MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 09 2017, 8:34 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark S. Lenyo Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy
Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darrell Berry, March 9, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1606-CR-1348
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Julie P. Verheye,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D06-1505-CM-1299
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1348 | March 9, 2017 Page 1 of 5
Case Summary
[1] On May 4, 2015, Appellant-Defendant Darrell Berry was on his way home with
his on-again-off-again girlfriend when they began to argue. The fight escalated,
and Berry’s girlfriend attempted to run away from him. Berry chased after his
girlfriend and pushed her to the ground multiple times, causing her pain. When
police arrived at the scene, Berry’s girlfriend gave police her sister’s name
instead of her own because she had an active warrant for her arrest. Appellee-
Plaintiff the State of Indiana (“the State”) charged Berry with Class A
misdemeanor battery resulting in bodily injury. The day of the trial, the State
moved to amend the charging information to include the victim’s correct name
because it learned that she had misidentified herself. The trial court granted the
motion over Berry’s objection and the case proceeded to trial. Berry was
subsequently found guilty as charged.
[2] On appeal, Berry argues that his rights were violated because he was not given
sufficient notice of the amended charge. Berry further argues that he was
prejudiced by the amended charge because he had to change his defense the
same day as the trial. Because Berry did not request a continuance after his
objection to the amendment was overruled, he has waived this issue for
appellate review, and we affirm.
Facts and Procedural History
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[3] On May 4, 2015, Berry and China Pinkney, Berry’s on-again-off-again
girlfriend of approximately three years, were returning to Berry’s mother’s
house where the couple had been living together. The couple began to have an
argument while they were riding on a bus. This argument continued during a
cab ride as well. At some point during the argument in the cab, Berry
threatened to call the police on Pinkney because he knew she had an active
warrant for her arrest. In an attempt to avoid being arrested, Pinkney jumped
out of the cab and ran to get away from Berry. Berry jumped out of the cab as
well, quickly caught up with Pinkney, and pushed her down to the ground.
Berry continued to push Pinkney down to the ground several times as she tried
to get away from him. As a result, Pinkney suffered a painful abrasion on her
elbow.
[4] Officer Anthony Ieraci was dispatched to the scene and, upon arrival, observed
Berry and Pinkney arguing. When Berry saw Officer Ieraci approaching them,
Berry turned around immediately and began to walk away. As soon as Pinkney
saw Officer Ieraci, she too began to walk away in the same direction as Berry.
Officer Ieraci stopped Berry and Pinkney and spoke to each of them separately.
Pinkney initially indicated that nothing had happened between Berry and her,
but she later retracted that statement. Berry was initially released because
Pinkney had initially told Officer Ieraci that nothing had happened, but he was
arrested shortly thereafter when Pinkney retracted her statement. Pinkney was
subsequently arrested after identifying herself as her sister, Markianna Pinkney,
who, as it happens, also had an active warrant.
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[5] On May 6, 2015, the State charged Berry with Class A misdemeanor battery
resulting in bodily injury. On April 19, 2016, prior to the start of trial, the State
filed a motion to amend the charging information, moving to amend the name
of the victim from Markianna Jashuana Pinkney to China Pinkney. Defense
counsel objected to the amendment, but the trial court granted the motion to
amend and the case proceeded to bench trial that same day. At the conclusion
of the bench trial, the court found Berry guilty as charged. This appeal follows.
Discussion and Decision
[6] Berry argues that his rights were violated because he was not given sufficient
notice of the amended charges and was not given a reasonable opportunity to
be heard regarding the amendment. Berry further argues that he was prejudiced
by the amended charges because his defense counsel had to alter the theory of
his defense the day of the trial. However, Berry did not request a continuance
after his objection to the amendment was overruled.
[7] Under Indiana Code section 35-34-1-5,
Before amendment of any indictment or information other than
amendment as provided in subsection (b), the court shall give all
parties adequate notice of the intended amendment and an
opportunity to be heard. Upon permitting such amendment, the
court shall, upon motion by the defendant, order any
continuance of the proceedings which may be necessary to
accord the defendant adequate opportunity to prepare the
defendant’s defense.
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The Indiana Supreme Court has interpreted this section to mean that, “a
defendant’s failure to request a continuance after a trial court allows a pre-trial
substantive amendment to the charging information over defendant’s objection
results in waiver.” Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct. App. 2010).
Here, Berry was given the opportunity to request a continuance for the purpose
of giving himself time to prepare a new defense after the trial court granted the
amendment to the information over his objection. Berry chose not to pursue
that course; therefore, Berry has waived this issue for appellate review.
[8] In addition, we cannot see how Berry was prejudiced by the amendment. At
the time of the battery, he had dated Pinkney on-again-off-again for three years
and clearly would have been aware of her true identity.
[9] We affirm the trial court’s judgment.
Vaidik, C.J., and Brown, J., concur.
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Darrell Berry v. State of Indiana (mem.dec.)
Combined Opinion