State v. Tommy Jay Cross

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.
November 4, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP2013-CR Cir. Ct. No. 2021CF903

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TOMMY JAY CROSS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: TAMMY JO HOCK, Judge. Judgment modified in part and, as
modified, affirmed in part and reversed in part; order affirmed in part and
reversed in part; cause remanded for further proceedings.

Before Stark, P.J., Hruz, and Gill, JJ.

¶1 GILL, J. Tommy Jay Cross appeals from a judgment of conviction
convicting him, following a jury trial, of first-degree reckless injury (Count 1) and
No. 2023AP2013-CR

second-degree recklessly endangering safety (Count 2), both charges carrying a
use of a dangerous weapon enhancer. He also appeals a circuit court order
denying his motion for postconviction relief.

¶2 The threshold issue on appeal concerns whether Cross was
privileged, under any circumstances, to defend Person C by hitting Person B with
his vehicle (Count 1) if Cross provoked Person B’s real or apparent unlawful
interference with Person C by coming close to, or hitting, Person B with his
vehicle almost immediately prior (Count 2). If so, we must also decide whether
the jury instructions on Count 1 accurately stated the law and whether any error in
the instructions warrants reversal for Cross’s conviction on that count.

¶3 We conclude that Cross was privileged, under specific circumstances
outlined by statute, to defend Person C if he provoked Person B’s real or apparent
unlawful interference with Person C. This conclusion is dictated by the text of
WIS. STAT. § 939.48 (2023-24),1 which states that a person is privileged to defend
a third person “under the same conditions and by the same means as those under
and by which the person is privileged to defend himself or herself from real or
apparent unlawful interference” and that a person may, under certain
circumstances, defend himself or herself from an attack that he or she provoked.
See § 939.48(2), (4); State v. Giminski, 2001 WI App 211, ¶12, 247 Wis. 2d 750,
634 N.W.2d 604.

¶4 Under the facts of this case, we agree with Cross that there are two
reasonable interpretations of the provocation jury instruction for Count 1 that was

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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provided to the jury. Under the first interpretation, the jury was not instructed on
whether Cross could, under any circumstances, defend Person C if Cross provoked
Person B’s real or apparent unlawful interference with Person C. Under the
second interpretation, the jury was instructed that Cross could not, under any
circumstances, defend Person C from an attack if Cross provoked Person B’s real
or apparent unlawful interference with Person C by unlawful conduct. The first
interpretation was erroneous because it omitted consideration of the circumstances
under which Cross was privileged to defend Person C even if the jury found that
Cross had provoked the attack necessitating Cross’s intervention. The second
interpretation misstated the law by stating that Cross was not privileged, under any
circumstances, to defend Person C if the jury found that Cross had provoked the
attack of Person C. Both interpretations of this instruction were erroneous under
WIS. STAT. § 939.48.

¶5 Given the particular facts of this case, we conclude that the
erroneous jury instruction on provocation warrants reversal of Cross’s conviction
for Count 1. The evidence adduced at trial clearly demonstrates that Cross
satisfied his burden of production warranting a defense of others instruction be
provided on this particular count—even if the jury found that he provoked the
attack—thereby placing the burden on the State to prove that Cross did not act
within the confines of WIS. STAT. § 939.48. See State v. Austin, 2013 WI App 96,
¶¶12, 16, 349 Wis. 2d 744, 836 N.W.2d 833. The jury could have reasonably
determined material factual issues in Cross’s favor had it been properly instructed.

¶6 Accordingly, we reverse Cross’s conviction for Count 1 and that
portion of the postconviction order denying relief with respect to that count. We
remand for further proceedings on Count 1 (including a new trial, if necessary)
consistent with this opinion.

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¶7 Cross also raises an ineffective assistance of counsel claim as to his
conviction for Count 2. We conclude that Cross was not prejudiced by any
potential deficient performance by his defense counsel with respect to this count.
However, we modify Cross’s judgment of conviction on this count to correct an
apparent clerical error.2 We affirm the judgment of conviction for second-degree
recklessly endangering safety as modified and affirm that portion of the
postconviction order denying relief on Cross’s ineffective assistance of counsel
claim.

BACKGROUND

¶8 The State charged Cross with first-degree reckless injury (Count 1)
and first-degree recklessly endangering safety (Count 2), both with use of a
dangerous weapon (his vehicle). The case proceeded to a three-day jury trial.

¶9 The precise facts underlying Cross’s charges were heavily disputed
at trial. Generally, however, it is undisputed that Shenelle McGrew, Cross’s
girlfriend; Aaron;3 and Jennifer, Aaron’s girlfriend, all worked at American Foods.
Following their shifts on May 27, 2021, an initial fight broke out between
McGrew, on the one hand, and Aaron and Jennifer, on the other, in the American
Foods parking lot, which lasted approximately one minute.

2
Cross’s judgment of conviction for Count 2 is incorrect because Cross was convicted of
the lesser-included offense of second-degree recklessly endangering safety with use of a
dangerous weapon, not first-degree recklessly endangering safety with use of a dangerous
weapon as is listed on the judgment. Because this appears to be a clerical error, upon remittitur,
the circuit court shall enter an amended judgment of conviction correctly describing Cross’s
conviction for this count.
3
Pursuant to the policy underlying WIS. STAT. RULE 809.86, we use pseudonyms to
refer to the victim and his girlfriend.

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No. 2023AP2013-CR

¶10 Cross learned of the fight and drove his vehicle to the parking lot.
Upon arriving approximately 15 seconds after the initial fight broke up, Cross
drove his vehicle toward Aaron and either came close to hitting Aaron or hit
Aaron with the vehicle, which was the basis for Count 2 (“the first strike”).
McGrew was approximately 30 to 40 feet away from Aaron and Jennifer at the
time of the first strike. Aaron then retrieved a firearm, pointed it at Cross, and
Cross backed his vehicle away from Aaron.

¶11 Shortly thereafter, McGrew and Jennifer engaged in a second fight,
and Aaron went over to the fight. Cross then drove his vehicle at Aaron a second
time. This time, Cross undoubtedly hit Aaron, causing significant injury to
Aaron’s leg, which was the basis for Count 1 (“the second strike”). Aaron then
fired his firearm toward Cross’s vehicle, hitting Cross, and Cross drove away.

¶12 The defense presented evidence that Aaron had threatened McGrew
prior to the second fight and that, immediately prior to Cross striking Aaron with
his vehicle the second time, Aaron hit McGrew in the face with his firearm and
pointed the firearm at McGrew’s head. Cross testified that he struck Aaron the
second time because he “feared for [McGrew’s] life,” that he wanted to protect
both himself and McGrew, and that he did not believe that he had any other option
besides striking Aaron with his vehicle. Conversely, the State presented evidence
that McGrew initiated the first fight, that Aaron was attempting to break up the
second fight when he was struck the second time, and that Aaron did not hit
McGrew with his firearm or point the firearm at McGrew prior to the second
strike.

¶13 During a jury instruction conference, the parties and the circuit court
engaged in an extensive discussion regarding the proper instruction for Count 1.

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The court agreed to provide a defense of others instruction on that count, but the
State requested that the court also provide the jury with an instruction on
provocation, stating that the instruction “should apply both to” McGrew and
Cross.4 See WIS JI—CRIMINAL 830 (2005) (defense of others); WIS JI—
CRIMINAL 835 (2005) (effect of provocation by person defended); WIS. STAT.
§ 939.48(2), (4). The State argued that the jury could find, based on the evidence
presented, that Cross provoked Aaron to attack Cross because Cross was “the first
one in this incident to bring a deadly weapon”—namely, his vehicle—and that
Aaron retrieved his firearm in response to the first strike. Moreover, the State
argued that “this whole chain of events started” as a result of McGrew
“confronting” and provoking Jennifer and Aaron. The State also contended that
the evidence demonstrated that Cross provoked Aaron to attack McGrew in
response to the first strike.

¶14 Defense counsel argued that there was no evidence suggesting that
McGrew provoked the second fight or the alleged attacks by Aaron. Additionally,
defense counsel argued that there was no evidence presented at trial showing that
the second strike had anything to do with Aaron pointing the firearm at Cross
following the first strike, but rather was a response to Aaron pointing the firearm
at McGrew’s head.

¶15 The circuit court agreed with the State that there was sufficient
evidence demonstrating provocation by both McGrew and Cross. Importantly, the
parties disagreed about whether Cross was privileged to act in defense of McGrew

4
The circuit court declined to provide the jury with a defense of others instruction on
Count 2, and Cross does not challenge that decision on appeal.

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No. 2023AP2013-CR

if Cross provoked Aaron into attacking McGrew by driving toward, and
potentially hitting, Aaron the first time. The court stated that it did not believe
Cross could defend McGrew from an attack by Aaron if Cross provoked Aaron
into allegedly attacking McGrew. The court asked defense counsel to explain why
that was an incorrect statement of the law, and it suggested adding to the
instruction: “You should also consider whether the defendant provoked the attack.
A person who engages in unlawful conduct of a type likely to provoke others to
attack and who does provoke an attack is not allowed to use or threaten force in
self-defense or defense of others against that attack.” Defense counsel objected to
the court’s suggested instruction, stating, “I guess the purpose for my objection is I
believe that [the instruction] could be read to say that an unrelated retaliation
could prevent someone from coming to someone else’s aid. That’s how I read it,
and I’ll accept the [c]ourt’s ruling.”

¶16 Shortly thereafter, the circuit court asked the parties if they had
thoughts on changing the provocation jury instruction’s references to Aaron’s
alleged attack on McGrew—specifically, hitting McGrew in the face with his
firearm or pointing the firearm at McGrew’s head—from “the alleged attack” to
“an alleged attack.” Defense counsel responded, “They are as good as any words
we could come up with [if given] another 20 minutes of thought, I think.” The
court then asked the parties to “[l]ook at the first line under Provocation”—“You
should consider whether [McGrew] provoked an alleged attack of her”—and to
look at “the first line in the third paragraph”—“However, even if [McGrew] had
provoked an alleged attack of her, the defendant would still be allowed to act in
defense of [McGrew] if the defendant actually and reasonably believed that
[McGrew] was entitled to act in her own defense.” Defense counsel then stated, “I
think we finally got it.”

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No. 2023AP2013-CR

¶17 Following the close of evidence, the circuit court instructed the jury
on provocation for Count 1, stating:

You should consider whether [McGrew] provoked an
alleged attack of her. A person who engages in unlawful
conduct of a type likely to provoke others to attack, and
who does provoke an attack, is not allowed to use or
threaten force in self-defense against that attack.

However, if the attack which follows causes the person
reasonably to believe that the person is in imminent danger
of death or great bodily harm, the person may lawfully act
in self-defense. But the person may not use or threaten
force intended or likely to cause death or great bodily harm
unless the person reasonably believes every other
reasonable means to escape from or otherwise avoid death
or great bodily harm has been exhausted.

However, even if [McGrew] had provoked an alleged
attack of her, the defendant would still be allowed to act in
defense of [McGrew] if the defendant actually and
reasonably believed that [McGrew] was entitled to act in
her own defense.

You should also consider whether the defendant provoked
an alleged attack of him. A person who engages in
unlawful conduct of a type likely to provoke others to
attack, and who does provoke an attack, is not allowed to
use or threaten force in self-defense or defense of others
against that attack.

….

If you are satisfied beyond a reasonable doubt that all three
elements of first[-]degree reckless injury have been proved
and that the defendant did not act lawfully in defense of
others, you should find the defendant guilty of
first[-]degree reckless injury.

If you are not so satisfied, you must find the defendant not
guilty of first[-]degree reckless injury ….

¶18 The jury found Cross guilty of Count 1 as charged and, with respect
to Count 2, found him guilty of the lesser-included offense of second-degree
recklessly endangering safety with use of a dangerous weapon. Cross filed a

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No. 2023AP2013-CR

motion for postconviction relief. As is pertinent here, Cross argued that the circuit
court had incorrectly instructed the jury on Count 1 by stating that Cross was not
entitled to act in defense of McGrew if he had provoked Aaron’s alleged attacks
on McGrew. According to Cross’s postconviction motion, his defense to Count 1
“was that he used his car to stop [Aaron] from harming McGrew by shooting or
using his gun as a bludgeon against her.” Cross conceded that a “jury might find
that Cross provoked [Aaron] into getting his gun and striking or threatening
McGrew with it in response to provocation by Cross,” but he argued that he was
still entitled to act in defense of McGrew on Count 1 pursuant to WIS. STAT.
§ 939.48(4) if the jury believed that Aaron “pointed a gun at [McGrew] and struck
her with it” and if “McGrew was privileged to defend herself from further
aggression by” Aaron. Cross further argued that defense counsel provided
constitutionally ineffective assistance at trial by failing to impeach Aaron with the
number of his prior convictions.

¶19 The circuit court held a Machner5 hearing on Cross’s ineffective
assistance of counsel claim. Afterward, the court denied Cross’s motion for
postconviction relief. The court concluded that “[i]f the jury considered
provocation, the instructions were specific depending on whose provocation the
jury was considering.” As to Cross, the court stated that the “jury was instructed
that Cross could not claim the defense of others privilege for an attack he
provoked of himself.” According to the court, the “only attack” that fit within this
particular instruction was Aaron “first pointing the gun at Cross.” The court
concluded that this instruction was consistent with WIS. STAT. § 939.48 because if

5
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

9
No. 2023AP2013-CR

a person provokes an attack of themselves, he or she is not entitled to claim the
privilege of self-defense against such an attack.

¶20 As to McGrew, the circuit court stated that the “jury
was … instructed to consider whether McGrew provoked [Aaron] into an alleged
attack of herself.” If the jury found that McGrew had engaged in such
provocation, explained the court, “the jury was instructed that Cross could still
defend McGrew from [Aaron] if Cross actually and reasonably believed self-
defense was available to McGrew. The jury received this instruction, but it
obviously rejected this theory of the case.” Thus, the court concluded, “the
instruction did not misstate the law, and the jury was still free to acquit Cross if it
believed [Aaron] attacked McGrew.”

¶21 The circuit court likewise denied Cross’s ineffective assistance of
counsel claim. The court assumed without deciding that defense counsel
performed deficiently by failing to impeach Aaron with the number of his prior
convictions. The court stated, however, that defense counsel’s potential
deficiency did not prejudice Cross because defense counsel “thoroughly
cross-examined [Aaron] at trial,” including by “taking his testimony in
conjunction with playing pertinent portions of” surveillance camera footage from
the American Foods parking lot. The court explained that through
cross-examination, defense counsel was able to demonstrate for the jury that, in
the defense’s opinion, Aaron was not being honest. Moreover, the court stated
that the “jury was … able to compare [Aaron]’s testimony with that of [Jennifer],
McGrew, and Cross,” in conjunction with the surveillance camera footage. Thus,
the court concluded that it was “impossible to see how the reliability of the entire
proceeding could be called into question simply because [Aaron] was not asked
how many criminal convictions he had.”

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No. 2023AP2013-CR

¶22 Cross now appeals, renewing his challenge to the jury instruction on
provocation and to the circuit court’s decision denying his ineffective assistance of
counsel claim.

DISCUSSION

I. Erroneous and misleading jury instruction

¶23 Cross argues that the jury instructions for Count 1 misstated the law
under WIS. STAT. § 939.48 by informing the jury that if Cross provoked the attack
of McGrew “by the conduct for which he was convicted” in Count 2, “Cross could
not use potentially deadly force in defense of McGrew” for the conduct for which
he was convicted in Count 1. Cross further asserts that, “[a]t best, the instruction
is confusing as to whether Cross could defend McGrew from an attack by [Aaron]
provoked by the first hit.”

A. Forfeiture

¶24 We must begin by addressing whether Cross forfeited a challenge to
the provocation jury instruction, as the State contends. During criminal trials, a
circuit court “shall conduct a conference with counsel” “[a]t the close of the
evidence and before arguments to the jury.” WIS. STAT. § 805.13(3); see also
WIS. STAT. § 972.11(1). “Counsel may object to the proposed instructions or
verdict on the grounds of incompleteness or other error, stating the grounds for
objection with particularity on the record.” Sec. 805.13(3). “Failure to object at

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No. 2023AP2013-CR

the conference constitutes a [forfeiture] of any error in the proposed instructions or
verdict.”6 Id.

¶25 The purpose of the forfeiture rule in WIS. STAT. § 805.13(3) “is to
afford the opposing party and the [circuit] court an opportunity to correct the error
and to afford appellate review of the grounds for the objection.” State v. Cockrell,
2007 WI App 217, ¶36, 306 Wis. 2d 52, 741 N.W.2d 267 (citation omitted).
Because this court lacks a discretionary power of review, we have “no power to
reach an unobjected-to jury instruction.”7 State v. Trammell, 2019 WI 59, ¶25,
387 Wis. 2d 156, 928 N.W.2d 564; State v. Schumacher, 144 Wis. 2d 388, 408-
09, 424 N.W.2d 672 (1988).

¶26 During the jury instruction conference, defense counsel objected to
the jury instructions, particularly the portion that stated Cross could not act in the
defense of others if he provoked an alleged attack on McGrew. Defense counsel
argued that the instruction could cause “even an intelligent juror” to “be misled”
into thinking that Cross’s actions essentially stripped McGrew of her “right to be
defended.” After extensive discussion and argument, defense counsel stated that
he would accept the circuit court’s ruling to provide the instruction as outlined by
the court, but he placed his objection on the record, stating, “I guess the purpose

6
Although the statute refers to “waiver,” we agree with the State that the more accurate
term would be “forfeiture.” See State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d
612 (explaining the distinct legal concepts embodied by the terms “forfeiture” and “waiver”);
State v. McKellips, 2016 WI 51, ¶47, 369 Wis. 2d 437, 881 N.W.2d 258 (“Failure to
contemporaneously object to jury instructions results in forfeiting review of the jury
instructions.”).
7
While “we do not have the common law power to review this type of waived error, we
may exercise our discretionary power of reversal under WIS. STAT. § 752.35 when a waived error
regarding a jury instruction results in the real controversy not being tried.” State v. Cockrell,
2007 WI App 217, ¶36 n.12, 306 Wis. 2d 52, 741 N.W.2d 267.

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No. 2023AP2013-CR

for my objection is I believe that [the instruction] could be read to say that an
unrelated retaliation could prevent someone from coming to someone else’s aid.”

¶27 In context we view defense counsel’s statement of acquiescence—
namely, “I think we finally got it”—as in reference to the circuit court’s suggested
editing of the provocation instruction from stating “the alleged attack” to “an
alleged attack.” Defense counsel was not stating that he agreed with the jury
instructions as a whole, and his objection to the provocation instruction as it
related to Cross still stood.

¶28 The State appears to suggest that, under WIS. STAT. § 805.13(3),
defense counsel was required object to the provocation jury instruction on the
record while the instruction was being read to the jury in order to preserve the
issue for appeal. This reading is contrary to the plain meaning of the statute,
which dictates that a party must object to a particular jury instruction “at the
conference” to avoid forfeiture of the issue for appellate review. See id. Here,
defense counsel did object to the provocation instruction during the jury
instruction conference. In addition to making a record of his objection, defense
counsel’s objection also satisfied the purpose of § 805.13(3) by allowing the
circuit court and the parties to engage in extensive discussion of the proper
instruction, which provided the court “an opportunity to correct the error.”
See Cockrell, 306 Wis. 2d 52, ¶36 (citation omitted). Because defense counsel
adequately lodged an objection to the jury instruction pursuant to § 805.13(3), we
turn to the merits of Cross’s challenge to the provocation instruction on Count 1.

B. Provocation and defense of others

¶29 “There are two types of challenges to a jury instruction. One
challenges the legal accuracy of the instruction. The other asserts that a legally

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No. 2023AP2013-CR

accurate instruction unconstitutionally misleads the jury.” State v. Gonzalez, 2011
WI 63, ¶21, 335 Wis. 2d 270, 802 N.W.2d 454. Cross raises both types of
challenges on appeal. We review both challenges independently of the circuit
court. See id., ¶¶22-23.

¶30 “In determining whether a jury instruction correctly states the law,
‘[w]e review the jury instructions as a whole to determine whether the overall
meaning communicated by the instructions was a correct statement of the law.’”
State v. Langlois, 2018 WI 73, ¶38, 382 Wis. 2d 414, 913 N.W.2d 812 (alteration
in original; citation omitted). “Where jury instructions do not accurately state the
controlling law, we will examine the erroneous instructions under the standard for
harmless error, which presents a question of law for our independent review.”
Beamon, 2013 WI 47, ¶19, 347 Wis. 2d 559, 830 N.W.2d 681. If we determine
that the error in the jury instructions was harmless, we then “evaluate the
sufficiency of the evidence under the correct legal standard.” Id., ¶20.

¶31 Similarly, but separately, “[w]hen a jury instruction is challenged as
confusing or misleading, such that it is subject to misinterpretation by the jury, a
conviction should not be reversed ‘simply because the jury possibly could have
been misled.’” Gonzalez, 335 Wis. 2d 270, ¶23 (citation omitted). “Rather, an
appellate court should order a new trial only if upon review of the instruction the
court determines that the defendant has shown that ‘there is a reasonable
likelihood that the jury was misled and therefore applied potentially confusing
instructions in an unconstitutional manner.’” Id. (citation omitted).

¶32 “Although a circuit court has broad discretion when instructing a
jury, we review independently whether the instructions given accurately stated the
law.” State v. McKellips, 2016 WI 51, ¶30, 369 Wis. 2d 437, 881 N.W.2d 258.

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No. 2023AP2013-CR

“Relief is not warranted unless the court is ‘persuaded that the instructions, when
viewed as a whole, misstated the law or misdirected the jury.’” State v. Ziebart,
2003 WI App 258, ¶16, 268 Wis. 2d 468, 673 N.W.2d 369 (citation omitted).
Determining the adequacy of the jury instruction in this case requires
interpretation of WIS. STAT. § 939.48, which we do independently of the circuit
court. See Service Emps. Int’l Union Healthcare v. WERC, 2025 WI 29, ¶5, 416
Wis. 2d 688, 22 N.W.3d 876.

¶33 While we review the jury instructions as a whole, the parties focus
their arguments on the portion of the jury instruction read by the circuit court that
states:

You should also consider whether the defendant provoked
an alleged attack of him. A person who engages in
unlawful conduct of a type likely to provoke others to
attack, and who does provoke an attack, is not allowed to
use or threaten force in self-defense or defense of others
against that attack.

Cross argues that this portion of the jury instruction is a misstatement of WIS.
STAT. § 939.48, which Cross interprets as permitting him in this case to “defend
McGrew even if Cross’s own actions prompted [Aaron] to point a gun at
[McGrew] or strike [McGrew] with a gun.” Cross contends that his interpretation
of § 939.48 is correct because the “focus” under § 939.48(4) “is on the right of the
defended person to defend” him or herself. Thus, Cross asserts that the circuit
court incorrectly instructed the jury that if Cross provoked the attack “by the
conduct for which he was convicted” in Count 2, “Cross could not use potentially
deadly force in defense of McGrew” for conduct for which he was convicted of in
Count 1. Cross further argues that, “[a]t best, the instruction is confusing as to
whether Cross could defend McGrew from an attack by [Aaron] provoked by”
Cross’s first strike.

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No. 2023AP2013-CR

¶34 In response, the State argues that the jury instruction on provocation
was consistent with WIS. STAT. § 939.48 because it prevented Cross “from
benefitting from [the] privilege of defense of others if McGrew ‘provoked an
alleged attack of her’ … or if Cross ‘provoked an alleged attack of him.’” It is
unclear from the State’s briefing whether it interprets § 939.48 as prohibiting,
under any circumstances, a person who provokes an attack on a third person from
defending that third person from the attack.

¶35 There are two reasonable interpretations of the second sentence of
the disputed portion of the jury instruction, both of which are legally problematic.
Although the first sentence of the paragraph at issue directs the jury to consider
whether Cross provoked “an alleged attack of him,” the second sentence of the
paragraph states that a person “who does provoke an attack, is not allowed to use
or threaten force in self-defense or defense of others against that attack.”
(Emphasis added.) The combination of these sentences raises doubts as to
whether the second sentence applies to an alleged attack on either McGrew or
Cross or only to an alleged attack on Cross.

¶36 Accordingly, the jury could have interpreted this portion of the jury
instruction as requiring it to consider either (1) the second sentence only in
relation to whether Cross “provoked an alleged attack of him”; or (2) the second
sentence separately from the first sentence.

¶37 The first interpretation would apply to a situation where Aaron
attacked Cross after Cross provoked Aaron, and Cross had to defend himself as a
result. This interpretation says nothing about whether Cross could defend
McGrew if he provoked Aaron into attacking McGrew. As we explain below, this
interpretation failed to inform the jury that Cross was privileged, under specific

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No. 2023AP2013-CR

circumstances, to defend McGrew if he provoked an attack on McGrew through
the first strike. See Gonzalez, 335 Wis. 2d 270, ¶24.

¶38 The second interpretation of the jury instruction would apply to a
situation where Cross provoked Aaron into attacking McGrew. Importantly, this
reading would not have permitted Cross, under any circumstances, to defend
McGrew if he provoked an attack of McGrew through the first strike. As we
explain below, this instruction is a misstatement of the law. See Langlois, 382
Wis. 2d 414, ¶38.

¶39 The legislature has provided that

[a] person is privileged to defend a 3rd person from real or
apparent unlawful interference by another under the same
conditions and by the same means as those under and by
which the person is privileged to defend himself or herself
from real or apparent unlawful interference, provided that
the person reasonably believes that the facts are such that
the 3rd person would be privileged to act in self-defense
and that the person’s intervention is necessary for the
protection of the 3rd person.

WIS. STAT. § 939.48(4); see also WIS. STAT. § 939.45 (“The fact that the actor’s
conduct is privileged, although otherwise criminal, is a defense to prosecution for
any crime based on that conduct.”). Stated differently, “a defendant asserting the
privilege of defense of others is constrained by the principles governing the
privilege of self-defense.” Giminski, 247 Wis. 2d 750, ¶12.

¶40 WISCONSIN STAT. § 939.48(1) defines the privilege of self-defense,
stating that “[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.” Nevertheless, “[t]he actor may not intentionally use force which is

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No. 2023AP2013-CR

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.” Id. Therefore, a successful assertion of the privilege
of defense of others, like the privilege of self-defense, requires a finding that the
defendant actually believed he or she was acting to prevent or terminate an
unlawful interference and that the defendant’s belief was objectively reasonable.
See Giminski, 247 Wis. 2d 750, ¶13; WIS JI—CRIMINAL 830 (2005).

¶41 When a defendant uses force intended or likely to cause death or
great bodily harm, a successful privilege of others defense requires a finding that
the defendant reasonably believed that the force used was necessary to prevent
imminent death or great bodily harm to the third person. WIS JI—CRIMINAL 830
(2005). That belief may be reasonable, even though mistaken. Id.; WIS. STAT.
§ 939.22(32) (defining “reasonably believes”). The State, for its part, must prove
beyond a reasonable doubt that the defendant was not privileged to act lawfully in
defense of others. WIS JI—CRIMINAL 830 (2005); see also Austin, 349 Wis. 2d
744, ¶¶12, 16 (stating that when self-defense “is successfully put at issue, the
burden is on the State to disprove the defense beyond a reasonable doubt”).8

¶42 Provocation may affect a person’s privilege to defend himself or
herself and, therefore, defend others. Generally, “[a] person who engages in
unlawful conduct of a type likely to provoke others to attack him or her and
thereby does provoke an attack is not entitled to claim the privilege of self-defense

8
“‘Successfully’ putting self-defense at issue means the defendant has satisfied the
burden of production.” State v. Christen, 2021 WI 39, ¶44 n.9, 396 Wis. 2d 705, 958 N.W.2d
746 (citation omitted).

18
No. 2023AP2013-CR

against such attack.”9 WIS. STAT. § 939.48(2)(a). An exception to this rule exists
“when the attack which ensues is of a type causing the person engaging in the
unlawful conduct to reasonably believe that he or she is in imminent danger of
death or great bodily harm.” Id.

In such a case, the person engaging in the unlawful conduct
is privileged to act in self-defense, but the person is not
privileged to resort to the use of force intended or likely to
cause death to the person’s assailant unless the person
reasonably believes he or she has exhausted every other
reasonable means to escape from or otherwise avoid death
or great bodily harm at the hands of his or her assailant.

Id. Additionally, “[t]he privilege lost by provocation may be regained if the actor
in good faith withdraws from the fight and gives adequate notice thereof.”
Sec. 939.48(2)(b). However, the statute further provides that a person is not
entitled to the privilege of self-defense if he or she “provokes an attack, whether
by lawful or unlawful conduct, with intent to use such an attack as an excuse to
cause death or great bodily harm.” Sec. 939.48(2)(c) (emphasis added). In
relation to the privilege of defense of others, if the person defended “had provoked
the attack, a defendant would still be allowed to act in defense” of that person “if
the defendant actually and reasonably believed that” the person “was entitled to
act in his or her own defense.” WIS JI—CRIMINAL 835 (2005).

9
For purposes of WIS. STAT. § 939.48, “unlawful” means “either tortious or expressly
prohibited by criminal law or both.” Sec. 939.48(6).

Neither WIS. STAT. § 939.48 nor the pattern jury instruction defines the term “provoke.”
The parties do not cite any case law defining the term, and this court is not aware of any such
case. “Provocation” is defined by another statute as “something which the defendant reasonably
believes the intended victim has done which causes the defendant to lack self-control completely
at the time of causing death.” WIS. STAT. § 939.44(1)(b). However, that definition is limited to
§ 939.44, which pertains to the adequate provocation defense to first-degree intentional homicide.

19
No. 2023AP2013-CR

¶43 We hold that a person is privileged, within the confines of WIS.
STAT. § 939.48, to defend a third person under limited circumstances if he or she
provoked an attack on that third person by unlawful conduct. This conclusion is
evident from the text of the statute, which, again, states that a person is privileged
to defend a third person from real or apparent unlawful interference by another
“under the same conditions and by the same means as those under and by which
the person is privileged to defend himself or herself.” Sec. 939.48(4) (emphasis
added). In other words, a person is privileged to defend a third person under those
standards provided in § 939.48(1) and (2), provided that he or she “reasonably
believes that the facts are such that the 3rd person would be privileged to act in
self-defense and that the person’s intervention is necessary for the protection of
the 3rd person.” See § 939.48(4).

¶44 Consistent with that statute, for Cross to have been privileged to
defend McGrew, he must have actually believed that McGrew would be privileged
to act in self-defense and that his intervention was necessary for the protection of
McGrew. See WIS. STAT. § 939.48(4). If the jury finds provocation by Cross at
issue, Cross must have also actually believed that he was acting to prevent
imminent danger of death or great bodily harm to McGrew, and his belief must
have been objectively reasonable. See § 939.48(2)(a), (4); Giminski, 247 Wis. 2d
750, ¶13. If the jury believes that Cross resorted to force intended or likely to
cause death to Aaron, Cross must have reasonably believed that McGrew
“exhausted every other reasonable means to escape from or otherwise avoid death
or great bodily harm at the hands of his or her assailant.” See § 939.48(2)(a).
Importantly, Cross cannot claim defense of others if he provoked an attack “with
intent to use such an attack as an excuse to cause death or great bodily harm.”
See § 939.48(2)(c).

20
No. 2023AP2013-CR

¶45 Therefore, and as applied to this case, if Cross satisfied his burden of
production as to the defense of others (here, McGrew), then it was the State’s
burden to prove that Cross did not act within the confines of WIS. STAT. § 939.48.
See Austin, 349 Wis. 2d 744, ¶¶12, 16. Given the facts of this case, and for the
reasons explained, the jury was not properly instructed in this regard.

C. Harmless error & due process

¶46 “[W]here a jury instruction erroneously states the applicable statute,
we must determine whether, under the totality of the circumstances, the erroneous
instruction constituted harmless error.” Beamon, 347 Wis. 2d 559, ¶27. To
accomplish this task, we “ask whether it is ‘clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error.’” Id., ¶27
(citations omitted); see also State v. Williams, 2015 WI 75, ¶59, 364 Wis. 2d 126,
867 N.W.2d 736 (“To affirm a conviction based on an erroneous instruction, a
court must be convinced beyond a reasonable doubt that the jury still would have
convicted the defendant of the charge had the correct jury instruction been
provided.”). Here, that question can be framed as whether it is clear beyond a
reasonable doubt that a rational jury would have found Cross guilty of Count 1—
which related to the second strike—if the circuit court had properly instructed the
jury on the defense of others and provocation.

¶47 Similarly, a new trial is warranted when a jury instruction was
confusing or misleading if the defendant establishes “that there was a reasonable
likelihood that the jury applied the instruction in a way that denied the defendant
‘a meaningful opportunity for consideration by the jury of his defense … to the
detriment of the defendant’s due process rights.’” Gonzalez, 335 Wis. 2d 270, ¶24
(citation omitted). “[A] jury applies an instruction in an unconstitutional manner

21
No. 2023AP2013-CR

if it believes that such instruction ‘precludes consideration of constitutionally
relevant evidence.’” Id., ¶24 n.11 (alteration in original; citation omitted).

¶48 At the outset, there is no question that the jury instructions correctly
outlined the law on provocation as it applied to McGrew. The instructions
permitted the jury to find that Cross was privileged to intentionally use force to
defend McGrew on Count 1 if the jury found that McGrew provoked an attack of
herself. Likewise, the jury instructions correctly outlined the law if the jury found
that provocation was not at issue. Specifically, the jury instructions stated that
Cross was privileged to intentionally use force to defend McGrew only if Cross
reasonably believed that there was an actual or imminent unlawful interference
with McGrew; that McGrew was entitled to use or to threaten to use force in
self-defense; and that the amount of force used was necessary for the protection of
McGrew. See WIS. STAT. § 939.48(2), (4); WIS JI—CRIMINAL 830 (2005).

¶49 The undisputed facts from trial demonstrated that McGrew, Aaron,
and Jennifer engaged in a fight in the American Foods parking lot, which lasted
for approximately 30 seconds.10 Eighteen seconds later, Cross drove his vehicle
toward Aaron (the basis for Count 2), and Aaron pointed a firearm at Cross. At
this point, Cross backed his vehicle away from Aaron. The evidence at trial
further demonstrated that McGrew and Jennifer engaged in a second fight shortly
thereafter and that Aaron approached McGrew and Jennifer.

¶50 Additionally, the jury could have reasonably found that Aaron did
not put the firearm away after the first strike and, instead, hit McGrew with the

10
Surveillance video from the American Foods parking lot was admitted into evidence
and played for the jury.

22
No. 2023AP2013-CR

firearm and, most importantly, pointed it at her. A screenshot of the surveillance
video was admitted into evidence, and it shows the moment just before Cross
drove at Aaron a second time. In the photograph, Aaron can be seen with his arm
extended and pointed at McGrew. While it is unclear if Aaron is holding the
firearm in his extended hand, the jury could have reasonably determined, based on
testimony and the surveillance video, that he was holding the firearm at that time,
particularly in light of the uncontroverted evidence that Aaron fired several
gunshots at Cross following the second strike. In addition, Cross testified that
Aaron struck McGrew with his firearm and then pointed the firearm at her, and
this testimony was consistent with McGrew’s testimony. Cross stated that he
struck Aaron the second time because he “feared for [McGrew’s] life.”

¶51 Thus, we conclude that a reasonable jury could find that the first
strike was conduct of a type likely to provoke Aaron, see WIS. STAT. § 939.48(2),
and Cross observed that Aaron reacted to Cross’s first, unlawful, strike by pointing
the firearm at McGrew.11 A reasonable jury could also find that Aaron’s actions
constituted a “real or apparent unlawful interference” with McGrew, see
§ 939.48(4), (6); that Cross actually, and reasonably, believed that he was acting to
prevent or terminate the unlawful interference at the time of the second strike and
that his intervention was necessary to protect McGrew, see § 939.48(4); that Cross
actually, and reasonably, believed that the force used in the second strike was

11
A reasonable jury could alternatively find that Aaron was independently reacting to the
fact that McGrew and Jennifer were themselves again fighting and that the first strike had no
impact on Aaron’s actions. Again, the jury instructions correctly stated that Cross was privileged
to defend McGrew if the jury did not find that provocation was at issue or if the jury found that
McGrew provoked an attack of herself. Our analysis and conclusion should not be construed as
offering an opinion regarding any factual issue that is to be determined by a trier of fact. Rather,
our analysis and conclusion recognizes that a reasonable jury could find, based on the evidence
presented at the trial, that Cross provoked Aaron into attacking McGrew through the first strike.

23
No. 2023AP2013-CR

necessary to prevent imminent death or great bodily harm to McGrew, see
§ 939.48(2)(a); and that Cross reasonably believed that McGrew “exhausted every
other reasonable means to escape from or otherwise avoid death or great bodily
harm at the hands of”12 Aaron, see id. Even if the jury found that Aaron was not
holding a firearm pointed at McGrew immediately prior to the second strike, it
could still have found that Cross’s beliefs were reasonable, even though mistaken.
See id.; WIS. STAT. § 939.22(32). Given this evidence, it is clear that Cross
satisfied his burden of production, placing the burden on the State to prove that
Cross did not act within the confines of § 939.48 at the time of the second strike.

¶52 However, the jury was not provided with a proper instruction to
consider this issue. Because a reasonable jury could determine these factual issues
in favor of Cross had it been properly instructed, it is not clear beyond a
reasonable doubt that a rational jury would have found Cross guilty absent the
error. See Beamon, 347 Wis. 2d 559, ¶27. Moreover, the first interpretation of
the jury instruction says nothing about whether Cross could defend McGrew if he
provoked the attack. For the same reasons the jury instruction error was not
harmless under the second interpretation, the first interpretation of the instruction
prevented the jury from considering whether Cross was privileged to defend
McGrew from an attack that he provoked. See Gonzalez, 335 Wis. 2d 270, ¶24.

12
A jury would also be required to consider “whether by lawful or unlawful conduct,”
Cross provoked Aaron “with intent to use such an attack as an excuse to cause death or great
bodily harm.” See WIS. STAT. § 939.48(2)(c). If a jury makes such a finding, Cross would not
have been privileged to act in defense of McGrew. The State does not cite any evidence from the
trial suggesting that a reasonable jury would find that Cross provoked an attack on McGrew for
purposes of using the attack as an excuse to cause death or great bodily harm to Aaron.

24
No. 2023AP2013-CR

¶53 The State argues that the jury clearly found Cross and McGrew
incredible and, therefore, that any error in the jury instruction was harmless and
did not mislead the jury. Given the evidence presented at the trial, we cannot say
beyond a reasonable doubt that Cross’s and McGrew’s testimony was so
incredible that no rational jury could reach the factual findings necessary to acquit
Cross on Count 1 on the basis of defense of others. Regardless of the jury’s
perception of their credibility, the jury was not instructed, under either
interpretation of the jury instruction, that Cross was permitted, within the confines
of WIS. STAT. § 939.48, to defend McGrew if the jury found that he provoked
potentially unlawful conduct toward McGrew. Therefore, the jury would not have
been able to find Cross not guilty on Count 1 even if it found Cross’s and
McGrew’s testimony credible.

¶54 For the foregoing reasons, we reverse Cross’s conviction on Count 1
and that portion of the postconviction order denying Cross relief on that count.
We remand for further proceedings on that count, consistent with this opinion.

II. Ineffective assistance of counsel

¶55 Cross next argues that his defense counsel was ineffective by failing
to impeach Aaron at trial with the number of his prior convictions, pursuant to
WIS. STAT. § 906.09.13

¶56 To demonstrate that counsel was ineffective, a defendant must prove
both that counsel’s performance was deficient and that the deficient performance

13
In his postconviction motion, Cross sought a new trial based on ineffective assistance
of counsel on both counts. Because we reverse Cross’s conviction on Count 1 and that portion of
the postconviction order denying Cross relief on that count on other grounds, we will focus our
analysis of Cross’s ineffective assistance claim on Count 2 (i.e., the first strike).

25
No. 2023AP2013-CR

was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). “To prove
deficient performance, a defendant must show specific acts or omissions of
counsel that are ‘outside the wide range of professionally competent assistance.’”
State v. Arredondo, 2004 WI App 7, ¶24, 269 Wis. 2d 369, 674 N.W.2d 647
(2003) (citation omitted). To prove prejudice, a defendant “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. “The focus of this inquiry is not on the outcome of the trial, but on
‘the reliability of the proceedings.’” State v. Thiel, 2003 WI 111, ¶20, 264
Wis. 2d 571, 665 N.W.2d 305 (citation omitted). “If the defendant fails to satisfy
either prong, we need not consider the other.” State v. Breitzman, 2017 WI 100,
¶37, 378 Wis. 2d 431, 904 N.W.2d 93.

¶57 “A claim of ineffective assistance of counsel presents a mixed
question of law and fact.” Thiel, 264 Wis. 2d 571, ¶21. We will uphold the
circuit court’s findings of fact unless they are clearly erroneous. Id. However,
“[w]hether counsel’s performance satisfies the constitutional standard for
ineffective assistance of counsel is a question of law, which we review de novo.”
Id.

¶58 Pursuant to WIS. STAT. § 906.09(1), “a witness may be asked
whether the witness has ever been convicted of a crime or adjudicated delinquent
and the number of such convictions or adjudications” “[f]or the purpose of
attacking character for truthfulness.” Generally, “no further inquiry may be made”
“[i]f the witness’s answers are consistent” with the number of convictions as
determined to be admissible by the circuit court. Sec. 906.09(1), (3).

26
No. 2023AP2013-CR

¶59 At the Machner hearing, defense counsel testified that prior to the
trial, he received information from the State regarding the number and nature of
Aaron’s prior convictions, and he believed that there was a stipulation with the
State about which of Aaron’s convictions could be admitted at trial. Specifically,
according to the records the State sent to defense counsel, Aaron had at least six
criminal convictions; however, the parties stipulated that five of those convictions
would be admissible for purposes of WIS. STAT. § 906.09.14 Defense counsel
conceded that he did not ask Aaron on cross-examination whether Aaron had any
prior convictions, and counsel stated he could not recall having a strategic reason
for failing to impeach Aaron with that information.

¶60 The circuit court assumed, without deciding, that defense counsel
was constitutionally deficient by failing to impeach Aaron with his prior
convictions. The court concluded, however, that Cross was not prejudiced by his
counsel’s potential deficient performance because Aaron was “thoroughly
cross-examined at trial” regarding his truthfulness about the events underlying
Cross’s criminal charges and counsel was able to use the surveillance video
evidence to impeach Aaron.

¶61 On appeal, Cross argues that while the surveillance video was
important, it was not “dispositive” and there was “conflicting testimony as to what
happened after the first hit.” Cross, however, does nothing more to explain how
he was prejudiced by his defense counsel’s alleged deficient performance as it
relates to Count 2, and we will not develop an argument on his behalf.

14
Cross concedes, for purposes of appeal, that five convictions was a proper number of
Aaron’s convictions under WIS. STAT. § 906.09.

27
No. 2023AP2013-CR

See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62,
¶25, 318 Wis. 2d 148, 769 N.W.2d 82.

¶62 Nonetheless, upon our independent review, we agree with the circuit
court that there is not a reasonable probability that the result of the trial on Count 2
would have been different had defense counsel impeached Aaron with his five
prior convictions. The surveillance video, along with the testimony from various
witnesses, clearly demonstrated that Cross drove his vehicle at Aaron the first time
and did so at least 15 seconds after the initial fight between McGrew and Aaron
and Jennifer had ended. At the moment of the first strike, McGrew was
approximately 30 to 40 feet away from Aaron and Jennifer. Cross did not argue
that Aaron had pointed the firearm at him or McGrew prior to the first strike.

¶63 Therefore, Aaron’s credibility or character for truthfulness was not
particularly relevant as it pertained to Cross’s guilt on Count 2. For purposes of
the lesser included charge for which Cross was convicted on Count 2, the State
needed to prove only that Cross endangered the safety of another human being by
criminally reckless conduct with the use of a dangerous weapon, which here was
his vehicle. See WIS. STAT. § 941.30(2); WIS JI—CRIMINAL 1347 (2015).
Defense counsel’s failure to impeach Aaron with the number of his prior
convictions did not affect the outcome of the trial on that count.

CONCLUSION

¶64 In all, the jury instruction for provocation on Count 1 either
misstated that the jury could not consider defense of others if Cross provoked
Aaron into attacking McGrew, or it was silent on this issue and, therefore,
misleading. Because the facts at trial on the issue of provocation and the defense
of others could reasonably be construed in Cross’s favor, these errors were not

28
No. 2023AP2013-CR

immaterial or harmless. Accordingly, we reverse Cross’s judgment of conviction
on Count 1 and that portion of the postconviction order denying Cross relief on
that count. We remand for further proceedings (including a new trial if
necessary), consistent with this opinion.

¶65 With respect to Count 2, we modify Cross’s judgment of conviction
on that count, affirm the judgment of conviction on that count as modified, and
affirm that portion of the postconviction order denying Cross’s ineffective
assistance of counsel claim.

By the Court.—Judgment modified in part and, as modified,
affirmed in part and reversed in part; order affirmed in part and reversed in part;
cause remanded for further proceedings.

Recommended for publication in the official reports.

29