ELLIOTT v. STATE (2003)

OPINION ON REHEARING

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.

MATHIAS, Judge.

KIRSCH, J., and MAY, J., concur.