State v. Steven G. Breneman

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 9, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP166-CR Cir. Ct. No. 2018CF200

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STEVEN G. BRENEMAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Portage County:
THOMAS B. EAGON, Judge. Affirmed.

Before Fitzpatrick, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Steven Breneman appeals a judgment of conviction
for first-degree intentional homicide. Breneman contends that the circuit court
No. 2021AP166-CR

erred by failing to give a jury instruction on self-defense, and that the omission of
the jury instruction violated Breneman’s due process rights and his right to present
a defense.1 For the reasons set forth below, we reject Breneman’s arguments and
affirm.

¶2 Breneman was charged with first-degree intentional homicide for the
shooting death of Donald Brewer, who had been romantically involved with
Breneman’s wife. The complaint alleged that Breneman drove to Brewer’s house
and confronted Brewer about the affair between Brewer and Breneman’s wife.
After a short argument outside Brewer’s house, Breneman removed a handgun
from his waistband and shot Brewer twice, once in the chest and once in the head,
killing him. At trial, the State presented evidence consistent with those
allegations.

¶3 Breneman testified to the following at trial. After Breneman and
Brewer argued outside Brewer’s house, Brewer stated to Breneman, “You come
down here, you’ve just signed your death warrant,” and “You better kill me. I’m
going to kill you.” Brewer then lurched toward Breneman with his fists balled.
Breneman reacted by taking his handgun from his waistband and shooting Brewer.
After the first shot, Breneman observed Brewer reaching across his body.
Breneman knew that Brewer owned a gun. Breneman feared for his safety, and
shot Brewer a second time. Breneman explained that he shot Brewer to
“neutralize” or “stop” him.

1
Breneman also argued in his brief-in-chief that the circuit court erred by failing to
answer a jury question. However, Breneman then withdrew that argument in his reply brief. We
do not address that argument further.

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No. 2021AP166-CR

¶4 After the close of evidence, Breneman requested a jury instruction
on self-defense. Specifically, Breneman requested WIS JI—CRIMINAL 805, which
states that a defendant is allowed to use force that is intended or likely to cause
death or great bodily harm if the defendant reasonably believed that force was
necessary to prevent death or great bodily harm to himself, even if that belief was
mistaken. The State argued that the evidence at trial was insufficient to support
Breneman’s request for any self-defense instruction.

¶5 The circuit court determined that the evidence was sufficient to
support a self-defense instruction and indicated that it would give WIS JI—
CRIMINAL 805. The State then requested an instruction for the lesser-included
offense of second-degree intentional homicide, WIS JI—CRIMINAL 1014. The
lesser-included offense instruction directs the jury that a defendant is not guilty of
either first- or second-degree intentional homicide if the defendant reasonably
believed that the force used was necessary to prevent death or great bodily harm to
himself, but guilty of second-degree intentional homicide if the defendant actually
believed the force used was necessary to prevent imminent death or great bodily
harm to himself, but the belief was unreasonable. WIS JI—CRIMINAL 1014. The
circuit court granted the State’s request for the lesser-included offense instruction.
The final jury instructions given to the jury included WIS JI—CRIMINAL 1014, but
did not include WIS JI—CRIMINAL 805.

¶6 Breneman was convicted of first-degree intentional homicide and
sentenced to life in prison with eligibility for release to extended supervision after
twenty-five years. He appeals.

¶7 Breneman argues that he was entitled to the instruction under WIS
JI—CRIMINAL 805 that “[a] belief may be reasonable even though mistaken.” He

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No. 2021AP166-CR

argues that, once self-defense was successfully put at issue, it was the State’s
burden to disprove it beyond a reasonable doubt. See State v. Austin, 2013 WI
App 96, ¶12, 349 Wis. 2d 744, 836 N.W.2d 833. Breneman argues that the
absence of the instruction that a belief may be reasonable though mistaken
lowered the State’s burden to disprove that Breneman reasonably believed that he
was in danger of death or great bodily harm. He asserts that his due process rights
and his right to present a defense were violated by the lowering of the State’s
burden of proof. See State v. Trammell, 2019 WI 59, ¶¶39-42, 387 Wis. 2d 156,
928 N.W.2d 564 (a jury instruction violates a criminal defendant’s right to due
process if it allows a jury to find guilt based on a level of proof below that which
is required); Tyson v. Trigg, 50 F.3d 436, 448 (7th Cir. 1995) (right to present a
defense “would be empty if it did not entail the further right to an instruction that
allowed the jury to consider the defense”). He also contends that the error in
omitting the instruction that a belief may be reasonable though mistaken was not
harmless, asserting that the chances of a different verdict had that instruction been
given are “better than negligible.” See United States ex rel. Hampton v. Leibach,
347 F.3d 219, 246 (7th Cir. 2005) (“[P]rejudice has been established so long as the
chances of acquittal are better than negligible.”).

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No. 2021AP166-CR

¶8 The State responds that any error by the court in failing to instruct
the jury that a belief may be reasonable though mistaken was harmless.2 See
Chapman v. California, 386 U.S. 18, 24 (1967) (to prove constitutional error at
trial was harmless, the State has the burden to prove “beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained”). It argues
that the omission of the instruction that a belief may be reasonable though
mistaken could not have contributed to the jury’s verdict because the jury did not
reach the question of whether Breneman had a reasonable belief that he was in
danger. The State contends that the jury would have reached the question of the
reasonableness of Breneman’s belief that he was in danger only if it was not
satisfied that Breneman was guilty of first-degree intentional homicide. It argues
that the jury’s finding of guilt on first-degree intentional homicide means that the
jury found that Breneman did not actually believe he faced an imminent threat and
that he used force necessary to thwart that threat. Thus, the State asserts, the jury
did not weigh reasonableness at all, since it would have considered reasonableness
only if it had found Breneman had an actual belief that he faced an imminent
threat and had acquitted him of first-degree intentional homicide. See State v.
Truax, 151 Wis. 2d 354, 361-62, 444 N.W.2d 432 (Ct. App. 1989) (jury considers
lesser-included offense of second-degree intentional homicide only if it acquits on

2
The State also argues that Breneman waived any objection to the jury instructions by
failing to object when WIS JI—CRIMINAL 805 was omitted from the final jury instructions
provided to the parties and from the instructions read to the jury. See State v. Trammell, 2019
WI 59, ¶25, 387 Wis. 2d 156, 928 N.W.2d 564 (court of appeals may not reach argument on
appeal regarding an unobjected-to jury instruction). Trammell replies that he preserved his
objection for appeal by requesting WIS JI—CRIMINAL 805 at the instruction conference, and he
asserts that the circuit court denied that request when it stated that it had decided to give WIS JI—
CRIMINAL 1014 as the self-defense instruction. For purposes of this opinion, we assume without
deciding that Breneman has preserved his objection for appeal. As explained below, we conclude
that any error in failing to give WIS JI—CRIMINAL 805 was harmless.

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No. 2021AP166-CR

greater offense of first-degree intentional homicide); Perry v. McCaughtry, 308
F.3d 682, 690 (7th Cir. 2002) (no prejudice based on jury instruction error related
to lesser-included offense where jury was instructed not to consider lesser-
included offense if it convicted on greater offense, because “[w]e presume that
juries follow instructions”). We agree with the State that any error was harmless.

¶9 Consistent with WIS. STAT. §§ 940.01 and 940.05 (2019-20),3 the
court instructed the jury to consider whether Breneman was guilty of first-degree
3
WISCONSIN STAT. § 940.01 provides, in relevant part:

(1) … [W]hoever causes the death of another human
being with intent to kill that person … is guilty of [first-degree
intentional homicide].

(2) … The following are affirmative defenses to [first-
degree intentional homicide] which mitigate the offense to
[second]-degree intentional homicide under s. 940.05:

….

(b) Unnecessary defensive force. Death was caused
because the actor believed he or she or another was in imminent
danger of death or great bodily harm and that the force used was
necessary to defend the endangered person, if either belief was
unreasonable.

(3) BURDEN OF PROOF. When the existence of an
affirmative defense under sub. (2) has been placed in issue by the
trial evidence, the state must prove beyond a reasonable doubt
that the facts constituting the defense did not exist in order to
sustain a finding of guilt under sub. (1).

WISCONSIN STAT. § 940.05 provides, in relevant part:

(1) Whoever causes the death of another human being
with intent to kill that person or another is guilty of [second-
degree intentional homicide] if:

(a) In prosecutions under s. 940.01, the state fails to
prove beyond a reasonable doubt that the mitigating
circumstances specified in s. 940.01(2) did not exist as required
by s. 940.01(3)….
(continued)

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No. 2021AP166-CR

intentional homicide before considering the lesser-included offense of second-
degree intentional homicide. The jury was instructed that, if it was not satisfied
that Breneman was guilty of first-degree intentional homicide, it was then to
consider whether he was guilty of second-degree intentional homicide. As to first-
degree intentional homicide, the jury was instructed that, before it could find
Breneman guilty, it must be satisfied that the State had proved that Breneman did
not actually believe that the force he used was necessary to prevent imminent
death or great bodily harm to himself. As to the lesser-included charge of second-
degree intentional homicide, the jury was informed that Breneman was guilty if he
believed that the force he used was necessary to prevent imminent death or great
bodily harm to himself, but his belief was unreasonable. It was instructed that
Breneman was not guilty of either first- or second-degree intentional homicide if
he reasonably believed that the force used was necessary to prevent imminent
death or great bodily harm to himself. Moreover, the jury was instructed that:

When first degree intentional homicide is
considered, the reasonableness of the defendant’s belief is
not an issue. You are to be concerned only with what the
defendant actually believed. Whether these beliefs are
reasonable is important only if you later consider whether
the defendant is guilty of second degree intentional
homicide.

(Emphasis added.)

¶10 Thus, the jury’s finding of guilt as to first-degree intentional
homicide necessarily means that the jury found that Breneman did not actually
believe that he was in danger of death or great bodily harm. Had the jury found

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP166-CR

that Breneman had an actual belief that he was in danger of death or great bodily
harm, it would have acquitted Breneman of first-degree intentional homicide and
moved to consideration of the lesser-included offense of second-degree intentional
homicide. Had that occurred, the jury would have had to consider the
reasonableness of Breneman’s actual belief that he was in danger. However, the
jury’s finding of guilt on first-degree intentional homicide precluded it from
reaching that issue. Because the claimed jury instruction error that Breneman
advances on appeal relates to an issue that the jury did not reach, the claimed error
was harmless.4 We affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

4
In his reply brief, Breneman asserts that the error in omitting the jury instruction that a
belief may be reasonable though mistaken defies harmless error analysis because “it is impossible
to determine what impact, if any, the [error] had on the jury’s ultimate decision.” See United
States v. Harbin, 250 F.3d 532, 545 (7th Cir. 2001). Because we conclude that the jury did not
reach the question of whether Breneman had a reasonable belief of danger to himself, we reject
Breneman’s argument that it is impossible to know what impact the omission of the instruction
had on the jury’s decision.

8