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                 OPINION ON REHEARING - NOT FOR PUBLICATION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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