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Leonard v. State

The variance between the indictment and the evidence was not fatal to the defendant's shoplifting conviction, since the allegations in the indictment informed the defendant as to the charges against him, enabling him to present his defense, and were adequate to protect him against another prosecution for the same offense.

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Clarence Leonard appeals his theft by shoplifting conviction. He argues that the evidence does not support the conviction because he was charged with taking a Dell Streak 7 cell phone, but the evidence showed that the item taken was a Dell Streak 7 tablet. We hold that the evidence was sufficient to support the conviction for theft by shoplifting of a Dell Streak 7. And the variance between the indictment and the evidence is not fatal to the conviction because the allegations in the indictment definitely informed Leonard as to the charges against him so as to enable him to present his defense and were adequate to protect him against another prosecution for the same offense. We therefore affirm.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 III B 99 SCt 2781, 61 LE2d 560 1979 citation omitted; emphasis in original. It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 546 SE2d 524 2001 citations and punctuation omitted.

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