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
                                                                FILED
                                                              Sep 20 2012, 9:24 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




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
                     COURT OF APPEALS OF INDIANA

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



                                      September 20, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Ellis DeBerry appeals following his conviction for Resisting

Law Enforcement, a Class A misdemeanor.1 DeBerry argues that the trial court abused

its discretion when it instructed the jury on the amount of force necessary to “forcibly

resist.” Concluding that DeBerry failed to sufficiently object to the jury instruction at

trial, we affirm.

                           FACTS AND PROCEDURAL HISTORY

       DeBerry is engaged to marry Eve Crawford. On March 22, 2011, Officer Gregory

Kessie, a patrolman with the Indianapolis Metropolitan Police Department (“IMPD”),

visited Crawford at her home and informed her that Corey, Crawford’s then-seventeen-

year-old-son, was in police custody. Corey is not DeBerry’s biological son, but the two

maintain a father-son relationship. Because of Corey’s juvenile age, IMPD needed a

parent or guardian to be present in order to question Corey about an incident unrelated to

this matter. Officer Kessie had been dispatched to Crawford’s home and assigned to

bring a parent or guardian to the police station for that purpose.

       At Officer Kessie’s request, Crawford agreed to drive to the police station while

Officer Kessie followed in his police vehicle. While in route, Crawford telephoned

DeBerry, told him that “[the police] had Corey,” Tr. p. 126, and instructed DeBerry to

meet her at the police station. Crawford next made an impromptu stop at a convenience

store to purchase medicine to treat a headache that was ailing her. Officer Kessie joined

Crawford in the store’s parking lot and waited outside the store, standing by his police

vehicle, while Crawford made her purchase.


       1
           Ind. Code § 35-44-3-3(a)(1) (2010).

                                                 2
       On his way to meet Crawford at the police station, DeBerry drove past the

convenience store.     He recognized Crawford’s vehicle in the store parking lot and

stopped so that he and Crawford could drive to the police station together. DeBerry first

walked to the store’s entrance but then turned and approached Officer Kessie, asking,

“Why you got my son?” Tr. pp. 161, 242. DeBerry appeared upset and aggressive, and

he had his hand in his front pants pocket. Officer Kessie feared that DeBerry might be

concealing a weapon. And in light of Crawford’s unplanned stop at the convenience

store and DeBerry’s surprise appearance there, Officer Kessie questioned whether he had

been “set up” by Crawford. Tr. p. 162. Officer Kessie instructed DeBerry to remove his

hand from his pocket, but DeBerry did not comply. Instead, DeBerry continued to ask

Officer Kessie why the police had Corey in custody. Officer Kessie again asked DeBerry

to remove his hand from his pocket; DeBerry refused, and Officer Kessie drew his

firearm. Officer Kessie asked a third time, and when DeBerry again did not comply,

Officer Kessie pointed his firearm at DeBerry. DeBerry continued to refuse Officer

Kessie’s requests until Officer Kessie, with firearm still aimed, approached DeBerry. At

that time, DeBerry removed his hand from his pocket, revealing a cell phone, and stated,

“It’s nothing”; “It’s just a phone.”

       Realizing that DeBerry did not have a weapon, Officer Kessie holstered his

firearm and ordered DeBerry to put his hands behind his back to be handcuffed for

interfering with a police investigation. Officer Kessie grabbed DeBerry by the wrist, and

DeBerry yelled, “No.” At the same time, DeBerry “quickly and violently” jerked his arm

from Officer Kessie’s grasp and began to walk toward his car. Tr. p. 171. Officer Kessie


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pursued DeBerry, who then turned and said, “I’m not going in cuffs.” Tr. p. 174. Officer

Kessie then pushed DeBerry against his car and handcuffed him.

      DeBerry was charged with Class A misdemeanor resisting law enforcement. At a

pretrial hearing several weeks before his jury trial, DeBerry expressed concern with the

court’s proffered Preliminary Instruction No. 6 defining “forcibly resists.” The jury

instruction read: “forcibly resisting means when strong or powerful means are used to

evade a law enforcement official’s rightful exercise of his or her duties.” Tr. p. 63.

DeBerry advised the court that this instruction omitted the word, “violent,” as found in

the Indiana Supreme Court’s decision in Spangler v. State, 607 N.E.2d 720 (Ind. 1993)

(“We believe that one ‘forcibly resists’ law enforcement when strong, powerful, violent

means are used to evade a law enforcement official’s rightful exercise of his or her

duties.”). DeBerry requested that the court use the exact language of the Spangler

definition, and the court took the motion under advisement.

      The morning of the jury trial, the court concluded that it would include the word,

“violent,” as used in Spangler, but that it would add the following language to

Preliminary Instruction No. 6: “However, this force need not rise to the level of mayhem

and a modest level of resistance may suffice.” Tr. p. 130. The court based this revision

on its reading of Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005), Graham v. State,

903 N.E.2d 963 (Ind. 2009), and Stansberry v. State, 954 N.E.2d 507 (Ind. Ct. App.

2011). The latter case succinctly combines the principles established by the other two:

      [T]he force necessary to sustain a conviction [for resisting law
      enforcement] need not rise to the level of mayhem, and our supreme court
      has acknowledged that a “modest level of resistance” may suffice. Graham
      v. State, 903 N.E.2d 963, 965 (Ind.2009) (citing Johnson v. State, 833

                                            4
       N.E.2d 516, 517 (Ind. Ct. App. 2005)).

Stansberry v. State, 954 N.E.2d 507, 510-11 (Ind. Ct. App. 2011). In Johnson, this court

held that turning away and pushing away with one’s shoulders during an attempted police

search constitutes forcible resistance. 833 N.E.2d at 518. We also held “stiffening up” in

refusal to get into a police vehicle to be a forcible act. Id. at 518-19. Similarly, in

Graham, the Indiana Supreme Court stated that stiffening one’s arms when an officer

tries to position them for cuffing would suffice for force. 903 N.E.2d at 966 (holding that

simply refusing to present one’s arms for cuffing does not constitute forcible resistance).

       DeBerry responded to the trial court’s revision, stating, “The Defense would like

to object to the proposed instruction.” Tr. p. 134. The court acknowledged the objection,

and DeBerry added, “And I believe Your Honor, that we would need to object again

when you present them to the jury and we would do so simply by saying that we renew

our pretrial objection to the jury instructions.” Tr. p. 135. The court indicated that this

was indeed the correct procedure.         Ultimately, the court tendered the following

Preliminary Instruction No. 6 when it read its instructions to the jury:

               For one to resist law enforcement one must forcibly resist at [sic]
       arrest by the officer.

              One forcibly resists law enforcement when strong, powerful, violent
       means are used to evade a law enforcement official’s rightful exercise of
       duties. However, the force need not rise to the level of mayhem and a
       modest level of resistance may suffice.

Appellant’s App. p. 57. The court’s final instructions to the jury included its preliminary

instructions, but they were not re-read to the jury. DeBerry was given the opportunity to




                                              5
review the court’s final instructions prior to closing arguments, at which time he made no

statements regarding Preliminary Instruction No. 6 or his pretrial objection.

                            DISCUSSION AND DECISION

       “The purpose of an instruction is to inform the jury of the law applicable to the

facts without misleading the jury and to enable it to comprehend the case clearly and

arrive at a just, fair, and correct verdict.” Overstreet v. State, 783 N.E.2d 1140, 1163

(Ind. 2003). “Instruction of the jury is generally within the discretion of the trial court

and is reviewed only for an abuse of that discretion.” Lee v. State, 964 N.E.2d 859, 862

(Ind. Ct. App. 2012), trans. denied. “To constitute an abuse of discretion, the instruction

given must be erroneous, and the instructions taken as a whole must misstate the law or

otherwise mislead the jury.” Id.

       “The Indiana Supreme Court has held that in order to preserve a claim that the trial

court abused its discretion in instructing the jury for appellate review, a defendant must

specify at trial the specific grounds upon which he believes the instruction is improper.”

Orta v. State, 940 N.E.2d 370, 376 (Ind. Ct. App. 2011), trans. denied (citing Scisney v.

State, 701 N.E.2d 847, 849 (Ind. 1998)). Failure to identify adequately the grounds of an

objection results in a waiver of that claim of error for appeal. Scisney, 701 N.E.2d at 849.

       DeBerry argues that the trial court’s Preliminary Instruction No. 6 incorporated an

appellate standard of review that is inapplicable to the jury’s role as fact-finder. He also

argues that the instruction as a whole was confusing and misleading to the jury. Upon

review, the record reveals that DeBerry failed to assert these grounds for his objection at

trial, generally or specifically. DeBerry’s only statements with regard to his objection


                                             6
were, “The Defense would like to object to the proposed instruction,” Tr. p. 134, and,

“[W]e would need to object again when you present [the instructions] to the jury….” Tr.

p. 135.    Although there was considerable pretrial discussion regarding Preliminary

Instruction No. 6, that discussion concerned the trial court’s omission of the word,

“violent,” not the court’s ultimate addition of the language DeBerry challenges on appeal.

See Survance v. State, 465 N.E.2d 1076, 1083 (Ind. 1984) (holding prior dialogue

between court and counsel sufficient for purposes of Trial Rule 51(C)). We therefore

conclude that DeBerry has waived these issues for appellate review.

        Waiver notwithstanding, if the trial court erred in instructing the jury on the

amount of force necessary to “forcibly resist,” the facts of this case are sufficient to

render the error harmless. “Errors in the giving or refusing of instructions are harmless

where a conviction is clearly sustained by the evidence and the jury could not properly

have found otherwise.” Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001). Here, the

record reveals that DeBerry jerked his arm away from Officer Kessie’s grasp while being

handcuffed. We conclude that a reasonable trier of fact would determine this to be a

forcible act had it been instructed with the exact definition from Spangler and nothing

more.

        The judgment of the trial court is affirmed.

BAKER, J., concurs.

ROBB, C.J., concurs in result.




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