Although      Wis.    Stat.     § 805.18      specifically

applies    to     civil    procedure,      this     statute    is     applicable       to

criminal proceedings through Wis. Stat. § 972.11(1).11                          Harvey,

254 Wis. 2d 442, ¶39.

    ¶32     In    Harvey,     this    court      addressed    the    application        of

harmless error analysis in the context of a challenged jury

instruction.       Id., ¶6.      In doing so, we relied heavily on Neder,

527 U.S. 1.       Id., ¶¶35-46.        In considering the language of Wis.

Stat. § 805.18, we also relied on the following question when

conducting      harmless     error    analysis:       "Is    it     clear     beyond    a
reasonable      doubt     that   a   rational      jury   would     have     found     the

defendant guilty absent the error?"                  Harvey, 254 Wis. 2d 442,

¶46 (quoting Neder, 527 U.S. at 18).


    11
       The   applicable   portion  of  Wis.   Stat.  § 972.11(1)
provides, "Except as provided in subs. (2) to (4), the rules of
evidence and practice in civil actions shall be applicable in
all criminal proceedings unless the context of a section or rule
manifestly requires a different construction." Subsections (2)-
(4) are not applicable to this case.

                                          14
                                                                      No.    2011AP2548-CR



      ¶33    The following year we again found guidance from Harvey

and Neder in discussing harmless error analysis in the context

of an alleged confrontation clause violation.                        Weed, 263 Wis. 2d

434, ¶29.      In doing so, we again relied on the harmless error

test set forth in Harvey.             Id. (citing Harvey, 254 Wis. 2d 442,

¶44).

      ¶34    Assuming,     without      deciding,       that    the     circuit      court

erred   when   it    allowed     admission         of   the    PBT    result       and   the

corresponding jury instruction, we conclude that such alleged

errors were harmless.            This is because the jury heard ample

evidence to conclude that Rocha-Mayo was intoxicated at the time

of the accident.

      ¶35    First, while speed is not necessarily indicative of

intoxication, the jury heard from multiple witnesses who all

testified     that   Rocha-Mayo       and    the    motorcyclists           were   driving

recklessly and traveling at high rates of speed.                               Witnesses

consistently estimated that the vehicles were travelling between

70 and 80 mph along 52nd Street.                   At the point where a patrol
officer observed the vehicles, the posted speed limit on 52nd

Street was 30 mph.

      ¶36    In addition, the jury heard evidence of Rocha-Mayo's

level   of    intoxication.           First,     the    jury    heard       Rocha-Mayo's

statement to police in which he admitted to drinking three beers

at his home between 7 p.m. and 9 p.m.                           His statement also

provided that he arrived at El Rodeo around 9 p.m. and that he

consumed an additional six beers before purchasing two six-packs
of   beer    from    the   bar   as    he    left.       His    statement          and   his
                                            15
                                                                  No.    2011AP2548-CR



testimony at trial was that he carried                     a partially consumed

bottle of beer to his car and finished that beer while driving

his vehicle.12       Rocha-Mayo's statements were confirmed in part by

a police officer who testified that he examined Rocha-Mayo's

vehicle after the accident.              This officer found one empty bottle

of beer and five unopened bottles in Rocha-Mayo's vehicle.

       ¶37     The   jury    also    heard     testimony   from    Dr.    Falco    and

Edwards who both attended to Rocha-Mayo in the ER.                        Rocha-Mayo

told Dr. Falco that he had been drinking alcohol immediately

prior to the collision.              Dr. Falco and Edwards both testified

that    they      could    smell    alcohol     on   Rocha-Mayo's       breath.    In

addition, Dr. Falco testified that, based on his observations

and    experience,        Rocha-Mayo     was    intoxicated      while    undergoing

treatment in the ER.13

       ¶38     Due to other evidence of Rocha-Mayo's intoxication, we

conclude, beyond a reasonable doubt, that admission of the PBT

result      and   the     related   jury     instruction   did    not    affect    the

jury's      verdict.        Therefore,     assuming,    without    deciding,      that
admission of the PBT evidence and use of the corresponding jury

instruction were error, we conclude that those alleged errors

were harmless beyond a reasonable doubt.

       12
       Rocha-Mayo testified that the beer he finished in his car
was part of the estimated five or six beers that he consumed at
the bar.
       13
       As noted previously, El Rodeo's owner testified that she
could not recall serving or selling alcoholic beverages to
Rocha-Mayo.   She admitted, however, that her memory of that
night was poor.

                                           16
                                                                       No.   2011AP2548-CR



                                     IV. Conclusion

       ¶39     This case can and should be resolved by application of

a harmless error analysis.                  We assume, without deciding, that

the circuit court erred when it allowed the State to admit, as

evidence, the PBT result obtained by a medical professional for

diagnostic          purposes.      Likewise,      we    assume,      without    deciding,

that    the     circuit      court    erred       under   these      circumstances       in

utilizing Wis JI——Criminal 1185 to instruct the jury on its use

of the PBT evidence.               We conclude, however, that the circuit

court did exercise appropriate discretion when it allowed Dr.

Falco to testify that, based on his observations and medical

experience,           Rocha-Mayo      was     intoxicated            while     undergoing

treatment in the ER.            We agree with the court of appeals that

"[t]he legal concept at issue was whether Rocha-Mayo was under

the influence of an intoxicant at the time he operated the motor

vehicle."14            Dr.   Falco's        testimony      related       only    to     his

observations of Rocha-Mayo in the ER, and he did not testify

about Rocha-Mayo's driving ability on the night of the accident.
In fact, Dr. Falco specifically testified that he could not give

any indication of Rocha-Mayo's level of intoxication at the time

of the accident.

       ¶40     Although we assume, without deciding, that the circuit

court       erred    in   admitting    the    PBT      result   as    evidence    and    in

instructing the jury in regard to the PBT, we conclude that


       14
       State v. Rocha-Mayo, No. 2011AP2548-CR, unpublished slip
op., ¶15 (Wis. Ct. App. Apr. 24, 2013).

                                             17
                                                                       No.        2011AP2548-CR



these alleged errors were harmless beyond a reasonable doubt.

Even without the PBT evidence, the jury heard evidence of Rocha-

Mayo's level of intoxication from witnesses and from Rocha-Mayo

himself.      Rocha-Mayo admitted that he consumed                           two or three

beers at home and an additional five or six beers at a bar and

that   he   was    drinking      alcohol     in    his    car    just    prior        to     the

collision.        Dr. Falco and Steven Edwards, an ER nurse, testified

that they could smell alcohol on Rocha-Mayo's breath in the ER.

Finally,    Dr.     Falco      testified    that       Rocha-Mayo      appeared         to    be

intoxicated       while       being    treated     in    the     ER.         We     therefore

conclude,     beyond      a    reasonable    doubt,       that    any    error        by     the

circuit court did not contribute to the verdict.

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

affirmed.




                                            18
                                                                  No.    2011AP2548-CR.akz


       ¶41    ANNETTE KINGSLAND ZIEGLER, J.                  (concurring).           I join

the    majority      opinion.       I   concur    and    write     separately         to   go

further than the majority opinion and conclude that the plain

language of Wis. Stat. § 343.303 "expressly bars" admission of

preliminary breath test ("PBT") results in trials which involve

operating a motor vehicle under the influence of an intoxicant

("OWI").1      See State v. Fischer, 2010 WI 6, ¶4, 322 Wis. 2d 265,

778 N.W.2d 629.             In Fischer the court stated "the legislature's

policy decision regarding the absolute inadmissibility of the

PBT    results       under     these    circumstances        simply      could      not    be

clearer."          Id., ¶25.     I wrote separately in Fischer, and concur

in the case at issue, because I conclude that, as a matter of

law, PBT results are neither reliable nor admissible for the

purpose      of     proving     a   defendant's        intoxication           or    specific

alcohol concentration when either is an element of the crime

charged.

       ¶42    While it is indeed true that precedent instructs us

that       under     some     circumstances      PBT    results         may    be    deemed
admissible, those cases do not approve of the admission of PBT

results       as     proof     of   intoxication        or    a    specific         alcohol




       1
           Wisconsin Stat. § 343.303 provides, in relevant part:

       The result of the preliminary breath screening test
       shall not be admissible in any action or proceeding
       except to show probable cause for an arrest, if the
       arrest is challenged, or to prove that a chemical test
       was properly required or requested of a person under
       s. 343.305(3).

                                            1
                                                      No.    2011AP2548-CR.akz


concentration when those factors are an element of the crime.2

See State v. Doerr, 229 Wis. 2d 616, 622-25, 599 N.W.2d 897 (Ct.

App. 1999) (agreeing with the circuit court that PBT results

were admissible at trial to assist the jury in evaluating the

defendant's charges of battery to a law enforcement officer in

violation of Wis. Stat. § 940.20(2) and resisting an officer in

violation    of   Wis.   Stat.   § 946.41);   State     v.     Beaver,    181

Wis. 2d 959, 969-71, 512 N.W.2d 254 (Ct. App. 1994) (concluding

that PBT results may be admissible at trial as evidence of the

defendant's comprehension of his Miranda rights or his ability

to intelligently waive them).3

     ¶43    Thus, I conclude that the legislature has spoken and

PBT results are not admissible for the purpose of confirming or

dispelling intoxication or a specific alcohol concentration when

     2
       For example, in order to find Rocha-Mayo guilty of
homicide by intoxicated use of a motor vehicle, contrary to Wis.
Stat. § 940.09(1)(a) or (b), the State had to prove beyond a
reasonable doubt that he (1) operated a motor vehicle, (2)
caused the death of another by operation of that motor vehicle,
and (3) was either under the influence of an intoxicant or had a
prohibited alcohol concentration at the time he or she operated
the motor vehicle.      Wis JI——Criminal 1189.     "[A]n alcohol
concentration of more than 0.04 but less than 0.08 is relevant
evidence   on   the   issue    of   intoxication,"   Wis.  Stat.
§ 885.235(1g)(b), and "an alcohol concentration of 0.08 or more
is prima facie evidence" that the defendant was under the
influence of an intoxicant, § 885.235(1g)(c).
     3
       I recognize that PBT results are considered admissible at
a probable cause hearing. Wis. Stat. § 343.303; State v. Faust,
2004 WI 99, ¶26, 274 Wis. 2d 183, 682 N.W.2d 371.    PBT results
are also utilized as a "screening tool" prior to arrest.     See
Cnty. of Jefferson v. Renz, 231 Wis. 2d 293, 313, 603 N.W.2d 541
(1999).   Unlike the PBT, however, the Intoxilyzer provides for
chemical testing that is subject to certain safeguards so to
ensure reliability.

                                    2
                                                    No.   2011AP2548-CR.akz


these considerations are an element of the crime.           Accordingly,

I   would   conclude   and   decide    that   the   PBT   results     were

inadmissible as a matter of law.

     ¶44    For the foregoing reasons, I respectfully concur.

     ¶45    I am authorized to state that Justices PATIENCE DRAKE

ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.




                                   3
                                                                   No.   2011AP2548-CR.ssa


      ¶46      SHIRLEY S. ABRAHAMSON, C.J.                  (dissenting).        I agree

with Justice Prosser's dissent that it was error for the circuit

court to admit the results of the defendant's preliminary breath

test (PBT)1 as evidence and that it was error for the circuit

court to use the modified jury instruction.2                             I join Justice

Prosser's dissent.

      ¶47      The majority opinion assumes that the admission of the

PBT and the modified jury instruction were erroneous.3

      ¶48      Justice Ziegler's concurrence agrees with the majority

opinion that the admission of the PBT results can be assumed to

be error.       But the concurrence goes further, concluding that the

introduction of the PBT was indeed erroneous; "the PBT results

were inadmissible as a matter of law."                      Concurrence, ¶43.4        This

concurrence is consistent with Justice Ziegler's concurrence in

State     v.    Fischer,     2010     WI       6,    ¶37,    322    Wis. 2d 265,       778

N.W.2d 629, which states that "as a matter of law PBT results

are     neither        reliable    nor     admissible        for    the     purpose    of

confirming        or     dispelling        a       defendant's     specific      alcohol
concentration."

      ¶49      Thus six justices——Justice Ann Walsh Bradley, Justice

David     Prosser,       Justice    Patience         Roggensack,     Justice     Annette

Kingsland Ziegler, Justice Michael Gableman, and I——agree that

      1
          Justice Prosser's dissent, ¶¶96-111.
      2
          Justice Prosser's dissent, ¶¶112-118.
      3
          Majority op., ¶4.
      4
       See also Justice Prosser's dissent, ¶97 (quoting Justice
Ziegler's concurrence).

                                               1
                                                                No.   2011AP2548-CR.ssa


the circuit court erred in admitting the PBT results in the

present case.

     ¶50     The    majority      opinion      (joined     by    Justice       Ziegler)

declares    the    assumed     errors     to   be   harmless.5         In   contrast,

Justice     Prosser's      dissent    concludes     that    the       errors    in   the

instant case were not harmless.6                Once again I agree with the

dissent.        The PBT results and erroneous jury instruction were

central to the prosecution's case; the errors were prejudicial.

     ¶51     I     write     separately,       however,         to    highlight       an

additional error, namely the admission of the expert testimony

of Dr. William Falco.          The doctor was allowed to give an expert

opinion that the defendant was "intoxicated" when he was in the

emergency room.         Such testimony is barred by our jurisprudence

regarding the limits of expert opinion testimony

     ¶52     The State did not have to prove beyond a reasonable

doubt that the defendant was "intoxicated."                     Rather, the State

had to prove beyond a reasonable doubt that the defendant was

"under    the    influence     of    an   intoxicant"      while      operating      the
vehicle.7

     ¶53     "Under the influence of an intoxicant" is a legal term

of art defined in Wis. Stat. § 939.22(42) to mean "the actor's

ability     to     operate    a     vehicle . . . is        materially         impaired


     5
         Majority op., ¶5.
     6
         Justice Prosser's dissent, ¶¶119-134.
     7
       See Wis. Stat. § 940.09(1)(a) (defining the crime of
"caus[ing] the death of another by the operation or handling of
a vehicle while under the influence of an intoxicant").

                                          2
                                                     No.    2011AP2548-CR.ssa


because   of    his     or    her   consumption     of      an     alcoholic

beverage . . . ."

    ¶54   The legal definition of "under the influence of an

intoxicant" is not necessarily the same as a doctor's use of the

word "intoxicated" for purposes of determining proper medical

diagnosis or treatment in a hospital, or the same as the common

usage of the word "intoxicated."

    ¶55   I    now    turn   to   the   Wisconsin   rules     of   evidence

governing expert opinion testimony.

    ¶56   Wisconsin Stat. § 907.04 provides as follows:

    Testimony in the form of an opinion or inference
    otherwise admissible is not objectionable because it
    embraces an ultimate issue to be decided by the trier
    of fact.8
    8
       The 1974 Judicial Council Committee's Note to § 907.04,
Wisconsin Rules of Evidence, 59 Wis. 2d R211, states that the
rule is consistent with Rabata v. Dohner, 45 Wis. 2d 111, 172
N.W.2d 409 (1969). The court declared in Rabata, 45 Wis. 2d at
125 (citing Charles T. McCormick, Some Observations Upon the
Opinion Rule and Expert Testimony, 23 Tex. L. Rev. 109, 118, 119
(1944)), that opinion testimony on ultimate issues could be
barred if phrased as a legal term of art:

    [A] court, even though not banning opinions on an
    ultimate issue, might nevertheless properly condemn a
    question phrased in terms of a legal criterion which
    could be misunderstood by the laymen on the jury.
    Such questions as, "Did X have sufficient mental
    capacity to make a will," or "Was X negligent," would
    properly be condemned on this basis——that they would
    confuse the jury rather than assist it——and be
    excluded from evidence.

     Wis. Stat. § 907.04 adopted Federal Rule of Evidence 704
verbatim.

     Federal Rule 704 was amended in 1984 to add subsection (b)
as follows:

    Rule 704.    Opinion on an Ultimate Issue
                                 3
                                                               No.   2011AP2548-CR.ssa


          ¶57    As   the    majority     opinion     acknowledges,       an   expert

witness cannot give opinion testimony on an ultimate issue "that

is    a       legal   concept   for     which   the   jury     needs    definitional

instructions,"9 although the expert may give opinion testimony as

to an "ultimate issue to be decided by the trier of fact."                          The

phrase "under the influence of an intoxicant" is a legal concept

and   a       jury    is   instructed   regarding     the    legal     definition    of

"under the influence of an intoxicant."

          ¶58    The majority opinion acknowledges that the ultimate

issue of whether the defendant was "under the influence of an

intoxicant" under Wis. Stat. § 940.09(1)(a) was one requiring a

specific, definitional jury instruction.                    Wisconsin JI——Criminal




          (a) In General——Not Automatically Objectionable.   An
          opinion is not objectionable just because it embraces
          an ultimate issue.

          (b) Exception. In a criminal case, an expert witness
          must not state an opinion about whether the defendant
          did or did not have a mental state or condition that
          constitutes an element of the crime charged or of a
          defense.   Those matters are for the trier of fact
          alone.

     For a discussion of the Federal Rule, see Charles Alan
Wright et al., 29 Federal Practice & Procedure: Evidence § 6282
(2d ed. 1997 & Supp.); 1 McCormick On Evidence § 12 (Kenneth S.
Broun ed., 7th ed. 2013).

     For other rules of evidence governing admissibility                             of
expert opinion testimony, see Wis. Stat. ch. 907.
          9
       Majority op., ¶¶26-27 (citing Wis. Stat. § 907.04 &
Lievrouw v. Roth, 157 Wis. 2d 332, 351-52, 459 N.W.2d 850 (Ct.
App. 1990)).

                                            4
                                                     No.   2011AP2548-CR.ssa


1185, which was given to the jury in the instant case,10 defines

"under the influence of an intoxicant" for the jury as follows:

    "Under the influence of an intoxicant" means that the
    defendant's   ability  to  operate   a   vehicle  was
    materially impaired because of consumption of an
    alcoholic beverage.

    Not every person who has consumed alcoholic beverages
    is "under the influence" as that term is used here.
    What must be established is that the person has
    consumed a sufficient amount of alcohol to cause the
    person to be less able to exercise the clear judgment
    and steady hand necessary to handle and control a
    motor vehicle.

    It is not required that impaired ability to operate be
    demonstrated by particular acts of unsafe driving.
    What is required is that the person's ability to
    safely control the vehicle be materially impaired
    (footnote omitted).
    ¶59     In the instant case, the doctor's testimony used the

term "intoxication" in its medical sense, not the sense of the

legal term of art "under the influence of an intoxicant" as

defined in the statutes and the jury instruction.                Dr. Falco

testified that when the defendant entered the emergency room, in

his expert opinion the defendant was intoxicated.            The exchange

between    the   prosecutor   and   the   doctor,   over   the   defense's
objection, ensued as follows:

    [PROSECUTOR]: Doctor, over        the 13 years where you had
    occasion to treat accident        patients that have consumed
    alcohol, were you able to        make a diagnosis of whether
    or not they were under the       influence of alcohol?

    [DOCTOR]: Yes, several times.

    [PROSECUTOR]: Do you believe you're qualified to in
    this case render that opinion?

    10
          See majority op., ¶2.

                                     5
                                                            No.    2011AP2548-CR.ssa

    [DOCTOR]: I do.  I mean, I see intoxicated patients
    not in accidents pretty much on a daily basis that
    I'm——

    [PROSECUTOR]: And when you're looking at those
    patients, what are those things that you are looking
    at?   What are the factors? What are the symptoms of
    alcohol intoxication?

    [DOCTOR]: Well, their behavior; their——you know, the——
    obviously the smell of alcohol on their breath; their
    speech, the clarity of their speech; you know, if they
    had redness to their eyes; their ability to ambulate
    or, you know, walk with the steady gait, things like
    that.

    [PROSECUTOR]: And based upon your treatment, based on
    your experience and medical practice as an emergency
    room physician, and your contact and examination and
    assessment of this patient, [the defendant], do you
    have an opinion as to his state of sobriety?

    [DOCTOR]: I do.

    [PROSECUTOR]: And what is your opinion?

    [The defense objected and was overruled.]

    [DOCTOR]: I believe he was intoxicated at the time.

    [PROSECUTOR]: And do you hold that opinion to a
    reasonable degree of scientific and medical certainty?

    [DOCTOR]: I do.
    ¶60     Expert opinion testimony?            Check.     Ultimate issue in

the case?     Check.     Requiring a definitional jury instruction?

Check.

    ¶61     Nonetheless, the majority opinion in the instant case

permits     the    doctor's     testimony         about      the      defendant's

intoxication when he entered the emergency room.

    ¶62     The   majority    opinion         creatively     but     fallaciously
reasons   that    the   testimony   is       admissible    because     the   doctor


                                         6
                                                                   No.    2011AP2548-CR.ssa


"never offered any opinion as to [the defendant's] condition or

level of intoxication at the time of the accident."11

       ¶63    The    State      defends      the     admission      of     the    doctor's

testimony      on    the   grounds      that       the    doctor   never       offered    an

opinion as to whether the defendant's ability to safely control

the vehicle was materially impaired.

       ¶64    True, the doctor did not express an opinion about the

defendant's intoxication at the time of the accident or about

the defendant's ability to operate a vehicle.                         So, I ask, what

is    the    relevance     of    the    doctor's         expert    opinion       about    the

defendant's intoxication in the emergency room?                          Is it relevant

because it enables a jury to infer from the doctor's testimony

that the defendant, who was intoxicated at the hospital, had a

materially impaired ability to operate a vehicle at the time of

the    accident?         It     seems   to    me    this    must    be     the    unstated

rationale.          Is   this    inference       permissible?            No!      Why    not?

Because      the    doctor's     medical     definition       of    "intoxicated"         for

purposes of medical diagnosis and treatment at the emergency
room    is    different       than   the     legal       definition      of    "under    the

influence of an intoxicant."

       ¶65    Admitting the doctor's expert testimony in the present

case leads the jury to the mistaken belief that "intoxication"

as used by a doctor as a medical term is the same as the legal

term of art "under the influence of an intoxicant."

       ¶66    How can the jury make the inferential leap from the

doctor's expert opinion about intoxication for medical diagnosis

       11
            Majority op., ¶25 (emphasis added).

                                             7
                                                     No.   2011AP2548-CR.ssa


and treatment purposes to finding beyond a reasonable doubt that

the defendant was "under the influence of an intoxicant" as a

defined legal element of the crime?

     ¶67     The doctor's testimony therefore does not assist the

trier of fact under the relevance-assistance standard of Wis.

Stat. § 907.02(1).12        Indeed, the doctor's testimony confuses,

rather than assists, the jury.

     ¶68     To avoid jury confusion, the rules of evidence and the

case law militate against the admission of expert testimony on

legal     concepts   or   terms   of   art.   Analyzing    our   case   law,

Professor Blinka's treatise wisely advises that when weighing

whether expert testimony phrased in terms of legal standards is

admissible, "a prime consideration is whether the concept under

consideration is a peculiarly legal construct or one that is

also rooted in common usage."13


     12
          Wisconsin Stat. § 907.02(1) provides:

     (1) If scientific, technical, or other specialized
     knowledge will assist the trier of fact to understand
     the evidence or to determine a fact in issue, a
     witness qualified as an expert by knowledge, skill,
     experience,   training,  or   education,  may  testify
     thereto in the form of an opinion or otherwise, if the
     testimony is based upon sufficient facts or data, the
     testimony is the product of reliable principles and
     methods, and the witness has applied the principles
     and methods reliably to the facts of the case.

     The rules of evidence thus exclude the doctor's opinion in
the present case, not only as violating Wis. Stat. § 907.04 and
our case law, but also as not helpful to the trier of fact and
as a waste of time.
     13
       7 Daniel D. Blinka, Wisconsin Practice Series:            Wisconsin
Evidence § 702.603 (3d ed. 2008).

                                       8
                                                                   No.    2011AP2548-CR.ssa


      ¶69     Professor     Blinka         cites       Lievrouw          v.    Roth,       157

Wis. 2d 332, 351-52, 459 N.W.2d 850 (Ct. App. 1990), as does the

majority opinion.14         The Lievrouw court ruled that an expert

witness's opinion may not be admissible on a "legal concept for

which the jury needs definitional instructions."                              In Lievrouw,

the   court    determined       that   a    witness's       opinion       regarding        the

existence of an "emergency" was admissible because "emergency"

was not defined for the jury and was not a "term of art."15

      ¶70     By admitting the doctor's expert opinion testimony on

the     defendant's    intoxication,            the      circuit     court          permitted

exactly the kind of confusing expert testimony on an ultimate

legal concept that was held inadmissible under Lievrouw.

      ¶71     More   can   be    and   has      been     written     on       the    meaning,

application,      continued      vitality,         and    nuances        of    Wis.    Stat.

§ 907.04 and the proper phrasing of questions for the expert to

comply with the rule.           For the purposes of this dissent in the

present case, I do not write on the rule at length.                             I think it

important to engage this issue, point out the problems with the
majority      opinion's    discussion,          and    foster   discussion            of   the

rule.

      ¶72     For the foregoing reasons, I join Justice Prosser's

dissent and write separately.




      14
       Majority op., ¶¶26-27 (citing Wis. Stat.                               § 907.04 and
Lievrouw, 157 Wis. 2d at 351-52).
      15
           Lievrouw, 157 Wis. 2d at 351-52.

                                            9
     No.   2011AP2548-CR.ssa




10
                                                              No.   2011AP2548-CR.dtp


    ¶73     DAVID   T.    PROSSER,   J.        (dissenting).          The   majority

opinion    has   been    constructed      to   present    a    black     and    white

picture of a reckless defendant.               Unfortunately, there is more

to the story.       The facts left out are not pretty, and their

ugliness helps explain why a Kenosha County jury deliberated

about 20 hours, over four days, before reaching a verdict.

    ¶74     When a jury deliberates for 20 hours on a seemingly

simple case, something about the case has troubled them.                       When a

jury has deliberated for 20 hours before convicting a defendant,

facile     assurances    that   critical       errors    in     the    trial     were

harmless to that defendant can be unpersuasive and unsettling.

For the reasons stated below, I believe this defendant should be

given a new trial.       Consequently, I respectfully dissent.

                            FACTUAL BACKGROUND

    ¶75     The defendant in this case, Luis M. Rocha-Mayo, was 19

years old at the time of the accident.                 He was an undocumented

immigrant from Mexico whose primary language is Spanish and who

required    an   interpreter    throughout       the    criminal      proceedings.

The jury knew that many months had passed between the charges

and the trial.1     None of this affected the jury's conscientious

consideration of the case.

    ¶76     On June 21, 2008, the defendant was at his apartment

with family.     Between 7 p.m. and 9 p.m. he consumed three beers.

About 9 p.m., the group traveled in separate cars to El Rodeo, a


    1
       Rocha-Mayo was in custody, on $100,000 bond, from the time
of his arrest until the time of trial, and he received 865 days
of credit on the ten years of confinement in his bifurcated
sentence.

                                       1
                                                           No.   2011AP2548-CR.dtp


bar at the corner of 14th Avenue and 52nd Street in Kenosha.

Over the next five hours, the defendant consumed five beers and

ordered a sixth, which he partially consumed at the bar and took

with him to finish in his car when he left at 2 a.m.

    ¶77   Thus, between 7 p.m. on June 21 and 2 a.m. on June 22—

—seven hours——the defendant consumed at least nine beers.                           He

claimed also that between the initial three beers and the last

six beers he drank some soda.           The defendant's drinking is not

in dispute; the effect of his drinking is.

    ¶78   When    the    defendant   left    El    Rodeo,        he    pulled      his

vehicle onto 52nd Street and proceeded west, intending to return

to his apartment on 40th Avenue.            Within a few blocks, three

motorcycles entered 52nd Street from the parking lot for Coins

Tavern, which has an address of 1714 52nd Street.

    ¶79   The    defendant's     version     of    the     story       is   that     a

motorcycle   carrying     two   people,    Curtis    Martin           (Martin)     and

Shawna Bestwick (Shawna), merged into the right lane directly in

front of the defendant's vehicle.            Two other motorcycles then

entered the street immediately behind the defendant's vehicle.

One of these cycles was driven by Travis Bestwick (Bestwick);

the other was driven by Jason Walters (Walters).                      Bestwick was

Shawna's brother.       He was riding Martin's motorcycle, and Martin

was riding Bestwick's motorcycle, because Bestwick's cycle was

better suited for carrying a passenger.

    ¶80   The    motorcyclists    had     been    riding    as    a     group,     and

apparently Bestwick and Walters became offended when members of
the group were separated by Rocha-Mayo's car.               Walters pulled up


                                     2
                                                                 No.    2011AP2548-CR.dtp


parallel to the defendant's car, alongside the driver's window.

He yelled at Rocha-Mayo with an obscenity and gestured for him

to pull over.          Martin and Shawna heard the yelling behind them

and then turned off on 25th Avenue in a maneuver that enabled

them    to    end    up    behind    the      defendant's     car      with    the    other

motorcycles.         The defendant's brief reads in part as follows:

            At this point, Rocha Mayo testified, he sensed
       Walters and his group were looking for trouble and the
       situation felt threatening.     Realizing he now had
       three cycles around him, and believing them all in a
       mood to harm him, Rocha Mayo did not pull over as
       Walters demanded.   Instead, he resolved to continue
       home, which required he remain on 52nd Street and turn
       right at 40th Avenue.         He therefore continued
       westbound at the approximate speed limit, just hoping
       to get home.
       ¶81    Walters      pulled    back      behind   Rocha-Mayo's           car.      He

reached      into    his    jacket      for    an   expandable      metal      baton    and

flicked it open with the wrist of his right hand.                                He then

accelerated his bike to the left of the defendant's car and

launched      the     metal   baton      at     the   car's     rear     window       while

traveling at high speed.             The baton shattered the rear window of

the car and landed on the floor in front of the passenger's
seat.        Glass    fragments      flew      throughout     the      car.     Bestwick

followed     Walters       past   the    defendant's     car.          The    defendant's

brief explains:

            From Rocha Mayo's perspective, his premonition of
       danger suddenly became a rude reality when his rear
       window exploded as two cycles roared by him on the
       left. The explosion caused Rocha Mayo to momentarily
       duck and he was convinced he was going to get hit.
       When   he   regained   his   wits,  he   instinctively
       accelerated because another cycle was behind him, in
       addition to the two cycles now in front of him, and he
       was scared. He feared another assault from the rear.
                                  3
                                                              No.    2011AP2548-CR.dtp

    Although still in the right lane and somewhere near
    30th and 33rd Avenues, he resolved not to turn off on
    40th Avenue so the cyclists would not learn where he
    lived.
    ¶82      After    Walters'    baton       shattered    Rocha-Mayo's        window,

Rocha-Mayo    and     the   two   motorcycles      in     front     of   him   speeded

westward on 52nd Street at approximately 70 miles per hour.                       The

third motorcycle followed for several blocks, then turned off on

39th Avenue.         Rocha-Mayo testified, however, that he continued

to believe he was being pursued by the third cycle, so that he

thought he had two cycles ahead of him and one cycle behind him.

As noted, he did not slow down to turn off on 40th Avenue,

allegedly because he was afraid he would be followed to his

apartment.

    ¶83      The ostensible "race" with the three vehicles on 52nd

Street continued for more than 20 blocks until the vehicles came

to the intersection with Green Bay Road.                  The defendant's brief

reads as follows:

    As the vehicles approached that intersection, the stop
    light for westbound traffic was red . . . .    The two
    westbound lanes, that were also free of traffic,
    widened first to three lanes (a dedicated left turn
    lane) and then to four lanes (a shorter dedicated
    right turn lane). . . . Rocha Mayo believed he still
    had a third cycle behind him. . . .

         As the vehicles neared the intersection, Bestwick
    and Walters, via hand signals (but unbeknownst to
    Rocha Mayo), decided to attempt a right turn onto
    North Green Bay Road, a maneuver the State's accident
    investigator agreed would have been impossible at
    their speed.   Rocha Mayo was still in the right hand
    lane and from his perspective, Walters and Bestwick
    were off to the left in front of him.          Suddenly
    Walters   braked,  but   realized a   turn   would   be
    impossible, and wound up sliding into and stopping in
    the middle of the intersection.     Bestwick, however,

                                          4
                                                     No.   2011AP2548-CR.dtp

     attempted the turn and moved to the right, directly in
     front of Rocha Mayo's vehicle, while braking.    Rocha
     Mayo could not react fast enough to avoid striking
     Bestwick.
     ¶84   Rocha-Mayo's       vehicle     collided   with       Bestwick's

motorcycle.     Bestwick, who had not been wearing a helmet, was

thrown from the cycle and eventually died of blunt force trauma

to the head.     Rocha-Mayo was injured in the crash, was found by

police lying in pain in nearby grass, and like Bestwick, was

transported to a hospital.

     ¶85   Walters, according to testimony at the trial, came to

a complete stop in the intersection, looked around from the

vantage point where he could see both vehicles at a complete

rest, with Bestwick lying in the street.         Walters then took off

southbound on Green Bay Road as a police car approached.

     ¶86   Walters called Shawna about the accident, and she and

Martin quickly drove to the accident scene.          However, they left

without telling police of their knowledge or involvement and

waited more than 19 hours before contacting authorities.               When

they came to talk, the motorcyclists blamed the tragic events
entirely   on   Rocha-Mayo.     Whether   the   motorcyclists    had   been

operating under the influence was never established, in large

part because they absented themselves from authorities.            None of

the motorcyclists, including the baton-launching Walters, was

ever charged with any offense.2



     2
       Motorcycles have been a rich and important part of
Wisconsin history. Nothing in this dissent is intended to imply
any   criticism  whatsoever   of  the   overwhelming  number of
responsible motorcycle owners and operators in this state.

                                    5
                                                                  No.      2011AP2548-CR.dtp


      ¶87     Bestwick died on Sunday, June 22, 2008.                       The following

day, Rocha-Mayo was charged with second-degree reckless homicide

with a dangerous weapon, contrary to Wis. Stat. §§ 940.06(1),

939.50(3)(d), and 939.63(1)(b), a Class D felony.

      ¶88     Following a preliminary examination on July 2, 2008,

the State filed an information charging Rocha-Mayo with three

offenses:

              (1)    First-degree      reckless     homicide,           with       use   of   a

      dangerous       weapon,      contrary    to   Wis.      Stat.         §§ 940.02(1),

      939.50(3)(b), and 939.63(1)(b), a Class B felony instead of

      the Class D felony originally charged.

              (2)    First-degree reckless endangerment, with use of a

      dangerous       weapon,      contrary    to    Wis.         Stat.       § 941.30(1),

      939.50(3)(f),         and   939.63(1)(b),     a     Class        F    felony.        The

      information         asserted     that    Rocha-Mayo              "did    recklessly

      endanger        the     safety      of   Jason         A.        Walters,          under

      circumstances which show utter disregard for human life."

              (3)    Operating without a valid license causing death

      to another person, contrary to Wis. Stat. §§ 343.05(5)(b)3d

      and 939.51(3)(a), a Class A misdemeanor.

      ¶89     Seven months later, on February 11, 2009, the State

moved the circuit court to amend the information to add a fourth

charge   of    homicide      by    intoxicated      use      of    a       motor    vehicle,

contrary to Wis. Stat. §§ 940.09(1)(a) and 939.50(3)(d), a Class

D   felony.         The   motion    was   granted       by   Circuit          Judge      Bruce

Schroeder.      In his motion, District Attorney Robert Zapf wrote:

      At the court hearing on the defendant's motion to
      adjourn the trial date, the Court inquired whether the
                                           6
                                                          No.    2011AP2548-CR.dtp

       State was intending to pursue any alcohol related
       charges. At that time, this writer advised the Court
       that I did not think the BAC test performed by the
       hospital would be admissible.   However, your affiant
       has reviewed all of the evidence and reconsidered its
       original position.
       ¶90   Rocha-Mayo      thereafter      successfully         moved         Judge

Schroeder to recuse himself from the case.                      Judge Wilbur W.

Warren III was assigned to the case.

       ¶91   The facts stated above closely follow the defendant's

brief and obviously convey the defendant's perspective on some

of the facts.        Significantly, however, the State did not rewrite

the statement of facts.         Rather, the State said:

       Rocha-Mayo's statement of facts consists largely of
       facts about the criminal incident itself, from the
       viewpoint most favorable to him. Because the criminal
       incident facts are not directly pertinent to the legal
       issues, the State will not present a counter statement
       of criminal incident facts.    By declining to do so,
       the State does not in any way intend to agree with
       Rocha-Mayo's partisan presentation of the facts.   The
       evidence presented, viewed in the light most favorable
       to the State as it must be after conviction, was
       sufficient to prove Rocha-Mayo guilty beyond a
       reasonable doubt.
       ¶92   The    facts   above,    presented   in    large    part   from     the

defendant's perspective, are damaging to the defendant.                          But

they also suggest the possibility that Bestwick's tragic death

would not have happened but for actions initiated by Walters and

the other motorcyclists.         This was Rocha-Mayo's explanation from

the day of his arrest and his defense throughout the trial.                       It

underlies his position now.           Consequently, the issues presented

in this review are integrally related to the specific felonies
with    which      Rocha-Mayo   was    charged    and   convicted,        and    the

specific facts leading up to Bestwick's death.                    If the issues
                                        7
                                                                     No.    2011AP2548-CR.dtp


presented by the defendant reveal errors in the trial, it is

very,    very        difficult      to     assert    that    these     errors       did     not

"contribute" to the verdict.

                         ADMISSIBILITY OF THE PBT RESULT

       ¶93     Rocha-Mayo states his first issue as follows: "whether

Wisconsin's breath testing regimen allows the State to present

evidence of a PBT result in an OWI prosecution to quantitatively

prove the defendant was under the influence of an intoxicant,

simply because the PBT was not administered by law enforcement."

       ¶94     Following the accident, Rocha-Mayo was taken to the

emergency room at St. Catherine's Medical Center.                              The State's

brief states that Rocha-Mayo was strapped to a backboard and had

swollen lips and blood on his face; he was confused and emitted

an    obvious    odor       of    alcohol.         The    State's    brief     goes    on    to

describe       how    Dr.     William      Falco,    the     emergency       room     doctor,

almost    immediately            ordered    the     emergency       room    nurse,     Steven

Edwards, to do a breath alcohol test to try to determine whether

Rocha Mayo's confusion was caused by a head injury or alcohol.

The   defendant's        brief      states,       "Nurse    Edwards        complied,      Rocha

Mayo consented and cooperated, and a PBT test result of 0.086

was taken.       It was a single sample test."

       ¶95     Prior     to      trial,     Rocha-Mayo      moved     to     suppress       the

result    of    the     PBT      obtained    at     the    hospital        emergency    room.

Rocha-Mayo argued that the result of the test was inadmissible

under Wis. Stat. § 343.303.                  After a hearing, the circuit court

disagreed and admitted the test result at trial.




                                               8
                                                                       No.    2011AP2548-CR.dtp


    ¶96     This issue——the admissibility of the PBT result in a

trial involving traffic-related offenses, including homicide by

intoxicated use of a motor vehicle——is surely the reason the

court took this case.               Significantly, no one on the court is

prepared to say that the circuit court correctly admitted the

evidence.

    ¶97     In State v. Fischer, 2010 WI 6, ¶4, 322 Wis. 2d 265,

778 N.W.2d 629, the court unanimously held that "Wisconsin Stat.

§ 343.303    expressly           bars   PBT    results         in    OWI     cases."       After

joining    the     opinion,       Justice      Ziegler          concurred,      stating,     "I

conclude    that     as      a    matter      of    law    PBT       results    are    neither

reliable     nor    admissible          for        the    purpose      of     confirming     or

dispelling a defendant's specific alcohol concentration in an

OWI or PAC trial."            Id., ¶37 (Ziegler, J., concurring, joined by

Justices Roggensack and Gableman).

    ¶98     In     her       concurrence        in       the    present       case,     Justice

Ziegler adds that "the legislature has spoken and PBT results

are not admissible for the purpose of confirming or dispelling

intoxication       or    a    specific        alcohol      concentration            when   these

considerations are an element of the crime."                          Concurrence, ¶43.

    ¶99     Against this background, the majority nonetheless is

willing to decide the case by assuming, without deciding, "that

the circuit court erred when it allowed the State to admit, as

evidence, the PBT result obtained by a medical professional for

diagnostic       purposes,"        majority         op.,       ¶4,   and     then     affirming

Rocha-Mayo's convictions on the basis of harmless error.




                                               9
                                                   No.   2011AP2548-CR.dtp


    ¶100 In   this   case,   assuming   error   rather   than   deciding

error has the unfortunate effect of ducking a vital issue that

should   be   decided    and    burying     the    reasons      for    an

"inadmissibility" ruling.

    ¶101 Wisconsin Stat. § 343.303 reads as follows:

         Preliminary breath screening test.      If a law
    enforcement officer has probable cause to believe that
    the person is violating or has violated s. 346.63(1)
    or (2m) or a local ordinance in conformity therewith,
    or s. 346.63(2) or (6) or 940.25 or s. 940.09 where
    the offense involved the use of a vehicle, or if the
    officer detects any presence of alcohol, a controlled
    substance, controlled substance analog or other drug,
    or a combination thereof, on a person driving or
    operating or on duty time with respect to a commercial
    motor vehicle or has reason to believe that the person
    is violating or has violated s. 346.63(7) or a local
    ordinance in conformity therewith, the officer, prior
    to an arrest, may request the person to provide a
    sample of his or her breath for a preliminary breath
    screening test using a device approved by the
    department for this purpose.      The result of this
    preliminary breath screening test may be used by the
    law enforcement officer for the purpose of deciding
    whether or not the person shall be arrested for a
    violation of s. 346.63(1), (2m), (5) or (7) or a local
    ordinance in conformity therewith, or s. 346.63(2) or
    (6), 940.09(1) or 940.25 and whether or not to require
    or request chemical tests as authorized under s.
    343.305(3).    The result of the preliminary breath
    screening test shall not be admissible in any action
    or proceeding except to show probable cause for an
    arrest, if the arrest is challenged, or to prove that
    a chemical test was properly required or requested of
    a person under s. 343.305(3). Following the screening
    test, additional tests may be required or requested of
    the driver under s. 343.305(3).    The general penalty
    provision under s. 939.61(1) does not apply to a
    refusal to take a preliminary breath screening test.
    ¶102 The most important sentence in this section is: "The
result of the preliminary breath screening test shall not be

admissible in any action or proceeding except to show probable
                                 10
                                                    No.   2011AP2548-CR.dtp


cause for an arrest, if the arrest is challenged, or to prove

that a chemical test was properly required or requested of a

person under s. 343.305(3)."      Id. (emphasis added).

    ¶103 The    title     of    § 343.303   is   "Preliminary      breath

screening test."   The phrase "preliminary breath screening test"

appears four times in the text of the section.              The key word

among the four words is "preliminary," and that word is wholly

consistent with the expectation that "additional tests may be

required or requested of the driver under s. 343.305(3)."          Id.

    ¶104 Wisconsin      Stat.   § 343.305   is   entitled    "Tests    for

intoxication;    administrative     suspension     and      court-ordered

revocation."    This section outlines the tests for intoxication

that are admissible in evidence in traffic-related prosecutions.

Wisconsin Stat. § 343.305(5)(d) provides in part:

    [T]he results of a test administered in accordance
    with this section are admissible on the issue of
    whether the person was under the influence of an
    intoxicant . . . to   a    degree    which    renders
    him . . . incapable of safely driving . . . or any
    issue relating to the person's alcohol concentration.
    Test results shall be given the effect required under
    s. 885.235.3

    3
        Wisconsin Stat. § 885.235(1g) reads in part:

         In any action or proceeding in which it is
    material to prove that a person was under the
    influence of an intoxicant . . . evidence of the
    amount   of   alcohol   in  the   person's   breath,   is
    admissible on the issue of whether he . . . was under
    the influence of an intoxicant or had a prohibited
    alcohol    concentration   or   a    specified    alcohol
    concentration if the sample was taken within 3 hours
    after the event to be proved.     The chemical analysis
    shall be given effect as follows without requiring any
    expert testimony as to its effect:

                                   11
                                                                No.    2011AP2548-CR.dtp


These tests include taking a sample of the person's breath,

consistent      with    the    "techniques       or        methods     of    performing

chemical     analysis    of    the    breath"         set    out      in    Wis.    Stat.

§ 343.305(6)(b) and (c).

    ¶105 The           Department          of         Transportation's              (DOT)

administrative      rules,     as    required         by     statute,       Wis.    Stat.

§ 343.305(6)(b), spell out in detail the approved techniques and

methods for performing chemical analysis of the breath.                                  See

Wis. Admin. Code § TRANS 311.06 (Mar. 2012).                          Much of Rocha-

Mayo's   argument      seeks   to    show      that    the    test     taken       at   the

hospital emergency room, the result of which was admitted at

trial, did not satisfy the requirements set out in statute and

rules, thereby rendering the result not only inadmissible but

also unreliable.

    ¶106 The distinction between breath tests admissible under

Wis. Stat. § 343.305(5)(d) and Wis. Stat. § 885.235 and PBTs

inadmissible under Wis. Stat. § 343.303 is highlighted in Wis.

Admin    Code    § TRANS      311    in    the     definition         section,      which

distinguishes      "Quantitative          breath      alcohol         analysis"         from

"Qualitative breath alcohol analysis."

    ¶107 "'Qualitative breath alcohol analysis' means a test of

a person's breath, the results of which indicate the presence or


           . . . .

          (c) The fact that the analysis shows that the
    person had an alcohol concentration of 0.08 or more is
    prima facie evidence that he . . . was under the
    influence of an intoxicant and is prima facie evidence
    that he . . . had an alcohol concentration of 0.08 or
    more.

                                          12
                                                              No.    2011AP2548-CR.dtp


absence of alcohol."       Wis. Admin. Code § TRANS 311.03(12) (Mar.

2012).     "'Quantitative breath alcohol analysis' means a chemical

test of a person's breath which yields a specific result in

grams of alcohol per 210 liters of breath."                       Wis. Admin. Code

§ Trans 311.03(13) (Mar. 2012).                Wisconsin Admin. Code § TRANS

311.06(2)     explains     that     "[t]echniques          used      in     performing

quantitative breath alcohol analysis shall be those which are

designed     to   assure      accuracy,        detect      malfunctions       and    to

safeguard     personnel       and     equipment."             (Emphasis        added.)

Wisconsin    Admin.    Code    § TRANS         311.06(5)     provides       only    that

"[m]ethods and techniques used in performing qualitative breath

alcohol     analysis     shall      be    approved      by     the        department."

(Emphasis added.)

    ¶108 In testimony at trial, Susan Hackworthy, chief of the

chemical test section, Division of State Patrol, in the DOT,

explained that "The qualitatives are PBT and the quantitatives

are evidential."       She also testified that the Alco-Sensor IV,

the PBT device used at St. Catherine's Medical Center, is not

certified by the DOT for evidentiary use in Wisconsin courts and

that the DOT does not certify breath testing devices in the

private sector.

    ¶109 Rocha-Mayo's         trial      counsel    cross-examined          Hackworthy

on various procedures in the administrative rules designed to

assure accuracy in test results and to avoid error——procedures

that are required to be followed in "evidential" tests but are

not part of the ordinary regimen for PBTs.                    The State's expert
grudgingly acknowledged: "A preliminary breath test is generally


                                          13
                                                                    No.    2011AP2548-CR.dtp


not allowed in an OWI trial in front of a jury."                                She further

acknowledged in response to hypothetical questions that in the

absence of certain protocols, a breath test would not satisfy

State Patrol guidelines for evidence.                     In this case, several of

the protocols were not met in the hospital PBT, including an

assurance that Rocha-Mayo did not have an unusual amount of

mouth alcohol because of his recent drinking or the accident,

which affected both his head and his chest.

       ¶110 To     sum     up,    Wis.    Stat.     § 343.303        provides        that    a

preliminary       breath    screening       test     is    not   admissible          in    any

action or proceeding except as authorized by that statute.                                When

court   decisions        have    deviated    from     this    statutory           directive,

they have deviated only in cases that did not involve traffic

enforcement and did not require a quantitative analysis that

shows "a specific result in grams of alcohol per 210 liters of

breath."      Wis. Admin. Code § TRANS 311.03(13) (Mar. 2012).                              In

this case, the admission of the PBT result does not fit within

any plausible exception to the statutory directive and comes

with    few   of    the     protocols       that     assure      the       integrity       and

reliability of the tests authorized by Wis. Stat. § 343.305(3).

       ¶111 Wisconsin        Stat.       § 343.303        creates     a        regimen    that

encourages a driver's cooperation with law enforcement inasmuch

as   the   test    result        is   inadmissible,        except         as    provided    by

statute, and a refusal to take the PBT strengthens the probable

cause for an arrest.              Permitting the results of PBTs taken in

hospital settings to be used later against hospital patients in
court will engender distrust between doctors and patients and


                                            14
                                                         No.   2011AP2548-CR.dtp


create disincentives for patients to comply with the requests of

their doctors.     Once courts open the door to use of PBT results

without     safeguards    and    without     legislative       authorization,

evasions of the directive in § 343.303 will become commonplace,

and the essential purpose of the statute will be thwarted.

            CORRECTNESS OF MODIFIED JURY INSTRUCTION 1185

      ¶112 Rocha-Mayo's second issue is "whether it was error to

instruct the jury it could find, based solely on a qualitative

test result, that Rocha-Mayo was intoxicated at the time of the

accident."

      ¶113 The   majority's     response    to   this   question    is,   "[W]e

assume, without deciding, that the circuit court erred under

these     circumstances   in    utilizing    Wis   JI——Criminal       1185    to

instruct the jury on its use of the PBT evidence," majority op.,

¶4, but the error was harmless beyond a reasonable doubt.                    Id.,

¶5.

      ¶114 The circuit court gave the following instruction in

relation to the third element of the offense charged under Wis.

Stat. § 940.09(1)(a), namely, that the defendant was under the

influence of an intoxicant at the time the defendant operated a

vehicle.

           The third element is the defendant was under the
      influence of an intoxicant at the time the defendant
      operated a vehicle.

           "Under the influence of an intoxicant" means that
      the defendant's ability to operate a vehicle was
      materially impaired because of consumption of an
      alcoholic beverage.

           Not every person who has consumed alcoholic
      beverages is "under the influence" as that term is
                                     15
                                                   No.   2011AP2548-CR.dtp

       used here.    What must be established is that the
       person has consumed a sufficient amount of alcohol to
       cause the person to be less able to exercise the clear
       judgment and steady hand necessary to handle and
       control a motor vehicle.

            It is not required that impaired ability to
       operate be demonstrated by particular acts of unsafe
       driving.   What is required is that the person's
       ability to safely control the vehicle be materially
       impaired.

            The law states that the alcohol concentration in
       a defendant's breath sample taken within three hours
       of operating a vehicle is evidence of the defendant's
       alcohol concentration at the time of the operating.

            If you are satisfied beyond a reasonable doubt
       that there was .08 grams or more of alcohol in 210
       liters of the defendant's breath at the time the test
       was taken, you may find that the defendant was under
       the influence of an intoxicant at the time of the
       alleged operating, but you are not required to do so.
       You, the jury, are here to decide this question on the
       basis of all the evidence in this case, and you should
       not find the defendant was under the influence of an
       intoxicant at the time of the alleged operating,
       unless you are satisfied of that fact beyond a
       reasonable doubt.
       ¶115 The circuit court omitted four words from the standard

instruction when it gave the instruction above: namely, "from
that    fact   alone."   Normally,    the   last   paragraph     of   the

instruction reads:

            If you are satisfied beyond a reasonable doubt
       that there was .08 grams or more of alcohol in 210
       liters of the defendant's breath at the time the test
       was taken, you may find from that fact alone that the
       defendant was under the influence of an intoxicant at
       the time of the alleged operating, but you are not
       required to do so.    You the jury are here to decide
       this question on the basis of all the evidence in this
       case, and you should not find that the defendant was
       under the influence of an intoxicant at the time of
       the alleged operating, unless you are satisfied of
       that fact beyond a reasonable doubt.
                                 16
                                                                    No.    2011AP2548-CR.dtp


Wis JI——Criminal 1185.

       ¶116 The wording of the standard instruction makes clear

that   it   is    derived      from    Wis.       Stat.    § 885.235(1g)(c)            and    is

intended    to    be    used     for    a     test    authorized          by    Wis.    Stat.

§ 343.305(3), not a PBT authorized under Wis. Stat. § 343.303.

Removal of the four words really changes nothing, because the

standard instruction never requires the jury to find that the

defendant       was   under    the     influence          of   an   intoxicant.              The

instruction      as    written    and       the    instruction       as    modified      both

authorize or permit the jury to find a defendant guilty if it is

satisfied beyond a reasonable doubt that the defendant had .08

grams or more of alcohol in 210 liters of his breath at the time

the test was taken.            After all, to quote the instruction, "The

law    states    that    the    alcohol       concentration         in     a    defendant's

breath sample taken within three hours of operating a vehicle is

evidence of the defendant's alcohol concentration at the time of

the operating," and the test result was .086.

       ¶117 Immediately        following          instruction       1185       cited   above,

the court gave an instruction in relation to the defendant's

defense:

            Wisconsin law provides that it is a defense to
       this crime if the death would have occurred even if
       the defendant had been exercising due care and had not
       been under the influence of an intoxicant.

            The burden is on the defendant to prove by
       evidence which satisfies you to a reasonable certainty
       by the greater weight of the credible evidence that
       this defense is established.

            "By the greater weight of the credible evidence"
       is meant evidence which, when weighed against that
       opposed to it, has more convincing power.   "Credible
                                 17
                                                         No.   2011AP2548-CR.dtp

      evidence" is evidence which in the light of reason and
      common sense is worthy of belief.

            Evidence has been received relating to the
      conduct of Travis Bestwick at the time of the alleged
      crime. Any failure by Travis Bestwick to exercise due
      care does not by itself provide a defense to the crime
      charged against the defendant.    Consider evidence of
      the conduct of Travis Bestwick in deciding whether the
      defendant has established that the death would have
      occurred even if the defendant had not been under the
      influence of an intoxicant and had been exercising due
      care.

           If you are satisfied to a reasonable certainty by
      the greater weight of the credible evidence that this
      defense is proved, you must find the defendant not
      guilty.

           If you are not satisfied to a reasonable
      certainty by the greater weight of the credible
      evidence that this defense is proved and you are
      satisfied beyond a reasonable doubt that all elements
      of this offense have been proved, you should find the
      defendant guilty.

           If you are not satisfied beyond a reasonable
      doubt that all elements of this offense have been
      proved, you must find the defendant not guilty.
      ¶118 More than anything else in the court's instructions to

the jury, these paragraphs relate to Rocha-Mayo's explanation
and   defense   of   his    conduct.     But      the    quoted    paragraphs

immediately followed a potent instruction that should not have

been given.

                             HARMLESS ERROR

      ¶119 The majority assumes, even if it does not concede, two

critical   errors    in   Rocha-Mayo's   trial.         It   dismisses   these

errors as harmless beyond a reasonable doubt by pointing to

evidence sufficient to sustain the defendant's conviction.



                                   18
                                                               No.   2011AP2548-CR.dtp


       ¶120 In State v. Martin, 2012 WI 96, ¶45, 343 Wis. 2d 278,

816     N.W.2d 270,      this     court   repeated   the       classic     test   for

harmless error: whether it is "clear beyond a reasonable doubt

that    a    rational    jury     would   have   found   the    defendant     guilty

absent the error."          Id. (quoting State v. Harvey, 2002 WI 93,

¶49, 254 Wis. 2d 442, 647 N.W.2d 189).                   But the       court added

valuable commentary:

       Framed a different way, an "error is harmless if the
       beneficiary of the error proves 'beyond a reasonable
       doubt that the error complained of did not contribute
       to the verdict obtained.'" State v. Mayo, 2007 WI 78,
       ¶47, 301 Wis. 2d 642, 734 N.W.2d 115 (quoting State v.
       Anderson, 2006 WI 77, ¶114, 291 Wis. 2d 673, 717
       N.W.2d 74).    Therefore, this court must be satisfied,
       beyond a reasonable doubt, not that the jury could
       have   convicted    the   defendant  (i.e.,   sufficient
       evidence existed to convict the defendant), State v.
       Weed,   2003    WI   85,  ¶28,   263  Wis. 2d 434,   666
       N.W.2d 485, but rather that the jury would have
       arrived at the same verdict had the error not
       occurred.    See Harvey, 254 Wis. 2d 442, ¶46 (quoting
       [Neder v. United States, 527 U.S. 1, 18 (1999)]).
Id. (citation omitted).

       ¶121 The court went on to cite several factors that assist

a court's analysis of whether an error is harmless.                       Id., ¶46.
These       factors     include    "the    importance    of      the     erroneously

admitted evidence" and "the nature of the defense."                    Id.

       ¶122 It would be hard for this writer to contend that the

defendant would not have been convicted and should not have been

convicted of something for his role in Bestwick's death.                          The

issue, however, is whether the jury would have arrived at the

same verdict on all the offenses charged had the errors not
occurred.


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       ¶123 It must be remembered that the Kenosha County District

Attorney did not charge Rocha-Mayo with a violation of Wis.

Stat. § 940.09(1)(a) (homicide by intoxicated use of a vehicle)

until many months after the accident because he did not have an

authorized breath or blood test, and he thought the PBT result

was inadmissible.             If he had not been encouraged to file this

charge    with       the    implication        that    the    PBT       result      would      be

admitted, he might never have filed the charge at all.

       ¶124 If the test result had not been admitted, the jury

would    not       have    had   any   numerical       evidence     of    the      amount      of

alcohol in the defendant's breath.                     If the test result had not

been admitted, the court likely would not have read the disputed

portion       of    Wis     JI——Criminal       1185,     even      if     a     homicide       by

intoxicated use of a vehicle charge had been filed.

       ¶125 Erroneously            admitting     the    PBT    result         as   legitimate

evidence gave scientific support to Dr. William Falco's opinion

testimony that the defendant was intoxicated.                             This testimony,

whether it was correct or incorrect, would have been much less

powerful absent the PBT result.

       ¶126 In short, to assert not only that the jury could have

convicted the defendant of Wis. Stat. § 940.09(1)(a) but also

that    the    jury        would    have   convicted         the    defendant        of     that

offense——beyond a reasonable doubt——without the inadmissible PBT

result and the mistaken instruction——is not persuasive because

it greatly undervalues the effect of having a chemical test of

the    defendant's         breath,     blood,     or    urine      as     evidence        in    a
criminal prosecution.


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      ¶127 But the effect of the two errors may have been even

greater.

      ¶128 Rocha-Mayo      had   a   recognized         legal    defense     to     the

charge of homicide by operation of a motor vehicle while under

the   influence——a    defense     alluded       to    in   Judge    Warren's      jury

instructions.      He did not have an equivalent legal defense to

the charges under Wis. Stat. §§ 940.02 and 941.30.                       Nonetheless,

Rocha-Mayo   did    have   an    avenue    for       attacking     the    element   of

"circumstances that show utter disregard for human life" in both

offenses.    The jury instructions for Wis. Stat. §§ 940.02 and

941.30 both contain the following language:

           In determining whether the circumstances of the
      conduct showed utter disregard for human life,
      consider these factors: what the defendant was doing;
      why the defendant was engaged in that conduct; how
      dangerous the conduct was; how obvious the danger was;
      whether the conduct showed any regard for life; and,
      all other facts and circumstances relating to the
      conduct.
Wis JI——Criminal 1020, 1345 (emphasis added) (footnote omitted).

      ¶129 The comment to Wis JI——Criminal 1020 for first-degree

reckless homicide observes, "All the circumstances relating to

the   defendant's    conduct     should    be    considered        in     determining
whether that conduct shows 'utter disregard' for human life.

These circumstances would include facts relating to the possible

provocation of the defendant."            The comment continues: "Evidence

of provocation will usually be admissible in prosecutions for

crimes      requiring      criminal         recklessness . . . (and,                 in

prosecutions under this section, whether the circumstances show
utter disregard for human life)."                    Comment, Wis JI——Criminal


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1020 (quoting Judicial Council Note to § 940.02, 1987 S.B. 191).

Similar language is found in the Comment to Wis JI——Criminal

1345 related to first-degree recklessly endangering safety.

       ¶130 Wisconsin Jury Instruction 1185 invited the jury to

find the defendant guilty of operating his vehicle under the

influence and causing the death of Bestwick because of the .086

PBT result.     Any juror who accepted that invitation was likely

to disregard Rocha-Mayo's legal defense and likely to dismiss

the effect of provocation in evaluating an attack on the element

of "utter disregard for human life."

       ¶131 The admission of inadmissible evidence and the faulty

instruction that was given because of the admission of that

inadmissible evidence were critically tied to all three felony

convictions.

       ¶132 The jury deliberated in Rocha-Mayo's case for about 20

hours, over four days, before rendering its verdict.                    It twice

advised the court that the jurors were deadlocked.                     When the

verdicts finally came, many of the jurors cried as the verdicts

were read.

       ¶133 When   an    admired   circuit    court     judge    instructed   the

jury "upon the principles of law which you are to follow in

considering the evidence," he made this statement: "It is your

duty to follow all of these instructions.                  Regardless of any

opinion you may have about what the law is or ought to be, you

must    base   your     verdict    on   the   law   I    give    you   in   these

instructions."




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    ¶134 The jury struggled to discharge its duty.     It agonized

over its decision.   For the court now to say that two critical

errors at trial were harmless in their effect on the jury is to

deny reality and forget our purpose as a reviewing court.

    ¶135 Because I believe the defendant must be given a new

trial, I respectfully dissent.

    ¶136 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.




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