Court of appeals certification request, certification granted 12/18/14, affirmed, 2015 WI 75; case activity
Issue Presented (from Certification)
We certify this case to the supreme court because we are uncertain which of two decisions is controlling: State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), or State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681. The issue is whether, under the circumstances here, a sufficiency of the evidence challenge requires us to measure the evidence against the instructions the jury received, as the court did in Wulff, or instead against statutory requirements, as the court did in Beamon.
Williams was convicted of two counts of felony murder for the shooting deaths of Parker, a marijuana dealer, and Robinson, who was present in Parker’s home when Williams and some cohorts attempted to rob Parker of his stock in trade. The predicate for the felony murder charges was the attempted armed robbery, and while the the trial evidence was sufficient to support a finding that Williams attempted an armed robbery of Parker, the evidence appears to be insufficient to support a finding of an attempted armed robbery of Robinson. That matters because the jury was instructed that Williams could be found guilty of the felony murder of Robinson only if there was an attempted armed robbery of Robinson.
Wulff and Beamon involve two different claims regarding the sufficiency evidence measured in light of the jury instructions. In Wulff, the jury was instructed on two of the multiple ways to commit sexual assault—namely, when the victim is unconscious, or by an intrusion into the genital or anal opening of the victim. 207 Wis. 2d at 148. But there was no evidence supporting either of those ways to commit the offense; instead, the evidence at trial supported only a different way to the commit the offense (fellatio), and the jury wasn’t instructed as to that mode of commission. Id. at 146-48. The supreme court held the evidence was sufficient when measured against the instructions given to the jury, because it could uphold the conviction “only if there was sufficient evidence to support guilt on the charge submitted to the jury in the instructions.” Id. at 153; see also id. at 152 (quoting Chiarella v. United States, 445 U.S. 222, 236 (1980) (“we cannot affirm a criminal conviction on the basis of a theory not presented to the jury”)).
In Beamon, the defendant was charged with fleeing an officer, which may be committed in three different ways, given the disjunctive language of the statute creating the crime, § 346.04(3). The jury was instructed that Beamon engaged in two of the three prohibited behaviors (disregarding an audible or visible signal from the police to stop; increasing his speed), and told them they had to find he did both of them, not one or the other. 347 Wis. 2d 559, ¶¶33, 35-36. Beamon argued the evidence was insufficient under the jury instructions, which constituted the “law of the case,” because there was no evidence Beamon engaged in one of the behaviors. Id., ¶¶7-9, 16. The supreme court concluded the instruction was erroneous because by stating the elements in the conjunctive it imposed an additional requirement not supported by the statute, and that when there’s an erroneous instruction, sufficiency is measured against the statutory elements, not the jury instructions. In Beamon’s case there was evidence to support the single mode of commission charged in the information, which was also read to the jury as part of the instructions. Id., ¶¶22-23, 28, 38-29. (There’s more on Beamon here.)
Thus, whether Wulff or Beamon controls depends on how the instruction is characterized:
• Is it a correct statement of a legal means for committing the crime, as Williams argues? If so, Wulff governs, the evidence is measured against the instruction, and Williams can’t be convicted of felony murder with regard to Robinson because the evidence is insufficient.
• Or, as the state argues, is the instruction erroneous because it incorrectly imposes an “additional” requirement—namely, that the victim of the felony murder must also be the victim of the predicate felony offense, even though Williams could be convicted of felony murder of Robinson even if Parker was the only target of the robbery, State v. Rivera, 184 Wis. 2d 485, 516 N.W.2d 391 (1994); State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (1994)? If so, then Beamon controls, and, measured against the elements of the offense instead of the instructions, the evidence is sufficient.
The instruction here doesn’t misstate statutory language, unlike the instruction in Beamon, so any concern about an erroneous instruction “creating” some new crime not recognized by statute doesn’t exist. 347 Wis. 2d 559, ¶45. That strongly suggests the instruction’s reference to Robinson isn’t a legal error, but instead simply reflects the prosecutor’s theory of the case (an argument Beamon made, unsuccessfully). If so, the fact the jury could have been instructed as allowed in Rivera and Oimen doesn’t matter; what matters is they weren’t so instructed.
As the court of appeals notes, Wulff, Beamon, and now this case present “a subtle variation” on the same issue, and while it may not come up very often, “[i]t seems likely that additional cases will raise the same categorization problem.” Stay tuned to see if the supreme court takes the case and can mange to clarify things.
