COURT OF APPEALS

DECISION

DATED AND FILED

 

June 3, 2009

 

David R. Schanker

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

 

 

 

 

Appeal No.�

2008AP2245-CR

Cir. Ct. No.� 2007CF72

STATE OF WISCONSIN���

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

State of Wisconsin,

 

��������� Plaintiff-Respondent,

 

���� v.

 

Burton S. Bartow,

 

��������� Defendant-Appellant.

 

 

 

����������� APPEAL from a judgment and an order of the circuit court for Winnebago County:� karen l. seifert, Judge.� Affirmed.�

����������� Before Brown, C.J., Anderson, P.J., and Neubauer, J.� �

�1������� PER CURIAM.   Burton S. Bartow appeals from the judgment of conviction entered against him and the order denying his motion for postconviction relief.� He argues that the circuit court erred when it allowed the State to amend the charges against him in the middle of his trial.� Because we conclude that the amendment was reasonable, we affirm the judgment and order.

�2������� Bartow was charged with one count of repeated sexual assault of the same child, contrary to Wis. Stat. � 948.025(1)(b) (2005-06).[1]� To prove repeated sexual assault of a child, the State must establish that the defendant committed at least three acts of sexual contact or intercourse. �Wis. Stat. �� 948.025(1) and 948.02(1). �The victim testified at trial that Bartow sexually assaulted her �more than� three times.� She then described two incidents when Bartow put �his thing� inside her �crotch.� After the victim finished testifying and before the State rested, the State moved to amend the information from one count of repeated sexual assault of a child, a class C felony, to two counts of second-degree sexual assault of a child, also a class C felony. �See � 948.02(2).�

�3������� Defense counsel objected to the amendment, arguing that the fact that the witness testified differently than the State expected did not warrant amendment of the information. �Further, counsel argued that the amendment would prejudice Bartow�s defense, which would have been that the State had not proved three incidents, and doubled the potential sentence that Bartow faced.� The court concluded that the amendment was not unfairly prejudicial because Bartow had notice of what the accusation was, and the amendment essentially was only a change in number, not in the actual accusation.� Bartow filed a motion for postconviction relief.� The circuit court held a hearing and concluded that Bartow had not been prejudiced by the amendment.� Bartow appeals.

�4������� At trial, the circuit court may allow the amendment of the information to conform to the proof when the amendment is not prejudicial to the defendant. �Wis. Stat. � 971.29(2) (2007-08). �We review the circuit court�s decision to make such an amendment for an erroneous exercise of discretion. �State v. Malcolm, 2001 WI App 291, �23, 249 Wis. 2d 403, 638 N.W.2d 918. �A circuit court misuses its discretion when the defendant is prejudiced by the amendment.� State v. Neudorff, 170 Wis. 2d 608, 615, 489 N.W.2d 689 (Ct. App. 1992).� �Rights of the defendant which may be prejudiced by an amendment are the rights to notice, speedy trial and the opportunity to defend.�� Id. (citation omitted).

�5������� The State must satisfy two tests to sustain the amendment: �the wholly unrelated test and the constitutional notice test.� Malcolm, 249 Wis. 2d 403, �26.� The State may add charges to an information as long as those charges are not �wholly unrelated to the transactions or facts considered or testified to at the preliminary hearing.�� Id. �The charges, however, must be related in terms of the parties, witnesses, geographical proximity, time, physical evidence, motive, and intent.� Id.� Further, the defendant must have notice of the accusations.� Id. ��Notice to the defendant of the nature and cause of the accusations is the key factor in determining whether an amended charging document has prejudiced a defendant.�� State v. Wickstrom, 118 Wis. 2d 339, 349, 348 N.W.2d 183 (Ct. App. 1984).

�6������� In Malcolm, we concluded that the amendment made was not prejudicial because the defendant was not �caught unaware� of the facts underlying the amended charge when the facts supporting that charge were the same as the facts supporting the amended charge.� Malcolm, 249 Wis. 2d 403, �28.� We also concluded that the evidence did not show or suggest that Malcolm would have presented a different defense to the amended charge.� Id.

�7������� In this case, Bartow argues that he was prejudiced because he had not prepared a defense to the new charges and because the penalty he faced was doubled by the amendment.� We conclude, however, that Bartow had notice of the accusations.� The charge involved the same parties, witnesses, time, physical evidence, motive and intent.� Bartow argued to the jury that he did not commit the offenses and that the victim�s testimony was not credible.� Bartow does not argue that there are other defenses he could have presented to the amended charge.� He simply has not established that his preparation for the new charges would have been any different than his preparation for the original charge.�

�8������� We also conclude that the increase in penalty was not prejudicial.� Bartow asserts that he may have entered a negotiated plea if he had understood the penalty he would face by going to trial.� Bartow has not established, however, that he attempted to negotiate a plea and was rebuffed by the State.� We are not convinced that the increase in the potential penalty was prejudicial.� For the reasons stated, we affirm the judgment and order of the circuit court.�

����������� By the Court.�Judgment and order affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5 (2007-08).

 

 


[1]  Bartow was initially charged with violating Wis. Stat. � 948.025(1)(ar).� After the preliminary hearing, this was amended to � 948.025(1)(b), because the victim testified that she was fifteen at the time of the assaults.�

All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.