                                                                      2013 WI 47

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:                2010AP2003-CR
COMPLETE TITLE:
                         State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Courtney C. Beamon,
                                   Defendant-Appellant-Petitioner.
                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 336 Wis. 2d 438, 804 N.W.2d 706
                                   (Ct. App. 2011 - Published)
                                     PDC No: 2011 WI App 131

OPINION FILED:           May 29, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           September 5, 2012

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Racine
   JUDGE:                Emily S. Mueller

JUSTICES:
   CONCURRED:
   DISSENTED:            Bradley, J., dissents; Abrahamson, C. J. joins.
   NOT PARTICIPATING:    Prosser, J., did not participate.

ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
filed by Donna L. Hintze, assistant state public defender, and
oral argument by Donna L. Hintze.
       For    the       plaintiff-respondent,     the   cause   was   argued   by
Rebecca Rapp St. John and the brief was filed by Mark A. Neuser,
assistant attorneys general, with whom on the brief was J.B. Van
Hollen, attorney general.
       An amicus curiae brief was filed by Robert R. Henak and
Henak Law Office, S.C., Milwaukee, on behalf of the Wisconsin
Association of Criminal Defense Lawyers.
                                                                           2013 WI 47
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.       2010AP2003-CR
(L.C. No.    2007CF1499)

STATE OF WISCONSIN                               :              IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                     FILED
      v.                                                           MAY 29, 2013
Courtney C. Beamon,                                                   Diane M. Fremgen
                                                                   Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




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



      ¶1      PATIENCE DRAKE ROGGENSACK, J.              This is a review of a

published decision of the court of appeals1 that affirmed the

judgment     of   conviction    entered     by   the    Racine      County     Circuit

Court.2      Relevant to this appeal, defendant Courtney C. Beamon

was   convicted     of     fleeing   or   attempting       to    elude     a   traffic

officer,     in   violation     of   Wis.   Stat.      § 346.04(3)        (2009-10).3


      1
       State v. Beamon, 2011 WI App 131, 336 Wis. 2d 438, 804
N.W.2d 706.
      2
          The Honorable Emily S. Mueller presided.
      3
       All subsequent references to the Wisconsin Statutes are to
the 2009–10 version unless otherwise indicated.
                                                                             No.     2010AP2003-CR



Beamon argues that, under the particular jury instructions given

in this case, there was insufficient evidence to convict him of

fleeing or attempting to elude a traffic officer.                                  Specifically,

Beamon claims that the jury instructions required the State to

prove beyond a reasonable doubt that Beamon violated § 346.04(3)

"by increasing the speed of the vehicle to flee," and that there

was no evidence that Beamon increased the speed of his vehicle

after law enforcement officers began to pursue him.

       ¶2        Wisconsin         Stat.        § 346.04(3)         sets      out        the      two

requirements necessary for commission of the offense charged.

The second requirement may be proven in three different ways.

That    is,      § 346.04(3)         does       not    require      that     the     defendant's

flight      or     attempt      to    elude       have       been     accomplished         by     the

defendant increasing the speed of his vehicle to flee, as the

instructions given in this case provided.                               Beamon's argument,

therefore, rests on his contention that the sufficiency of the

evidence         must    be     evaluated         by       comparison        with        the     jury

instructions        actually         given,       even       though    those        instructions
added a requirement to the statutory definition of the crime.

       ¶3     We        conclude       that           jury    instructions            that        add
requirements to what the statute sets out as necessary to prove

the    commission        of    a     crime      are    erroneous;       and    therefore,          we
examine       the    sufficiency           of    the       evidence     in    this        case     by

comparison to what the statute requires and not by comparison to
an     additional             requirement             in     the      jury         instructions.

Furthermore,        jury      instruction         errors      are     subject       to    harmless

error analysis, which we apply here.                          A harmless error analysis
                                                  2
                                                                No.    2010AP2003-CR



asks whether, based on the totality of the circumstances, it is

clear beyond a reasonable doubt that a rational jury, properly

instructed, would have found the defendant guilty.

     ¶4     We conclude that under the totality of circumstances,

it is clear beyond a reasonable doubt the jury would have found

Beamon    guilty   of   fleeing     or   attempting     to    elude    an   officer

absent the erroneous jury instruction.                 The evidence at trial

unquestionably supported the jury's verdict that Beamon violated

the fleeing or eluding statute.               Accordingly, we conclude that

there was sufficient evidence to convict Beamon, and we affirm

the decision of the court of appeals.

                               I.    BACKGROUND

     ¶5     In the early morning hours of November 19, 2007, off-

duty Racine Police Officer Dennis Cecchini and another officer

were working as private security guards at the American Legion

Bar in Racine.      At approximately 12:45 a.m., the officers heard

multiple    gunshots.     After     radioing      police      dispatch,     the   two

officers left the bar to investigate.                  Officer Cecchini heard
two more gunshots, and took cover behind a parked vehicle.

     ¶6     Officer Cecchini then observed a male figure run from
the porch of a nearby house in a crouched position and enter a

vehicle parked near the house.               Cecchini again radioed dispatch
to describe the vehicle and to provide information about the

vehicle's    direction    of   travel,        noting   that    the    vehicle     was
driving north, with its headlights extinguished.

    ¶7      As he was speaking to the dispatcher, Cecchini heard

Racine Police Officer Frank Miller remark on the radio that he
                                         3
                                                                         No.       2010AP2003-CR



saw the vehicle that Cecchini had described.                              At that point,

Officer       Miller    activated     his    emergency         lights        and     siren   and

began    following       the    vehicle,      which      he     noted     was       travelling

approximately 45 to 50 miles per hour in a 30 miles-per-hour

zone.

        ¶8     When      Officer      Miller           began         pursuit,         he     was

approximately          three-quarters       of    a    block        behind     the    speeding

vehicle.        As the vehicle slowed to negotiate a soft right turn,

Officer Miller closed the distance between his squad car and the

other        vehicle.        After    negotiating         the        turn,     the     vehicle

continued driving toward an intersection controlled by a four-

way stop sign.           The vehicle, still with its lights off, drove

through the intersection without stopping or slowing down.

     ¶9        Immediately       after      the   vehicle           passed     through       the

intersection, Officer Miller saw the suspect roll out of the

driver's-side door of the vehicle, which was then travelling

approximately 25 miles per hour.                  The vehicle then ran over the

suspect's legs and collided with a parked car.
     ¶10       After the suspect         was      run    over       by   his    vehicle,      he

stood up and began running away from Officer Miller's squad car.
For a short time, Officer Miller remained in his squad car as he

pursued the suspect, with the lights and sirens still activated.
After coming within a few feet of the suspect, Officer Miller

exited       his   vehicle     and   began    pursuing         on    foot.         During    the
chase, Officer Miller issued various orders to the suspect, all

of which the suspect disregarded.                     After a lengthy chase, Miller


                                             4
                                                                       No.     2010AP2003-CR



finally      knocked     the   suspect       to    the    ground,       placed       him    in

handcuffs, and took him to the hospital for medical treatment.

       ¶11   The suspect, later identified as Beamon, was charged

in an eight-count information, including repeater enhancements

for all counts.          The charge relevant to Beamon's current appeal

is Count 1, Vehicle Operator Flee/Elude Officer, in violation of

Wis.     Stat.    § 346.04(3).         For       that    charge,       the     information

provided that:          "On or about 11-19-2007 . . . [defendant Beamon

did] unlawfully and feloniously, as the operator of a vehicle,

after having received a visual or audible signal from a traffic

officer, or marked police vehicle, knowingly flee or attempt to

elude any traffic officer by willful or wanton disregard of such

signal so as to interfere with or endanger the operation of the

police vehicle,         or the traffic            officer      or   other     vehicles      or

pedestrians,       or    did   increase      the       speed    of     the     vehicle      or

extinguish the lights of the vehicle in an attempt to elude or

flee . . . ."

       ¶12   At    trial,      the    jury       heard    testimony          from    Officer
Cecchini describing the gunshots and the suspect's subsequent

flight in a vehicle with its headlights extinguished.                               The jury
also heard Officer Miller's testimony regarding the car chase,

the suspect's exit from his moving vehicle, and the foot chase
ending with Beamon's arrest.

       ¶13   Additionally, the jury heard Beamon's testimony, which
generally corroborated the officers' testimonies.                            For example,

Beamon testified to having been near the location of the shots

fired;    having    gotten     into    the       car    and   driven    away        with   his
                                             5
                                                                   No.    2010AP2003-CR



headlights extinguished; and having rolled out of the vehicle

while    it    was   still   moving.      Beamon      also     did      not    challenge

Officer       Miller's     testimony    that    Miller       had     activated        his

emergency lights and siren during the pursuit; instead, Beamon

asserted      that    he   did   not    remember      seeing       or    hearing       the

emergency signals until he approached the stop sign, at which

point he rolled out of his vehicle.               Beamon also testified that

he had been extremely intoxicated that night.

        ¶14   During the course of the trial, the jury twice heard

the charge against Beamon for fleeing or eluding, exactly as set

forth    in    the   information.       The    jury    first    heard         the   charge

during jury selection, when assistant district attorney Sharon

Riek read the entire information.                    The second time the jury

heard the information was when Judge Mueller read the charge, as

set forth in the statute, immediately before reading the jury

instructions for the charged offense.

     ¶15      The    instructions      that    the    jury     heard      immediately

following Judge Mueller's reading of the information did not
track the language used in either Wis. Stat. § 346.04(3) or in

the information.         Instead, the instructions provided that:

         Sec. 346.04(3) of the Wisconsin Statutes is
    violated by a person who operates a motor vehicle on a
    highway after receiving a visual or audible signal
    from a marked police vehicle and knowingly flees any
    traffic officer by willful disregard of such signal so
    as to interfere with or endanger the traffic officer
    by increasing the speed of the vehicle to flee.
    Before you may find the defendant guilty of this
    offense, the State must prove by evidence which
    satisfies you beyond a reasonable doubt that the
    following two elements were present.

                                         6
                                                                   No.     2010AP2003-CR


             First, the defendant operated a motor vehicle on
        a highway after receiving a visual and audible signal
        from a marked police vehicle.

             Secondly, the defendant knowingly fled a marked
        squad car by willful disregard of the visual or
        audible signal so as to interfere with or endanger the
        traffic officer by increasing the speed of the vehicle
        to flee.
(Emphases added.)             The jury found Beamon guilty of fleeing or

eluding a traffic officer, as well as the other seven counts

charged.       The circuit court subsequently entered a judgment of
conviction on the jury verdict, and Beamon was sentenced.

        ¶16    Beamon appealed his conviction for fleeing or eluding,

alleging      that     the    evidence    was     insufficient    to     convict       him,

based    on    the jury       instructions.         Namely,     Beamon    argued       that

there was no evidence that he had increased the speed of his

vehicle       after    Officer      Miller    began    pursuing     him,        and    that

without such a showing, the State had failed to prove fleeing or

eluding as that charge was stated in the jury instructions.

       ¶17    In a published opinion, State v. Beamon, 2011 WI App

131,    336    Wis. 2d       438,   804   N.W.2d     706,   the   court    of     appeals

affirmed       Beamon's        conviction,        concluding      that      the        jury

instructions on fleeing or eluding were erroneous, but that any

discrepancy         between     the   jury       instructions     and     the     charged

offense       was     harmless.       The    court    also    concluded         that    the

evidence was sufficient to affirm the conviction when measured

against the offense charged.                 Id., ¶¶11–12.        Beamon petitioned

this court for review, which we granted.




                                             7
                                                                           No.     2010AP2003-CR



                                      II.    DISCUSSION

                                A.    Standard of Review

        ¶18    Beamon      argues       that        the      evidence       presented          was

insufficient to convict him                   of    fleeing        or   eluding     a    traffic

officer under the requirements of the charge as stated in the

jury    instructions.            Because       the     jury        instructions         did    not

conform to the requirements of the offense of fleeing or eluding

as    set     forth   in      Wis.    Stat.    § 346.04(3),             Beamon's     challenge

requires us to determine, as a threshold matter, whether the

jury instructions correctly                  stated       the   statutory         requirements

for     conviction       of     the     crime.            Whether        jury     instructions

accurately state the applicable law presents a question of law,

which we review independently of the circuit court and the court

of appeals, benefiting from their analyses.                             See State v. Fonte,

2005 WI 77, ¶9, 281 Wis. 2d 654, 698 N.W.2d 594.

        ¶19    Where jury instructions do not accurately state the

controlling       law,     we    will       examine       the   erroneous         instructions

under the standard for harmless error, which presents a question

of law for our independent review.                     See State v. Harvey, 2002 WI

93, ¶18, 254 Wis. 2d 442, 647 N.W.2d 189.

        ¶20    Finally, if we determine the jury instruction error

was harmless, we will evaluate the sufficiency of the evidence

under       the   correct       legal       standard,        and    when        applying      that

standard, we will not overturn the jury's verdict "unless the

evidence, viewed most favorably to the state and the conviction,

is so lacking in probative value and force that no trier of

fact,       acting    reasonably,           could     have      found      guilt     beyond     a
                                               8
                                                                              No.    2010AP2003-CR



reasonable doubt" based on the statutory requirements of the

offense.       See Fonte, 281 Wis. 2d 654, ¶10 (quoting State v.

Poellinger,         153     Wis. 2d       493,       507,    451       N.W.2d       752    (1990))

(internal quotation marks omitted).

                          B.     Sufficiency of the Evidence

                                  1.    Legal principles

        ¶21   The    standard          for    reviewing          the   sufficiency         of    the

evidence is highly deferential to a jury's verdict, and provides

that an appellate court may not overturn a jury's verdict unless

the     evidence,          viewed       most      favorably            to     sustaining         the

conviction, "is so insufficient in probative value and force

that it can be said as a matter of law that no trier of fact,

acting reasonably, could have found guilt beyond a reasonable

doubt."       Poellinger,           153      Wis. 2d        at    501.         Accordingly,       a
defendant challenging the sufficiency of the evidence bears a

heavy    burden      to    show the          evidence       could      not    reasonably        have

supported a finding of guilt.                    State v. Hanson, 2012 WI 4, ¶31,

338 Wis. 2d 243, 808 N.W.2d 390.

        ¶22   This        heavy    burden        for    defendants           challenging         the

sufficiency         of     the     evidence,           however,        begs     the       question

presented     in     this      case.         Here,     the   question         is    whether      the

evidence is sufficient according to what standard:                                        the jury

instructions actually used, the statutory requirements of the

crime, or some other legal standard, such as the complaint or

the information?            Generally, when the jury instructions conform

to the statutory requirements of that offense, we will review

the sufficiency of the evidence by                           comparison        to    those      jury
                                                 9
                                                                No.     2010AP2003-CR



instructions.        See, e.g., State v. Witkowski, 163 Wis. 2d 985,

991, 473 N.W.2d 512 (Ct. App. 1991).                  However, where the jury

instructions do not accurately reflect the statute enacted by

the    legislature,       we    cannot   review   the    sufficiency        of    the

evidence with the jury instructions as our standard.                     See State

v. Zelenka, 130 Wis. 2d 34, 48–49, 387 N.W.2d 55 (1986); see

also Jackson v. Virginia, 443 U.S. 307, 318 (1979) (recognizing

that "the critical inquiry on review of the sufficiency of the

evidence . . . must be not simply to determine whether the jury

was properly instructed, but to determine whether the record

evidence could reasonably support a finding of guilt beyond a

reasonable doubt.").

       ¶23   When    reviewing     the   sufficiency    of   the      evidence,    we

cannot rely on an erroneous statement of the statute in the jury

instructions as our standard, because doing so would, in effect,

allow the parties and the circuit court in that case to define

an ad hoc, common law crime.             Cf. State v. Baldwin, 101 Wis. 2d
441,   446–47,      304   N.W.2d   742   (1981)   (holding      that     conviction

required     proof        beyond    a    reasonable     doubt      of     statutory

requirements of a criminal offense, rather than requirements as

set forth in the complaint and information).                    Allowing parties

or courts to establish the requirements necessary to constitute

a crime is contrary to the established principle in Wisconsin

that there are no common law crimes and that all crimes are

defined by statute.            See Wis. Stat. § 939.10 (abolishing common

law crimes); Wis. Stat. § 939.12 (defining crime as "conduct

which is prohibited by state law").
                                         10
                                                                               No.    2010AP2003-CR



       ¶24     Accordingly,        a     jury        instruction               that        does    not

accurately        state    the    statutory              requirements           for     the       crime

charged constitutes          an    erroneous             statement        of    the     law.       See

Zelenka, 130 Wis. 2d at 48; State v. Ferguson, 2009 WI 50, ¶44,

317    Wis. 2d     586,    767     N.W.2d          187    (noting         that       even     a   jury

instruction "that is incomplete, but is in all other respects a

correct        statement    of    the     law,           may    be     erroneous").               Such

instructional       errors       are    presumed          to    be     subject        to    harmless

error analysis, see Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008)
(noting that "while there are some errors to which harmless-

error analysis does not apply, they are the exception and not

the rule") (internal quotation marks and alterations omitted).

Harmless error analysis is appropriate when examining erroneous

jury    instructions       "so    long        as    the        error      at    issue      does    not

categorically vitiate all the jury's findings."                                      Id. (quoting

Neder     v.    United     States,      527        U.S.        1,    11     (1999))        (internal

quotation marks omitted).               Often, such errors involve omissions

from the jury instructions, whereby the State is relieved of the

burden of proving one or more requirements of an offense.                                         See,

e.g., State v. Smith, 2012 WI 91, ¶¶60–63, 342 Wis. 2d 710, 817

N.W.2d    410     (reaffirming         that    harmless             error      analysis       applies

where jury instructions erroneously omitted a requirement that,

under the Sixth Amendment, the jury should have been required to

find), cert. denied, 133 S. Ct. 635 (2012).

       ¶25     If an error that relieves the State of part of its

burden can be harmless, then, logically, a jury instruction that

directs the State to prove additional requirements also may be
                                               11
                                                                   No.     2010AP2003-CR



subjected         to    a   harmless    error    analysis.        See    Zelenka,     130

Wis. 2d at 48–49; State v. Courtney, 74 Wis. 2d 705, 715–16, 247

N.W.2d 714 (1976).                These types of errors typically attempt to

increase the State's burden by requiring the State to prove,

beyond a reasonable doubt, certain facts that are not part of

the statutory definition of the relevant offense.                        See Courtney,

74   Wis. 2d           at   716     (upholding       guilty    verdict     where     jury

instructions required additional finding, not required by the

offense charged).4                Accordingly, as the United States Supreme

Court       has   stated,     because    harmless      error    analysis    can     apply

where       a   statutory     requirement       is    withdrawn    from    the     jury's

consideration, refusing to allow harmless error analysis where

the jury instructions include additional requirements would be

"patently illogical."                See Hedgpeth, 555 U.S. at 61 (holding
that harmless error analysis applies where jury was instructed

on alternative theories of guilt).

        4
       Our discussion in State v. Courtney, 74 Wis. 2d 705, 247
N.W.2d 714 (1976), did not decide the proper standard by which
to review the sufficiency of the evidence when a jury
instruction includes an additional requirement beyond those set
forth in the statute.     Rather, in Courtney, the defendant's
sufficiency of the evidence challenge was separate from his jury
instruction error argument. Id. at 713-16. In his sufficiency
of the evidence challenge, Courtney asserted that one of the
requirements——as stated in the controlling administrative code
section——had not been proved at trial. See id. at 713–15. His
separate argument asserting that the jury instruction was
erroneous simply alleged that the addition of that requirement
entitled him to reversal. See id. at 715–16. We concluded that
the evidence was sufficient to show that the offense had been
proved, and that the additional requirement was, in effect,
harmless.   See id. at 713–16.     Accordingly, our decision in
Courtney supports our conclusion here.

                                            12
                                                                                     No.    2010AP2003-CR



        ¶26       Given    that       harmless         error       analysis          applies     in    the

context of jury instructions that omit statutory requirements,

see Harvey, 254 Wis. 2d 442, ¶47, as well as jury instructions

that        include       extra       considerations              beyond        what       the   statute

requires,         see     Hedgpeth,             555    U.S.       at    61,     we     conclude       that

harmless error analysis is appropriate where jury instructions

include       a    requirement             in    addition         to     that    set       forth    in     a

statute, such as occurred in Beamon's case.                                     To illustrate, in

Beamon's case, the jury was asked whether Beamon interfered with

or endangered the traffic officer "by increasing the speed of
[his]       vehicle       to    flee."           (Emphasis         added.)           Because       such    a

connection suggests that the jury had to find that the defendant

interfered          with       or     endangered            the    officer        by       engaging       in

particular conduct, this type of requirement is distinguishable

from        requirements            that    are       not    related       to     the       defendant's

conduct; for example, a requirement for an offense that would

direct the jury to find that a firearm is a "deadly weapon."

Cf.     Washington             v.    Recuenco,         548        U.S.     212,        215–16      (2006)

(concluding that harmless error may apply where sentencing court

determined         that        "firearm"         enhancement            applied,       although       jury

found       defendant          had    used       a    "deadly          weapon,"       rather     than     a

"firearm").               Nonetheless,            because         instructional            errors     are

subject to harmless error analysis, jury instructions that add

an additional requirement also are subject to harmless error

analysis.5         See Hedgpeth, 555 U.S. at 61.

        5
       One persuasive rationale for applying harmless error
analysis in this context is that many instructional errors can
                                                      13
                                                                      No.     2010AP2003-CR



       ¶27    Therefore, where a jury instruction erroneously states

the applicable statute, we must determine whether, under the

totality       of    the      circumstances,          the     erroneous      instruction

constituted harmless error.                See Harvey, 254 Wis. 2d 442, ¶46;

see also State v. Mayo, 2007 WI 78, ¶48, 301 Wis. 2d 642, 734

N.W.2d       115    (listing      several     appropriate        considerations         for

harmless error analysis).                  Under the standard for evaluating

harmless error, when a court reviews a conviction based on a

jury   instruction         that    included      an   erroneous      requirement,       the

court must ask whether it is "'clear beyond a reasonable doubt

that   a     rational      jury    would    have      found   the    defendant      guilty

absent the error.'"            See Harvey, 254 Wis. 2d 442, ¶49 (quoting
Neder, 527 U.S. at 18).

       ¶28    Where     the    erroneous      instructions          are    determined   to

have been harmless, based on the totality of the circumstances,

a   court     should      review    the     sufficiency        of    the    evidence    by

comparing the evidence with the statutory requirements of the

crime.       See Zelenka, 130 Wis. 2d at 48–52.                     This conclusion is

grounded      in    the    defendant's       constitutional          right     of   "proof

just as easily be described as mischaracterizing a statutory
requirement as they can be described as imposing an additional
requirement.   Cf. California v. Roy, 519 U.S. 2, 5 (1996) (per
curiam) ("The specific error at issue here——an error in the
instruction  that   defined   the  crime——is  . . .  as   easily
characterized as a 'misdescription of an element' of the crime,
as   it  is   characterized   as  an  error   of  'omission.'").
Accordingly, when a jury instruction imposes an additional
requirement, not itself required by the statute, the instruction
can be said to have incorrectly stated the actual requirements
of the offense according to the statute that sets forth the
crime. See id.

                                            14
                                                             No.    2010AP2003-CR



beyond a reasonable doubt of every fact necessary to constitute

the crime with which he is charged."                 In re Winship, 397 U.S.

358, 364 (1970).           The corollary to this principle is that a

defendant does not have a right to proof beyond a reasonable

doubt for facts that are not required by the statutory statement

of the crime.        See United States v. Inman, 558 F.3d 742, 748

(8th Cir. 2009).           Therefore, where a defendant challenges the

sufficiency     of   the    evidence    and    the   challenge     rests   on    an

inaccurate statement of the law in the jury instructions, but

the inaccurate statement of the law is determined to have been

harmless, the defendant's sufficiency of the evidence challenge

typically will fail.         See Zelenka, 130 Wis. 2d at 48–52.
                                2.    Application

     ¶29   Beamon claims that, based on the jury instructions for

fleeing    or   attempting       to    elude    in    his   case,    there      was

insufficient evidence to support a finding of guilt beyond a

reasonable doubt.      Because a sufficiency of the evidence review

requires us first to ascertain whether the jury instructions

were in accord with controlling law, we begin our analysis of

Beamon's claim with an examination of the controlling statute,

Wis. Stat. § 346.04(3).        That statute provides, in its entirety:

          No operator of a vehicle, after having received a
    visual or audible signal from a traffic officer, or
    marked police vehicle, shall knowingly flee or attempt
    to elude any traffic officer by willful or wanton
    disregard of such signal so as to interfere with or
    endanger the operation of the police vehicle, or the
    traffic officer or other vehicles or pedestrians, nor
    shall    the  operator  increase   the  speed   of  the


                                        15
                                                                            No.     2010AP2003-CR


       operator's vehicle or extinguish the lights                                 of     the
       vehicle in an attempt to elude or flee.
       ¶30    In       State   v.    Sterzinger,            2002    WI    App    171,     ¶9,    256

Wis. 2d 925, 649 N.W.2d 677, the court of appeals examined the

statutory     requirements           of       the    offense       of    fleeing    or    eluding

under Wis. Stat. § 346.04(3).                        The court of appeals explained

the offense as follows:

            (1) No operator of a vehicle, after having
       received a visual or audible signal from a traffic
       officer, or marked police vehicle,

            (2) shall knowingly flee or attempt to elude any
       traffic officer,

            (3) by wilful or wanton disregard of such signal
       so as to interfere with or endanger the operation of
       the police vehicle, or the traffic officer or other
       vehicles or pedestrians.
Id.
       ¶31    As       the     court          in     Sterzinger          noted,     the         first

requirement——having operated a vehicle after receiving a visual

or    audible      signal      from       a    traffic       officer      or     marked    police

vehicle——corresponds to the first requirement of the crime of
fleeing or eluding.                 See id.; see also Wis JI—Criminal 2630.

The court also noted that the second requirement "encompasses a
knowing act (fleeing or attempting to elude the officer), which

results      in    criminal         liability            under   the     statute     if    it     is
accompanied by one of three additional facts."                                  Sterzinger, 256

Wis. 2d 925, ¶9.               That is, the second and third requirements
explained         in    Sterzinger——(2)             knowingly       fleeing/attempting            to

elude and (3) by willful or wanton disregard of the signal so as

to    interfere         with    or     endanger            the     officer,       vehicles,       or

                                                    16
                                                                       No.     2010AP2003-CR



pedestrians——comprise one of the three methods of satisfying the

second requirement of the offense.                 See Wis JI—Criminal 2630.

        ¶32    Under both the statute and the pattern instructions,

however, there are also two other methods by which the second

statutory requirement of the offense can be satisfied.                              Each of

these methods requires proof beyond a reasonable doubt that "the

defendant          knowingly   fled     or    attempted      to    elude        a   traffic

officer," but each then provides a different method by which

knowing flight or attempted eluding may be shown.                            The two other

methods       of    showing    fleeing       or   attempting      to    elude       are   "by

increasing the speed of the vehicle" or "by extinguishing the

lights of the vehicle."               See Wis JI—Criminal 2630.                 These are
alternatives and also separate from the "disregarding the visual

or audible signal so as to interfere with or endanger" method

discussed previously.

        ¶33    With this understanding of the statutory requirements

of Wis. Stat. § 346.04(3), we turn to the jury instructions in

Beamon's      case     to   determine    whether      they     properly        stated     the

terms of the statute.             Those instructions provide, in relevant

part:

     Statutory Definition of the Crime

         Section 346.04(3) of the Wisconsin Statutes is
    violated by a person who operates a motor vehicle on a
    highway after receiving a visual or audible signal
    from a marked police vehicle and knowingly flees any
    traffic officer by willful disregard of such signal so
    as to interfere with or endanger the traffic officer
    by increasing the speed of the vehicle to flee.



                                             17
                                                                       No.        2010AP2003-CR


     State's Burden of Proof

          Before you may find the defendant guilty of this
     offense, the State must prove by evidence which
     satisfies you beyond a reasonable doubt that the
     following two elements were present.

     Elements of the Crime That the State Must Prove

          1. The defendant operated a motor vehicle on a
     highway after receiving a visual and audible signal
     from a marked police vehicle.

          2. The defendant knowingly fled a marked squad
     car by willful disregard of the visual or audible
     signal so as to interfere with or endanger the traffic
     officer by increasing the speed of the vehicle to
     flee.
(Emphases added.)

     ¶34    Upon review of the instructions used in this case, we

conclude    that       the    instructions          did    not    properly         state   the

statutory requirements for fleeing or eluding under Wis. Stat.

§ 346.04(3).          First, the instructions required that the jury

find that the defendant received "a visual and audible signal

from a marked police vehicle."                 Section 346.04(3), however, does

not phrase the requirement in the conjunctive, and instead may
be satisfied by a finding that the defendant received either a

visual or an audible signal.
     ¶35    Second,          and     more     importantly,            the     instructions

combined        two    alternative          methods       of     proving      the      second

requirement       of    the        offense.          To    reiterate,         the      second

requirement       of    Wis.       Stat.     § 346.04(3)——that              the     defendant

knowingly       fled    or     attempted       to     elude      an    officer——may         be

demonstrated in one of three ways:                   (1) willful disregard of the

signal     so    as    to    interfere        with    or       endanger      the     officer,

                                              18
                                                                            No.    2010AP2003-CR



vehicles,          or   pedestrians;        (2)       increasing      the     speed      of    the

vehicle; or (3) extinguishing the lights of the vehicle.                                 In the

instructions in Beamon's case, the first and second methods of

showing that the defendant knowingly fled or attempted to elude

were erroneously set out as though both were required.                                 The jury

was therefore asked not only whether Beamon fled or attempted to

elude by his willful disregard of the signal so as to interfere

with     or    endanger,        but       also    whether       such      interference          or

endangerment was in turn caused by Beamon having increased the

speed of his vehicle.

        ¶36    The      jury    instructions           directions      for        proving      the

second statutory requirement by two different factual predicates

had the effect of creating an additional requirement for the

offense       of    fleeing     or       eluding.        This    is    contrary          to    the

legislature's clear separation of the methods by which the State

could    show       that   a    defendant's           conduct   satisfied          the   second

statutory      requirement          of    fleeing       or   attempting           to   elude    an

officer.           The legislature chose alternative methods by which
Wis. Stat. § 346.04(3) may be contravened; and therefore, we

conclude      that      the    instructions           requirement      of     proof      by    two
methods was erroneous.

       ¶37    Because         the    jury    instructions          were       erroneous,        we
determine whether the error was harmless.                        Under the totality of

the circumstances, as shown in the record, we are satisfied that
the erroneous jury instructions                       were   harmless:            it   is clear

beyond a reasonable doubt that the jury would have convicted


                                                 19
                                                                   No.    2010AP2003-CR



Beamon of fleeing or eluding if proper instructions had been

given.

     ¶38      We   first    note    that    the    erroneous     jury    instructions

were not the only statement of the law of fleeing or eluding

that the jury received; and therefore, it may be said that the

effect of the erroneous instructions were ameliorated by the

jury having heard multiple correct statements of the law.                           That

is, the jury was twice read the charge as set forth in the

information, which properly stated the statutory requirements of

Wis. Stat. § 346.04(3).              Notably, one of those readings came

immediately before the court read the erroneous instructions.

This is noteworthy because the verdict form that the jury was

required      to   submit    directed        the    jurors'      attention     to   the

criminal   information,       rather       than    the   jury    instructions,       and

stated that "We the jury find the defendant, Courtney C. Beamon,

Guilty of Operating a Motor Vehicle to Flee or In an Attempt to

Elude an Officer as charged in Count One of the Information."

(Emphasis added.)          Accordingly, the multiple instances in which

the jury was properly              told    the    statutory     requirements    are a

factor in our harmless error analysis.

     ¶39      Furthermore, the jury heard in-depth accounts of the

events   of    November 19,        including       Officer    Miller's     statements

about seeing Beamon's vehicle speeding away from the shooting

scene with its lights extinguished; the officer's activating the

squad's emergency lights and siren; and his following Beamon's

vehicle closely during the car chase.                    Officer Miller related

Beamon's rolling out of his moving car after running a stop sign
                                            20
                                                                    No.     2010AP2003-CR



and then seeing the driverless car run into a parked car.                               The

jury also heard Beamon's version of the events, which did not

attempt to discredit the officers' accounts of the chase, but

instead       simply attempted     to    cast       Beamon's     actions    in    a    more

favorable light by suggesting that, when he left the scene of

the shooting he was merely trying to get home to his family.                             In

light of all the testimony, we conclude that it is clear beyond

a reasonable doubt that a rational jury, properly instructed on

the statutory requirements of fleeing or eluding, would have

found Beamon guilty.

        ¶40    Accordingly,   as   we        shift    our    analysis      to    Beamon's

sufficiency of the evidence challenge, we conclude that the jury

instructions cannot provide the proper standard for analysis.

Rather, Beamon's challenge must be reviewed in the context of

the   statutory     requirements        of    fleeing       or   eluding    under      Wis.

Stat.     § 346.04(3).        Applying            those     requirements,        Beamon's

challenge does not meet the high standard for reversal of a

jury's verdict under a sufficiency of the evidence review.                             That
is, in light of the facts adduced at trial, it cannot reasonably

be said "as a        matter of     law        that   no     trier   of    fact,    acting
reasonably, could have found guilt beyond a reasonable doubt"

for the alleged violation of § 346.04(3).                        See Poellinger, 153

Wis. 2d       at   501.       Therefore,           Beamon's      challenge        to    the

sufficiency of the evidence must fail.

        ¶41    Nonetheless, we briefly address Beamon's two primary

arguments, which are that (1) our decision in State v. Wulff,

207 Wis. 2d 143, 557 N.W.2d 813 (1997), requires reversal of
                                             21
                                                                           No.     2010AP2003-CR



Beamon's     conviction;             and   (2)     the      State's     proffering       of   the

erroneous instructions constituted forfeiture of its challenge

to the instructions as erroneous.

      ¶42    First, Beamon argues that reversal is required based

on our statement in Wulff that, in the context of a sufficiency

of   the    evidence          challenge,      we      would    uphold      the     defendant's

conviction         "only if there was sufficient evidence to support

guilt on the charge submitted to the jury in the instructions."

Id. at 153.             Although our statement in Wulff seems facially
contradictory to our holding today, our decision in Wulff is

distinguishable from this case on at least two bases.

      ¶43    In        Wulff,     the      jury       was     presented         with   evidence

regarding     an       alleged       sexual      assault,      including        some    evidence

that the defendant had attempted fellatio with the victim, which

constitutes sexual intercourse under Wis. Stat. § 940.225(5)(b).

However, there was no evidence that the defendant had attempted

genital or anal intrusion.                 See id. at 152.              Notwithstanding the

trial      testimony,          the     jury      instructions           asked     whether     the

defendant committed              second-degree           sexual    assault       by    attempted

genital     or    anal        intrusion,      but     not     whether      the    assault     was

committed         by     attempted         fellatio.              See     id.     at    147–49.

Nonetheless, the jury returned a verdict of guilty on the charge

of attempted sexual assault by genital or anal intrusion.                                     See

id. at 149.            Based on the lack of any evidence of attempted

genital      or        anal     intrusion,          this      court       reversed       Wulff's

conviction.        See id. at 154.


                                                 22
                                                                 No.        2010AP2003-CR



       ¶44   The primary distinction between Wulff and our decision

today is the nature of the jury instructions in each case.                            In

Wulff,    the    instructions        did    not   add    a   requirement        to   the

applicable law; instead, the instructions properly stated one of

the    methods    by    which   a   defendant      could     commit    second-degree

sexual assault and completely omitted the method for which there

was testimony.         Therefore, in Wulff, the jury was asked to apply

the correct law to the facts adduced at trial, and reached a

conclusion contrary to the evidence.                     In that situation, the

proper standard for evaluating the sufficiency of the evidence

was the jury instructions, because the instructions conveyed a

correct statement of the law, and thereby informed the jury of

the requirements of an actual statutory offense.                            Under that

standard, the court concluded that "no trier of fact, acting

reasonably, could have found guilt beyond a reasonable doubt"

for the offense upon which the jury was instructed.                         Poellinger,
153 Wis. 2d at 507.

       ¶45   In contrast to Wulff, in which we stated that we could

uphold the conviction "only if there was sufficient evidence to

support guilt on the charge submitted to the jury," 207 Wis. 2d

at 153, here, the addition of a requirement created a charge

that     does    not    exist   in    the       statutes.       If     we     evaluated

sufficiency of the evidence against the instructions given, we

would be sanctioning the creation of a new crime that was not

created by the legislature.                This is contrary to Wis. Stat.

§ 939.10,       which    outlaws      common       law     crimes.           Therefore,


                                           23
                                                                No.     2010AP2003-CR



sufficiency of the evidence in Beamon's case cannot justifiably

be measured against the jury instructions.

      ¶46    Second, Wulff is distinguishable because the decision

did not address harmless error.                Although we need not decide

here whether the jury instructions in Wulff would be subject to

harmless     error     analysis,     we    note   that    Wulff       preceded    our

decision in Harvey, 254 Wis. 2d 442, ¶49, in which we adopted

the   now-controlling         standard      for   harmless      error     analysis.

Indeed,     our    analysis     in   this      case    rests    largely     on    the

harmlessness of the erroneous jury instructions, in that it is

clear beyond a reasonable doubt that a rational jury, properly

instructed    on     the    statutory     requirements     of   the     offense   of

fleeing or eluding, would have found Beamon guilty.6                     Therefore,

the evidence was sufficient to convict him on that charge.

      ¶47   Beamon's final argument in support of analyzing his

sufficiency of the evidence challenge under the erroneous jury

instructions is that the State forfeited its argument that the

instructions         were    erroneous,        first     by     proffering        the

instructions and then by failing to object at the instructions
conference.       Beamon relies upon Wis. Stat. § 805.13(3),7 which is


      6
       The  applicability   of   the harmless   error  doctrine
distinguishes this criminal case from the multiple civil cases
in which we may have suggested that sufficiency of the evidence
"is evaluated in light of the jury instructions."     See D.L.
Anderson's Lakeside Leisure Co. v. Anderson, 2008 WI 126, ¶22,
314 Wis. 2d 560, 757 N.W.2d 803.
      7
       Wisconsin Stat. § 805.13(3) is made applicable to criminal
cases by operation of Wis. Stat. § 972.11(1).

                                          24
                                                                  No.    2010AP2003-CR



entitled "Instruction and Verdict Conference," and provides that

"[f]ailure to object at the conference constitutes a waiver of

any error in the proposed instructions or verdict."8                      We decline

to adopt Beamon's forfeiture argument for two reasons.

     ¶48    First,   allowing      the    instructions       to     control     would

cause the instructions erroneous statement to create a criminal

statute.      This   is   contrary       to   the      legislature's       exclusive

authority to enact criminal statutes, and would undermine the

precept    that   there   are     no    common    law    crimes     in    Wisconsin.

Second, as the state court of last resort, our responsibility is

"to oversee and implement the statewide development of the law."

See State v. Schumacher, 144 Wis. 2d 388, 405, 424 N.W.2d 672

(1988)    (quoting   State   v.    Mosley,       102    Wis. 2d    636,    665,   307

N.W.2d 200 (1981)) (internal quotation marks omitted).                         As we

recognized in Schumacher, the "power to review an error, even

one technically waived, is essential for this court to properly

discharge its functions."              Id. at 406.       Therefore, we have a

responsibility to declare what the correct law is, and we need

not deny review of an important question of law based on a

party's failure to raise the issue below.                  See id.        "This does



     8
       Based on our case law discussing the doctrines of waiver
and forfeiture, we conclude that such failure to object is more
properly labeled forfeiture than waiver.     See State v. Ndina,
2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 ("Whereas
forfeiture is the failure to make the timely assertion of a
right, waiver is the intentional relinquishment or abandonment
of a known right.") (quoting United States v. Olano, 507 U.S.
725, 733 (1993)) (internal quotation marks omitted).

                                         25
                                                                            No.     2010AP2003-CR



not mean, however, that we will use this broad discretionary-

review power indiscriminately."                    Id. at 407.

       ¶49   Accordingly, an unobjected-to but erroneous statement

of the law in the jury instructions is not per se unreviewable

by this court where the parties failed to raise the issue in the

trial court.          See Zelenka, 130 Wis. 2d at 43–45.                            Rather, we

have discretion to disregard alleged forfeiture or waiver and

consider the merits of any issue because the rules of forfeiture

and waiver are rules of "administration and not of power."                                       See
State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983);

see also Zelenka, 130 Wis. 2d at 44.                          Therefore, we decline to

apply the doctrine of forfeiture to the situation presented in

this case.

                                  III.       CONCLUSION

       ¶50   We      conclude       that           jury       instructions           that        add

requirements to what the statute sets out as necessary to prove

the   commission       of    a   crime       are    erroneous;         and    therefore,          we

examine      the   sufficiency          of    the     evidence         in     this        case    by

comparison to what the statute requires and not by comparison to

an    additional      requirement        in    the        jury    instructions            actually

given.       Furthermore,        jury    instruction             errors      are    subject       to

harmless error analysis, which we apply here.                             A harmless error

analysis      asks      whether,         based        on      the      totality           of     the

circumstances, it           is   clear       beyond       a   reasonable          doubt    that    a

rational      jury,     properly        instructed,            would      have       found       the

defendant guilty.


                                              26
                                                               No.   2010AP2003-CR



     ¶51    We conclude that under the totality of circumstances,

it is clear beyond a reasonable doubt the jury would have found

Beamon    guilty   of   fleeing   or   attempting      to   elude    an   officer

absent the erroneous jury instruction.                 The evidence at trial

unquestionably supported the jury's verdict that Beamon violated

the fleeing or eluding statute.             Accordingly, we conclude that

there was sufficient evidence to convict Beamon, and we affirm

the decision of the court of appeals.

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

affirmed.

    ¶52     DAVID T. PROSSER, J., did not participate.




                                       27
                                                                        No.    2010AP2003-CR.awb


       ¶53   ANN      WALSH        BRADLEY,            J.     (dissenting).                       The

precipitating error at trial lies not in the wording of a jury

instruction.        Rather, the precipitating error at trial lies in

the State's decision to request a jury instruction that contains

a   factual       theory    of     prosecution          for       which       there        was     no

supporting evidence.

       ¶54   The     majority      compounds           that    error          by     treating       a

factual theory of prosecution as an element of the offense, thus

concluding that the jury instruction is erroneous.                                 It is not.

       ¶55   Week in and week out, courts throughout this state

regularly give jury instructions that contain factual theories

of prosecution.           To transform a factual theory of prosecution

into    an    element      of     the    offense        calls          into        question       the

legitimacy of that regular statewide practice.

       ¶56   Even    if    the    jury     instruction            is    to     be     considered

erroneous,     the    majority         additionally         compounds          any     error       by

changing     the    law    when    it     untethers         the    sufficiency             of     the

evidence analysis from the jury's verdict by measuring the claim

against      the     statutory          elements        rather          than         the        given

instruction.         Thus, it      affirms         a   criminal         conviction         not    by

reviewing the jury's verdict but on the basis of a theory not

presented to the jury.

       ¶57   In     addition      to     the       flaws      of       altering        statewide

practice      and    changing       the     law,        the    consequences                of    the

majority's misplaced analysis are substantial: (1) it undermines

the integrity of the judicial process because it permits the

jury to ignore the circuit court's instruction so long as an

                                               1
                                                       No.   2010AP2003-CR.awb


appellate court at some later date determines that the given

instruction is erroneous and (2) it violates the constitutional

right to a trial by jury which requires that a jury, rather than

a subsequent appellate court, reach the requisite finding of

"guilty."

      ¶58   This case is challenging.         Because it is clear that

there was sufficient evidence to prove the elements required by

the underlying criminal statute, it is tempting to conclude that

the instruction is not harmful and then proceed to measure the

sufficiency of the evidence against the elements required by the

statute rather than those given by the court to the jury.                Such

an analysis, however, undermines the integrity of the process

and is not the law in Wisconsin.

      ¶59   I conclude that the integrity of the process depends

on the jury following the court's instruction which establishes

the law of the case.        As judges, we expect and indeed command

the jury to follow the instruction of the law as given to it by

the   court.    Now   the   majority   is    saying    that,   in   essence,

"sometimes you have to follow the court's instruction on the

law, and sometimes you don't."         The integrity of the process

also requires that as courts we act as guardians charged with

protecting the basic constitutional right of trial by jury.                 The

majority fails in both regards.             Accordingly, I respectfully

dissent.

                                       I

      ¶60   After   correctly   identifying      the    standard      for    a

sufficiency of the evidence analysis, the majority opinion turns

                                   2
                                                                     No.    2010AP2003-CR.awb


to    evaluating       whether     the    sufficiency         of    the    evidence       claim

should       be   measured       against     the       given       instruction       or     the

statutory elements.              Majority op., ¶22.                It acknowledges that

the general rule is to compare the evidence to the instruction

used at trial.          Id.

       ¶61    However, it states that "where the jury instructions

do     not    accurately         reflect      the       statute       enacted        by     the

legislature, we cannot review the sufficiency of the evidence

with the jury instructions as our standard."                         Id., ¶22.       This is

because relying on an "erroneous statement of the statute . . .

would, in effect, allow the parties and the circuit court in

that case to define an ad hoc, common law crime."                           Id., ¶23.

       ¶62    Upon reviewing the elements of Wis. Stat. § 346.04(3)

and    comparing         them    to   the   jury       instruction,          the    majority

determines        that    "the     instructions         [in    this        case]    did     not

properly state the statutory requirements for fleeing or eluding

under Wis. Stat. § 346.04(3)."                Id., ¶34.        It concludes that the

instruction effectively added an element to the offense when it
set forth an additional requirement of proving interference or

endangerment "by increasing the speed of the vehicle to flee."

Id.,    ¶¶33,     35.         Consequently,      the    majority       opines       that    the

instruction       is     erroneous       because       it    creates       "an     additional

requirement       for     the    offense    of    fleeing      or     eluding"       that    is

contrary to the legislature's clear intent.                        Id., ¶36.

       ¶63    In its subsequent analysis of whether the evidence is

sufficient,       the     majority       determines         that    Beamon's       challenge

fails when it compares the evidence to the elements of Wis.

                                             3
                                                                  No.    2010AP2003-CR.awb


Stat. § 346.04(3).      Id., ¶40.          Ultimately, it concludes that the

erroneous jury instruction is harmless.                   Id., ¶51.

                                           II

                                           A.

      ¶64    Although       the     majority            opinion        refers     to      the

constituent     parts   of        the    crime    of      fleeing       or    eluding      as

"requirements," its use of the word "requirements" obfuscates

what it is really doing.                The word "requirement" is synonymous

with what are commonly defined as "elements" of the crime.                                See

Black's Law Dictionary 538 (7th ed. 1999) (defining "elements of

crime" as "[t]he constituent parts of a crime . . . that the

prosecution must prove to sustain a conviction."); majority op.,

¶23   (describing     the    constituent          parts     of     a    crime     as    "the

requirements necessary to constitute a crime").

      ¶65    The majority errs when it treats a factual theory of

prosecution as an element of the offense and thus erroneously

concludes that something is wrong with the jury instruction.

      ¶66    Beamon   was    charged       with     a    violation       of     fleeing   or
eluding an officer contrary to Wis. Stat. § 346.40(3).1                                   The

instruction     requested     by    the     State       provided       that     the   second

      1
          Wisconsin Stat. § 346.04(3) states the following:

           (3) No operator of a vehicle, after having
      received a visual or audible signal from a traffic
      officer, or marked police vehicle, shall knowingly
      flee or attempt to elude any traffic officer by
      willful or wanton disregard of such signal so as to
      interfere with or endanger the operation of the police
      vehicle, or the traffic officer or other vehicles or
      pedestrians, nor shall the operator increase the speed
      of the operator's vehicle or extinguish the lights of
      the vehicle in an attempt to elude or flee.

                                            4
                                                                       No.    2010AP2003-CR.awb


element of the offense may be proven only if the jury found that

Beamon      acted     in "willful      disregard        of      the    visual        or   audible

signal so as to interfere with or endanger the traffic officer"

and that he did so "by increasing the speed of the vehicle to

flee."2

       ¶67       Even though it may not be required by the statute, the

factual theory of prosecution requested by the State was that

Beamon interfered with or endangered the traffic officer "by

increasing the speed of the vehicle to flee."                                The State could

have employed other factual theories of prosecution.                                       As the

court of appeals observed, the State could have argued that the

traffic      officer        was   interfered     with      or    endangered          by       Beamon

failing to "stop, yield or slow when [the officer] was pursuing

him" or by Beamon "blast[ing] right through[] a four-way stop

sign."       State v. Beamon, 2011 WI App 131, ¶9 n.2, 336 Wis. 2d

438,       804    N.W.2d     706.     The   State,       however,            chose    this       one

instead.           Subsequent       insufficient        evidence        to     support          this

factual          theory     of    prosecution       does        not    render         the      jury
instruction incorrect.

       ¶68       The following exchange from oral argument underscores

that the request made by the State subsequently proved to be

contrary         to   its     interest.        It    chose        to     request          a     jury

instruction with a factual theory of prosecution that required

it   to     prove     the    manner   in    which     Beamon          interfered          with    or



       2
       The second element of the offense of fleeing or eluding an
officer is that the defendant must "knowingly flee or attempt to
elude any traffic officer." Wis. Stat. § 346.04(3).

                                             5
                                                             No.    2010AP2003-CR.awb


endangered the traffic officer——"by increasing the speed of his

vehicle":

        Justice Ziegler:    Why do you think the State would
        want to tie its hands like that? . . . . I mean, you –
        as a prosecutor, you could prove this case five, six
        different ways, I think.   Why would they limit it to
        increased speed? I don't get that.

        Defense Counsel: I can't read the district attorney's
        mind. I don't know why.     The only thing I can think
        of is that the district attorney anticipated . . .
        that there would be testimony that he further
        increased his speed once the warning signals were
        given.   That didn't happen. . . . It may be that the
        district attorney anticipated testimony that didn't
        come.   But then what she should have done is ask to
        have the jury instruction changed at the end and did
        not.

        Justice Ziegler:   Right, the instructions come at the
        end, after all the testimony is in.    A lot of times,
        they conform to the testimony as it comes in. I just
        don't get why they would want to stick with this one
        way to prove the case. You don't know?

        Defense Counsel:       I don't know.3
        ¶69    Week in and week out, circuit courts throughout this

state       give    tailored   jury   instructions        that   contain     factual

theories       of     prosecution.           Questions      at     oral     argument

appropriately recognized that tailoring a jury instruction to

fit the theory         of prosecution        does   not   make     the   instruction
erroneous:

    Justice Ziegler:  The only thing that's different, I
    mean if it stopped after "police or traffic officer,"
    period, and didn't have the phrase "by increasing the

        3
       A video recording of oral argument is available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=6868 (last visited May 3, 2013).      The quoted exchange
occurs at 1:08:40.

                                         6
                                                              No.    2010AP2003-CR.awb

      speed of the vehicle to flee," that would be basically
      a standard instruction.

      Counsel for the State:            Right.

      Justice Ziegler:    So isn't it just that they are
      explaining to the jury []"here's the State's theory of
      the case?"   I mean, a lot of times you have to pick
      specific language to conform to the facts of the case
      or to show how the State's going to prove its case.
      That happens in a lot of different trials.     So, why
      does that make it wrong?4
      ¶70     The    majority's    analysis      calls   this       common    practice

into question.        It is now unclear to what extent circuit courts

should deviate from a standardized, pattern jury instruction in

each individual case lest the factual theory of prosecution be

transformed into an element of the offense and the instruction

thereby be deemed erroneous.5

                                          B.

      ¶71     Even    if   the   jury    instruction     is    to    be   considered

erroneous, the majority compounds any error by untethering the

sufficiency of the evidence analysis from the jury's verdict by

measuring the claim against the statutory elements rather than

the   given    instruction.        A     court   "cannot      affirm      a   criminal

conviction on the basis of a theory not presented to the jury."

      4
       A video recording of oral argument is available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=6868 (last visited May 3, 2013).      The quoted exchange
occurs at 1:12:20.
      5
       Circuit courts have been cautioned against relying solely
on a pattern jury instruction instead of fashioning a specific
jury instruction: "Standard jury instructions are to assist the
court but should not be used as a substitute for the court
developing appropriate instructions relating to the specific
facts of each case."    Anderson v. Alfa-Laval Agri, Inc., 209
Wis. 2d 337, 345-46, 564 N.W.2d 788 (Ct. App. 1997).

                                           7
                                                     No.    2010AP2003-CR.awb


Chiarella v. United States, 445 U.S. 222, 236 (1980).              Yet that

is exactly what the majority appears to do by ignoring the law

of the case in favor of a sufficiency of the evidence analysis

that uses another theory of prosecution not presented to the

jury.

      ¶72   A court's instruction to the jury establishes the law

of the case, which the jury must accept in making its findings.

State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App.

1989) ("We presume that the jury follows the instructions given

to it.").     Indeed, the jury in this case was instructed to base

its verdict on the law that the circuit court set forth in its

instructions:

      Members of the jury, the court will now instruct you
      upon the principles of law which you are to follow in
      considering the evidence and in reaching your verdict.
      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.

        Apply that law to the facts in the case which have
        been properly proven by the evidence.    Consider only
        the evidence received during this trial and the law as
        given to you by these instructions and from these
        alone, guided by your soundest reason and best
        judgment, reach your verdict.

      If any member of the jury has an impression of my
      opinion as to whether the defendant is guilty or not
      guilty, disregard that impression entirely and decide
      the issues of fact solely as you view the evidence.

      You, the jury, are the sole judges of the facts, and
      the Court is the judge of the law only.
The   circuit   court's   instruction   followed   Wis-JI    Criminal    100

(2000), a pattern jury instruction that is regularly given in

criminal trials throughout the state.
                                8
                                                                            No.    2010AP2003-CR.awb


        ¶73    In State v. Courtney, 74 Wis. 2d 705, 247 N.W.2d 714

(1976),       the     court       conducted          a   sufficiency         of     the       evidence

analysis       against        a        jury     instruction           even        when     the       jury

instruction added an element to the offense.                                      It applied the

principle that juries must follow the law as they are instructed

by the circuit court.                   Id.         Likewise, as State v. Wulff, 207

Wis.     2d    143,     557       N.W.2d        813      (1997)       demonstrates,             a    jury

instruction         should        be    the     basis       for      a    sufficiency           of    the

evidence analysis even if the evidence is sufficient to support

a conviction under another theory of prosecution not given to

the jury.

       ¶74     In     Wulff,      which        involved        an    allegation          of     second-

degree       sexual    assault,          the    jury      was       instructed       to       return    a

verdict of "guilty" if it found that the defendant had attempted

one of multiple methods by which a person can commit sexual

assault.        Id.     at    149.            The   State      presented          three    different

theories of prosecution at trial, but none of them was related

to the theory on which the jury was instructed.                                           Id.        As a
result, the State did not meet its burden to produce sufficient

evidence at trial.                Id.         The jury convicted Wulff despite the

State's failure to meet its burden.                         Id.

        ¶75    In   analyzing           the    sufficiency           of    the     evidence,          this

court    acknowledged          that      had the         jury       been    instructed          on    the

State's alternative theories, there was sufficient evidence to

sustain the conviction.                  Id. at 152.            However, despite the fact

that     a    broader     sufficiency               of   the      evidence        analysis           would

require it to affirm the conviction, the Wulff court explained

                                                     9
                                                                      No.    2010AP2003-CR.awb


that       it   could    "uphold       Wulff's         conviction    only     if    there      was

sufficient evidence to support guilt on the charge submitted to

the jury in the instructions."6                    Id. at 153.

       ¶76       As recently as last year, this court explained that

even where a jury instruction is "misleading," the sufficiency

of   the        evidence       must    be   considered       in     the     context      of    the

instruction given to the jury where the instruction received no

objection at trial.                   Best Price Plumbing, Inc. v. Erie Ins.

Exchange, 2012 WI 44, ¶40, 340 Wis. 2d 307, 814 N.W.2d 419

(citing Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 873

n.7, 469 N.W.2d 224 (Ct. App. 1991)); see also D.L. Anderson's

Lakeside Leisure Co., Inc. v. Anderson, 2008 WI 126, ¶22, 314

Wis.       2d   560,     757    N.W.2d      803    (when     the    accuracy       of    a    jury

instruction is not properly contested on appeal, a challenge to

the sufficiency of the evidence is evaluated "in light of the

jury instruction[].").

       ¶77       Without       any     citation         to   authority        the       majority

suggests that the law of the case doctrine does not apply in
criminal         cases    in    Wisconsin.             Majority     op.,     ¶46    n.6.        As


       6
       The United States Supreme Court recently analyzed a
similar situation in the context of a double jeopardy issue in
Evans v. Michigan, 568 U.S. ___ (2013). In that case, the trial
court, using an erroneous interpretation of the law, determined
that the evidence was insufficient to sustain a conviction. Id.
at 6.    The trial court's ruling was predicated on a "clear
misunderstanding" of the law because it required an element of
an offense that "was not actually a required element at all."
Id. at 1, 6.    Despite the error that added an element to the
offense, the United States Supreme Court determined that the
trial court's ruling constituted an acquittal that precluded
retrial. Id.

                                                  10
                                               No.   2010AP2003-CR.awb


explained above, both Courtney and Wulff are criminal cases that

rely on law of the case principles.     Additionally, this court

has acknowledged in criminal proceedings that a previous court

of appeals decision or a previous decision of this court may

establish the law of the case.    State v. Moeck, 2005 WI 57, 280

Wis. 2d 277, 695 N.W.2d 783; State v. Stuart, 2003 WI 73, 262

Wis. 2d 620, 664 N.W.2d 82.   Likewise, the United States Supreme

Court has recognized that in criminal cases, the law of the case

may be established by instructing the jury.   U.S. v. Wells, 519

U.S. 582, 487 (1997) (acknowledging that the law of the case may

be established by jury instructions); see also United States v.

Killip, 819 F.2d 1542, 1548-49 (10th Cir. 1987); United States

v. Tapio, 634 F.2d 1092, 1094-95 (8th Cir. 1980); United States

v. Spletzer, 535 F.2d 950, 954 (5th Cir. 1976).7




     7
       Wisconsin Stat. § 805.18, a civil procedure statute, sets
forth a harmless error standard.      It is made applicable to
criminal cases by Wis. Stat. § 972.11(1).    In State v. Harvey,
2002 WI 93, ¶39, 254 Wis. 2d 442, 647 N.W.2d 189, a criminal
case, this court recognized that Wisconsin's harmless error
standard flows from Wis. Stat. § 805.18.      See also State v.
Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248, 750 N.W.2d 500.

                                 11
                                                        No.   2010AP2003-CR.awb


     ¶78    All of the above cases indicate that jury instructions

become the law of the case in Wisconsin.8            This court should not

change the law and should not affirm a conviction based upon a

theory     of   prosecution   that   was   never     heard    by   the   jury.

Erroneous or not, the jury instruction is the law of the case

and must be the basis for evaluating the sufficiency of the

evidence.

                                     C.

     ¶79    The consequences of the majority's misplaced analysis

are substantial.      To begin, it undermines the integrity of the

judicial    process   because   it   permits   the    jury    to   ignore   the

circuit court's instruction so long as an appellate court at

some later date determines the given instruction is erroneous.

    ¶80     The circuit court clearly and forcefully advised the

jury that "you must base your verdict on the law that I give to

you in these instructions" and that in reaching a verdict the

jury shall consider only the evidence and "the law as given to

     8
       Multiple state and federal courts have additionally
concluded that the law of the case may be established even where
a jury instruction is erroneous.    See, e.g., United States v.
Zanghi, 189 F.3d 71 (1st Cir. 1999); United States v. Johnson,
652 F.3d 918, 922 n.2 (8th Cir. 2011); United States v.
Williams, 376 F.3d 1048, 1051 (10th Cir. 2004) ("[T]he
government [has] the burden of proving each element of a crime
as set out in a jury instruction to which it failed to object,
even if the unchallenged jury instruction goes beyond the
criminal statute''s requirements."); State v. Azure, 186 P.3d
1269, 1275 (Mont. 2008) (a failure to object to a proposed jury
instruction becomes the law of the case once delivered, whether
or not it includes an unnecessary element); State v. Willis, 103
P.3d 1213, 1217 (Wash. 2005); State v. Rogers, 730 N.W.2d 859,
863 (N.D. 2007) (an unchallenged jury instruction becomes the
law of the case); see also Weeks v. Angelone, 528 U.S. 225, 234
(2000) ("A jury is presumed to follow its instructions.").

                                     12
                                                       No.   2010AP2003-CR.awb


you   by    these   instructions."    Nevertheless,     the       majority    in

essence     concludes   that   sometimes   a   jury   has    to   follow     the

instructions and sometimes it doesn't——and here, it need not

follow the circuit court's instruction.

      ¶81    The premise that it is the court's responsibility to

instruct the jury on the law, and that the jury must apply the

law as instructed, is a firmly-established principle of American

jurisprudence, and we should continue to follow that principle.

As early as 1895, Justice Harlan, writing for the United States

Supreme Court, warned against the perils of allowing a jury to

ignore the court's instruction of the law:

      Public and private safety alike would be in peril if
      the principle be established that juries in criminal
      cases may, of right, disregard the law as expounded to
      them by the court, and become a law unto themselves.

      . . . .

      We must hold firmly to the doctrine that in the courts
      of the United States it is the duty of juries in
      criminal cases to take the law from the court, and
      apply that law to the facts as they find them to be
      from   the  evidence.   Upon  the   court  rests   the
      responsibility of declaring the law; upon the jury,
      the responsibility of applying the law so declared to
      the facts as they, upon their conscience, believe them
      to be.
Sparf v. United States, 156 U.S. 51, 101-03 (1895).

      ¶82    In this case, some of Justice Harlan's admonitions are
on full display.        All acknowledge that there is no evidence

whatsoever of an increase in speed after the siren and lights

were activated.      The only question at trial which addressed the

issue resulted in a resounding negative:



                                     13
                                                                       No.    2010AP2003-CR.awb

       Defense Counsel: And you stated that the car was
       already speeding.    So in your opinion, did the car
       speed up any quicker once you got behind the car?

       Officer Miller: No, it was -– it's – I don't believe
       it sped up any more once I got behind the vehicle.
       No, sir.
Although there was a complete absence of any testimony or other

evidence      indicating         that    Beamon      increased        the     speed      of     his

vehicle, the jury still returned a verdict of "guilty."9                                     It did

so despite the circuit court's instruction that in order to find

Beamon "guilty," it must find that Beamon increased the speed of

his vehicle after the lights and sirens were activated.

       ¶83     Under the majority's analytical framework, the jury is

free to disregard the circuit court's instruction.                                 How can such

sanctioned         disregard      be     harmless        to     the    integrity         of     the

judicial process?

       ¶84     Likewise,      how      can    it    be   harmless         when       there    is    a

violation of Beamon's right to have a jury determine whether he

is     guilty?        The        majority's         analysis        has      the      additional

consequence of violating the constitutional right to a trial by

jury       which   requires       that    a    jury,       rather     than       a    subsequent

appellate court, reach the requisite finding of "guilty."                                       The

Sixth Amendment right of trial by jury includes "as its most

important element, the right to have the jury, rather than the

judge,      reach    the    requisite         finding      of      'guilty.'"          State       v.

Harvey,      2002    WI    93,    ¶20,       254    Wis.      2d   442,      647     N.W.2d     189

(quoting Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)).

       9
       The State has conceded on appeal that the evidence at
trial did not satisfy the jury instruction.     State v. Beamon,
2011 WI App 131, ¶6, 336 Wis. 2d 438, 804 N.W.2d 706.

                                               14
                                                                          No.    2010AP2003-CR.awb


        ¶85   It is the jury that ultimately found Beamon "guilty,"

supposedly on the evidence presented.                      Accordingly, an appellate

court    should      affirm    his    conviction           in    a    sufficiency             of   the

evidence analysis only if the evidence at trial was sufficient

to convict on the theory of prosecution as set forth in the jury

instruction that was requested by the State.                              Wulff, 207 Wis. 2d

at 152.

        ¶86   Affirming the conviction on a theory of prosecution

not presented to the jury requires the majority to speculate

what    the   jury    might have          done      if   given       another          hypothetical

instruction.         In essence it allows the appellate court to make

the finding of "guilty" on behalf of the jury.

       ¶87    The     jury     found       Beamon         "guilty"              based     on       the

instruction of the circuit court, not on any other theory of

prosecution.         This court may not affirm a verdict that the jury

did not render.         To do so violates Beamon's right to a finding

of "guilty" by the jury itself.

       ¶88    The     substantial          consequences              of         the     majority's

misplaced     analysis        are    all   the      more    glaring             because       of   the

extraordinary steps it takes in order to review the accuracy of

the    jury   instruction       in    the      first      place.            Here,       the    State

requested     the     instruction         it   now       argues      is     erroneous.             The

purported error received no objection before the circuit court.

Furthermore, Beamon never asserted any error in the instruction

and in fact         relies on       it.        On    appeal,         he    asserted       only an

insufficiency of the evidence.                   Curiously, it is the State that

raised the issue before the court of appeals, abandoning the

                                               15
                                                                 No.   2010AP2003-CR.awb


same    instruction       that      it     previously       embraced         when     it

specifically       requested      that    the     circuit        court    tailor    the

instruction to fit the State's factual theory of prosecution.

       ¶89   The    legislature     has    mandated     that      a    "[f]ailure     to

object at the [jury instruction] conference constitutes a waiver

of any error in the proposed instructions or verdict."                              Wis.

Stat. § 805.13(3).            However, rather than follow that statutory

directive,        the   majority    takes        the   extraordinary         step    of

exercising this court's power of discretionary review.                        State v.

Schumacher, 144 Wis. 2d 388, 407, 424 N.W.2d 672 (1988).                             The

power of this court to review issues that are waived is not to

be used "indiscriminately," but instead "it is a power to be

used sparingly, and only in exceptional circumstances."                              Id.

(emphasis added).

       ¶90   It    is   the    majority's      decision     to    review     the    jury

instruction        in   this     case     that    is   exceptional,          not     the

circumstances of the case itself.                Beamon was charged with eight

counts arising from the automobile chase and its aftermath.                           He
was convicted on all eight counts and challenges only one on

appeal.      Of the eight counts, the fleeing or eluding charge




                                          16
                                                                  No.    2010AP2003-CR.awb


ranks among the least egregious examples of Beamon's criminal

conduct.10

     ¶91       By   choosing     to     review    the     jury      instruction,         the

majority lowers the bar, effectively defining an "exceptional

circumstance" to include a mine-run criminal conviction.                                  It

indiscriminately utilizes this court's discretion in order to

affirm     what      is     arguably      the     least      egregious         of    eight

convictions.         This court should not go to such extraordinary

lengths to avoid a sufficiency of the evidence analysis measured

against    a    jury      instruction    that     is,   in    the       end,   a    correct

statement of the law.

                                          III

     ¶92       The issue that Beamon raised on appeal, whether the

evidence     is     sufficient   to     convict    him,      is   easily       addressed.

Here, the jury was instructed that in order to return a verdict

of "guilty" for fleeing or eluding an officer, it must find that

Beamon "knowingly fled a marked squad car by willful disregard

of the visual or audible signal so as to interfere with or

endanger the        traffic officer        by    increasing       the     speed     of   the

vehicle to flee."           There is no evidence suggesting that Beamon

increased the speed of his vehicle.

     10
       Beamon was charged with the following: fleeing or eluding
an officer contrary to Wis. Stat. § 346.04(3), possession of a
short-barreled shotgun contrary to Wis. Stat. § 941.28(2),
resisting an officer contrary to Wis. Stat. § 946.41(1),
attempting to disarm a peace officer contrary to Wis. Stat.
§ 941.21, obstructing an officer contrary to Wis. Stat.
§ 946.41(1),   unauthorized  use of an entity's       identifying
information contrary to Wis. Stat. § 943.203, possession of a
firearm by a felon contrary to Wis. Stat. § 941.29(2), and
criminal damage to property contrary to Wis. Stat. § 943.01(1).

                                           17
                                                       No.   2010AP2003-CR.awb


     ¶93    The evidence here, viewed most favorably to sustaining

the conviction, is so insufficient that as a matter of law no

trier of fact, acting reasonably, could have found guilt beyond

a reasonable doubt.     State v. Poellinger, 153 Wis. 2d 493, 501,

451 N.W.2d 752 (1990).        Because the evidence is insufficient, I

conclude    that   Beamon's   conviction   on   this    offense     must   be

reversed.   Accordingly, I respectfully dissent.

     ¶94    I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON joins this dissent.




                                    18
    No.   2010AP2003-CR.awb




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