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E pluribus unum: Court of Appeals addresses notice, unanimity, venue and statute of limitations issues arising from charging multiple thefts in a single count

State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)

The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.

Elverman was a lawyer with power of attorney for D.P., an elderly woman with Alzheimer’s dementia. Over the course of 18 months, and after a doctor had found her unable to manage her daily affairs, D.P. signed a series of checks made out to Elverman. (¶¶2-4). While none of the individual checks was for $10,000 or more, taken together they were worth almost $375,000. (¶¶20, 50).

Before any charges were brought, the parties agreed for reasons unexplained to toll the six-year statute of limitations by 120 days. (¶32). Within this tolling period the state filed a single-count complaint encompassing the entire 18-month period. (Id.). Only two of the many checks involved were issued within six years and 120 days of the complaint. After much pretrial litigation, a jury convicted Elverman.  (¶¶6-12).

As presented by the court (a pro se defendant’s briefs not being available online), Elverman raised six interrelated issues on appeal. Two (ineffective assistance of counsel and sufficiency of the evidence) are quite fact-specific and won’t be discussed here. The others are, in the order the court presents them:

  1. Notice. Elverman claimed that because the complaint did not mention § 971.36(4), he had no notice that he was being charged with a single, aggregated offense involving all checks in the 18-month period and pursuant to a “single intent or design.” (¶16). The court responds that the complaint alleged all of the checks in this period. (¶¶20-21). It further notes that both parties repeatedly referred to § 971.36 during pretrial proceedings and concludes that Elverman had adequate notice of the nature of the charges.  (¶23).
  2. Statute of limitations. Elverman made two arguments that the charges were time-barred:
    • First, he noted that only the final two checks were written within six years and 120 days of the filing of the complaint. He argued that the continuing offense doctrine, under which “the statute of limitations … does not begin to run until the last act is done which viewed itself is a crime,” does not apply to thefts and that § 971.36(4) is merely a “procedural pleading statute.” (¶¶27, 31). The court disagrees, relying on State v. Jacobsen, 2014 WI App 13, 352 Wis. 2d 409, 842 N.W.2d 365, and concluding that the legislature, in enacting the statute, intended to permit charging multiple thefts as a continuous offense. (¶31).
    • Elverman also argued that the filing of the complaint was not the event that commenced the action; rather, it was the filing of the information (after the statute of limitations would have run as to all checks) that did so. He relied on § 939.74(1), which provides that prosecution commences “when a warrant or summons is issued, an indictment is found, or an information is filed.” (¶33). The court answers by extending State v. Jennings, 2003 WI 10, 259 Wis. 2d 523, 657 N.W.2d 393, which held that statutes enacted after § 939.74 allow a complaint to commence a criminal action where the defendant is already in custody. Though Elverman was not in custody, the court finds that his voluntary appearance was enough to make the complaint the commencing document. (¶35).
  3. Venue. Elverman argued that neither of the last two checks was written or negotiated in Milwaukee County, so venue was not proper there. The court disagrees, relying on its conclusion that all of the checks over the 18 months constituted one offense and the fact there’s no dispute that checks other than the last two were written or negotiated in Milwaukee County. (And in any event, some processing of the last two checks occurred in Brown Deer, which is in Milwaukee County). (¶38).
  4. Unanimity. The circuit court denied Elverman’s request to instruct the jury that it had to agree on which specific checks constituted the theft. Elverman argued that this deprived him of the right to a unanimous jury, since different jurors might have disagreed as to which checks rendered him guilty. (¶39). The court of appeals affirms the circuit court’s discretionary decision on the theory that the multiple checks constituted multiple means of commission, rather than multiple crimes. For this rather slippery distinction, the court relies on State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983). (¶¶46-50).
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