ARGUMENT: February 15, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 369 Wis.2d
222, 880 N.W.2d 182 (2016 - Unpublished)
Court Lafayette County No. 2012CF93 James R. Beer Judge.
the plaintiff-respondent there was a brief filed by and an
oral argument by Sarah Lynn Shaeffer, assistant attorney
general, with whom on the brief was Brad D. Schimel, attorney
the defendant-appellant-petitioner, there were briefs filed
by Charles W. Giesen and Jessica J. Giesen and Giesen Law
Offices, S. C., Madison, and oral argument by Charles W.
SHIRLEY S. ABRAHAMSON, J.
This is a review of an unpublished per curiam decision of the
court of appeals affirming the judgment of conviction by the
circuit court for Lafayette County, James R. Beer,
Judge. The criminal charges arose out of a
confrontation between the defendant and two Wisconsin
Department of Natural Resources conservation wardens, Joseph
Frost and Nick Webster.
Following a three-day trial, a jury convicted Robert Stietz,
the defendant, of resisting a law enforcement officer,
Wis.Stat. § 946.41(1) (2013-14),  and intentionally
pointing a firearm at an officer, §
On appeal, the court of appeals rejected the defendant's
argument that his constitutional right to present a defense
was denied by the circuit court's refusal to instruct the
jury on self-defense. The court of appeals affirmed the
judgment of conviction.
The dispositive issue presented is whether the circuit court
erred when it refused to instruct the jury on self-defense as
the defendant requested. The dispute in the instant case
regarding the self-defense instruction centers on whether the
defense of self-defense is supported by sufficient evidence.
State v. Head, 2002 WI 99, ¶113, 255 Wis.2d
194, 648 N.W.2d 413');">648 N.W.2d 413.
On viewing the record in the light most favorable to the
defendant, as we must,  we conclude, contrary to the
State's position, that there was adequate evidence
supporting a self-defense instruction in the instant case and
that the circuit court erred in refusing the defendant's
request for the instruction.
The evidence was sufficient in the instant case because a
reasonable fact-finder could have determined that the
defendant reasonably believed that the two men who accosted
him with weapons on his land and on land upon which he had an
easement were not wardens with the Wisconsin Department of
Natural Resources; that the defendant reasonably believed
that the two men were trespassers hunting illegally; that
because the two men forcibly wrested his rifle from him and
then drew their handguns on him, the defendant reasonably
believed that the two men were unlawfully interfering with
his person; that the two men pointing handguns at the
defendant caused him to fear for his life; and that the
defendant pointed his handgun at the two men believing he had
to defend himself. In sum, the jury could conclude that the
defendant threatened to use force as he reasonably believed
necessary to prevent or terminate the interference with his
Because we conclude that there was sufficient evidence to
support the privilege of self-defense, we conclude that the
circuit court erred in failing to instruct the jury on
self-defense as requested by the defendant. We further
conclude that the circuit court's error affected the
defendant's substantial rights; it was not harmless
Accordingly, we reverse the decision of the court of appeals
and the judgment of conviction. We remand the cause to the
circuit court for a new trial.
We begin with a discussion of the statutory defense of
self-defense and the standard of review. We then examine the
record. We determine that there was sufficient evidence to
support a jury instruction on self-defense and that the
circuit court erred in refusing to give the instruction.
Lastly, we assess the error and conclude that the circuit
court's error in refusing to instruct the jury on
self-defense affected the defendant's substantial rights.
The defendant raised an affirmative defense of self-defense.
The privilege of self-defense is set forth in Wis.Stat.
§ 939.48(1) as follows:
A person is privileged to threaten or intentionally use force
against another for the purpose of preventing or terminating
what the person reasonably believes to be an unlawful
interference with his or her person by such other person. The
actor may intentionally use only such force or threat thereof
as the actor reasonably believes is necessary to prevent or
terminate the interference. The actor may not intentionally
use force which is intended or likely to cause death or great
bodily harm unless the actor reasonably believes that such
force is necessary to prevent imminent death or great bodily
harm to himself or herself. (Emphasis added.)
The pattern jury instruction for self-defense, Wis JI-
-Criminal 800,  instructs the jury on the elements of
self-defense as follows (footnotes omitted):
is an issue in this case. The law of self-defense allows the
defendant to threaten or intentionally use force against
another only if:
• the defendant believed that there was an actual or
imminent unlawful interference with the defendant's
• the defendant believed that the amount of force the
defendant used or threatened to use was necessary to prevent
or terminate the interference; and
• the defendant's beliefs were reasonable.
Determining Whether Beliefs Were Reasonable
A belief may be reasonable even though
mistaken. In determining whether the defendant's
beliefs were reasonable, the standard is what a person of
ordinary intelligence and prudence would have believed in the
defendant's position under the circumstances that existed
at the time of the alleged offense. The reasonableness of the
defendant's beliefs must be determined from the
standpoint of the defendant at the time of the
defendant's acts and not from the viewpoint of the jury
A circuit court has broad discretion in deciding whether to
give a requested jury instruction. State v. Coleman,
206 Wis.2d 199, 212, 556 N.W.2d 701');">556 N.W.2d 701 (1996). The circuit
court must, however, exercise its discretion in order
"to fully and fairly inform the jury of the rules of law
applicable to the case and to assist the jury in making a
reasonable analysis of the evidence." State v.
Vick, 104 Wis.2d 678, 690, 312 N.W.2d 489 (1981)
(quoting State v. Dix, 86 Wis.2d 474, 486, 273
N.W.2d 250 (1979)).
A court must determine whether a reasonable construction of
the evidence will support the defendant's theory
"viewed in the most favorable light it will
'reasonably admit from the standpoint of the
accused.'" Head, 255 Wis.2d 194, ¶113 (quoting
State v. Mendoza, 80 Wis.2d 122, 153, 258 N.W.2d 260');">258 N.W.2d 260
(1977) (quoting Ross v. State, 61 Wis.2d 160, 172,
211 N.W.2d 827 (1973))).
Whether there are sufficient facts to warrant the circuit
court's instructing the jury on self-defense is a
question of law that this court decides independently of the
circuit court and court of appeals, but benefiting from their
analyses. Head, 255 Wis.2d 194, ¶44 (citing State v.
Mayhall, 195 Wis.2d 53, 57, 535 N.W.2d 473 (1995));
State v. Sartin, 200 Wis.2d 47, 53, 546 N.W.2d 449
(1996); State v. Chew, 2014 WI.App. 116, ¶7,
358 Wis.2d 368, 856 N.W.2d 541.
A jury must be instructed on self-defense when a reasonable
jury could find that a prudent person in the position of the
defendant under the circumstances existing at the time of the
incident could believe that he was exercising the privilege
of self-defense. A circuit court may deny a requested
self-defense instruction when no reasonable basis exists for
the defendant's belief that another person was unlawfully
interfering with his person and that the defendant used or
threatened the use of such force as he reasonably believed
necessary to prevent or terminate the interference. Head, 255
Wis.2d 194, ¶¶112-113.
Wisconsin law establishes a "low bar" that the
accused must surmount to be entitled to a jury instruction on
the privilege of self-defense. State v. Schmidt,
2012 WI.App. 113, ¶12, 344 Wis.2d 336, 824 N.W.2d 839.
The accused need produce only "some evidence" in
support of the privilege of self-defense. Head, 255 Wis.2d
194, ¶112; State v. Peters, 2002 WI.App. 243,
¶¶21-23, 27-29, nn.4-5, 258 Wis.2d 148, 653 N.W.2d
Evidence satisfies the "some evidence" quantum of
evidence even if it is "weak, insufficient,
inconsistent, or of doubtful credibility" or
Crucial to applying the "some evidence" standard is
that a court is not to weigh the evidence. State v.
Mendoza, 80 Wis.2d 122, 152, 258 N.W.2d 260');">258 N.W.2d 260 (1977). A
court does not "look to the totality of the evidence,
" as that "would require the court to weigh the
evidence--accepting one version of facts, rejecting
another--and thus invade the province of the jury."
Mendoza, 80 Wis.2d at 153; Ross v. State, 61 Wis.2d
160, 172-73, 211 N.W.2d 827 (1973) ("This test does not
call for a weighing of the evidence by the trial
judge."). Rather, "the question of
reasonableness of a person's actions and beliefs, when a
claim of self-defense is asserted, is a question peculiarly
within the province of the jury." Maichle v.
Jonovic, 69 Wis.2d 622, 630, 230 N.W.2d 789');">230 N.W.2d 789 (1975)
(citing Higgins v. Minagham, 76 Wis. 298, 45 N.W.
In the instant case, if "some evidence" were
offered at trial that the defendant reasonably believed that
another person was unlawfully interfering with his person and
that he used or threatened to use such force as he reasonably
believed necessary to prevent or terminate the interference,
"then it is for the jury, not for the [circuit] court or
this court, to determine whether to believe [the
accused's] version of events." Mendoza, 80 Wis.2d at
With the low "some evidence" quantum of evidence
standard in mind, we turn to the record to determine whether
there was sufficient evidence to support an instruction to
the jury on self-defense.
The State argues that the defendant's testimony was
incredible on its face and that, as a matter of law, the
evidence was insufficient to warrant a self-defense
instruction, and that any claim of self-defense was so
discredited that no reasonable jury would believe the
We focus on the encounter from the defendant's
perspective. We view the record favorably to the defendant,
as the case law requires, to assess whether a reasonable jury
could find that a person in the position of the defendant
under the circumstances existing at the time of the incident
could reasonably believe that he was exercising the privilege
We do not present the defendant's one-sided picture of
the events as representing the entire story. The
defendant's testimony was not always consistent and it
was contradicted. We conclude, however, that the
defendant's version of the events, sometimes supported on
specific points by the two wardens, provided an adequate
factual basis supporting the defendant's explanation that
he was exercising his right to defend himself. The jury was
not obliged to believe the defendant, but they could have
believed him. Following is the evidence from the
The defendant was a 64-year-old farmer at the time of the
incident in question. He owned a parcel of land in Lafayette
County on which he pastured cattle, hunted, and gathered
morel mushrooms. The land consists of grassy, open areas,
including pasture areas; rolling hills; and some wooded
The defendant's parcel of land is surrounded by land
owned by the defendant's uncle. The defendant had the
benefit of an easement (right-of-way) for ingress and egress
over the uncle's land to Highway 81.
A fence separates the defendant's land from his
uncle's land on all sides, interrupted only by a metal,
swinging "cattle gate." The gate marks the point
where the easement, recognizable as a two-track,
dirt-road-like path, connects the defendant's land to
Highway 81. The fence keeps trespassers out and cattle in.
The uncle testified that he and the defendant generally
stayed off of each other's land. Occasionally, the
defendant and his uncle would enter each other's land to
check the fence line.
The defendant testified that, over the years, he has had
problems with trespassers. Many would hunt illegally, and
some would vandalize his property. He posted "no
trespassing" signs and asked the Lafayette County
Sheriff for help with trespassers on numerous occasions.
During deer season--when he often had the worst trespassing
problems--the defendant would check his land for trespassers.
He would be armed when he went on the land, because he knew
that anyone hunting illegally would likely be armed.
On the afternoon in question, Sunday, November 25, 2012, the
last day of gun deer season, the defendant patrolled his
property for trespassers and walked his fence line to make
sure that it had no holes. Now that gun deer season was over,
he planned to pasture a longhorn cow. Because the defendant
was not going to hunt and would not have to haul a deer
carcass home, he drove his wife's Chevrolet sedan. He
parked the sedan in a field near the gate to his land.
The defendant carried his rifle in a safe
positionwith the safety on and kept a handgun in
his coat pocket as he always did. Although the handgun held
six rounds, he kept only five rounds in it because the gun
did not have a safety; he did not like to leave a round in
the cylinder that could be accidentally discharged.
The defendant wore a camouflage coat and hat. He did not wear
any blaze orange (as most hunters would) because he was not
hunting and was on his own private property.
Wisconsin Department of Natural Resources (DNR) Wardens Frost
and Webster were out on patrol on the afternoon in question.
They were looking for hunters who were trying to nab an
eleventh-hour deer after the gun deer season ended at 4:45
p.m. (20 minutes after the 4:25 p.m. sunset).
They drove on the surface roads, using binoculars to find
hunters. They saw no one and heard no signs of hunting. At
around 4:58 p.m., the two wardens noticed a car (the
defendant's wife's Chevrolet sedan) parked in a field
along a fence line about a quarter-mile from the highway. The
two wardens drove their DNR pickup truck across the field and
up to the sedan. As one of them peered into the sedan, he
observed what he concluded were signs of hunting: an empty
gun case, a bottle of "Buck Lure" (a scent-killer
spray), and a camouflaged tree seat. The other warden checked
the vehicle's registration and found that the sedan was
registered to Robert Stietz, the defendant, and his wife,
Apparently concluding that whoever owned this sedan was
hunting after the gun deer season ended, the two wardens
decided to look around. Before leaving their DNR pickup
truck, both wardens donned their blaze-orange,
department-issued jackets. Like their uniforms, their
blaze-orange jackets bore DNR insignia. The DNR patch
insignia on the shoulder of each arm of the jacket were not,
however, as conspicuous as the DNR insignia on their
uniforms. Each warden also had a DNR badge on his jacket and
a hat bearing a DNR insignia patch. Although neither warden
had a rifle, as most deer hunters do, each carried a handgun
and a long flashlight.
The two wardens headed north and came upon a partially open
cattle gate. They walked through the open cattle gate,
entered the defendant's fenced-in parcel, and followed a
path in the grass worn down by cattle's hooves.
The defendant testified that as he was walking on his
uncle's land checking the fence line, he saw blaze orange
in the woods. He headed toward the cattle gate to enter his
land and identify these blaze-orange-clad figures. He
testified: "I encountered two people in orange that was
on my property . . . and I didn't know who they
were." He stated: "I wondered who was trespassing.
This is my thought, I was wondering who was trespassing in my
land that I did not know."
The two wardens testified that they heard the defendant
before they saw him. As they were walking on the cattle path,
they heard a stick snap behind them, turned around, and saw
the defendant walk a few steps, stop and look around, and
then continue walking.
It was "nearly completely dark, " according to
Warden Webster, when the three men crossed paths. As the two
wardens approached the defendant from a distance of about 20
or 30 yards, flashlights were shined at the defendant.
The defendant explained that he did not see the DNR insignia
or badges on the men's attire as the men approached. The
defendant testified that he did not notice the DNR insignia
on their jacket sleeves because he was "wondering who
was trespassing in [sic] my land" and "trying to
study their face[s]." The blaze-orange jackets signified
hunters to the defendant and the darkness reduced the chance
that the defendant would identify the two men as wardens by
According to the defendant, neither man clearly identified
himself as a game warden as they approached him, leading the
defendant to suspect that the two were trespassers hunting
illegally on his land. The men did nothing to correct the
defendant's misunderstanding of their identity. Although
he testified that he heard one of the men mumble something
about "warden, " and the other mumbled something
about "Green County, " the defendant said he
thought the men were asking if he was or had seen a warden.
The defendant's belief that the two men were trespassing
hunters was bolstered by the defendant's interpretation
of their words and conduct. The two men inquired into how
many deer the defendant had seen that day and whether he was
hunting. The defendant told the men he had seen seven doe but
that he was not hunting.
The defendant testified that when he told the two men that he
was looking for trespassers and was not hunting, one of the
men "threw up his arms" and appeared
"riled" by this statement. The defendant testified
that this response was prompted because "I believe they
took it for that they was [sic] trespassing and that will be
The defendant also testified that the two men appeared to be
circling him early on in the encounter as he attempted to
back away from them by ducking back through the gate and
heading towards his car to drive home.
One of them, Warden Webster, asked the defendant whether his
rifle was loaded. The defendant said yes. The other man,
Warden Frost, twice asked for the rifle. The defendant said
no both times. The two men began to make the defendant fear
for his life. According to the defendant, "That is when
they proceeded--I felt like I was being attacked right at
Warden Frost initiated physical contact with the defendant,
grabbing the defendant by the front of his garment while
reaching for the rifle.
The other man, Warden Webster, entered the fray. The men
grappled over the rifle, pointing the barrel every which way.
The rifle was wrested from the defendant. Warden Frost ended
up on his back on the ground. He held the rifle momentarily,
considering whether to use it. He cast it aside when he could
not figure out how to turn the safety off. This tussle ended
when the defendant no longer had the rifle.
The defendant then saw Warden Webster fumbling to pull a
handgun from a holster on his hip. At trial, all three men
agreed that Warden Webster was the first to pull his handgun
and that he pointed it at the defendant. Warden Frost then
drew his handgun and pointed it at the defendant. The
defendant reached for his own handgun because, as he
testified, he thought "my God, he's going to
shoot." The three men agreed that Warden Frost and the
defendant drew their handguns about
"simultaneously." The defendant stated to the two
men that he had a right to protect himself. There they were,
three men with handguns trained on each other.
The defendant testified he did not know the two men were
wardens at this point; he just knew he was scared and feared
for his life:
I felt like I was being attacked right at that time. . . . .
[A]ll of a sudden I seen the pistol coming up. And I figured,
my God, he's going to shoot.
. . . .
I was scared, darn scared.
. . . .
At that very instant I had the pistol in my right pocket and
I drew my pistol at the very-- simultaneously. I said, I have
the right to protect myself which I am doing at this time.
. . . .
[S]omeone else pulled their pistol out and I was fearful for
my life so I drew mine so I would not get shot.
The two wardens and the defendant testified that the
defendant told the men that he was exercising his right to
defend himself: "I have the right to protect myself
which I am doing at this time." And the defendant told
the two men, repeatedly, that he would lower his handgun when
they lowered theirs because one of them, Warden Webster, drew
While pointing his gun at the defendant with one hand, Warden
Webster used his other hand to activate his collar microphone
and call Lafayette County dispatch for assistance. The
defendant testified that even when he heard this call being
made, he still "really didn't know positive for sure
[that they were officers] . . . because I never seen no
The defendant testified he was relieved when the call for
help was made. He began to realize, for the first time, that
the two men were wardens and that assistance in the form of
sheriff's deputies would soon arrive. The defendant then
backed a few feet away from the two men, moving nearer to the
gate. He assumed this position and waited for the backup to
The defendant continued to point his handgun at the men after
they called for backup. He stated he did so only because the
two refused to lower their handguns first.
The defendant refused to lower his handgun because he felt
unsafe, even after realizing that the two men were wardens.
It was dark out, and the three of them were in an unpopulated
rural area. The two men, who had earlier attacked him without
provocation, held their handguns pointed at the
defendant's face. The defendant, by contrast, held his
gun in one hand near his side and was leaning against a fence
The defendant saw a squad car's emergency lights
flashing. After the first deputy sheriffs arrived, the two
wardens backed away from the defendant with their handguns
still drawn. They retreated to the squad car along with the
A lengthy standoff ensued. As more deputies arrived, they
spoke to the defendant to persuade him to disarm. The
defendant explained that after the deputies assured him that
he would not be "gang tackled, " he lowered his gun
to his side, emptied the cartridges onto the ground, and
dropped the gun to the ground.
The defendant peaceably surrendered. He walked to the squad
car where he was arrested.
No one was hurt. No weapons were ever fired by anyone. All
three men acknowledged that the defendant never threatened to
shoot the two men; he never raised his voice during the
encounter; he never used any profanity; he did not try to
prevent the two men from calling for help and backup; and he
did not try to prevent or discourage the retreat of the two
men to the squad car.
Insofar as the instruction on self-defense hinged on the
defendant's credibility, credibility is a question to be
resolved by the jury, not the circuit court, the court of
appeals, or this court. State v. Coleman, 206 Wis.2d
198, 213-14, 556 N.W.2d 701');">556 N.W.2d 701 (1996). A court does not weigh
the testimony. The court focuses, instead, on whether there
is "some evidence" supporting the defendant's
The evidence that the defendant was in fear for his life and
believed he was exercising the threat of reasonable force
went beyond the minimal quantum of "some evidence"
necessary to establish the defendant's right to a jury
instruction on self-defense.
We conclude that an adequate basis exists in the record to
support a self-defense instruction and to allow the defense
of self-defense to be argued to and considered by the jury. A
reasonable jury could find that a person in the position of
the defendant under the circumstances existing at the time of
the incident could reasonably believe that the two men were
unlawfully interfering with his person and that he was
threatening reasonable force in the exercise of his privilege
of self-defense. Therefore, we conclude that the circuit
court erred in refusing to instruct the jury on self-defense.
Because we conclude that the circuit court erroneously
refused to instruct the jury on self-defense, we next
consider whether the error affected the defendant's
"substantial rights." Wis.Stat. §
805.18(2). This statute codifies Wisconsin's
harmless error rule.
The harmless error inquiry raises a question of law that this
court decides. State v. Magett, 2014 WI 67,
¶29, 355 Wis.2d 617, 850 N.W.2d 42');">850 N.W.2d 42.
A defendant's substantial rights remain unaffected (that
is, the error is harmless) if it is clear beyond a reasonable
doubt that a rational jury would have come to the same
conclusion absent the error or if it is clear beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.
The jury's acquittal of the defendant on four of the six
charges (including the most serious felony count) in part
depended on the defendant's testimony that at times
conflicted with that of the wardens. The acquittals suggest
that the jury believed all or some of the defendant's
testimony and, if given the self-defense instruction, might