Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1348 | March 9, 2017 Page 1 of 5

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Mark S. Lenyo

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

Ellen H. Meilaender

Supervising Deputy 

Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Darrell Berry,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 9, 2017

Court of Appeals Case No.

71A03-1606-CR-1348

Appeal from the St. Joseph 

Superior Court 

The Honorable Julie P. Verheye, 

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