What's wrong with the Jury Instructions? PART 2

This post is a continuation from the post written by Bob Green and reposted here entitled, "What's wrong with the Jury Instructions" providing further information on this issue.
 
Don Miller was charged with and tried on two counts of 1st Degree Sexual Assault/Threat or Use of a Dangerous Weapon. Wis Stats § 940.225(1)(b) among several other lesser charges.

Taken from the Wisconsin Legislature website. https://docs.legis.wisconsin.gov/statutes/statutes/940/II/225

If we take a look at the trial transcripts from Day 2 of the trial, just after Lipske's closing argument, Judge Madden reads the jury their instructions. Note that he says he is reading the law to them and says they will get a copy of these instructions to follow in their deliberations, so we will assume he is reading from the written instructions that will also be give to the jury for deliberation.

TR [567:18-24]

I have copied the entire reading of the jury instructions from the trial transcript into a smaller document which can be downloaded here. 30 pages. [ Download Jury Instructions ]

See below that when Judge Madden begins to read the substantive instructions, he quotes the wrong part of the Statute under which Don was actually charged with at Line 3. He quotes Wis Stats § 940.225(1)(a) rather than the Wis Stats § 940.225(1)(b). Further down at Line 14 and 15 he says that the State has to have proved beyond a reasonable doubt that the Defendant caused great bodily harm to Ms. Vargovich.

TR [575:1-25]

One may think this could be a simple mistake until he carries on to elaborate in great detail on the third element of the crime under Wis Stats § 940.225(1)(a) that must be proven beyond a reasonable doubt in order to convict the defendant of that crime in Lines 4-17.

Trouble is, is Don Miller was never charged with 1st Degree Sexual Assault / Causing Great Bodily Harm. Wis Stats § 940.225(1)(a).

See the [ Criminal Complaint ]
See the [ Arraignment Transcript ]

Note that at Lines 20-22 he then throws in a definition about what a dangerous weapon and firearm is ???

TR [576:1-25]

Perhaps the following conversation with one of the jurors on Don Millers trial sheds further light on why they may have convicted him of one of the sexual assault charges and acquitted him on the other. (Juror's name has been redacted for their privacy.)

Excerpt from April 9, 2012 phone conversation between Stephen Williams and Juror "X":

This juror was essentially saying the State did not prove the dangerous weapon element beyond a reasonable doubt which is why they acquitted him of that charge. However, both sexual assault charges required the dangerous weapon element be proven beyond a reasonable doubt and the alleged victim claimed the same exact gun and laser site was used on both occasions in a similar manner.

Therefore, if the jury did not find the dangerous weapon element to be proven beyond a reasonable doubt on the first charge why would they find the dangerous weapon element to be proven on the second charge? I will leave the reader to decide whether the jury may have been confused or perhaps misled on the elements of the crime they convicted Don Miller of.

150 Wis. 2d 861, 443 N.W.2d 38

MUST SEE....

The section about the Jury Instructions error in Don's Petiton of Writ of Habeas Corpus in 2000.