State v. Elverman, 2014AP354–CR.

CourtCourt of Appeals of Wisconsin
Citation366 Wis.2d 169,873 N.W.2d 528
Docket NumberNo. 2014AP354–CR.,2014AP354–CR.
Parties STATE of Wisconsin, Plaintiff–Respondent, v. Jeffrey L. ELVERMAN, Defendant–Appellant.
Decision Date10 November 2015

366 Wis.2d 169
873 N.W.2d 528

STATE of Wisconsin, Plaintiff–Respondent,
Jeffrey L. ELVERMAN, Defendant–Appellant.

No. 2014AP354–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 3, 2015.
Opinion Filed Nov. 10, 2015.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeffrey L. Elverman, pro se.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Jeffrey J. Kassel, assistant attorney general.



366 Wis.2d 180

¶ 1 Jeffrey Elverman, pro se, appeals the judgment of conviction for theft greater than $10,000, contrary to WIS. STAT. §§ 943. 20(1)(a) and

366 Wis.2d 181

(3)(c) and 939.50(3)(g) (2003–04).2 He also appeals the order denying his postconviction motion.3 Elverman presents numerous arguments on appeal: (1) that the complaint was defective because it did not sufficiently give him notice of the charges against him; (2) that the statute of limitations had expired prior to commencement of the criminal proceedings as to all but two checks at issue, or alternatively, that the statute of limitations had expired as to all checks at issue because the filing of the complaint did not commence criminal proceedings; (3) that venue was not proper in Milwaukee County; (4) that the trial court erred in denying his request for a unanimity jury instruction; (5) that the evidence was insufficient to establish that he lacked consent; and (6) that his trial counsel was ineffective. We affirm.


¶ 2 This is a criminal case in which a large sum of money was stolen from D.P., an elderly woman suffering from Alzheimer's dementia, by her then-attorney, Jeffrey L. Elverman. While it is not entirely

366 Wis.2d 182

clear exactly how or when Elverman's relationship with D.P. began, it is undisputed that D.P. named Elverman as the successor power of attorney in a durable financial

873 N.W.2d 533

power of attorney document she signed on May 11, 2000.4 At that time, Elverman was a partner at Quarles & Brady LLP's Milwaukee office, and he assumed power of attorney duties under the durable financial power of attorney on January 8, 2001, when the previous power of attorney resigned.

¶ 3 A criminal complaint was filed on December 6, 2010, alleging that Elverman had committed theft exceeding $10,000, in violation of WIS. STAT. §§ 943.20(1)(a), (3)(c) and 939.50(3)(g) (2003–04), between March 25, 2003, and September 23, 2004, by transferring movable property of D.P. without consent and with the intent to permanently deprive D.P. of her property. Per the complaint, an investigation into Elverman's conduct began in or around late 2008 after Supportive Community Services, a non-profit guardianship agency appointed by court order as D.P.'s guardian, reviewed D.P.'s finances and discovered that a large amount of money had been transferred from D.P. to Elverman from December 2001 through September 23, 2004. The complaint alleged that during that time period, checks totaling over $600,000 were written on D.P.'s account and payable to Elverman. However, the charge was based only on conduct occurring between March 25, 2003, and September 23, 2004.

366 Wis.2d 183

¶ 4 The complaint further alleged that D.P.'s physician had determined that she was incapacitated and that she was unable to manage her day-to-day affairs as of March 24, 2003, due to Alzheimer's dementia, and that her physician's medical records reflected that this information was faxed to Elverman at his office on March 24, 2003.

¶ 5 Elverman voluntarily appeared with counsel at an initial appearance on December 7, 2010. Elverman waived oral reading of the criminal complaint, although he did not waive jurisdictional objections. The court found probable cause and informed Elverman that he would need to be booked that day, and after being booked, he was released on a $10,000 signature bond. The preliminary hearing was thereafter scheduled for December 27, 2010; however, when the parties appeared on that date, Elverman appeared with new counsel because the attorney who appeared with him at the initial appearance had filed a motion to withdraw. The parties requested an adjourned preliminary hearing date, and after confirming that Elverman waived the time limits for a preliminary hearing, the court agreed to adjourn the preliminary hearing to January 11, 2011.

¶ 6 At the January 11, 2011 preliminary hearing, the court began to hear testimony from one of the State's witnesses, but then had to adjourn the hearing to January 25, 2011, due to time constraints. At the adjourned hearing, Elverman's counsel moved to dismiss on the grounds that: (1) there had been testimony that Elverman was employed by D.P. and that D.P. herself had signed the checks at issue; (2) only those checks dated September 10, 2004, and September 23, 2004, were within the statute of limitations; and (3) venue was improper because the September 10,

366 Wis.2d 184

2004, and September 23, 2004 checks were neither written nor deposited in Milwaukee County. The court denied Elverman's motion to dismiss, found probable cause to believe that a felony had been committed in Milwaukee County, and bound Elverman

873 N.W.2d 534

over for trial. The State thereafter filed an information with the court, and Elverman waived formal reading and entered a plea of not guilty.

¶ 7 The parties appeared before the court on April 14, 2011, on Elverman's motion to overturn the probable cause finding. At that hearing, Elverman's counsel argued that there was not sufficient evidence to find probable cause and that Elverman's alleged conduct could not be charged as a continuing offense. Elverman's counsel further argued that because there was no continuing offense, charges as to all but two checks were barred by the statute of limitations and venue was not proper in Milwaukee County. During the course of his argument, Elverman's counsel specifically referred to WIS. STAT. § 971.36, a procedural statute allowing a prosecutor to charge a series of acts as one count under certain circumstances.5 After hearing the parties' arguments, the court denied the motion to dismiss on the record and thereafter issued a written decision and order denying the motion on April 27, 2011.

¶ 8 Elverman filed a motion with this court pursuant to WIS. STAT. RULE 809.82(2) on May 11, 2011, seeking to extend the time for filing a petition for leave to appeal the trial court's April 27, 2011 written order.

366 Wis.2d 185

We denied that motion on May 18, 2011, concluding that Elverman had failed to demonstrate good cause for extending the deadline or that there was any likelihood of success on the merits.

¶ 9 Prior to trial, Elverman filed motions in limine, a supplemental motion in limine, and a renewed motion to dismiss on August 11, 2011. Elverman raised two grounds for dismissal: (1) that the evidence did not support a continuing offense charge and therefore action on all but two checks was barred by the statute of limitations; and (2) venue was improper in Milwaukee County because the only two checks not barred by the statute of limitations were neither signed nor deposited in Milwaukee County. Elverman's brief acknowledged that these issues had previously been raised in a motion challenging the sufficiency of the evidence and that the court had rejected these arguments in denying that earlier motion. After hearing arguments on the motion on December 12, 2011, the trial court stated that the court's earlier rulings on the issue would stand.

¶ 10 The case proceeded to trial and the jury heard testimony from numerous witnesses as to D.P.'s mental health, Elverman's relationship with D.P., and the amounts of money that were regularly transferred from D.P.'s account to Elverman. For example, the jury heard that in February 2001, Elverman hired Ms. Marion Whelpley to assist D.P. in her day-to-day affairs and for general companionship. According to Whelpley's testimony, she initially spent two to three days per week with D.P., although that quickly increased to approximately five days per week, and based on her observations, Elverman took D.P. out for lunch for an hour and a half to two hours nearly every week. Whelpley also testified that she kept track of

366 Wis.2d 186

when Elverman visited D.P. in her planner, that Elverman helped D.P. pay her bills, that she regularly spoke with Elverman regarding D.P.'s health, particularly after taking D.P. to her doctor appointments, and that she copied Elverman on letters that she wrote to D.P.'s physicians regarding her concerns with D.P.'s health and

873 N.W.2d 535

behavior. Multiple physicians also testified as to their observations and diagnosis of D.P.'s Alzheimer's...

To continue reading

Request your trial
4 cases
  • Holzhueter v. Groth (In re Holzhueter), Case No.: 16–13134–11
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Western District of Wisconsin
    • October 18, 2017
    ...for conversion. But, like section 523(a)(2)(A), that statute requires proof of intentionality. See State v. Elverman, 2015 WI App 91, 366 Wis.2d 169, 207, 873 N.W.2d 528 (2015). Defendants have failed to produce any evidence that would suggest Plaintiff intentionally concealed or retained p......
  • State v. Schmidt
    • United States
    • Court of Appeals of Wisconsin
    • June 10, 2021
    ...833. ¶31 '"If more than one crime is presented to the jury, unanimity is required as to each.'" State v. Elverman, 2015 WI App 91, ¶47, 366 Wis. 2d 169, 873 N.W.2d 528 (quoting Lomagro, 113 Wis. 2d at 592). However, if the juryPage 15 was presented with only one crime with alternative modes......
  • State v. Brantner
    • United States
    • United States State Supreme Court of Wisconsin
    • February 25, 2020
    ...commission of any offense, the trial may be in any county in which any of such acts occurred." State v. Elverman, 2015 WI App 91, ¶38, 366 Wis. 2d 169, 873 N.W.2d 528.¶52 Finally, Brantner knowingly had actual physical control of the pills in his boot in Fond du Lac County, which boot was o......
  • State v. Wahlgren
    • United States
    • Court of Appeals of Wisconsin
    • May 17, 2023 conclude that a crime was probably committed and that the defendant is probably culpable.'" State v. Elverman, 2015 WI.App. 91, ¶17, 366 Wis.2d 169, 189, 873 N.W.2d 528 (citation omitted). "When reviewing the sufficiency of a complaint, the facts alleged 'must be sufficient to establish ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT