01-0506 State v. Malcom

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“Despite Cole’s acceptance of full responsibility for the criminal activities, substantial and unchallenged evidence also implicated Malcom. For instance, Johnson, [defendant’s girlfriend], testified that when she threatened to call the police, Malcom told her not to do so because of the ‘dope’ in the basement. Then, after Johnson called the police, Malcom ran down to the basement before leaving the residence. Finally, Malcom’s fingerprints, like Cole’s, were found on one of the plastic baggies recovered from the basement of his residence. In sum, the evidence before the trial court supported the conclusion that Malcom was involved in, if not fully responsible for, the drug-related activities in his residence. Thus, the corroboration of Cole’s statement accepting full responsibility for the criminal activity was ‘merely debatable’ under [State v.] Johnson [181 Wis. 2d 470 (Ct. App. 1993)]. In light of the other significant and unchallenged evidence implicating Malcom, no reasonable jury would accept Cole’s affidavit. Thus, the trial court properly rejected the affidavit.”

In addition, we find no error in the trial court’s decision to permit the State to amend the information at the close of the evidence to add the charge of maintaining a bar resorted to by persons using controlled substances, also in violation of Wis. Stat. sec. 961.42(1).

“Here, the added charge was covered by the very statute underlying the original charge, Wis. Stat. § 961.42. In addition, Malcom was not caught unaware of the facts underlying the added charge since his statement to the police largely supported the charge. Moreover, the evidence relied upon by the State in an attempt to prove the original charge was the same evidence that supported the added charge. Both charges covered the same time period, the same witnesses, the same location, and the same physical evidence. Finally, the evidence does not show or suggest that Malcom would have presented different witnesses in defense of the amended charge.”

Judgment affirmed.

Recommended for publication in the official reports.

Dist II, Racine County, Flynn, J., Nettesheim, J.

Attorneys:

For Appellant: John D. Lubarsky, Madison

For Respondent: Robert S. Flancher, Racine; Karla Z. Keckhaver, Madison