State v. Elverman

• Citation: 366 Wis.2d 169,873 N.W.2d 528
• Decision Date: 10 November 2015
• Docket Number: No. 2014AP354–CR.,2014AP354–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Jeffrey L. ELVERMAN, Defendant–Appellant.
• Court: Court of Appeals of Wisconsin

366 Wis.2d 169

873 N.W.2d 528

STATE of Wisconsin, Plaintiff–Respondent,

v.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.

Before CURLEY, P.J., KESSLER and BRENNAN, JJ.

CURLEY, P.J.

¶ 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 (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.

BACKGROUND

¶ 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 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 financialpower 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.

¶ 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, 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 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.

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

during the relevant time period.

¶ 11 Special Agent Amy Lehman of the Wisconsin Department of Justice Division of Criminal Investigation also testified at trial. Specifically, she testified that the checks at issue varied in amount ranging from approximately $4500 to $9750, and the record shows that Elverman frequently received multiple checks from D.P. each month, sometimes within a matter of days. There was also trial testimony that although D.P.'s signature appeared on the checks issued to Elverman, the body of the checks appeared to have been filled in by an individual other than D.P.

¶ 12 Based on the testimony and evidence presented, a jury found Elverman guilty of theft as charged in the information and that the value of the property obtained exceeded $10,000. After an extensive, multi-day sentencing hearing, the trial court sentenced Elverman to five years' initial confinement and five years' extended supervision, imposed and stayed, and placed Elverman on probation for five years. As conditions of probation, the court ordered condition time of seven months with a maximum of seventy-two hours work release privileges per week, stayed until May 1, 2012, as well as restitution in the amount of $325,000, with credit for amounts already paid as of March 8, 2012. Per the restitution order, $1500 would be due the first of each month for the remainder of 2012, $...