873 N.W.2d 528
Wis. Ct. App.2015Background
- Elverman was convicted of theft exceeding $10,000 based on transfers from D.P. to Elverman between 2003 and 2004.
- D.P. was elderly with Alzheimer's; Elverman was named successor power of attorney in 2000 and assumed duties in 2001.
- Criminal complaint filed December 6, 2010 alleged theft over $10,000; investigation began around 2008 after guardian reviewed finances.
- Complaint cited numerous checks from 2001–2004 totaling over $600,000; charge focused on conduct between March 25, 2003 and September 23, 2004.
- Elverman challenged notice, statute of limitations, venue, unanimity, lack of consent, and ineffective assistance; trial court denied relief and verdict upheld on appeal.
- Court held that the complaint aggregated multiple acts into a continuing offense and that the action was timely commenced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of notice in the complaint | Elverman argues complaint failed to cite § 971.36, leaving undefined single-intent design. | Elverman contends aggregation under § 971.36 was not adequately disclosed. | Complaint sufficiently notified Elverman; aggregation permitted. |
| Timeliness under statute of limitations | Only last two checks within six-year limit; continuing-offense tolling argued. | If not continuing offense, six-year period bars most acts. | Continuing-offense theory valid; action timely commenced. |
| Whether filing commenced criminal proceedings for SOL | Complaint filing should commence proceedings within six years. | Information filed after deadline could render proceedings untimely. | Filing complaint sufficient to commence proceedings under Jennings; timely. |
| Venue in Milwaukee County | Venue improper because most acts occurred outside Milwaukee. | Venue proper due to ongoing-offense theory and acts in Milwaukee. | Venue proper; acts in Milwaukee or within continuous-offense framework justify. |
| Unanimity instruction | Needed unanimity on specific checks; Wis JI 517 requested. | One continuing offense does not require unanimity on each act. | No unanimity instruction required; jury needed to unanimously find the single continuous offense proved. |
| Evidence of lack of consent | D.P. incapable due to dementia; lack of consent to transfers proved. | Power of attorney created consent; may negate lack of consent. | Sufficient evidence that D.P. lacked capacity to consent and that Elverman knew or should have known. |
Key Cases Cited
- State v. Copening, 309 N.W.2d 850 (Wis. Ct. App. 1981) (notice of charge and single-intent inference in theft cases)
- State v. Lomagro, 335 N.W.2d 583 (Wis. 1983) (duplicity and unanimity concerns in single-charge multiple-acts cases)
- State v. Jacobsen, 352 Wis.2d 409 (Wis. Ct. App. 2013) (continuing-offense charging discretion under § 971.36)
- State v. Jennings, 657 N.W.2d 393 (Wis. 2003) (filing of complaint commences prosecution under SOL reform)
- Toussie v. United States, 397 U.S. 112 (U.S. 1970) (continuing-offense concept and purposes of statutes)
- Pendergast v. United States, 317 U.S. 412 (U.S. 1943) (start of limitations and commencement timing)