State v. Peterson

• Decision Date: 09 June 1998
• Docket Number: No. 97-3294-CR,97-3294-CR
• Citation: 220 Wis.2d 474,584 N.W.2d 144
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Mark A. PETERSON, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 144

584 N.W.2d 144

220 Wis.2d 474

STATE of Wisconsin, Plaintiff-Respondent, v. Mark A. PETERSON, Defendant-Appellant. ^d

No. 97-3294-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 22, 1998.

Opinion Released June 9, 1998.

Opinion Filed June 9, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Margaret A. Maroney, Assistant State Public Defender, of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Gregory M. Posner-Weber, Assistant Attorney General.

Before CANE, P.J., and MYSE and HOOVER, JJ.

MYSE, Judge.

Mark Peterson appeals a judgment of conviction for intentionally causing bodily harm to a child, contrary to § 948.03(2)(b) and (5), STATS., and an order denying postconviction relief. Peterson contends that the trial court erred by failing to properly instruct the jury on the privilege to discipline, by re-instructing the jury in a manner favoring the prosecution, and by answering jury questions without a valid waiver of his right to be present. We conclude that the erroneous jury instruction was harmless, the re-instruction was proper, and any error arising from the failure to obtain Peterson's waiver before answering jury questions was harmless. Accordingly, the judgment and order are affirmed.

The facts essential to this appeal are undisputed. Peterson gave his four-year-old step-daughter a spanking after his wife, the child's mother, asked him to do so. According to the Petersons' trial testimony, the child had been failing to follow directions for some time and was not responding to other forms of discipline. Peterson placed the child over his knees, and with his open hand spanked her between four and six times through her clothing.

The next day, the director of the Head Start program the child attended noticed bruising in the area of the child's buttocks and reported the incident to social services. A social worker and police officer arrived to investigate, and observed what the officer described as "severe and significant bruising." The officer also observed hand imprints in the area. As a result of these observations and an initial discussion with Peterson, who had arrived to pick up his step-child, the girl was taken into temporary custody by Outagamie County Social Services. The next day the girl was taken to a doctor who concluded after an examination that "a pretty severe spanking would have to be done to cause [the] bruises." Peterson was ultimately arrested.

Peterson defended his actions by asserting the privilege to discipline a child whose welfare was his responsibility. See § 939.45(5), STATS. (a person responsible for a child's welfare is privileged to use reasonable discipline). At the conclusion of the trial, the trial court instructed the jury under WIS J I--CRIMINAL 2109 that there were three elements to the crime: first, that Peterson caused bodily harm to his step-daughter; second, that he intentionally caused such harm; and third, that the child had not attained the age of eighteen years at the time of the offense. The court also instructed the jury on the discipline privilege as follows:

Discipline of a child is an issue in this case. The State must prove by evidence which satisfies you beyond a reasonable doubt that the defendant was not acting lawfully in the discipline of a child. The law allows a person responsible for the child's welfare to use reasonable force to discipline that child. Reasonable force is that force which a reasonable person would believe is necessary. Whether a reasonable person would have believed that the amount of force used was necessary and not ¹ intentional must be determined from the standpoint of the defendant at the time of his acts. The standard is what an ordinary and prudent and reasonably intelligent person would have believed in the position of the defendant acting under the circumstances that existed at the time of the alleged offense. In determining whether the discipline was or was not reasonable, you should consider the age, the sex, and physical and mental condition, and disposition of the child, the conduct of the child, the nature of the discipline, and all the surrounding circumstances. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or which creates an unreasonable risk of great bodily harm or death.

If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant did not act reasonably in the discipline of [his step-daughter], you should find the defendant guilty. (Emphasis added.)

This instruction differed from the model instruction in that the trial court mistakenly replaced the word "excessive" with "intentional" as emphasized above. Compare WIS J I--CRIMINAL 950.

At the time, it appears that the court's misstatement was not recognized. The court apparently was unaware of its mistake because it did not correct it. Furthermore, Peterson's counsel apparently was unaware of the mistake because at a hearing held almost immediately afterward he stated that he and his client had "no objection to the instructions not only as proposed, but those given and those read." Finally, it can be assumed that the State was unaware of the mistake because it, too, failed to bring the matter to the court's attention.

After the instructions were read in full, the court gave the instructions in written form to the jury. The written instructions correctly stated "excessive" instead of "intentional."

After they had begun deliberating, the jury submitted two questions to the court. First, the jury asked, "Your Honor, we agree on the first and third elements. Can you define 'intent to cause bodily harm?' " Second, the jury asked, "Can you define spanking in the state of Wisconsin?" The court held a conference in chambers with Peterson's attorney participating by telephone; Peterson himself was not present. After listening to arguments, the court responded to the jury as follows: "Please refer to instruction 2109 for intent. We know of no legal definition of the word 'spanking' in Wisconsin. Please refer to your common knowledge and the instructions given." Peterson was ultimately convicted and brought various postconviction motions, which were denied.

Peterson's first claim on appeal is that the trial court erred by failing to properly instruct the jury on the discipline privilege. Section 939.45(5)(b), STATS., allows a person to reasonably discipline a child whose welfare is his or her responsibility. Peterson claims that he was denied the full use of this privilege by the trial court's erroneous substitution of the word "intentional" for "excessive."

We agree that the trial court's misstatement amounted to error in its verbal privilege instruction. When the court gives an erroneous instruction, however, a new trial is not warranted unless the error is prejudicial. Nowatske v. Osterloh, 198 Wis.2d 419, 428-29, 543 N.W.2d 265, 268 (1996).

Although Peterson refers to Nowatske as summarizing the applicable law and actually addresses the issue of whether the error was prejudicial, he at one point in his brief calls into question the applicability of a harmless error analysis to this case. ² In support of his apparent contention that the harmless error analysis does not apply, Peterson cites to Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). In Sullivan, the Court reversed a conviction that was based on a definition of "reasonable doubt" essentially identical to one previously held unconstitutional. Id. at 277, 113 S.Ct. 2078. Beginning with the principle that harmless error tries to answer the question "whether the guilty verdict rendered in this trial was surely unattributable to the error," the Court concluded that it was illogical to apply harmless error. Id. at 279-80, 113 S.Ct. 2078 (emphasis in original). This was because there had been no proper guilty verdict. "[T]o hypothesize a guilty verdict that was never in fact rendered ... would violate the jury-trial guarantee" by replacing a trial by jury with a trial by judge. Id. at 279-81, 113 S.Ct. 2078.

We do not believe that Sullivan intended to overrule all state court decisions applying the "harmless error" analysis to erroneous jury instructions. Rather, we interpret Sullivan's holding simply to be that harmless error analysis cannot apply where the burden of proof instruction is unconstitutional. See Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (distinguishing Sullivan from instances where the jury is improperly instructed on an element of the offense, "an error which is subject to harmless-error analysis"). Here, there is no allegation that the instructional error had anything to do with the burden of proof. We therefore reject Peterson's apparent claim and apply the harmless error analysis as set forth in Nowatske.

An instructional error "is not prejudicial if it appears that the result would not be different had the error not occurred." Nowatske, 198 Wis.2d at 429, 543 N.W.2d at 268 (internal source omitted). "The test to be applied in determining whether such an error is prejudicial is the probability and not merely the possibility that the jury was misled thereby." Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis.2d 338, 378, 360 N.W.2d 2, 20 (1984). We conclude that the error was not prejudicial.

In asking this court to find prejudice, Peterson contends that State v. Lohmeier, 196 Wis.2d 432, 538 N.W.2d 821 (Ct.App.1995), overruled by State v. Lohmeier, 205 Wis.2d 183, 556 N.W.2d 90 (1996), is instructive because there, as is alleged here, the jury instructions contained inconsistencies that effectively denied the defendant his defense. We believe that Lohmeier is readily distinguishable. Lohmeier was charged, in part, with several counts of violating § 940.09, STATS. (homicide by...