Ellis DeBerry v. State of Indiana

Opinion

Pursuant to Ind. Appellate Rule 65(D), S 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: ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE

FILED Dec 17 2012, 9:22 am

COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and

tax court

ELLIS DeBERRY, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1111-CR-606 )

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable John M.T. Chavis, II, Judge Pro Tempore Cause No. 49F19-1103-CM-19703

December 17, 2012

OPINION ON REHEARING - NOT FOR PUBLICATION

BRADFORD, Judge

Appellant-Defendant Ellis DeBerry petitions this court for rehearing. We grant his

petition, in part, for the limited purpose of concluding that DeBerry has not waived his

appellate claim as to the appropriateness of the trial court’s jury instruction defining

“forcible resistance.” In our original opinion, we determined that DeBerry failed to

specifically assert the grounds for his objection to the instruction at trial. The record

reveals, however, that during pretrial discussion on DeBerry’s objection to an earlier

incarnation of the trial court’s instruction, the court gave consideration to essentially the

same issue that DeBerry raises on appeal—whether the proffered definition of “forcible

resistance” was confusing and misleading to the jury. See McDowell v. State, 885 N.E.2d

1260, 1263 (Ind. 2008). Because we also determined in our original opinion that the facts

of this case are sufficient to render DeBerry’s claimed error with the jury instruction

harmless, we decline DeBerry’s petition for rehearing on this issue.

The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.