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


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1348 | March 9, 2017   Page 2 of 5
[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.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1348 | March 9, 2017   Page 3 of 5
[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.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1348 | March 9, 2017   Page 4 of 5
      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.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1348 | March 9, 2017   Page 5 of 5
