Ronald Elliott v. State

 
 
FOR PUBLICATION
 

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

EUGENE C. HOLLANDER    STEVE CARTER    
Indianapolis, Indiana    Attorney General of Indiana    

             CYNTHIA L. PLOUGHE    
Deputy Attorney General
Indianapolis, Indiana

 
IN THE COURT OF APPEALS OF INDIANA RONALD E. ELLIOTT, ) ) Appellant-Defendant, ) ) vs. ) No. 90A02-0208-CR-687 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

 
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable David L. Hanselman, Sr., Judge
Cause No. 90C01-0109-CF-146

 
August 6, 2003

OPINION ON REHEARING FOR PUBLICATION

MATHIAS, Judge
Appellant-petitioner Ronald E. Elliott ("Elliott") petitions for rehearing of our opinion in Elliott v. State, 786 N.E.2d 799 (Ind. Ct. App. 2003) and contends that our review under a fundamental error standard of whether an attempted murder instruction was properly given was not appropriate. He claims that he objected to the instruction given, and therefore, the issue should have been reviewed under a reversible error standard.
    In our previous opinion, we concluded that the trial court properly instructed the jury on the elements of attempted murder. We relied on Clay v. State, 766 N.E.2d 33 (Ind. Ct. App. 2002) which involved an almost identical attempted murder instruction given by the trial court. In Clay, this court stated that giving the instruction was not fundamental error.
In the present case, Elliott tendered a proposed preliminary attempted murder instruction to the trial court, which was denied. Although the proposed instruction was denied, the record reveals no objection or grounds for objection by Elliott to the instruction read by the trial court. "No party may claim as error the giving of an instruction unless he objects thereto before the jury retires to consider the verdict, stating distinctly the matter to which he objects and the grounds of his objection." Scisney v. State, 701 N.E.2d 847, 848 (Ind. 1998). Therefore, because nothing in the record reflects that Elliott objected to the attempted murder instruction given by the trial court, this Court properly relied on Clay, and fundamental error was the proper standard.
    Elliott's petition for rehearing is therefore denied.
KIRSCH, J., and MAY, J., concur.