Defendant was convicted of "fleeing or attempting to elude a traffic officer, in violation of Wis. Stat. §346.04(3)". A jury instruction did not track the language of the statute or the information by including that violation of the statute here would be "by increasing the speed of the vehicle to flee".
Justice Roggensack wrote for the 4-2 majority, joined by Justices Crooks, Ziegler, and Gableman.
¶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. ...Justice Bradley wrote for the dissent, joined by Chief Jusice Abrahamson.
¶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.
¶78 ... Erroneous or not, the jury instruction is the law of the case and must be the basis for evaluating the sufficiency of the evidence.Justice Prosser did not participate.
¶92 ... There is no evidence suggesting that Beamon increased the speed of his vehicle.
Update: Wisconsin Supreme Court: Jury instruction that added a requirement for proof that is not in the statutes was harmless error at On Point; and Supreme Court Upholds Conviction for Eluding Police, Notes Faulty Jury Instruction by Joe Forward at State Bar of Wisconsin