Bryzek had already completed most of his alleged acts when a 2010 statute broadened the definition of theft by a bailee; the court of appeals agrees with the circuit court that the jury should have been instructed on the narrower element.
The above sentence is almost, but not quite, true: the statutory definition of the crime didn’t change. Wisconsin Stat. § 943.20(1)(b) requires the state to show that the defendant intentionally used property entrusted to him or her “without the owner’s consent, contrary to his or her authority,” and it read the same way before 2010. What did change was the statute defining the role of a power of attorney: Wis. Stat. § 244.14(1) (so numbered after the 2010 act; the prior version was Wis. Stat. § 243.07). Bryzek was his mother’s POA, so whether he he acted “contrary to his … authority” in using her money turns on what “authority” a POA has.
The state, over Bryzek’s objection, convinced the trial court to instruct the jury about a POA’s authority following the language of § 244.14(1). Most importantly, that statute requires a POA to act in accord with “the principal’s reasonable expectations” or, if those are unknown, her “best interest,” even if there are “provisions to the contrary in the power of attorney.” The statute in effect when Bryzek used most of the money imposed no such requirement. Having been given this definition of “authority,” the jury convicted.
On appeal, the state does not claim that § 244.14(1) applies to Bryzek; it instead argues that its “best interest” and “reasonable expectation” language was preexisting common law that the statute merely codified. The court of appeals doesn’t buy it.
Citing to Russ v. Russ, 2007 WI 83, 302 Wis. 2d 264, 734 N.W.2d 874, the State correctly observes that the pre-WIS. STAT. § 244.14 common law required a determination as to the “intent of the parties” regarding the making of gifts…. This “intent of the parties” standard appears consistent with the language of the second element of the standard jury instruction, WIS JI—CRIMINAL 1444. Had the standard instruction been utilized without modification at Bryzek’s trial, it would have instructed the jury that the State must prove beyond a reasonable doubt that Bryzek intentionally used E.B.’s money “without [her] consent and contrary to [his] authority.” With the jury considering E.B.’s express grant of authority to Bryzek as set forth in the POA—authorizing him to, among other things, “[m]ake gifts of any kind, including gifts to” himself—the State would have had a more difficult time securing a guilty verdict with the standard instruction than with the modified instruction the court utilized at the State’s request.
The modified jury instruction invited the jury to not only determine what E.B.’s expectations were, as evidenced by her express authorization to Bryzek to “[m]ake gifts of any kind, including gifts to” himself, but to also second-guess the sensibility of E.B.’s broad grant of authority to Bryzek and question whether such a grant was “reasonable.” The law prior to the enactment of the new statute asked what the principal’s intent was; not whether the “intent,” or “expectations,” were reasonable. Further, the State has cited no law indicating that prior to the new statute the standard an agent was to follow was what was “in the principal’s best interest,” as opposed to what the principal’s intent was as expressed by the language of the power of attorney. A fact finder could readily conclude in certain instances, such as the one before us, that actions taken by an agent were consistent with the principal’s expressed intent but nonetheless were not in accord with the principal’s reasonable expectations or best interest. We agree with Bryzek’s assertion that the language of WIS. STAT. § 244.14(1) directing that “[n]otwithstanding any provisions to the contrary in the power of attorney, an agent … shall …: (a) Act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, if those expectations are not known, in the principal’s best interest” did not simply codify common law, but rather created new “restrictive provisions.” As a result, the jury instruction, as modified based upon that new statute, did not fairly inform the jury as to the proper legal standard under which it was to determine Bryzek’s guilt.