Ellis DeBerry v. State of Indiana ( 2012 )

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OPINION ON REHEARING - NOT FOR PUBLICATION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.
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