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State v. Bryzek

Court of Appeals of Wisconsin, District II

May 18, 2016

State of Wisconsin, Plaintiff-Appellant,
v.
Michael W. Bryzek, Defendant-Respondent.

         APPEAL from an order of the circuit court for Walworth County No. 2012CF171: DAVID M. REDDY, Judge.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 The State appeals from a circuit court order vacating the judgment of conviction of Michael W. Bryzek and ordering a new trial. The State asserts the postconviction court erred when it granted Bryzek a new trial based on its determination that a modified jury instruction the trial court[1]utilized invited the jury at his criminal trial to find Bryzek guilty based upon "new law." The State contends that even though the modified instruction was based upon a statute that went into effect after Bryzek had committed key acts underlying the offense, this new statute was merely a codification of the common law. Bryzek argues the instruction failed to fully and fairly inform the jury of the law applicable to his alleged criminal acts, [2] and thus the postconviction court did not err in granting him a new trial. We agree with Bryzek and affirm.

         Background

         ¶2 In 1996, E.B., Bryzek's mother, executed a general durable power of attorney (POA) naming Bryzek as her agent. Through the POA, E.B. granted Bryzek the authority to, among other things, "[m]ake gifts of any kind, including gifts to my agent, " i.e., Bryzek.

         ¶3 In 2012, the State charged Bryzek with theft by a bailee in violation of WIS. STAT. § 943.20(1)(b) and (3)(c) (2009-10)[3], alleging that between May 2007 and November 2010, Bryzek, acting as agent for his mother pursuant to the POA, utilized in excess of $38, 000 of her funds for his personal purposes. Because the amount Bryzek allegedly stole exceeded $10, 000, the charge was a Class G felony.[4] A jury trial was held on the matter in December 2013.

         ¶4 For a finding of guilt, the State was required to prove four elements. The standard jury instruction provides as follows for the second element:

The defendant intentionally used the money without the owner's consent and contrary to the defendant's authority.
The term "intentionally" means that the defendant must have had the mental purpose to use the money without the owner's consent and contrary to the defendant's authority.

Wis JI-Criminal 1444 (2006). Before the start of trial, the State, over Bryzek's objection, requested that the trial court add the following language to the instruction for the second element:

The "authority" of a Power of Attorney means that despite any provisions to the contrary in the power of attorney, an agent who has accepted appointment shall 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; act in good faith; and act only within the scope of authority granted in the power of attorney.

         The State's request identified, and it is undisputed on appeal, that this additional language was derived from WIS. STAT. § 244.14(1).[5] No mention was made to the trial court, however, that this statutory provision first became effective September 1, 2010, after many of Bryzek's alleged criminal acts had been committed. The trial court granted the State's request and included the above § 244.14(1) language when it instructed the jury on the second element.[6]

         ¶5 The jury found Bryzek guilty of theft in excess of $10, 000, and he was later sentenced. Bryzek filed a postconviction motion seeking a new trial, which the postconviction court granted after determining the modified jury instruction ...


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