State v. Lohmeier

I dissent because I believe that there is a reasonable likelihood that the contributory negligence instruction, in combination with Wis JI — Criminal 1185 and 1186, misled the jury into believing it could not consider the young women's conduct in regard to Lohmeier's statutory affirmative defense. I would affirm the court of appeals and hold that there is a reasonable likelihood that the contributory negligence instruction misled the jury, for several reasons.

First, the defense essentially conceded these elements of the charges under Wis. Stat. § 940.09(l)(a) and Wis. Stat. § 940.09(l)(b):…