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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: MARK SMALL Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JANINE STECK HUFFMAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ALLEN ELSTON, Appellant- Defendant, vs. STATE OF INDIANA, Appellee- Plaintiff, ) ) ) ) ) ) ) ) )

FILED
Oct 07 2010, 9:12 am
of the supreme court, court of appeals and tax court

CLERK

No. 49A05-1003-CR-137

APPEAL FROM THE MARION SUPERIOR COURT The Honorable James Osborn, Judge Cause No. 49F18-0608-FD-231638

October 7, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Allen Elston appeals his conviction, following a jury trial, of theft as a Class D felony. For our review, Elston raises two issues: whether the evidence was sufficient to support his conviction of theft, and whether the trial court erred in allowing an amendment of the charging information to correct the date of the alleged theft during trial. Concluding the evidence was sufficient and the trial court did not err in permitting the State to amend the original charging information, we affirm. Facts and Procedural History On July 18, 2008, Rebecca Randolph was working at the Indiana Lighting Company. Elston came into the store that day and said he had left a gym bag, containing his identification and other items, outside the store next to a tree the night before. Although Randolph thought Elston's statement was bizarre, she went outside with him to look for the gym bag. The two did not find the gym bag and came back inside the store so Randolph could get the telephone number of the store's lawn mowing service in case they had seen the gym bag. Randolph had to leave the showroom to get the number from the store office, leaving Elston alone on the showroom floor. Randolph gave Elston the number and he left the store. When Randolph was ready to leave work for the day, she realized her purse was gone from underneath her desk, which is located on the showroom floor. In court, Randolph identified Elston as the man who entered the store on July 18, 2008, claiming to have left his bag outside of Indiana Lighting Company. Stan Wallace was also an employee at Indiana Lighting. He was working on July 18, 2008, and heard Elston ask about a bag he had left outside. Wallace did not interact with Elston on that date, but he was also working on July 22, 2008, when Elston returned
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to the business and again inquired about his bag. Elston asked Wallace to contact him if anyone happened to find his gym bag. Elston wrote down his name for Wallace, but did not give any other information. After Elston left, Wallace, who recognized Elston from his visit several days before, told other store personnel to call the police. Police arrived on the scene and placed Elston under arrest. In court, Wallace identified Elston as the man he saw in the store on July 18 and 22, 2008. A security camera was operating in the building on July 18, 2008. In the video, Elston is seen walking around the desks in the showroom, looking around, reaching around a desk, picking up Randolph's purse, and putting it under his shirt. Randolph and Wallace both viewed the video and identified Elston as the man in the video. Randolph and Wallace also reviewed a six-person photo array and identified Elston as the man who was in their store on July 18 and 22, 2008. The State charged Elston with theft, a Class D felony, alleging that "[o]n or about July 17, 2008," Elston knowingly exerted unauthorized control over Randolph's purse. Appellant's Appendix at 19. On the day of trial, after two witnesses had testified, the State moved to amend the charging information to change the date of the incident from occurring on or about July 17, 2008, to occurring on July 18, 2008. The trial court granted the motion. A jury found Elston guilty. Elston now appeals his conviction of theft.

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Discussion and Decision I. Sufficiency of the Evidence A. Standard of Review When reviewing the sufficiency of the evidence to support a criminal conviction, we do not reweigh the evidence or judge witnesses' credibility. Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). Rather, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Therefore, we will affirm the conviction if the probative evidence and reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find all elements of the crime proven beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). B. Evidence of Theft To convict Elston of theft as a Class D felony, the State must prove beyond a reasonable doubt that Elston: (1) knowingly; (2) exerted unauthorized control over the property of another person; (3) with the intent to deprive the other person of any part of its value or use. Ind. Code

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