¶1dissenting.
¶2Danny Davis was charged with Class B Burglary in that he did "break and enter a dwelling ... with intent to commit a felony therein, to wit: Battery." This charge was based upon a single Class B felony burglary theory, namely that the place broken into was a dwelling. The case went to the jury on that theory and on an additional Class B felony theory, namely that Davis had been armed with a deadly weapon when breaking and entering into the building of another person. The initial charge does not call for the defense to meet a claim that Davis was armed when entering. The judge in effect permitted an amendment of the information at trial. Amendments at trial are prohibited by statute if they do not serve to cure a defect, imperfection or omission in form, or if they do prejudice the substantial rights of the defendant. 1.C. 385-8.1-1-5. In light of the fact that this amendment added an entire discrete element of an offense, I am unable to say that this amendment meets either aspect of that statutory test.
¶3In Graves v. State (1986), Ind., 496 N.E.2d 383, an opinion to which I dissented, this Court approved an amendment seven days before trial which added the word "serious" before "bodily injury" in the charge. In my view, adding the element that the defendant was actually armed during the charged offense has greater likelihood to *932mislead and thwart defense strategies. Here, there were two obvious defense strategies, namely to show no dwelling and to show that the intent at the time of entry was not to do a felony, but to do a misdemeanor. When the trial court, in instructing the jury, included the burglary while armed count, omitted a definition of "dwelling", and dropped the felony battery theory involving bodily injury, the case was radically altered to the detriment of the defense. I would reverse and order a new trial.
¶4DICKSON, J., concurs.