Ellis DeBerry v. State of Indiana (NFP)

 Annotate this Case
Download PDF
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 Indianapolis, Indiana GREGORY F. ZOELLER Attorney General of Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA FILED Dec 17 2012, 9:22 am CLERK of the supreme court, court of appeals and tax court ELLIS DeBERRY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A04-1111-CR-606 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John M.T. Chavis, II, Judge Pro Tempore Cause No. 49F19-1103-CM-19703 December 17, 2012 OPINION ON REHEARING - NOT FOR PUBLICATION BRADFORD, Judge Appellant-Defendant Ellis DeBerry petitions this court for rehearing.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. 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.