David, J.
Following his conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury, Kenyatta Erkins presents us with a matter of first impression: whether the State must establish the existence of serious bodily injury for his conviction to stand. Without actual serious bodily injury to his alleged victim, he reasons, there is insufficient evidence to support his conviction. However, because conspiracy is a crime consisting of intent to commit an underlying crime, an agreement between or among conspirators to commit the underlying crime, and an overt act by one of the conspirators in furtherance of the agreement, the State needed only to prove these elements beyond a reasonable doubt to support Erkins’s conviction. We find that the State met its burden and affirm Erkins’s conviction.
Erkins also claims that the trial court erred by permitting the State to amend the charging information on the second day of trial to reflect that a co-conspirator, and not he, committed the overt act. However, because the precise identity of the conspirator committing the overt act is not essential to the conspiracy charge, the amendment was one of form and not substance. As the amendment did not impact Erkins’s ability to prepare his defense, we conclude that the trial court did not err in permitting the change.
Here, the State was required to establish the elements of conspiracy, as set forth by Ind. Code § 35-41-5-2:
(a) a person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony. . . . (b) The state must allege and prove that either the person or the person with whom he agreed performed an overt act in furtherance of the agreement.
Given Ind. Code § 35-41-5-2(b)’s requirement that the State must only prove that either Erkins or Ojile performed the overt act of surveilling S.M. in furtherance of their conspiracy, the particular identity of the co-conspirator performing the overt act is not essential to making a valid conspiracy charge.
Moreover, the probable cause affidavit and the video surveillance indicated that Ojile was the person inside the casino performing the surveillance. Even Erkins’s trial counsel acknowledged as much. [Footnote omitted.] Based on the evidence available to Erkins before the beginning of his trial, it would have come as no surprise to him that the State would attempt to prove that it was in fact Ojile who conducted the surveillance on S.M. inside the Grand Victoria Casino, and the mistaken placement of his name on the charging information would not have affected his ability to prepare his defense. We thus conclude that the State’s amendment was one of form, and that the trial court did not err in permitting it.
Under Erkins’s reasoning, “the legislature opted to use the words ‘results in serious bodily injury’ to turn a C Felony Robbery into an A Felony Robbery. . . . [A] result derives from an action and ends up as a consequence. In other words, if nothing happens, then there can be no result.” [Footnote omitted.] (Erkins’s Br. at 18.) To Erkins, it follows that “[h]ad the legislature intended to criminalize potential harm or thoughts of injuring another, it could have used words like ‘serious bodily injury is contemplated’ or ‘serious bodily injury is intended.’ But the legislature did not choose that language.” (Erkins’s Br. at 18.) Instead, Ind. Code § 35-42-5-1 “specifically states that serious bodily injury must actually result from the robbery.” (Erkins’s Br. at 18.) According to Erkins, because S.M. did not suffer serious bodily injury, the State failed to establish the existence of the harm contemplated by a class A felony robbery conviction. Without serious bodily injury, he reasons, his offense would be a class C felony robbery—if he could be convicted at all. Unable to prove an element of class A felony robbery, the State therefore failed to offer sufficient evidence to sustain his conviction, Erkins concludes.
But Erkins’s focus on the language of the robbery statute is misplaced. As the Court of Appeals succinctly explained, Erkins and Ojile did not actually commit robbery and were not charged with robbery. Appellants were charged with and convicted of conspiracy. By its very nature, conspiracy is a crime of intent and agreement. To sustain a conviction for conspiracy, the State is not required to prove that the crime intended and agreed upon was actually committed or even attempted. . . . Appellants’ argument that the robbery statute requires actual injury ignores the fact that Appellants[] were charged with conspiracy to commit robbery resulting in serious bodily injury. Conspiracy is a felony of the same class as the underlying felony. Ind. Code § 35-41-5-2. Their argument implies that two people could never conspire to achieve a specific result. We are unpersuaded. Erkins & Ojile v. State, 988 N.E.2d at 309 (internal footnotes omitted).
Contrary to Erkins’s reasoning, the State does not have to show actual serious bodily injury to sustain a conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury. We agree with both the Court of Appeals and the State that it is well established that defendants can conspire to commit a specific result—here robbery resulting in serious bodily injury.
Massa and Rush, J.J., concur.
Rucker, J., concurs in part and dissents in part with separate opinion in which Dickson, C.J., joins:
. . . I agree the precise question has not been previously presented to us. However, our existing case authority as well as familiar tenets of statutory construction compels the conclusion that the State must prove the existence of serious bodily injury in order to convict a defendant of class A felony conspiracy to commit robbery. I therefore respectfully dissent from the majority’s contrary view.
Central to this discussion is that serious bodily injury is not an element of the offense of robbery. Instead it is a penalty enhancement that increases the class of the offense from a C to an A felony. . . . .
In reaching the conclusion that the State need not prove the existence of serious bodily injury, the majority says, “[i]t may be helpful to think of conspiracy to commit robbery resulting in serious bodily injury as consisting of effectively two ‘mini-conspiracies’ within one crime: a conspiracy to commit robbery and a conspiracy to commit serious bodily injury in the course of the robbery.” Slip op. at 12. This is an inappropriate analogy in my view because it requires treating the bodily injury component as an element of the offense. Were this in fact the case, then there would be no problem. Take for example criminal recklessness. The statute provides in pertinent part: “A person who recklessly, knowingly, or intentionally . . . inflicts serious bodily injury on another person . . . commits criminal recklessness, a Class D felony.” I.C. § 35-42-2-2(d). Because the infliction of serious bodily injury is an element of the offense, a person conceivably could be found guilty of conspiracy to commit criminal recklessness as a class D felony even if no bodily injury actually occurred. What we have before us however is considerably different. Serious bodily injury is not an element of robbery and thus not an element of conspiracy. Again, it is a penalty enhancement that increases the class of the offense. And the enhancement kicks in only where the offense “results in serious bodily injury.”