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State’s amendment of charges at the close of evidence affirmed

State v. Brian M. Smits, 2017AP2141-Cr, District 2, 11/20/18, (1-judge opinion, ineligible for publication); case activity (including briefs)

The State charged Smits with obstruction, OWI 2nd, and operating with a PAC 2nd. The case was tried to a jury, After both sides rested, the State filed an amended complaint containing a 2nd obstruction charge. The court of appeals affirmed because Smits wasn’t prejudiced by the amendment.

In general, a court may allow amendment of a charging document to conform to the proof at trial if this will not prejudice the defendant. Wis. Stat. §971.29(2).

In this case, the the State’s original complaint charged only 1 count of obstruction, but the probable cause section alleged 2 separate incidents of obstruction. The complaint neglected to say which incident formed the basis of the obstruction charge. The jury could have convicted on either, so the court of appeals held that Smits had notice going into the trial that he needed to defend against both incidents. Opinion ¶16. This fact distinguished Smits’s situation from State v. Neudorff, 170 Wis. 2d 608, 489 N.W.2d 689 (Ct. App. 1992), where the State presented a new charge with new elements on the morning of trial.

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