Pursuant to Ind. Appellate Rule 65(D),

                                                               FILED
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,                    Mar 02 2012, 8:21 am
collateral estoppel, or the law of the
case.                                                               CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JOSEPH P. HUNTER                                 GREGORY F. ZOELLER
Public Defender                                  Attorney General of Indiana
Muncie, Indiana
                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHADD B. LANGSTON,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 18A02-1105-CR-466
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                         The Honorable Linda Ralu Wolf, Judge
                             Cause No. 18C03-1010-FB-44


                                       March 2, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
                             STATEMENT OF THE CASE

       Chadd Langston (“Langston”) appeals his conviction, following a bench trial, for

conspiracy to commit robbery as a class C felony as well as his adjudication as an

habitual offender.

       We affirm.

                                         ISSUE

       Whether there was a fatal variance between the allegations in the
       information and the evidence introduced at trial.

                                        FACTS

       The facts most favorable to the judgment reveal that twenty-seven-year-old

Langston moved into Brian Graham’s (“Graham”) Delaware County apartment in

September 2010. On September 29, Susan Terry (“Terry”) and Trudy Said (“Said”)

stopped by Graham’s apartment for a visit. The two men and two women began to talk

about ways to obtain money.      They discussed robbing a McDonald’s, an ATM, a

convenience store, and a liquor store. They eventually agree to rob a nearby Village

Pantry because Graham believed the store clerk “[did not] really care” and would

“probably just hand [Terry] the money.” (Tr. 211).

       Graham gave Terry a BB gun to use during the robbery. Langston told Terry to

hand the Village Pantry clerk a note instead of using the gun. Langston explained that he

had a friend who handed a clerk a note during a robbery and was subsequently charged

with a lesser offense. Langston took a piece a paper and wrote the following note: “I


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need you to put money in [the] bag fast.” State’s Exhibit 25A. Terry put Langston’s note

in the pocket of her sweatshirt.

       Terry and Said entered the Village Pantry and stole $40 out of the cash register.

Terry brandished the BB gun during the robbery but did not show Langston’s note to the

clerk. The police arrived at the scene as the women were fleeing and followed the

women to Graham’s apartment.       The two men and two women were subsequently

arrested. Langston’s handwritten note was discovered in the pocket of a sweatshirt found

in Terry’s car.

       The State charged Langston with conspiracy to commit robbery as a class C

felony. The amended charging information specifically alleged as follows:

              [O]n or about September 29, 2010 in Delaware County . . . Langston
       did knowingly agree with another person to take property, to-wit: U.S.
       Currency, from another person, to-wit: a clerk at the Village Pantry, by
       threatening the use of force, and that in furtherance of the agreement,
       another person with whom . . . Langston agreed, did perform an overt act in
       furtherance of the crime of robbery, presented a note written by . . .
       Langston . . . .

(Appellant’s App. 44). At Langston’s bench trial, there was no evidence that Terry

showed Langston’s note to the cashier. The trial court convicted Langston as charged

and adjudicated him to be an habitual offender. Langston appeals.

                                      DECISION

       Langston argues that there is insufficient evidence to support his conviction.

Specifically, his sole argument is that there is no evidence of the specific overt act as



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charged in the information. The State responds that the variance between the charging

information and the evidence adduced at trial was not fatal. The State is correct.

       As a preliminary matter, we note that Langston has waived appellate review of this

issue because he did not object to the variance at trial. See Hall v. State, 791 N.E.2d 257,

261 (Ind. Ct. App. 2003) (explaining that failure to make a specific objection at trial

waives the material variance issue). Waiver notwithstanding, we find no error.

       A variance is a significant difference between the charging information and the

evidence adduced at trial. Rust v. State, 726 N.E.2d 337, 340 (Ind. Ct. App. 2000). If the

variance misleads the defendant in the preparation of his defense or presents a risk of

double jeopardy, the variance is material and the conviction must be overturned. Id.

       Langston has failed to explain exactly how the variance misled him in the

preparation and maintenance of his defense or how he was harmed or prejudiced thereby.

Our review of the evidence reveals that Langston, Graham, Terry, and Said discussed

different ways to obtain money. They eventually agreed to rob a nearby Village Pantry.

Graham gave Terry a BB gun to use during the robbery, and Langston wrote a note for

Terry to give to the Village Pantry cashier. Langston gave the note to Terry, and she put

it in the pocket of her sweatshirt. Terry and Said entered the Village Pantry and stole $40

out of the cash register. Terry brandished the BB gun during the robbery.

       In light of these facts, we fail to see how Langston was misled in the preparation

and maintenance of his defense. Even though the charging information should have

alleged that Langston performed an overt act when he wrote the note and gave it to Terry,

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or that Graham performed an overt act when he gave the BB gun to Terry, Langston was

well aware of the charges against him.       Further, on appeal, he does not deny his

involvement in the plan to rob the Village Pantry, or that he wrote the note, or that

Graham gave Terry a BB gun to use in the robbery. Under these circumstances, he

cannot successfully contend that he was misled by the charging information.

       We find no fatal variance between the charging information and the evidence

introduced at trial and affirm Langston’s conviction.

       Affirmed.

BAKER, J., and BAILEY, J., concur.




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