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11/23/83 STATE WISCONSIN v. PETER E. BERG

November 23, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
PETER E. BERG, DEFENDANT-APPELLANT



Appeal from a judgment of the circuit court for La Crosse county: James P. Fiedler, Judge.

Petition to review denied.

Gartzke, P.j., Dykman, J. and Gordon Myse, Reserve Judge.

The opinion of the court was delivered by: Dykman

Defendant appeals from a judgment of conviction for theft in violation of sec. 943.20(1)(a), Stats. *fn1 Issues on appeal are whether (1) defendant was properly charged, (2) the evidence was sufficient to sustain the verdict, (3) the trial court erred in allowing certain hypothetical questions to be asked of defendant's character witnesses, and (4) the trial court erred in denying motions for continuance. We conclude defendant was properly charged and the elements of theft were proved by sufficient evidence to sustain the verdict and that the trial court did not err in allowing the hypothetical questions or in denying the continuances. We affirm.

Defendant, an attorney, was retained in March 1979 to represent Cheryl O'Reilly in a personal injury case. The client agreed that defendant's fees would be contingent upon the amount recovered and would be one-third of that amount. Defendant did not discuss with O'Reilly payment of expenses associated with the claim. He entered negotiations with Herbert Breidel, a claims adjuster for State Farm Insurance Company, to settle the O'Reilly claim.

During the negotiations, defendant obtained a blank release form from Breidel and sent it to the O'Reillys. Mr. O'Reilly signed the blank form which Mrs. O'Reilly then took to defendant's office. Defendant discussed settling the case for $9,000 or $10,000 but did not fill in any amount on the release before Mrs. O'Reilly signed it. Defendant and Breidel eventually agreed to settle the claim for $12,000. Defendant arranged for Breidel to draft a check payable to him as attorney for the O'Reillys so that only his signature was necessary to cash it. Breidel then filled in the amount of $12,581.70 on the release. Defendant endorsed the check and deposited it into his trust account. He told the O'Reillys the claim had been settled for $10,000 and wrote them a check for two-thirds of that amount. He wrote a check to himself for $2,500 and cashed it. The O'Reillys never saw the completed release or the check from State Farm and did not know the actual amount of the settlement until this action was started.

In July 1982, a criminal complaint for theft was issued against defendant. Before trial, he made a motion for a continuance to allow substitution for his attorney who thought he might be called to testify. The motion was denied. Defendant was tried and found guilty. At sentencing, he again moved for a continuance to allow time to make post-conviction motions. This motion also was denied.

PROPER CHARGE

Defendant argues that he should have been charged under sec. 943.20(1)(b), Stats., instead of sec. 943.20(1)(a), and, therefore, the state failed to prove an element of the crime. He contends that, as their attorney, he had a right to possession of the O'Reillys' money and could be charged with embezzlement but not larceny. He claims the state failed to prove he did not have a right to possession.

Challenges to the sufficiency of a complaint must be made prior to the preliminary hearing. Sec. 971.31(5)(c), Stats. Failure to object to a defect in the institution of a criminal proceeding constitutes a waiver. State v. Copening, 103 Wis. 2d 564, 570, 309 N.W.2d 850, 853 (Ct. App. 1981). Defendant waived his right to a preliminary hearing and did not, at any time during the course of the proceedings against him, make a motion challenging the complaint or evidence against him. He raises this issue for the first time on appeal. His failure to present his argument to the trial court precludes appellate review. Id. at 571, 309 N.W.2d at 853.

SUFFICIENCY OF THE EVIDENCE

Defendant challenges the sufficiency of the evidence supporting the verdict on the grounds that there was no evidence that the O'Reillys owned the money he withheld from them, that the O'Reillys failed to consent to his possession of it, and that he concealed the money. On review, we must uphold the jury verdict unless, "under all the evidence presented, the jury could not have found guilt beyond a reasonable doubt." State v. Alles, 106 Wis. 2d 368, 377, 316 N.W.2d 378, 382 (1982). If any possibility exists that the jury could have drawn the appropriate inferences from the evidence at trial to find the requisite guilt, the jury verdict will not be overturned. Id.

Section 943.20(1)(a), Stats., requires proof beyond a reasonable doubt of four elements: (1) intentional possession of the movable property of another without the owner's consent; (2) possession without the owner's consent; (3) knowledge that possession was without consent; and, (4) intention to deprive the owner of the property permanently. Genova v. State, 91 Wis. 2d 595, 613 n. 19, 283 N.W.2d 483, 491 (Ct. App. 1979). Sufficient evidence supported the jury's findings of the necessary elements.

A reasonable jury could have found the O'Reillys owned two-thirds of the $2,000 defendant received from State Farm and kept for himself. Both O'Reillys and defendant testified they entered into an oral agreement that the O'Reillys would receive two-thirds and defendant one-third of any settlement with State Farm. Defendant testified that, as a condition for settling the O'Reillys claim for $10,000, he had to agree with Breidel to cash a $12,000 settlement check and return $2,000 to Breidel and a second adjuster. He characterized the $2,000 as an expense associated with settling the claim. The O'Reillys said they never discussed payment of expenses with defendant and that his full compensation was to be one-third of the settlement. Defendant stated he believed he did tell the O'Reillys about payment of expenses in addition to the percentage of settlement as that was his usual practice with ...


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