Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS                                  GREGORY F. ZOELLER
Marion County Public Defender                     Attorney General of Indiana
Indianapolis, Indiana
                                                  RYAN D. JOHANNINGSMEIER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana

                                                                                FILED
                                                                            Dec 07 2012, 9:30 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




BRENDA VARO,                                      )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 49A05-1203-CR-144
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Mark D. Stoner, Judge
                            Cause No. 49G06-1104-FB-25422



                                       December 7, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Brenda Varo appeals her convictions for conspiracy to commit battery, as a Class

C felony, and criminal gang activity, as a Class D felony, following a jury trial. She

presents four issues for review, which we restate as:

       1.     Whether the evidence is sufficient to support her convictions.

       2.     Whether the trial court erred in instructing the jury on conspiracy to
              commit battery and when it refused to instruct the jury on aiding and
              abetting in the offenses.

       3.     Whether the trial court erred when it allowed a police officer to
              testify regarding Varo’s membership in a gang and when it admitted
              into evidence a demonstrative exhibit.

       4.     Whether there was a fatal variance between the pleading and the
              proof in Varo’s case.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       In July 2010, sixteen-year-old Antonio Robledo joined a criminal gang called

“BPS 13.” To become a member, Robledo was “jumped into” the gang by accepting a

beating from other gang members while one member counted to thirteen. Transcript at

108. Only gang members participate in gang activities, and members are prohibited from

discussing gang activities with non-members. Robledo often spent time with a fellow

BPS 13 member, Juan Zabala, and Zabala’s sixteen-year-old girlfriend, Varo. Robledo

also knew Varo from school.

       On August 20, Varo told Robledo at school that Zabala had “a job [for Robledo] to

do.” Id. at 115. Varo initially said she could not tell Robledo what the job was, but

eventually she told him he was ordered to kill Chris Marin, a former member of BPS 13.
                                             2
That evening, Zabala and Varo picked Robledo up from his home in a truck owned by

Varo’s father. Zabala had told Robledo they would be going to the Indiana State Fair.

Instead, Zabala drove to Steak-n-Shake, where he told Robledo he had to kill Marin. At

the restaurant, the three ordered food, and Zabala further discussed the order to kill

Marin. Robledo used Varo’s phone to call Marin to set up a time to meet on the pretense

of selling Marin a gun. After several unsuccessful attempts to set up a meeting time,

Marin agreed to meet Robledo at Marin’s home at 11:30 that evening.

      When Robledo, Zabala, and Varo left the restaurant, they drove to a park, where

Zabala continued to tell Robledo how to kill Marin. They then drove on to Marin’s

home. Zabala parked the truck in an alley, took a gun from Varo’s purse, and gave it to

Robledo. Robledo walked toward the house while talking on the phone to Marin, who

told him to meet at the bathroom window. Robledo walked around to the bathroom

window, where Marin was waiting inside the bathroom with his head out the window.

Robledo shot Marin and then ran back to the truck. Once inside the truck, he gave the

gun to Zabala, who put it in Varo’s purse. Zabala then quickly drove away.

      The day after the shooting, Zabala told Robledo that he had not killed Marin.

Zabala, Varo, Juan Gonzales, and Robledo drove to a party to give the gun Robledo had

used to the head of the gang, someone known as Paninas.1 The gun was transported in

Varo’s purse. At the meeting, Paninas told Zabala and Robledo to keep the gun and

instructed Robledo to try again to kill Marin. Later, in Robledo’s presence, he gave

Zabala a different gun for Robledo to use.



      1
          According to the information, Paninas is the street name for Israel Partida.
                                                     3
      Sometime after the shooting, Robledo told his girlfriend that he had shot Marin.

Robledo later told Varo that he had discussed the shooting with his girlfriend. When

Zabala, Varo, and Robledo were next together, Zabala told Robledo he had to give him a

“violation” for having discussed gang activity with a non-member. Id. at 135. For a

violation, a member had to accept a beating from a gang member while another member

counted to thirteen. Varo counted while Zabala beat Robledo for the violation.

      Indianapolis Metropolitan Police Department (“IMPD”) Sergeant Edward Bruce

of the Criminal Gang Unit was the lead officer on the investigation of Marin’s shooting.

The State charged Robledo with the offense, and Robledo pleading guilty. In 2011,

before his prison term was completed, he met with agents from the Immigration and

Naturalization Service and with Sergeant Bruce. Robledo had a “heavy heart,” was

“emotionally upset” about what he had done, and “wanted to tell somebody what he did.”

Id at 91.   The officers listened to him recount the details about Marin’s shooting.

Robledo was scheduled to be deported to Mexico the following day.

      Based on the information from Robledo’s statement that day, the Criminal Gang

Unit obtained arrest and search warrants for Varo, Gonzalez, Zabala, and Israel Partida.

On April 13, 2011, IMPD Lieutenant Marshall Depew served and executed the search

warrant on Varo’s home. At the home, officers found, in relevant part, suspected gang-

related writings and photos with gang insignia on them.

      In a single information, the State charged Varo, Zabala, Partida, and Gonzalez on

April 12, 2011, with multiple counts arising from the shooting of Marin. Varo was

charged with conspiracy to commit aggravated battery, as a Class B felony (“Count 1”);


                                           4
conspiracy to commit battery, as a Class C felony (“Count 2”); and criminal gang

activity, a Class D felony (“Count 6”).2 In May the State filed a motion to amend the

information to add additional counts, including one against Varo. On August 1, Varo

filed a motion for severance, which the trial court granted after a hearing. And on August

30, the court denied the State’s motion to amend the information.

        A jury trial was held February 15, 2012, as to the charges against Varo only. The

jury found Varo guilty of Count 2 and Count 6 and not guilty of Count 1.                             At a

subsequent hearing, the court sentenced Varo to three years for Count 2, with 646 days

executed, 449 days suspended, and 449 days on non-reporting probation, and 646 days

for Count 6, to be served concurrently. Varo now appeals.

                                 DISCUSSION AND DECISION

                               Issue One: Sufficiency of Evidence

        Varo contends that the evidence is insufficient to support her convictions. When

reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or

judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003).

We look only to the probative evidence supporting the judgment and the reasonable

inferences that may be drawn from that evidence to determine whether a reasonable trier

of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there

is substantial evidence of probative value to support the conviction, it will not be set

aside. Id.



        2
           Although Varo was a juvenile at the time of the offenses, because she was at least sixteen years
old, the juvenile court did not have jurisdiction over Count 6, which charged her with criminal gang
activity. See Ind. Code § 31-30-1-4(a)(8).
                                                    5
                                   Conspiracy to Commit Battery

        We first consider whether the evidence is sufficient to support Varo’s conviction

for conspiracy to commit battery.3 To prove a conspiracy, the State was required to show

beyond a reasonable doubt that Varo, with the intent to commit a felony, agreed with

another person, namely Robledo, to commit a felony and that either she or Robledo

performed an act in furtherance of the agreement. See Ind. Code § 35-41-5-2. Here, the

underlying felony was battery.

        The evidence shows that Varo informed Robledo of the order from the gang to

shoot Marin; transported the gun in her purse before and after the shooting; was present

when Robledo and Zabala discussed how to shoot Marin at Steak-n-Shake and at the

park; was in the truck with Zabala when he drove Robledo to Marin’s home, where

Robledo shot Marin; and was with Robledo and Zabala when they attempted to give the

gun to Paninas. Varo clearly knew of the order to shoot Marin, told Robledo about it and

was with him before, during, and after the shooting, and Robledo took a significant step

in furtherance of the conspiracy, namely, he shot Marin. Further, the evidence shows that

gang rules prohibited discussing or performing gang activities in front of non-gang

members. The evidence is sufficient to support Varo’s conspiracy conviction.

        Nevertheless, Varo challenges her conviction on two grounds. First, she contends

that the charging information alleged that five individuals had agreed with each other to

commit battery but there is no evidence of an agreement among all five individuals. The

information reads:

        3
          In some parts of its appellate brief, the State argues that the evidence is sufficient to support
Varo’s conviction for conspiracy to commit murder. Varo was neither charged with nor convicted of that
offense.
                                                    6
       During the month of August 2010, ISREAL PARTIDA a/k/a “PENINA”,
       JUAN ZABALA a/k/a “CONAJO”, BRENDA VARO and JUAN
       GONZALEZ a/k/a “DUENDE”, with the intent to commit the felony of
       Battery, did agree with Antonio Robledo a/k/a “Flaco” to commit said
       felony of Battery, which is to knowingly or intentionally touch another
       person, in this case Christopher Marin, in a rude, insolent or angry manner
       by means of a deadly weapon, and Antonio Robledo a/k/a “Flaco”
       performed the following overt act in furtherance of the agreement, that is:
       shooting said Christopher Marin with a handgun[.]

Appellant’s App. at 36. Varo argues that the charge requires the State to show that

Partida, Zabala, Varo, Gonzalez, and Robledo all agreed with each other to commit the

act of battery. But Varo misreads the charging information. The charge required the

State to show in relevant part that Partida, Zabala, Varo, and Gonzalez each agreed with

Robledo to commit the act of battery. The charge did not require a collective agreement

between all five people listed in that count. Varo’s argument based on her mistaken

reading of the charging information must fail.

       Varo also contends that the evidence does not show an agreement to shoot Marin

that involved her in any way. In support, she points to evidence that she had tried to talk

Robledo out of joining the gang but now he had a “job to do.” Transcript at 115. She

also points to evidence showing that she told Zabala and Robledo that shooting Marin

was “stupid” and they should not do it. Id. at 165. And she points to Robledo’s

testimony that she did not order him to shoot Marin. But those arguments amount to a

request for us to reweigh the evidence, which we will not do. Jones, 783 N.E.2d at 1139.

The evidence shows that Varo informed Robledo of his “job,” to shoot Marin, and that

she transported the gun in her purse before and after the shooting. That evidence is

sufficient to show her involvement in the conspiracy. Varo’s arguments to the contrary


                                            7
must fail. The evidence is sufficient to support her conviction for conspiracy to commit

battery.

                                  Criminal Gang Activity

       Varo also contends that the evidence is insufficient to support her conviction for

criminal gang activity. A “criminal gang” is a group with at least three members that

specifically: (1) either: (A) promotes, sponsors, or assists in; or (B) participates in; or (2)

requires as a condition of membership or continued membership; the commission of a

felony or an act that would be a felony if committed by an adult or the offense of battery.

Ind. Code § 35-45-9-1. In order to convict Varo of criminal gang activity, the State must

have shown beyond a reasonable doubt that she: (1) was an active member of a criminal

gang, (2) had knowledge of the group’s criminal advocacy, and (3) had a specific intent

to further the group’s criminal goals. See Ind. Code § 35-45-9-3. Varo contends that the

evidence does not show either that she was a gang member or that she acted with a

specific intent to further the gang’s criminal goals. We address each contention in turn.

       We first consider Varo’s contention that there is no evidence showing that she was

a gang member. Specifically, Varo argues that the only evidence of her membership in

the gang came from Sergeant Bruce. He testified that IMPD tracks gang membership by

having IMPD officers submit a form after they observe an individual exhibit one of a set

list of gang-related behaviors. Those behaviors include associating with known gang

members, wearing the gang’s colors, flashing gang hand signs, identification by other

gang members as a gang member, “social media,” or admitting to membership in the

gang. Transcript at 65. Sergeant Bruce testified that an officer who observes such


                                              8
behavior is asked to fill out a form and send it to the Criminal Gang Unit, which tracks

the data gathered from the forms. Sergeant Bruce further testified that a person is

considered a “confirmed gang member” if he or she meets three of the criteria and that

Varo had met three of the criteria: associates with known gang members, writes about it,

and was identified as a member by other gang members. Id. at 64, 90.

       Varo contends that the only testimony about her alleged gang membership came

from Sergeant Bruce, but he “did not say what other gang members had pointed her out”

and “did not identify any gang-related writings authored by” her. Appellant’s Brief at 15.

In essence, Varo attacks the foundation for Sergeant Bruce’s conclusion that she was a

gang member.

       But there is independent evidence to show that Varo is a gang member.

Specifically, Robledo testified that gang activities can be performed only with other gang

members and information about those activities can be shared only with other members.

Here, Varo was present over the course of the evening during which Zabala and Robledo

had several conversations about Robledo’s order to kill Marin. And Varo carried the gun

in her purse, before and after the shooting. Further, when Robledo later confessed to

Varo that he had told his girlfriend about his involvement in the shooting, Varo told

Zabala, who imposed a “violation” on Robledo in Varo’s presence, and Varo counted to

thirteen while Zabala beat Robledo for the violation. That independent evidence supports

a conclusion that Varo was a gang member.

       Varo also contends that there is insufficient evidence to show that she had a

“specific intent to further the goals of [the gang] when she rode along in the car that night


                                             9
with her boyfriend [Zabala] and Robledo.” Appellant’s Brief at 15. In particular, she

points to evidence showing that she opposed the shooting, having told Robledo and

Zabala that it was stupid and not to do it. But there is also evidence that Varo was the

first to tell Robledo that he was ordered to shoot Marin and that she transported in her

purse the gun that Robledo used in the shooting. Varo carried the gun in her purse before

and after the shooting. It was for the jury to determine whether this evidence was

sufficient to show that Varo had a specific intent to further the goals of the gang. See

Jones, 783 N.E.2d at 1139. Varo has not demonstrated that the evidence is insufficient to

show that she had a specific intent to further the group’s criminal goals, here, shooting

Marin. As such, Varo has not shown that the evidence is insufficient to support her

conviction for criminal gang activity.

                              Issue Two: Jury Instructions

       Varo next contends that the trial court erred when it instructed the jury. As we

have discussed:

       The purpose of a jury instruction is to inform the jury of the law applicable
       to the facts without misleading the jury and to enable it to comprehend the
       case clearly and arrive at a just, fair, and correct verdict. Instruction of the
       jury is left to the sound judgment of the trial court and will not be disturbed
       absent an abuse of discretion. Jury instructions are not to be considered in
       isolation, but as a whole and in reference to each other. The instructions
       must be a complete, accurate statement of the law which will not confuse or
       mislead the jury. Still, errors in the giving or refusing of instructions are
       harmless where a conviction is clearly sustained by the evidence and the
       jury could not properly have found otherwise.

Johnson v. State, 959 N.E.2d 334, 338 (Ind. Ct. App. 2011) (internal quotation marks and

citations omitted), trans. denied.    Varo contends that the trial court erred when it



                                             10
instructed the jury on conspiracy to commit battery and when it refused to instruct the

jury on aiding and abetting in the offenses. We address each argument in turn.

                                   Conspiracy Instruction

       We first consider Varo’s contention that the trial court erred when it instructed the

jury, in the preliminary and the final instructions, that the jury could find Varo guilty of

conspiracy to commit battery upon proof of an agreement only with Robledo.

       In reviewing a challenge to a jury instruction, we consider: (1) whether the
       instruction is a correct statement of the law; (2) whether there was evidence
       in the record to support giving the instruction; and (3) whether the
       substance of the instruction is covered by other instructions given by the
       court.

Id. (citation omitted). But Varo concedes that she did not object to the instruction at the

trial court. Therefore, we review her claim only for fundamental error. Fundamental

error occurs only if the error was so prejudicial to the rights of the appellant that he could

not have had a fair trial. Harper v. State, 963 N.E.2d 653, 660 (Ind. Ct. App. 2012)

(citation omitted). “To rise to the level of fundamental error, the error must constitute a

blatant violation of basic principles, the harm or potential for harm must be substantial,

and the resulting error must deny the defendant fundamental due process.” Id. (internal

quotation marks and citation omitted).

       We first observe that the instruction Varo challenges is the same one she tendered

to the trial court. Therefore, the error, if any, is invited. See Dumas v. State, 803 N.E.2d

1113, 1121 (Ind. 2004) (“A party may not invite error and then later argue the error

supports reversal.”). And, in any event, Varo’s argument regarding the conspiracy to

commit battery is, like her sufficiency of evidence claim, based on the charging


                                             11
information. Again, she reads the charging information to require agreement between all

five of the people listed in Count 2. The charging information required the State to show

in relevant part that Partida, Zabala, Varo, and Gonzalez each agreed with Robledo to

commit the act of battery. The charge did not require a collective agreement between all

five people listed. Similarly, the preliminary and final jury instructions provide, in

relevant part:

       To convict the defendant of conspiracy to commit battery, the State must
       prove each of the following elements:

       1.        The defendant, Brenda Varo,
       2.        with the intent to commit battery, a felony,
       3.        did agree with Antonio Robledo a/k/a “Flaco”,
       4.        to commit said felony of battery, which is to knowingly or
                 intentionally touch another person, in this case: Christofer Marin, in
                 a rude, insolent or angry manner, by means of a deadly weapon,
       5.        and Antonio Robledo a/k/a “Flaco” performed an overt act in
                 furtherance of the agreement, that is: shooting said Christofer Marin
                 with a handgun.

Appellant’s App. at 131, 154.

       Varo’s argument is, again, based on her mistaken reading of the charging

information.      The language of the relevant instructions tracks the language of the

charging information.        We have already held that Varo misreads the charging

information. The charging information required the State to show, in part, an agreement

only between Varo and Robledo, and the jury was so instructed. As such, Varo has not

shown error, substantial or otherwise, or any violation of due process with regard to the

jury instructions on conspiracy to commit battery.




                                               12
                                  Tendered Instruction

      Varo also contends that the trial court erred when it refused to instruct the jury on

aiding and abetting. Again, errors in the refusing of instructions are harmless where a

conviction is clearly sustained by the evidence and the jury could not properly have found

otherwise. Johnson, 959 N.E.2d at 338. And the instructions must be a complete,

accurate statement of the law which will not confuse or mislead the jury. Id.

      Here, Varo requested the trial court to instruct the jury as follows:

      Mere presence at the scene of the crime and knowledge that a crime is
      being committed are not sufficient to establish that an Accused aided and
      abetted the crime. The State must prove all of the elements of [aiding,
      inducing, causing] the offense beyond a reasonable doubt, as given to you
      in that instruction, before you may find the accused guilty.

Appellant’s App. at 145. She argues that the trial court abused its discretion when it

refused to give that instruction to the jury. We need not decide whether the trial court’s

refusal to give the tendered instruction was an abuse of discretion because “errors in the

giving or refusing of instructions are harmless where a conviction is clearly sustained by

the evidence and the jury could not properly have found otherwise.” Dill v. State, 741

N.E.2d 1230, 1233 (Ind. 2001).

      Again, the evidence shows that Varo told Robledo that he would be instructed to

kill Marin, she was with Robledo and Zabala at all times before the shooting when they

were discussing how it should be carried out, and before and after the shooting she

carried in her purse the gun Robledo used to shoot Marin. Thus, as we held above, the

evidence is sufficient to show that she conspired to commit battery. Regarding the

offense of criminal gang activity, the evidence shows that gang rules prohibited


                                            13
discussing or performing gang activities in front of anyone except gang members and that

Varo knew before Robledo did of the order to shoot Marin, was present for the

instructions on shooting Marin, was present when Robledo shot Marin, and counted to

thirteen while Zabala beat Robledo as punishment for Robledo telling his girlfriend about

his involvement in the shooting. That evidence is sufficient to show that Varo was not a

mere bystander and to support her conviction for criminal gang activity. Because the

evidence supports Varo’s convictions, she has not shown that the trial court’s refusal to

instruct the jury on “mere presence” was reversible error. See id.

                           Issue Three: Admission of Evidence

       Varo also contends that the trial court improperly admitted certain evidence at

trial. Again, we review the admission of evidence at trial for an abuse of discretion. Bean

v. State, 913 N.E.2d 243, 250 (Ind. Ct. App. 2009) (citation omitted), trans. denied. An

abuse of discretion involves a decision that is clearly against the logic and effect of the

facts and circumstances before the court. Id. Conflicting evidence is viewed most

favorably to the trial court’s ruling. Id. (citation omitted).

       Varo contends that the trial court abused its discretion when it admitted certain

evidence. Specifically, Varo contends that the trial court abused its discretion when it

admitted testimony from Sergeant Bruce regarding IMPD’s process of identifying

criminal gang members. But Varo did not object at trial to Sergeant Bruce’s testimony in

that regard. Thus, she has waived any challenge to the admission of that testimony. See

Granger v. State, 946 N.E.2d 1209, 1220 (Ind. Ct. App. 2011).




                                              14
        Varo also contends that the trial court’s admission of State’s Exhibit 1 was an

abuse of discretion. That exhibit was a large chart entitled “BPS 13 NAMES,” a list of

individuals’ names next to “street name” or nicknames, and the State used the chart

during opening statement. State’s Exhibit 1. The trial court admitted that demonstrative

exhibit over Varo’s objection that it was a substantive, not a demonstrative, exhibit. At

trial, Sergeant Bruce testified regarding the individuals listed on the exhibit and their

street names, including Varo. On appeal Varo again challenges admission of the exhibit

as improper substantive evidence that invaded the province of the jury.

        But State’s Exhibit 1 is cumulative of Sergeant Bruce’s testimony. Reversible

error cannot be predicated upon a trial court’s admission of evidence that is merely

cumulative. English v. State, 603 N.E.2d 161, 164 (Ind. Ct. App. 1992). Moreover, Varo

concedes that she did not object to Sergeant Bruce’s testimony at trial regarding the

information on State’s Exhibit 1.            She has waived her challenge to the cumulative

evidence on that demonstrative exhibit, see id., and she has not shown fundamental error

in the admission of the same, see Harper, 963 N.E.2d at 660.                       Varo’s contentions

regarding the admission of State’s Exhibit 1 must fail.4

                                    Issue Four: Fatal Variance

        Finally, Varo contends that there is a fatal variance between the charging

information and the evidence admitted at trial. A variance is an essential difference

between the pleading and the proof. Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997)


        4
          To the extent Varo contends that the trial court erred by failing to the instruct the jury on the
demonstrative nature of the exhibit, she has not shown that she requested such an instruction at trial.
Therefore, the argument is waived. See Ortiz v. State, 766 N.E.2d 370, 375 (“tendered instruction is
necessary to preserve error”).
                                                    15
(quotation marks and citation omitted). Not all variances between allegations in the

charge and the evidence at trial are fatal. Id. (quotation marks and citation omitted).

       The test to determine whether a variance between proof at trial and a
       charging information or indictment is fatal is as follows:

       (1) was the defendant misled by the variance in the evidence from the
       allegations and specifications in the charge in the preparation and
       maintenance of his defense, and was [she] harmed or prejudiced thereby;

       (2) will the defendant be protected in the future criminal proceeding
       covering the save event, facts, and evidence against double jeopardy?

Id. (citing Harrison v. State, 507 N.E.2d 565, 566 (Ind. 1987)).

       Here, Varo contends that she is “vulnerable to double jeopardy in a future criminal

proceeding addressing the same event, facts and evidence but alleging separate

conspiracies with Partida, Zabala, and/or Gonzalez.” Appellant’s Brief at 27-28. But her

argument is based, again, on her misreading of the charging information. As discussed

above, Count 2 of the information alleged that Partida, Zabala, Varo, and Gonzalez

agreed with Robledo, not with each other, to commit battery against Marin. The charging

information does not allege a conspiracy between Varo and anyone else listed in Count 2.

Therefore, she is not “vulnerable to double jeopardy,” see id., and her argument on this

issue must fail.

                                        Conclusion

       The evidence is sufficient to support Varo’s convictions for conspiracy to commit

battery, as a Class C felony, and criminal gang activity, as a Class D felony. Varo has not

shown that the trial court committed fundamental error when it instructed the jury on the

conspiracy charge, nor has she shown reversible error when the court refused a tendered


                                             16
instruction on Varo’s “mere presence” at the time of the offense. Further, Varo has not

shown fundamental error in the admission of Sergeant Bruce’s testimony about her

membership in a gang, nor has she shown reversible error in the State’s admission of a

cumulative demonstrative exhibit that lists the names of gang members next to their street

names. Finally, Varo has not shown a fatal variance between the proof and the pleading

in this case. Therefore, we affirm her convictions for conspiracy to commit battery, as a

Class C felony, and criminal gang activity, as a Class D felony.

      Affirmed.

KIRSCH, J., and MAY, J., concur.




                                            17
