Pursuant to Ind.Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 25 2012, 9:30 am
regarded as precedent or cited before any
court except for the purpose of CLERK
of the supreme court,
establishing the defense of res judicata, court of appeals and
tax court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BONNIE K. WOOTEN GREGORY F. ZOELLER
Carthage, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEREMY W. LAWSON, )
)
Appellant-Defendant, )
)
vs. ) No. 30A01-1112-CR-592
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Terry K. Snow, Judge
Cause No. 30D01-1105-FD-862
June 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Jeremy W. Lawson appeals his conviction of Strangulation,1 a class D felony,
Domestic Battery,2 a class D felony, and Battery,3 a class A misdemeanor, and Lawson was
adjudged to be a habitual offender.4 Lawson presents the following restated issues for
review:
1. Is Lawson entitled to a new trial because the trial judge was biased
against him?
2. Was the evidence sufficient to sustain Lawson’s conviction of
battery as a class A misdemeanor?
We affirm in part, reverse in part, and remand with instructions.
The facts favorable to the convictions are that at all times relevant to this appeal,
Lawson lived with his wife, Kimberly, and his 11-year-old stepson, I.W. On May 25, 2011,
Lawson and I.W. were wrestling and Lawson was hurt. This angered Lawson, who
threatened I.W. that every time I.W. hurt Lawson, “I’m gonna smack your mom right in the
face”. Transcript at 38. The next morning, Kimberly and Lawson drove to I.W.’s fifth-grade
graduation. While there, Kimberly and Lawson resumed an ongoing argument concerning
Kimberly and another student’s father, whom Lawson accused Kimberly of looking for at the
graduation ceremony. The argument continued when they went outside to the parking lot.
Kimberly attempted to remove the license plate from the vehicle they drove to graduation
because the license plate was in her and her older son’s names. Lawson pushed Kimberly
away from the license plate. Kimberly started to call the police, but then told Lawson he
1
Ind. Code Ann. § 35-42-2-9(b) (West, Westlaw through legislation effective May 31, 2012).
2
I.C. § 35-42-2-1.3(a) (West, Westlaw through legislation effective May 31, 2012).
3
I.C. § 35-42-2-1(a)(1)(A) (West, Westlaw through legislation effective May 31, 2012).
4
Ind. Code Ann. § 35-50-2-8 (West, Westlaw through legislation effective May 31, 2012).
2
should leave and she would ride home with someone else. As they walked back toward the
school, Lawson balled his hand into a fist and drew the fist back, but then walked back to the
car. Kimberly went back into the school and found I.W. The two returned to the parking lot,
where Lawson was still waiting in the car. They got into the car and Lawson drove away.
On the way home, Lawson and Kimberly argued loudly and Lawson “was driving crazy.” Id.
at 43.
When they arrived home, Kimberly again attempted to “get the sticker or the plate off
the car”. Id. at 5. Lawson pushed Kimberly down in the gravel driveway, hurting her knee
and causing her to feel pain. When Kimberly tried to get up, Lawson grabbed her throat and
held her down for about ten seconds. During that time, Kimberly had difficulty breathing.
Kimberly managed to break free and ran inside the house. Once inside, she wedged a knife
in the door such that Lawson could not open it. Lawson kicked the door in an attempt to
enter the house, which prompted Kimberly to call 9-1-1. Lawson left the scene and was gone
when police arrived a short time later.
Lawson was charged with strangulation as a class D felony, two counts of domestic
battery, one as a class D felony and one as a class A misdemeanor, battery as a class A
misdemeanor, and was alleged to be a habitual offender. A jury found Lawson guilty as
charged, after which Lawson admitted to being a habitual offender. The trial court did not
enter judgment of conviction on the class A misdemeanor domestic battery conviction based
upon its conclusion that it was a lesser included offense of the class D felony domestic
battery conviction. The trial court set the matter for sentencing. Before sentencing, however,
the trial judge, Terry Snow, recused. With the agreement of the parties, Judge Richard
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Culver was appointed special judge to preside over Lawson’s sentencing. Lawson thereafter
received an aggregate, eight-year sentence.
1.
Lawson contends he is entitled to a new trial because Judge Snow was biased against
him. Apparently, shortly after the trial, Judge Snow discovered that “he was the elected
Prosecutor at a time when some of Mr. Lawson’s prior felonies would have been committed
that were used to enhance the habitual finding.” Transcript at 174. On November 9, 2011,
Judge Snow entered the following order: “The court becoming aware of conflict, now recuses
and by agreement of the pties [sic], Honorable Richard Culver is selected as special judge.”
Appellant’s Appendix at 55.
The law presumes a judge is unbiased and unprejudiced. Everling v. State, 929
N.E.2d 1281 (Ind. 2010); see Ind. Judicial Conduct Canon 2.2 (“[a] judge shall uphold and
apply the law, and shall perform all duties of judicial office fairly and impartially”). A judge
has the discretionary power to recuse sua sponte whenever “any semblance of judicial bias or
impropriety comes to the judge’s attention.” Flowers v. State, 738 N.E.2d 1051, 1060 (Ind.
2000). Moreover, if a judge harbors actual prejudice in a case, justice requires the judge to
sua sponte disqualify himself or herself from the case. Flowers v. State, 738 N.E.2d 1051.
As our Supreme Court has observed, “The mere assertion that certain adverse rulings by a
judge constitute bias and prejudice does not establish the requisite showing.” Voss v. State,
856 N.E.2d 1211, 1217 (Ind. 2006) (quoting Ware v. State, 567 N.E.2d 803, 806 (Ind. 1991)).
“The record must show actual bias and prejudice against the defendant before a conviction
will be reversed on the ground that the trial judge should have been so disqualified.”
4
Flowers v. State, 738 N.E.2d at 1061. In reviewing for actual bias and prejudice, we examine
the judge’s conduct in presiding over the proceedings. See Smith v. State, 770 N.E.2d 818,
823 (Ind. 2002) (to rebut the presumption that a judge was unbiased, “a defendant must
establish from the judge’s conduct actual bias or prejudice that places the defendant in
jeopardy”).
In the present case, Lawson contends that Judge Snow’s bias against him was
reflected in two ways: (1) Judge Snow was involved as the prosecutor in a case that led to a
conviction that formed the basis for the habitual offender allegation against Lawson; and (2)
Judge Snow ruled against Lawson with respect to a pretrial motion in limine filed by the
State. Beginning with the second claim, the pretrial motion in question concerned a
recording in Lawson’s possession that allegedly contained portions of phone calls between
Lawson and Kimberly. Lawson alleged that these phone calls would have exonerated him of
the strangulation and domestic battery charges. The State sought exclusion of the recordings
via a pretrial motion in limine,5 which the trial court granted, conditionally. The court
determined that they could be used only for impeachment purposes, and thus were
inadmissible if Kimberly did not remember making the phone calls or remember what she
said during those phone calls.
5
The reason for the request was explained in the motion as follows:
The defendant has tendered two disks containing approximately seventy-two excerpts from
phone conversations recorded by defendant. The phone conversations are without foundation
as to when they occurred and under what circumstances. Further, the phone conversations
are often incomplete or have blank portions in the dialogue. In addition, the phone
conversations contain extraneous matters, foul language, references to matters that constitute
impermissible 404(b) and character evidence, and constant self-serving statements by the
defendant.
Appellant’s Appendix at 39.
5
At trial, Lawson’s attorney asked Kimberly if she remembered indicating to Lawson
that she would drop the charges against Lawson. She was then specifically asked if she
remembered telling Lawson that she would say that he did not strangle her. Kimberly
testified that she did not recall saying that. She was then asked, “Would it refresh your
memory if you heard such a tape? You said that you didn’t recall some things and would that
help if we played it?” Id. at 61. Kimberly again testified that she did not remember “saying
any of that.” Id. At that point, the State objected and the objection was sustained. After
several more attempts to question Kimberly about conversations between her and Lawson,
which were met with additional sustained objections, defense counsel moved on from the
topic.
Lawson did not attempt to introduce the recordings or submit an offer to prove.
Therefore, he waived any claim that the ruling was erroneous. See Carter v. State, 932
N.E.2d 1284, 1287 (Ind. Ct. App. 2010) (“failure to make an offer to prove results in a
waiver of the asserted evidentiary error”). In any event, it is not apparent that Judge Snow
erred in ruling that the recordings were inadmissible, much less that the ruling was animated
by personal bias against Lawson. Moreover, adverse rulings by a trial judge are not
sufficient reasons to believe the judge has a personal bias or prejudice per se. See Taylor v.
State, 587 N.E.2d 1293 (Ind. 1992). This claim is without merit.
The second claim of actual bias asserted by Lawson revolves around the fact that
Judge Snow was the county prosecutor in at least one case that culminated in a conviction
that formed the basis for the habitual offender determination against Lawson in the present
case. In Dishman v. State, 525 N.E.2d 284 (Ind. 1988), the defendant claimed that the trial
6
court erred in denying his motion for change of judge where the judge had been the county
prosecuting attorney immediately before assuming the bench. In that capacity, the judge had
prosecuted the defendant in the two cases on which a habitual offender finding in that case
was based. The Supreme Court rejected that argument, stating:
In this situation, the trial judge would have erred had there been any factual
contesting of the prior convictions. However, such was not the case here. Once
the certified convictions were presented to the jury, the determination of the
status as habitual criminal was virtually a foregone conclusion. There is no
indication in this situation that the trial judge’s personal knowledge of
appellant’s prior convictions in any way played a part in the jury’s
determination as to the status of habitual offender.
Id. at 285. Similarly, in the present case, after the jury returned guilty verdicts on the
strangulation, domestic battery, and battery charges, Lawson admitted the habitual offender
allegation. Thus, Judge Snow’s personal knowledge of Lawson’s prior convictions did not
play any part in the habitual offender finding. See Dishman v. State, 525 N.E.2d 284.
In summary, the record does not reflect that Judge Snow’s conduct evinced actual bias
and prejudice toward Lawson. Therefore, Lawson is not entitled to a new trial on this basis.
See Voss v. State, 856 N.E.2d 1211.
2.
Lawson contends the evidence was not sufficient to sustain his conviction of battery
as a class A misdemeanor. As charged in this case, a conviction of battery as a class A
misdemeanor required proof of the following: Lawson (1) knowingly or intentionally touched
Kimberly (2) in a rude or angry manner (3) resulting in bodily injury to Kimberly. See I.C. §
35-42-2-1(a)(1)(A). Lawson contends the State failed to present sufficient evidence that
Kimberly suffered bodily injury.
7
Both sides appear to agree that this charge stems from Lawson’s act of pushing
Kimberly while they were arguing in the school parking lot following I.W.’s graduation
ceremony. Although there was sufficient evidence to demonstrate that Lawson pushed
Kimberly in a rude or angry manner, the State concedes that there was no evidence that
Kimberly suffered bodily injury as a result. The State asks us to remedy this error by
remanding to the trial court with instructions to enter a judgment on the lesser-included
offense of battery as a class B misdemeanor. We agree.
“[W]hen a conviction is reversed because of insufficient evidence, we may remand to
the trial court to enter a judgment of conviction upon a lesser-included offense if the evidence
is sufficient to support the lesser offense.” Perry v. State, 962 N.E.2d 154, 159 (Ind. Ct. App.
2012). I.C. § 35–42–2–1(a) provides: “[a] person who knowingly or intentionally touches
another person in a rude, insolent, or angry manner commits battery, a Class B
misdemeanor.” As set out above, the evidence demonstrated that Lawson touched (i.e.,
pushed) Kimberly in a rude or angry manner while the two were arguing in the school
parking lot. This was sufficient to show that Lawson committed class B misdemeanor
battery. We reverse the judgment of the trial court on this count and remand with
instructions to enter judgment of conviction for class B misdemeanor battery and to modify
the sentence on that count accordingly.
Judgment affirmed in part, reversed in part, and remanded with instructions.
MAY, J., and BARNES, J., concur.
8