State of Wisconsin v. Kyle Lee Monahan

Monahan was involved in a single-vehicle crash that

took place on August 20, 2011, in Shullsburg, Wisconsin. As a

result of this crash, Monahan was seriously injured and his

girlfriend, R.C., who was also in the vehicle, was killed. The

State subsequently charged Monahan with three counts of criminal

conduct: (1) homicide by intoxicated use of a motor vehicle

contrary to Wis. Stat. § 940.09(1)(a) (2011-12)3; (2) homicide by

2 The court of appeals also reversed a circuit court order granting Monahan's postconviction motion to relieve Monahan from paying the DNA surcharge. State v. Monahan, No. 2014AP2187-CR, unpublished slip op., ¶56 (Wis. Ct. App. Apr. 27, 2017). Monahan states in his petition for review that he does not raise this issue for our review. Accordingly, we do not consider it further. See State v. Sulla, 2016 WI 46, ¶7 n.5, 369 Wis. 2d 225, 880 N.W.2d 659 (quoting Jankee v. Clark Cty., 2000 WI 64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297) ("If an issue is not raised in the petition for review or in a cross petition, 'the issue is not before us.'").

3 All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated.

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intoxicated use of a vehicle contrary to § 940.09(1)(b)4; and (3)

homicide by negligent operation of a vehicle contrary to Wis.

Stat. § 940.10(1). The only factual dispute at trial was

whether it was Monahan or R.C. who was driving at the time of

the crash.

¶4 Monahan and R.C. met in early summer 2011 and started

dating shortly thereafter. R.C. worked as a nanny in the

Chicago suburb of Glenview, and she would often drive to

Shullsburg on weekends to visit Monahan. The crash occurred

during one such weekend.

¶5 R.C. arrived in Shullsburg at approximately 12:30 p.m.

on Saturday, August 20, 2011. The couple engaged in several

social activities during the course of that day. One such event

was a birthday party for Monahan's cousin, which was held at

that cousin's farm. Monahan and R.C. arrived at the farm in

R.C.'s Saab 9-5 station wagon at approximately 6:30 p.m.

Monahan and R.C. each had a couple drinks, but left

approximately 45 minutes later at about 7:15 p.m. because R.C.

4 Though count one and two have the same title, they are based on different statutory provisions. Count one prohibits "[c]aus[ing] the death of another by operation or handling of a vehicle while under the influence of an intoxicant." Wis. Stat. § 940.09(1)(a). Count two prohibits "[c]aus[ing] the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration . . . ." § 940.09(1)(b). See also infra note 9.

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was exhausted from the day.5 Multiple eyewitnesses testified

that Monahan was in the passenger seat when he left in the Saab

with R.C.

¶6 After leaving the party, the Saab experienced a

catastrophic rollover event. Both Monahan and R.C. were ejected

from the vehicle. At the scene, emergency personnel asked

Monahan multiple times how many people were in the Saab in order

to ensure there were no others to be found (first responders

were especially concerned by an empty child seat they found in

the back of the Saab, which R.C. kept in her vehicle due to her

job as a nanny).

¶7 Multiple emergency personnel asked Monahan who was

driving. To each, he initially stated that he did not know, but

then stated that he probably was the driver.6 Throughout the

5 Between the time R.C. arrived in Shullsburg and the start of the party, Monahan and R.C. had socialized at his home and a local restaurant, and assisted his cousin in preparing for the party.

6 While Monahan was still lying on the ground after the crash, he told Shullsburg firefighter Timothy Corley "I was driving, I guess."

After Monahan was placed on a backboard at the side of the road, Lafayette County Sheriff's Deputy Paul Klang walked towards him to question him. While walking towards Monahan, Deputy Klang heard him say "that is the last time I will drink and drive." When Deputy Klang questioned Monahan directly, Monahan did not remember who was driving. After being informed a female was also in the vehicle, Monahan said "I was probably driving, then."

(continued)

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following several hours, Monahan's recollection of who had been

driving at the time of the crash continued to evolve, eventually

adhering to the conclusion that he, in fact, had been the

driver. While in a medical helicopter on the way to the

hospital, Monahan unequivocally stated that he was driving the

Saab. At the hospital, after undergoing emergency surgery,

Monahan——unprompted——asked for a pen and pad of paper and wrote

that he remembered the accident and that he had been driving.

However, on January 13, 2012, while signing a DNA sample consent

form, Monahan told Wisconsin State Trooper Ryan Zukowski, "[i]t

doesn't matter, you know, I wasn't driving." Ten months after

the accident, in July 2012, Monahan told Wisconsin State Trooper

Thomas Parrott "[i]t's not like I meant [it to] F'ing happen."

At trial, Monahan testified that he did not remember the

accident and did not remember ever admitting that he was the

driver.

¶8 The State and Monahan engaged their own respective

experts. Trooper Parrott prepared a report and testified on

After Monahan was moved to a gurney, while being treated by EMS personnel, Lafayette County Sheriff's Deputy Michael Gorham asked Monahan who was driving. Monahan responded, "I don't know, I might have been." Shortly after this exchange, Deputy Gorham returned with a digital recorder at the instruction of Lafayette County Sheriff's Sergeant Darrell Morrissey. Deputy Gorham again asked Monahan, "were you the driver?" Monahan responded, "yeah, I guess." After informing Monahan that a firefighter reported seeing Monahan driving the car out of Shullsburg, Deputy Gorham asked Monahan "so you were the driver?" Monahan responded "yeah." Gorham followed up "you were?" Monahan again responded "yeah."

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behalf of the State. Paul Erdtmann, a Licensed Professional

Engineer, prepared a report and testified on behalf of Monahan.

¶9 Erdtmann and Trooper Parrott both came to some of the

same conclusions. Both experts agreed that the Saab was

traveling between approximately 87 and 100 miles per hour when

the crash sequence began. The crash sequence began when the

Saab's wheels left the pavement and fell onto the grassy

shoulder. After leaving the pavement, the Saab "furrowed"

towards the passenger's side——that is, the Saab moved sideways

through the grassy shoulder area such that the passenger's side

(and not the front) of the Saab was leading the path of travel.

The Saab went airborne after "tripping" on something on the

shoulder and rolled multiple times with the passenger's side

leading the rolls.

¶10 Both experts also agreed that at the time of the

crash, the passenger's side window was open, the sunroof was

open, the driver's side window was closed, neither occupant wore

their seatbelt, and both occupants were ejected from the Saab.

The experts further agreed that R.C. had been ejected from the

vehicle before Monahan based on each occupant's resting position

at the crash scene.

¶11 The two experts disagreed, however, as to the ultimate

conclusion to be drawn from the physical evidence. Trooper

Parrott concluded that Monahan was the driver. He based this

conclusion on a number of pieces of physical evidence. First,

the amount of dirt on both R.C. and Monahan's clothing indicated

that R.C. had been in the passenger's seat. R.C.'s clothes were

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covered in dirt; conversely, Monahan's clothes were relatively

clean. This indicated to Trooper Parrott that R.C. was in the

passenger's seat because the Saab would have kicked up

substantial amounts of dirt that would have entered the vehicle

through the open passenger's side window. Further, the

passenger's side windowsill had an area where the dirt was

rubbed off. Based on the amount of dirt on each occupant's

clothing, Trooper Parrott concluded that R.C. rubbed the dirt

off the windowsill while she exited the Saab.

¶12 Next, Trooper Parrott testified that the physics of

the crash showed that R.C. had been ejected through the open

passenger's side window, making it likely she had been seated in

the passenger's seat and not the driver's seat at the time of

the crash. He further testified that the positions of the

driver's seat and front passenger's seat in the Saab indicated

that Monahan was driving.

¶13 Finally, Trooper Parrott testified that the driver's

side airbag was covered in blood. Analysts at the State Crime

Lab found Monahan's DNA in this blood. Analysts found a second

DNA profile in the blood, but it was insufficient for

identification. This indicated that Monahan had to be in the

driver's seat, as his blood would not have covered the airbag

had he been in the passenger's seat.

¶14 On the other hand, Erdtmann testified that he could

not determine, to a reasonable degree of engineering certainty,

who had been driving at the time of the accident. He agreed

with Trooper Parrott that R.C. had been ejected first, but he

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concluded that R.C. could have been ejected through the open

sunroof and therefore could have been the driver. He testified

that it was equally likely that R.C. was ejected through the

sunroof from the driver's seat as it was that she was ejected

through the passenger's side window from the passenger's seat.

¶15 In regard to the seat positions, Erdtmann conducted a

test on an exemplar Saab that was the same model and year as

R.C.'s. He placed the seats in the exact positions at which

they were found after the crash. He then found individuals to

serve as models who were approximately the same height and

weight as Monahan and R.C. The R.C. model was able to reach the

pedals and steering wheel from the driver's seat with no

"physical constraints." The Monahan model was able to

"comfortably" sit in the passenger's seat. On rebuttal, the

State offered the testimony of R.C.'s mother, who testified that

R.C. "would always have her seat as close up to the steering

wheel as she possibly could" and that the R.C. model was "much

farther back than [R.C.] would have been."

¶16 Erdtmann also testified that he inferred that the

second DNA profile found on the driver's side airbag was R.C.'s.

He testified that, given the jostling that occurred inside the

Saab while it was rolling, the DNA was inconclusive as to seat

position——meaning that Monahan's DNA could have fallen on the

driver's side airbag from the passenger's seat when the Saab was

rolling.

¶17 It is against this factual backdrop that we come to

the evidentiary crux of this matter——the erroneously excluded

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GPS data. R.C. owned a portable GPS unit that she kept in the

Saab. The GPS unit recorded timestamped coordinates when it was

powered on. This allowed both Erdtmann and Trooper Parrott to

recreate the Saab's movements and calculate its speed on the

date of the accident.

¶18 The data extracted from the GPS unit for the trip

commencing at approximately 7:15 p.m. on August 20, 2011, from

the farm to the crash site showed that the Saab was driving at a

high rate of speed——sometimes in excess of 100 miles per hour——

after leaving the farm. It also showed that after leaving the

farm, the Saab stopped for approximately two minutes in downtown

Shullsburg before resuming the trip. Neither party presented

any direct evidence as to what happened during this stop. After

resuming the trip, the Saab again traveled at a high rate of

speed——again sometimes exceeding 100 miles per hour——during the

time period between the two-minute stop and the crash.

¶19 Both the State and Monahan filed pretrial motions

regarding the GPS data for the portion of the trip between the

farm and the two-minute stop. Monahan moved for its admission,

intending to use the GPS data of the entire trip between the

farm and the crash to show that the same person was likely

driving both before and after the stop in Shullsburg. He based

this argument on the fact that the GPS data revealed similar

driving patterns both before and after the stop. He reasoned

that combined with eyewitness testimony that R.C. was driving

when the pair left the farm, the jury could reasonably conclude

that R.C. was driving at the time of the crash.

No. 2014AP2187-CR



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¶20 The State opposed admission of the GPS data detailing

the portion of the trip between the farm and Shullsburg, arguing

that only the GPS data of the segment between Shullsburg and the

crash should be admitted. The State argued that admitting the

GPS data relating to the trip between the farm and Shullsburg

would constitute other acts evidence used to show propensity.

See Wis. Stat. § 904.04(2).7 The State argued that, if Monahan's

motion was granted, the GPS data would be improperly used to

show that R.C. had a propensity for driving above the speed

limit, and thus must have been driving at the time of the crash.

See id.

¶21 The circuit court denied Monahan's motion and admitted

only the GPS data relating to the period of time between the

7 Wisconsin Stat. § 904.04(2) states, in relevant part: "[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith."

No. 2014AP2187-CR



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two-minute stop in Shullsburg and the crash.8 This ruling

reflected the circuit court's determination that the GPS data

between the farm and two-minute stop constituted other acts

evidence offered to show R.C.'s propensity for driving fast. In

the circuit court's view, the continuum of relevant events

leading to the crash started at the two-minute stop, not the

farm.

¶22 Although the GPS data relating to the time period

between the two-minute stop and the crash was admitted, it did

not become the centerpiece of either party's case. In fact,

after its introduction into evidence, it was not discussed again

8 The pretrial motions filed by Monahan and the State also addressed GPS data that would show the Saab traveled at a high rate of speed on the way to the farm; a period during which the parties agree R.C. was driving. The circuit court excluded this GPS data for the same reasons it excluded the GPS data of the trip between the farm and Shullsburg. The extent to which Monahan appeals exclusion of the trip to the farm is unclear——at various points in briefing, he appears to challenge only the exclusion of the trip from the farm to Shullsburg, but at other points, he appears to also challenge the exclusion of the trip to the farm. The scope of the State's confession of error is similarly unclear. In its brief to the court of appeals——the first point at which the State confessed error in this case——the State conceded error only as to the trip between the farm and Shullsburg. However, other areas of briefing and oral arguments to this court indicate that the State may also confess error as to the trip to the farm. Neither party offers analysis of the trip to the farm separate from its analysis of the trip from the farm to Shullsburg.

We determine that separately addressing the exclusion of the GPS data relating to the trip to the farm is unnecessary because our analysis and holding would remain the same even if we assumed error regarding that trip.

No. 2014AP2187-CR



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until the State's closing argument. In closing argument, the

State asserted that it did not "make sense that a young girl who

doesn't know the area is driving on some rural road and driving,

no less, after she'd been drinking[,] and at speeds of 40 to 50

miles per hour over the speed limit[.] That doesn't make

sense."

¶23 The jury returned verdicts of guilty as to all three

counts.9

¶24 Monahan appealed, arguing that the circuit court

erroneously excluded the GPS data relating to the time period

between the farm and the two-minute stop in Shullsburg. The

State conceded——and the court of appeals accepted for purposes

of appeal——that the circuit court's exclusion of the GPS data

9 The circuit court dismissed count two by operation of Wis. Stat. § 940.09(1m), which states in relevant part: "[a] person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1)(a) . . . or (b) . . . for acts arising out of the same incident or occurrence. . . . If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing . . . ." The circuit court dismissed count three by operation of Wis. Stat. § 939.66(2), which states, in relevant part: "[u]pon prosecution for a crime, the actor may be conviction of either the crime charged or an included crime, but not both. An included crime may be . . . [a] crime which is a less serious type of criminal homicide than the one charged."

No. 2014AP2187-CR



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was erroneous.10 Monahan, 2014AP2187-CR, ¶2. However, the court

of appeals concluded that the error was harmless. Id. In

explaining its conclusion, the court of appeals emphasized the

strength of the State's case. Id., ¶17.

¶25 First, the court of appeals noted that Monahan's many

admissions that he had been driving at the time the accident

provided strong evidence for the State. Id., ¶¶19-26.

¶26 Next, the court of appeals noted that Monahan had

never substantially contradicted Trooper Parrott's testimony

that Monahan had been the driver. Id., ¶33. The court observed

that Erdtmann testified that "it was possible that either

Monahan or R.C. was the driver." Id, ¶37. It further observed

that Erdtmann's testimony regarding his exemplar of the

vehicle's seats and his conclusions therefrom had been rebutted

by the testimony of R.C.'s mother, which would have allowed the

jury to accept Trooper Parrott's reconstruction. Id., ¶¶38-39.

¶27 Finally, the court of appeals chastised the State for

exploiting the excluded GPS data in closing argument. Id., ¶29.

However, it concluded that the State's discussion was harmless

because its argument concerning the excluded evidence comprised

10 The State agreed with Monahan that "[t]he vehicle's speed after it left the cousin's residence was not other acts evidence[,] but part of the continuum of facts relevant to the crime" pursuant to State v. Dukes, 2007 WI App 175, ¶28, 303 Wis. 2d 208, 736 N.W.2d 515. The court of appeals did not "weigh in on whether the [circuit] court erroneously excluded the GPS data," but rather accepted the State's concession for purposes of the appeal. Monahan, 2014AP2187-CR, ¶2.

No. 2014AP2187-CR



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an aggregate of five sentences out of approximately 70

transcript pages of closing argument. Id.

¶28 The court of appeals determined that "even if the jury

heard the excluded GPS data evidence, the GPS data would have

paled in comparison to the strong evidence that Monahan was

driving at the time of the accident." Id., ¶40. Consequently,

the court of appeals saw "no reason to think that, in light of

all the evidence that Monahan was the driver, admission of the

excluded evidence would have changed the outcome of this case."

Id.

¶29 Monahan petitioned this court for review, which we

granted on November 13, 2017.

II. STANDARD OF REVIEW

¶30 Circuit court evidentiary decisions are reviewed for

an erroneous exercise of discretion. State v. Hunt, 2014 WI

102, ¶20, 360 Wis. 2d 576, 851 N.W.2d 434. However, in this

case, the State concedes that the circuit court erroneously

exercised its discretion in excluding the GPS data from the farm

to the two-minute stop.11

¶31 Whether a circuit court's erroneous exclusion of

evidence is harmless is a question of law we review de novo.

Id., ¶21.

11 We are not bound by a party's concession of law. State v. Anderson, 2014 WI 93, ¶19, 357 Wis. 2d 337, 851 N.W.2d 760. For purposes of this opinion, however, we assume without deciding that the circuit court's exclusion of the GPS data was erroneous.

No. 2014AP2187-CR



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III. ANALYSIS

¶32 We first set forth and discuss the harmless error

rule. We next apply the rule to Monahan. We then hold that the

circuit court's erroneous exclusion of the GPS data was

harmless, and consequently affirm the decision of the court of

appeals.

A. The Harmless Error Rule

¶33 An erroneous evidentiary ruling is reversible only if

"a substantial right of the party is affected." Wis. Stat.

§ 901.03(1). We construe this to mean that an error is harmless

if the party benefitted by the error shows "beyond a reasonable

doubt that the error complained of did not contribute to the

verdict obtained." Hunt, 360 Wis. 2d 576, ¶26 (quoting State v.

Harris, 2008 WI 15, ¶42, 307 Wis. 2d 555, 745 N.W.2d 397). In

the present case, the State has the burden to prove "beyond a

reasonable doubt that a rational jury would have found [Monahan]

guilty absent the error." Id. (quoting State v. Harvey, 2002 WI

93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189).

¶34 The harmless error rule originated in response to the

perception that appellate courts were "applying a rule

approximating automatic reversal" when trial error was found.

John M. Greabe, The Riddle of Harmless Error Revisited, 54 Hous.

L. Rev. 59, 67 (2016); see also 7 Wayne R. LaFave, et al., Crim.

Proc. § 27.6(a) (4th ed. 2017). The United States Supreme Court

aptly described the problem: "So great was the threat of

reversal, in many jurisdictions, that criminal trial became a

game for sowing reversible error in the record, only to have

No. 2014AP2187-CR



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repeated the same matching of wits when a new trial had been

thus obtained." Kotteakos v. U.S., 328 U.S. 750, 759 (1946).

The goal of the harmless error rule is to "inject reasoned

judgment . . . into appellate review" to ensure retrials occur

only when the error actually affected the original trial. Id.

at 759-60; see also Harry T. Edwards, To Err is Human, but not

Always Harmless: When Should Legal Error be Tolerated?, 70

N.Y.U. L. Rev. 1167, 1174 (1995).

¶35 We use several non-exclusive factors to aid our

application of the harmless error rule in the evidentiary

context: (1) the frequency of the error; (2) the importance of

the erroneously included or excluded evidence to the

prosecution's or defense's case; (3) the presence or absence of

evidence corroborating or contradicting the erroneously included

or excluded evidence; (4) whether erroneously excluded evidence

merely duplicates untainted evidence; (5) the nature of the

defense; (6) the nature of the State's case; and (7) the overall

strength of the State's case. State v. Martin, 2012 WI 96, ¶46,

343 Wis. 2d 278, 816 N.W.2d 270; State v. Norman, 2003 WI 72,

¶48, 262 Wis. 2d 506, 664 N.W.2d 97; see also Hunt, 360 Wis. 2d

576, ¶27; State v. Nelson, 2014 WI 70, ¶46, 355 Wis. 2d 722, 849

N.W.2d 317.

B. Application to Monahan

1. Frequency of the error

¶36 This factor requires us to consider whether the error

scarcely appeared in the record or pervaded it. Martin, 343

Wis. 2d 278, ¶47. An error that pervades the record is more

No. 2014AP2187-CR



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likely to be harmful than an error that appears only a few

times, though an error may be so prejudicial that reversal is

required despite appearing in the record only once. See id.;

see also United States v. Impson, 531 F.2d 274, 278 (5th Cir.

1976).

¶37 In this case, the error manifested in the record once.

The GPS data was not a centerpiece of the State's case, but

rather was mentioned only briefly in closing argument, when the

State argued that it did not make sense that a driver who was

unfamiliar with the area would operate a vehicle at the speed

the Saab was traveling at the time of the crash. While the

excluded GPS data would have undoubtedly undercut this argument

because it would have allowed the jury to conclude that R.C.

had, in fact, been operating the Saab at a high rate of speed

over (presumptively) unfamiliar roadways, the argument was not

central to the State's theory of the case. The State's theory

of the case rested on Trooper Parrott's crash reconstruction;

the argument that R.C. would not have driven so recklessly given

her unfamiliarity with the area constituted a miniscule

percentage of a 70-page closing argument transcript.12 12 The court of appeals considered five sentences in the State's closing argument to be objectionable. Monahan, 2014AP2187-CR, ¶29; see also infra, ¶27. Depending on how one classifies certain sentences in the State's closing argument, the objectionable portion of the State's closing argument could constitute up to three paragraphs or 24 lines of the transcript. See dissent, ¶3. This would add up to approximately one full page of transcript (the transcript pages from closing arguments contain 25 lines of text each) out of 70 pages of closing arguments, or approximately 1.4 percent.

No. 2014AP2187-CR



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¶38 This is in contrast to Martin, where erroneously

admitted testimony constituted the bulk of the State's case.

Id. The testimony was "discussed at length in both the State's

opening statement and closing argument." Id. The error was

repeated often in the record and was "the backbone of the

State's argument." Id. The extent to which the State relied

upon the excluded GPS data in the present case simply did not

rise anywhere close to that level of repetition, duration, or

extent. We conclude that this factor weighs in favor of the

State.

2. Importance of the erroneously excluded evidence

¶39 This factor considers the extent to which the excluded

evidence impacted the verdict. Hunt, 360 Wis. 2d 576, ¶29;

Nelson, 355 Wis. 2d 722, ¶47; see also Martin, 343 Wis. 2d 278,

¶51. Exclusion of evidence that would go to the foundation of

the verdict is less likely to be harmless than exclusion of

evidence that would have little impact on the verdict. See

Martin, 343 Wis. 2d 278, ¶51.

¶40 The excluded GPS data did not go to the foundation of

the verdict. Rather, the excluded GPS data is direct evidence

of a fact that is not of consequence: how fast the Saab was

traveling between the farm and the two-minute stop. Given the

other evidence presented——and emphasized——by the parties, the

GPS data would have been largely inconsequential to the verdict.

¶41 Hunt, while factually disparate, is instructive on

this question. 360 Wis. 2d 576. In that case, the defendant,

Hunt, was convicted of causing a child under 13 to view or

No. 2014AP2187-CR



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listen to sexual activity based on an incident in which Hunt

showed his adopted daughter a video of sexual intercourse. Id.,

¶¶1-2, 4. At the preliminary hearing, the victim testified that

Hunt referred to the video as stuff that he received from a

certain friend, Venske. Id., ¶5. Hunt admitted that the victim

may have seen an image of a testicular hernia sent by Venske,

but denied ever showing the victim a video of sexual

intercourse. Id., ¶8. Hunt argued that the victim embellished

the story due to an ongoing custody dispute. Id., ¶9.

¶42 Consistent with that defense, Hunt proffered testimony

from Venske that he sent Hunt an image of a testicular hernia,

but never sent Hunt a video of sexual intercourse. Id., ¶12.

The circuit court excluded Venske's testimony. Id., ¶13. We

held that the circuit court erroneously exercised its discretion

when it excluded Venske's testimony because the testimony would

have corroborated Hunt's testimony. Id., ¶25. We held the

error to be harmless, however, because the source of the

sexually explicit content was not an element of the crime. Id.,

¶30. Stated differently, the excluded testimony did not go to

the foundation of the verdict because it would have demonstrated

a fact that was irrelevant to the crime charged. See id., ¶34.

¶43 Similarly, in the present case, the excluded GPS data

would have bolstered Monahan's contention that R.C. may have

been driving the Saab at the time it crashed. For this reason,

excluding that portion of the GPS data was error. See id., ¶29.

Establishing that the evidence was admissible does not, of

course, answer the harmless error question. Id. Though the

No. 2014AP2187-CR



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excluded GPS data should have been admitted, it nonetheless did

not impact the verdict because it bears little relation to the

elements of homicide by intoxicated use of vehicle. See Wis.

Stat. § 940.09(1)(a).13 Because neither the speed of the Saab

between the farm and two-minute stop, nor who was driving it

during that time period, were "required element[s] of the

State's case, the value of [the excluded GPS data] lay solely in

its potential to corroborate [Monahan]'s version of events."

Hunt, 360 Wis. 2d 576, ¶34.

¶44 Thus, while the excluded GPS data may have added some

credibility to Monahan's defense, it was not a fact that was

important to the verdict. Accordingly, we conclude that this

factor weighs in favor of the State.



3. The presence or absence of evidence corroborating or contradicting the erroneously excluded evidence

¶45 This factor is closely related to the preceding one,

the importance of the erroneously excluded evidence. Hunt, 360

Wis. 2d 576, ¶30. If other evidence demonstrates what the

excluded GPS data was offered to show, or if the excluded GPS

data would not contradict any of the State's evidence, then its

erroneous exclusion is more likely harmless. See Martin, 343

Wis. 2d 278, ¶54.

13 A person commits homicide by intoxicated use of a vehicle if he "[1] causes the death of another [2] by the operation or handling of a vehicle [3] while under the influence of an intoxicant." Wis. Stat. § 940.09(1)(a).

No. 2014AP2187-CR



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¶46 The excluded GPS data was neither corroborated nor

contradicted because no other evidence was admitted to establish

the speed of the vehicle between the farm and the two-minute

stop. Again, Hunt is helpful to our understanding of the

application of this factor. 360 Wis. 2d 576. In Hunt, Venske's

excluded testimony did not contradict any of the State's

evidence because the State did not offer any evidence of the

source of the sexually explicit video. Id., ¶33. In holding

the error harmless, we reasoned that "the excluded

evidence . . . would not have served to weaken the State's case

on the issue of where Hunt obtained the sexually explicit video,

because the State never alleged it was sent by Venske." Id. A

similar reasoning applies here: the excluded GPS data would not

have served to weaken the State's case on the issue of how fast

the Saab was traveling between the farm and the two-minute stop

because the State never alleged that the Saab was speeding

during that segment. Consequently, this factor weighs in favor

of the State.



4. Whether the erroneously excluded evidence duplicates untainted evidence.

¶47 This factor reflects our understanding that the error

is more likely harmless if the excluded evidence would serve

only to duplicate admitted evidence. Nelson, 355 Wis. 2d 722,

¶50. Conversely, if the erroneously excluded evidence would

have been the only evidence to support a factual finding by the

jury, then the error is more likely prejudicial. See Martin,

343 Wis. 2d 278, ¶57.

No. 2014AP2187-CR



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¶48 Literal application of this factor leads us to observe

that the GPS data does not duplicate any evidence because no

other evidence regarding the speed of the Saab between the farm

and two-minute stop was offered. The State did not offer any

evidence as to either how fast the Saab was traveling or who was

driving it between the farm and two-minute stop. Conversely,

Monahan offered evidence in the form of eyewitness testimony

that R.C. was driving when the couple left the farm. The

excluded GPS data, had it been admitted, would have constituted

circumstantial evidence that the same person was driving both

before and after the two-minute stop. While the excluded GPS

data would have fractionally overlapped with the eyewitness

testimony, we cannot say that the erroneously excluded GPS data

would have duplicated the eyewitness testimony——or any other

untainted evidence. The result of our consideration is that

this factor weighs in favor of Monahan.

5. The nature of the defense

¶49 If the erroneously excluded evidence closely fits the

defense theory of the case, then its exclusion is more likely

prejudicial. See State v. Deadwiller, 2013 WI 75, ¶43, 350

Wis. 2d 138, 834 N.W.2d 362; see also Martin, 343 Wis. 2d 278,

¶59. Conversely, if the erroneously excluded evidence would not

have furthered the defense, its exclusion is more likely

harmless. Nelson, 355 Wis. 2d 722, ¶49.

¶50 Monahan's defense was that either he or R.C. could

have been driving at the time of the crash. Stated otherwise,

Monahan argues that the jury could not have found beyond a

No. 2014AP2187-CR



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reasonable doubt that Monahan was driving at the time of the

crash. The excluded GPS data could have raised an inference

that the same person was driving both before and after the two

minute stop. When combined with the eyewitness testimony that

R.C. was driving at the time the couple left the farm, this

inference could have supported a jury determination that R.C.

was driving at the time of the crash.

¶51 Although the weight, if any, the jury would have given

to such an inference is (by definition) impossible to know, it

is clear that the excluded evidence would have been

complementary to the nature of the defense. Accordingly, this

factor weighs in favor of Monahan.

6. The nature of the State's case

¶52 If the erroneously excluded evidence is consistent

with the State's case, then its exclusion is more likely

harmless. See Martin, 343 Wis. 2d 278, ¶60.

¶53 The GPS data is irrelevant to the State's case. The

State focused its evidence on who was driving at the time of the

crash; its theory of the case is compatible with either Monahan

or R.C. driving between the farm and the two-minute stop. The

State's evidence that Monahan was driving at the time of the

crash——Trooper Parrott's crash reconstruction, Monahan's

admissions, and the DNA found on the driver's side airbag——are

not affected by who was driving between the farm and the two

minute stop. The GPS data would have neither bolstered nor

undercut the State's case had it been admitted because the

State's evidence was consistent with either Monahan driving the

No. 2014AP2187-CR



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whole way or Monahan and R.C. switching seats during the two

minute stop.

¶54 Because the GPS data was not inconsistent with the

State's case, this factor weighs in favor of the State.

7. The overall strength of the State's case

¶55 If the State's case was strong notwithstanding the

erroneous exclusion of the GPS data, then the error is more

likely harmless. Hunt, 360 Wis. 2d 576, ¶35. Conversely, if

the State relied heavily on the exclusion of the GPS data, then

the error is more likely to be prejudicial. Martin, 343

Wis. 2d 278, ¶62.

¶56 We first address Monahan's complaint that considering

the strength of the State's case improperly transforms harmless

error analysis into sufficiency-of-the-evidence analysis. We

begin by noting that the strength of the State's case has long

been considered an appropriate——and important——factor in

harmless error analysis. E.g., Delaware v. Van Arsdall, 475

U.S. 673, 684 (1986) ("These factors include . . . ,of course,

the overall strength of the prosecution's case."); United States

v. Wilson, 134 F.3d 855, 867 (7th Cir. 1998) ("[Van Arsdell]

recognize[ed] that, 'of course,' an important factor to consider

is 'the overall strength of the prosecution's case.'"); State v.

Fishnick, 127 Wis. 2d 247, 267, 378 N.W.2d 272 (1985); State v.

Drusch, 139 Wis. 2d 312, 324 n.1, 407 N.W.2d 328 (Ct. App.

1987). Second, we understand that courts cannot properly answer

the core question——whether the State proved "beyond a reasonable

doubt that the error complained of did not contribute to the

No. 2014AP2187-CR



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verdict obtained"——without considering the strength of the

State's case. See United States v. Littrell, 439 F.3d 875, 883

(8th Cir. 2006). Finally, we note that error is less likely to

have a "substantial influence" on the verdict where the State

presented overwhelming evidence of guilt. United States v.

Lane, 474 U.S. 438, 450 (1986).

¶57 For these reasons, consideration of the strength of

the State's case has been——and remains——a proper and useful

factor in evaluating whether a circuit court's error was

harmless.

¶58 This factor cuts decisively in favor of the State

because the State's case was strong, and would have remained

strong even if the excluded GPS data had been admitted. First

and foremost, Monahan's numerous admissions that he was driving

provide substantial evidence of his guilt. He told Shullsburg

firefighter Timothy Corley "I was driving, I guess" while lying

in the cornfield. He then said "that is the last time I will

drink and drive" within earshot of Deputy Klang. When Deputy

Klang told Monahan that a female was also in the vehicle,

Monahan said "I was probably driving, then." Once on the

gurney, Monahan responded "yeah" when Deputy Gorham asked him

"so you were the driver." While in the medical helicopter en

route to the hospital, Monahan again unequivocally admitted to

driving the Saab. While at the hospital, he again admitted to

being the driver. He wrote that he remembered the crash and

that he was driving. At the time of this writing, the attending

nurse described him as "neurologically . . . intact." Finally,

No. 2014AP2187-CR



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ten months after the accident, Monahan told Trooper Parrott

"[i]t's not like I meant [it to] F'ing happen."

¶59 Even if the jury had discounted all of Monahan's

admissions, Trooper Parrott's crash reconstruction provided

compelling evidence for the State. Trooper Parrott testified

unequivocally that all of the physical evidence pointed to

Monahan as the driver. Ertdmann, on the other hand, did not

contradict Trooper Parrott's conclusion. In fact, Erdtmann

concluded that Monahan could have been the driver. Erdtmann

merely disagreed as to whether that was the only reasonable

conclusion one could draw from the physical evidence.

¶60 Moreover, the physical evidence supported the State's

assertion that Monahan was the driver. The seat positions——

coupled with the testimony of R.C.'s mother that the driver's

seat was found "much farther back than [R.C.] would have been"——

indicated that Monahan was driving. The position of the bodies

at the crash scene, the closed driver’s side window, and the

open passenger's side window indicated that R.C. was ejected

first and from the passenger's seat. The dirt patterns on

R.C.'s clothing——and the relative lack of dirt on Monahan's

clothing——indicated that R.C. was in the passenger's seat, next

to the open window.

¶61 All of these factors lead us to conclude that the

State's case was very strong——and would have remained so even if

the excluded GPS data had been admitted into evidence. Because

of the strength of the State's case, we are not surprised that

the jury came to the only reasonable conclusion: Monahan was

No. 2014AP2187-CR



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driving at the time of the crash; this factor weighs in favor of

the State.

***

¶62 Applying the relevant circumstances of Monahan's case

to these factors leads to the conclusion that the erroneous

exclusion of the GPS data was harmless; that is, the State has

met its burden to prove "beyond a reasonable doubt that a

rational jury would have found [Monahan] guilty absent the

error." Hunt, 360 Wis. 2d 576, ¶26 (quoting Harvey, 254

Wis. 2d 442, ¶49).

¶63 Though we utilize the seven factors to aid in our

analysis, harmless error is not subject to a precise

mathematical formula. See State v. Bolstad, 124 Wis. 2d 576,

589-90, 370 N.W.2d 257 (1985); see also State v. Anthony, 2015

WI 20, ¶104, 361 Wis. 2d 116, 860 N.W.2d 10; State v. Grant, 139

Wis. 2d 45, 77, 406 N.W.2d 744 (1987) (Day, J., concurring)

(describing the underlying rationale of the harmless error test

to be "eliminating prejudicial error but not becoming bogged

down in endless formulas for determining harmless error.").

¶64 Factors four and five weigh in favor of Monahan, as

the excluded GPS data would have bolstered Monahan's theory of

defense that R.C. was driving. Supra, ¶¶47-51. However, it

would have done so by demonstrating a fact that was not

necessary for conviction. Hunt, 360 Wis. 2d 576, ¶34; see also

supra, ¶46.

¶65 Though the excluded GPS data would have bolstered

Monahan's theory of defense, the factors weighing in favor of

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the State——especially the final factor, the strength of the

State's case——"tip the scales in support of harmless error."

Anthony, 361 Wis. 2d 116, ¶104. As in Hunt, the State's case

did not hinge on establishing who was driving the Saab, and how

fast it was traveling, between the farm and two-minute stop.

See Hunt, 360 Wis. 2d 576, ¶36. Rather, the strength of the

State's case rested largely on Monahan's five admissions that he

was driving at the time of the accident, Trooper Parrott's crash

reconstruction testimony, and the DNA evidence. See id. The

State never raised at trial the issue of who was driving the

Saab between the farm and two-minute stop, nor how fast it was

traveling during that segment, in proving the essential elements

of the crime for which Monahan was convicted. See id. We agree

with the court of appeals that "the [excluded] GPS data would

have paled in comparison to the strong evidence that Monahan was

driving at the time of the accident." Monahan, 2014AP2187-CR,

¶40.

¶66 Based on the foregoing, we conclude that "it is beyond

a reasonable doubt that the error complained of did not

contribute to the verdict obtained." Hunt, 360 Wis. 2d 576, ¶26

(quoting Harris, 307 Wis. 2d 555, ¶42).

We hold that the circuit court's erroneous exclusion

of the GPS data was harmless, and therefore affirm the decision

of the court of appeals.