                                                                                     FILED
                                                                                 Jul 13 2018, 9:57 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Kimberly A. Jackson                                        Curtis T. Hill, Jr.
      Indianapolis, Indiana                                      Attorney General of Indiana
                                                                 Laura R. Anderson
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Michael A. Miller,                                         July 13, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 28A01-1712-CR-2918
              v.                                                 Appeal from the Greene Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Erik C. Allen,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 28C01-1408-F1-2



      Mathias, Judge.

[1]   Following a bench trial in Greene Circuit Court, Michael Miller was convicted

      of attempted murder. On direct appeal, Miller argued that he was denied his

      right to a speedy trial, that the trial court erred by rejecting his insanity defense,

      and that the trial court applied the incorrect mens rea of “knowingly” in

      convicting him of attempted murder. We rejected Miller’s first two arguments,
      Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018                           Page 1 of 23
      but agreed with the last. Miller v. State, 72 N.E.3d 502, 518 (Ind. Ct. App. 2017)

      (“Miller I”), trans. granted. We therefore reversed Miller’s conviction for

      attempted murder and remanded for retrial. Id. Our supreme court granted

      transfer and disagreed with our determination that a retrial was necessary but

      summarily affirmed the remainder of our opinion. Miller v. State, 77 N.E.3d

      1196, 1197 (Ind. 2017) (per curiam) (“Miller II”). Instead, the court remanded

      with instructions that the trial court apply the appropriate mens rea to the

      existing evidence. Id. On remand, the trial court explicitly applied the correct

      mens rea and again found Miller guilty of attempted murder. In this second

      appeal, Miller presents two issues for our review, which we reorder and restate

      as: (1) whether there was insufficient evidence to support Miller’s conviction for

      attempted murder, and (2) whether the trial court abused its discretion when it

      denied Miller’s motion for a change of judge on remand.


[2]   We affirm.


                                  Facts and Procedural History
      A. Facts Underlying Miller’s Conviction

[3]   The facts underlying Miller’s conviction were set forth in our opinion in his first

      direct appeal as follows:


              At about 11:30 p.m. on the night of August 10, 2014, Jeremy
              Kohn was sitting on the porch of his residence in Bloomfield
              with his girlfriend, Kylee Bateman. Kohn and Bateman observed
              Miller twice approach a neighboring house, knock on the door or
              ring the door bell, and then walk away. Kohn did not know
              Miller personally but believed he may have gone to school with

      Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018      Page 2 of 23
        him. Kohn and Bateman waved at Miller. Bateman was telling
        Kohn a story that may have made them both laugh; Miller
        apparently believed Kohn and Bateman were laughing at him.
        He then approached Kohn “nonchalantly,” drew a pocketknife
        with a three-to-four-inch blade, and cut Kohn’s throat without
        saying a word. Tr. p. 53. Miller, who had a “blank look” on his
        face, then turned around and left, still without saying anything.
        Id. The cut to Kohn’s neck was not deep enough to damage his
        jugular vein, carotid artery, or trachea, although a slightly deeper
        cut could have done so and would have posed a risk of death.
        The wound required over forty stitches to close.

        On August 13, 2014, Marshall Randy Raney of the Worthington
        Police Department responded to a report of a suspicious person
        in a local cemetery. Worthington is about twelve miles from
        Bloomfield. The suspicious person was Miller. Marshall Raney
        believed Miller seemed “backward” and quiet. Id. at 74. Miller
        told Marshall Raney that he was trying to hitchhike his way to
        Indianapolis. At the time of this encounter with Marshall Raney,
        Miller had not yet been identified as a suspect in the attack on
        Kohn.

        Later on August 13, Miller was arrested in Worthington . . . . As
        Miller was being placed in handcuffs by Deputy Harvey Holt of
        the Greene County Sheriff’s Department, he said that he knew
        why he was being arrested and asked what charges he would
        face. Miller then submitted to an interview conducted by Officer
        Marvin Holt of the Bloomfield Police Department after waiving
        his Miranda rights.

        During the interview, Miller said he had been attempting to
        return a textbook and some flashcards to a former teacher; Miller
        was twenty-four years old at the time of the crime. He
        volunteered several times that he was not “paranoid” or
        “psychotic” or on drugs, but he also said that people he
        encountered often attempted to frighten him or laughed at him.
        Ex. 7. He then admitted that he cut Kohn’s throat with a knife
        after Kohn and Bateman smiled at him, and Kohn looked at
Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018   Page 3 of 23
                 Bateman and shook his head. Officer Holt related that family
                 members had expressed concern about Miller’s mental health
                 and asked Miller whether he believed he needed help or
                 medication; Miller denied that he did so and said he believed he
                 was fine. Miller said that, because he did not hear any sirens after
                 cutting Kohn’s throat, he assumed neither Kohn nor Bateman
                 called police or the police did not care, and he decided to go to
                 Indianapolis, apparently by a combination of walking and
                 hitchhiking. Miller also engaged Officer Holt in conversation
                 about why it had taken several days for police to contact him and
                 said he was aware that what he had done was against the law.
                 Officer Holt asked Miller whether he wanted to kill Kohn, and
                 Miller replied that he did not care. He said that he accepted
                 responsibility for what he had done and that he assumed he
                 would go to jail and asked Officer Holt if he could bring his Bible
                 to jail. At one point, after Officer Holt asked Miller whether he
                 might hurt someone again in the future, Miller explained, “Some
                 people can view human life the same way but have different
                 outcomes because of emotion. I don’t have the emotion.” Id. at
                 15:50. Miller had a calm demeanor during the interview, spoke
                 throughout in an even and emotionless tone of voice, and ate a
                 candy bar and drank a soda while he talked to Officer Holt.


      Miller I, 72 N.E.3d at 506–07.


      B. Miller’s Prosecution and Trial

[4]   The State subsequently charged Miller with Level 1 felony attempted murder

      and Level 3 felony aggravated battery.1 The charging information for attempted

      murder alleged that Miller “did knowingly or intentionally attempt to commit

      the crime of Murder, to-wit: to knowingly kill Jeremy Kohn, and Michael A.



      1
          The State later amended the information to reduce the battery charge to a Level 5 felony.


      Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018                        Page 4 of 23
      Miller did engage in conduct which constituted a substantial step toward the

      commission of the crime of murder, to-wit: cut Jeremy Kohn’s throat with a

      knife. . . .” Original Appeal App. p. 29.


[5]   As explained in our opinion in Miller’s first appeal, “Miller has a lengthy

      history of mental illness.” Miller I, 72 N.E.3d at 507. Thus, on August 15, 2014,

      Miller’s trial counsel filed a notice of defense of mental disease or defect. Miller

      was found incompetent to stand trial on March 16, 2015, and was treated at

      Logansport State Hospital. On July 21, 2015, the hospital certified to the trial

      court that Miller was competent to stand trial, and he was transported back to

      the Greene County Jail to await trial.


[6]   At Miller’s January 20, 2016 bench trial, Miller presented evidence from a

      psychologist who opined that at the time of the crime, Miller suffered from a

      mental disease or defect that affected his ability to appreciate the wrongfulness

      of his conduct. This expert testified that, although Miller acknowledged he had

      done something wrong, he lacked understanding of why it was wrong. A court-

      appointed psychiatrist agreed that Miller suffered from schizophrenia but

      believed that Miller “probably did understand the wrongfulness of his actions,”

      yet believed that Miller was “unable to resist the strong urge to nevertheless

      take those actions at the time that they occurred. . . .” Trial Tr. p. 170 (emphasis




      Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018   Page 5 of 23
      added). Yet another psychiatrist also testified that Miller was unable to

      appreciate the wrongfulness of his conduct.2


[7]   On January 27, 2016, the trial court entered detailed, written “Findings,

      Conclusions and Judgment of Conviction” (the “Original Findings”). In the

      Original Findings, the trial court explained why it was discounting the expert

      opinions regarding Miller’s sanity or lack thereof and rejected his defense of

      mental disease or defect. It noted that it was relying instead upon its courtroom

      observations of Miller, as well as his comportment during the police interview

      and his actions and demeanor near the time of the crime.


[8]   As we recounted in our original opinion:


               The [Original] [F]indings also repeated the language of the
               charging information for attempted murder, namely that Miller
               “did knowingly or intentionally attempt to commit the crime of
               Murder, to-wit: to knowingly kill Jeremy Kohn. . . .” The trial
               court found and concluded “that Defendant had the requisite
               intent to kill as he used a knife, which is a deadly weapon, to
               deliberately cut the victims [sic] throat in a manner that was
               likely to cause death or great bodily harm.” The trial court also
               expressly found beyond a reasonable doubt that Miller “did




      2
        This is precisely the conundrum mentally ill criminal defendants face in Indiana. Severe mental illness at
      the time of the charged offense can be ignored and the defendant referred to mental health confinement
      where psychotropic medications are forcibly administered in order to restore the defendant’s mental health
      for trial. The proper protocol should be to use the assessment of mental health professionals immediately
      after one or more crimes are charged to consider whether the defendant could have formed the legally
      required mens rea to commit the crime charged. If not, the defendant should more properly be committed to
      Indiana’s mental health system for treatment, rather than charged with crime(s), where such a defendant
      might well spend the rest of her or his life.

      Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018                          Page 6 of 23
               knowingly or intentionally attempt to commit the crime of
               Murder, to-wit: to knowingly kill Jeremy Kohn. . . .”


       Miller I, 72 N.E.3d at 509–10 (record citations omitted) (emphasis added).


[9]    The trial court entered judgments of conviction of guilty but mentally ill for

       both Level 1 felony attempted murder and Level 5 felony battery, but at

       sentencing merged the battery conviction with the attempted murder

       conviction. It then sentenced Miller to a term of thirty years, with twenty years

       executed and ten years suspended to probation.

       C. Miller’s First Appeal

[10]   Miller appealed and argued that the trial court denied his right to a speedy trial

       under Indiana Criminal Rule 4(B), that the trial court improperly rejected his

       insanity defense, and that the trial court applied the incorrect mens rea in

       convicting him of attempted murder. Miller I, 72 N.E.3d at 506. With regard to

       Miller’s first argument, this court held, given the complexity of his insanity

       defense, the trial court did not abuse its discretion by granting the State’s

       request for a continuance and extending the start of Miller’s trial for ninety

       days, and that Miller’s trial therefore began within the limits prescribed by

       Criminal Rules 4(B) and 4(D). Id. at 513. With regard to his second argument,

       we held that “despite substantial evidence of Miller’s serious mental health

       problems, there is sufficient evidence to support the trial court’s rejection of his

       insanity defense.” Id. at 515. Lastly, we held that the trial court appeared to

       have applied the incorrect “knowingly” mens rea in finding Miller guilty of

       attempted murder. Id. at 517. Specifically, we held:
       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018   Page 7 of 23
               [G]iven the severity of the charge against Miller and the incorrect
               language of the charging information, we find it impossible to
               ignore the trial court’s findings that clearly misstate the proper
               standard for convicting a defendant of attempted murder. In a
               jury trial, there is no way to divine a jury’s thought process
               except by reference to the jury instructions; here, without jury
               instructions, we can divine that process by the trial court’s
               findings.

               Both the charging information and the trial court’s findings refer
               to the long-discredited notion that a “knowing” mens rea was
               sufficient to convict Miller of attempted murder. It was not.
               Moreover, Miller’s intent was a central issue in this case. Despite
               our affirmance of the rejection of Miller’s insanity defense, we
               offer no opinion at this time as to whether there is sufficient
               evidence that Miller acted with the specific intent to kill Kohn. It
               suffices to say that, even if the evidence could have supported
               that finding, we believe it also could support the conclusion he
               did not act with such intent.


       Id. at 517.


[11]   We therefore reversed Miller’s conviction for attempted murder. Id. at 518. We

       then confronted the question of the appropriate remedy: whether to reverse and

       remand for a new trial, or to reverse and remand with instructions for the trial

       court to apply the correct mens rea to the evidence presented in the first trial. Id.

       We opted for the former option and reversed and remanded for retrial. Id.


[12]   Our supreme court granted transfer, and on July 12, 2017, issued an opinion

       that summarily affirmed all of our opinion except our choice of remedy. Miller

       II, 77 N.E.3d at 1197. Instead, our supreme court held that “the correct remedy

       in these circumstances is a remand for reconsideration by the trial court.” Id.

       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018    Page 8 of 23
       Accordingly, our supreme court reversed Miller’s conviction for attempted

       murder and “remanded this case to Judge Allen with instructions to apply the

       appropriate legal standard to the existing evidence.” Id.


[13]   On August 11, 2017, Miller filed a petition for rehearing. On August 17, 2017,

       prior to our supreme court’s decision on Miller’s petition for rehearing, and

       thus prior to the court’s initial opinion having been certified, the trial court

       entered revised written findings and conclusions finding Miller guilty under the

       proper mens rea required for attempted murder, i.e., acting with the specific

       intent to kill. Appellant’s App. Vol. 3, pp. 2–7.


[14]   On August 31, 2017, Miller filed in our supreme court a motion for writ in aid

       of appellate jurisdiction. In this motion, Miller argued that the trial court lacked

       jurisdiction to issue its findings and conclusions prior to the decision of our

       supreme court on Miller’s motion for rehearing, i.e., the supreme court’s

       opinion was not yet certified, and the trial court could not take any action in

       reliance thereon until it was certified. See Ind. Appellate Rule 65(E). In

       addition, Miller argued that the trial court was biased against him and

       requested that our supreme court appoint a new judge to hear his case and

       order a retrial.


[15]   On September 28, 2017, our supreme court entered an order granting Miller’s

       motion for writ in aid of appellate jurisdiction, noting that its opinion had not

       yet been certified and that the trial court therefore did not have jurisdiction to

       enter its new findings and conclusions; our supreme court’s order did not


       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018     Page 9 of 23
       mention Miller’s requests for the appointment of a new judge or a retrial.3 Thus,

       our supreme court did not grant Miller’s requests for a new trial judge and a

       new trial. That same day, our supreme court also denied Miller’s petition for

       rehearing. Accordingly, the court’s opinion was listed as certified on October 2,

       2017.

       D. On Remand to the Trial Court

[16]   On October 3, 2017, Miller filed in the trial court a motion for change of judge.

       The trial court held a hearing on the motion on November 21, 2017, and denied

       it on December 4, 2017. Also, on December 4, the trial court issued its revised

       Findings, Conclusions, and Judgment of Conviction (“Revised Findings”),

       again finding Miller guilty of attempted murder, but this time referencing the

       proper mens rea. Miller now appeals.


                                          I. Sufficiency of the Evidence

[17]   Miller claims that the evidence was insufficient to support the trial court’s

       finding that he acted with the specific intent to kill required to support his

       conviction for attempted murder. Our standard of review on challenges to the

       sufficiency of the evidence is well settled:


                  Upon a challenge to the sufficiency of evidence to support a
                  conviction, a reviewing court does not reweigh the evidence or
                  judge the credibility of the witnesses, and respects the [fact
                  finder]’s exclusive province to weigh conflicting evidence. We
                  have often emphasized that appellate courts must consider only
                  the probative evidence and reasonable inferences supporting the

       3
           Miller II, No. 28S04-1707-CR-00468, Docket Entry Sept. 28, 2017, see https://mycase.in.gov.


       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018                          Page 10 of 23
                verdict. Expressed another way, we have stated that appellate
                courts must affirm if the probative evidence and reasonable
                inferences drawn from the evidence could have allowed a
                reasonable trier of fact to find the defendant guilty beyond a
                reasonable doubt.


       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005) (citations and internal

       quotations omitted).


[18]   Murder is generally defined by statute as knowingly or intentionally killing

       another human being. Ind. Code § 35-42-1-1(a). And the general attempt statute

       provides that “[a] person attempts to commit a crime when, acting with the

       culpability required for commission of the crime, the person engages in conduct

       that constitutes a substantial step toward commission of the crime. . . .” Ind.

       Code § 35-41-5-1(a). Despite this statutory language, it is well settled that a

       conviction for attempted murder requires proof of more than a “knowing” mens

       rea; it instead requires proof of specific intent to kill. Spradlin v. State, 569

       N.E.2d 948, 950 (Ind. 1991); see also Kadrovach v. State, 61 N.E.3d 1241, 1246

       (Ind. Ct. App. 2016), trans. denied. Accordingly, to convict Miller of attempted

       murder, the State was required to prove beyond a reasonable doubt that Miller,

       acting with the specific intent to kill, engaged in conduct that constituted a

       substantial step toward the commission of the crime of murder.


[19]   In attacking the sufficiency of the evidence, Miller first contends that the trial

       court, yet again, used the improper standard in finding him guilty.4 That is,


       4
         In attacking the sufficiency of the evidence, Miller claims that the trial court should have permitted him to
       reargue his case and claims that the failure of the trial court to do so violated his due process rights and the

       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018                            Page 11 of 23
       Miller claims that the trial court used the improper mens rea of “knowingly” in

       its Original Findings and claims that the trial court’s Revised Findings used the

       same standard as it had in the Original Findings. Thus, he contends, the trial

       court necessarily used the same, improper legal standard in finding him guilty

       on remand. The record does not support Miller’s contention.


[20]   The trial court’s Original Findings referenced both the “knowingly” mens rea

       and the “intent to kill.” In its Revised Findings, the trial court clearly, explicitly,

       and unambiguously found that Miller acted with the requisite specific intent to

       kill. See Appellant’s App. Vol. 2, p. 11 (“Without hesitation or reservation, the

       Court concludes that the evidence presented and the findings set forth herein

       support the conclusion that the State proved beyond a reasonable doubt that the

       Defendant had specific intent to kill.”). We therefore reject Miller’s claim that

       the trial court applied the improper legal standard on remand.


[21]   Miller also claims that the evidence does not support a reasonable inference that

       he acted with the specific intent to kill when he cut the victim’s throat. Miller

       argues that the trial court’s Revised Findings imply that the trial court thought

       that the pocket knife must always be considered a deadly weapon. Again, we

       disagree.


       Sixth Amendment. However, our supreme court ordered the trial court on remand to “apply the appropriate
       legal standard to the existing evidence,” and made no reference to permitting Miller or the State to reargue
       the case. Miller II, 77 N.E.3d at 1197. The trial court followed this instruction on remand. We further note
       that Miller, in his motion for a writ in aid of appellate jurisdiction, requested that our supreme court appoint
       a new trial judge and order a retrial, presenting many of the same concerns that he now presents on appeal.
       But our supreme court did not grant Miller’s request for a new trial judge or a retrial. If Miller has an issue
       with the remedy ordered by our supreme court, he must take up the issue with that court, as we are in no
       position to second-guess the instructions of our supreme court.

       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018                           Page 12 of 23
[22]   A “deadly weapon” is defined by the criminal code to include:


               A destructive device, weapon, device . . . or other material that in
               the manner it:

                    (A) is used;

                    (B) could ordinarily be used; or

                    (C) is intended to be used;

               is readily capable of causing serious bodily injury.


       Ind. Code § 35-31.5-2-86(a)(2).


[23]   It is well-settled that a knife may be considered to be a deadly weapon. Indeed,

       pocket knives, which Miller used, have been held to be deadly weapons. See

       Hollowell v. State, 707 N.E.2d 1014, 1020–21 (Ind. Ct. App. 1999). The case

       cited by Miller in support of his argument that a pocket knife is not necessarily a

       deadly weapon is readily distinguishable. In Sluss v. State, 436 N.E.2d 907, 911

       (Ind. Ct. App. 1982), a pocket knife was used to “tinker” with a door lock, not

       cut someone’s throat. Here, Miller used the pocket knife not to tinker with a

       lock, but to slit a man’s throat. The knife also had a three- to four-inch blade,

       and Miller used it to cut the victim’s throat, requiring over forty-stitches to

       close. Although the cut was, fortunately, not deep enough to cut the victim’s

       jugular vein or carotid artery, a slightly deeper cut could have done so. Thus,

       the trial court did not err by noting that the pocket knife used by Miller was a

       deadly weapon.




       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018   Page 13 of 23
[24]   Nor did the trial court err by inferring a specific intent to kill from Miller’s use

       of the deadly weapon. Typically, a defendant’s mens rea must be inferred from

       the circumstances. West v. State, 805 N.E.2d 909, 915 (Ind. Ct. App. 2004),

       trans. denied. With regard to the crime of attempted murder, it has long been

       held that the specific intent to kill may be inferred from the use of a deadly

       weapon in a manner likely to cause death or great bodily harm. Kiefer v. State,

       761 N.E.2d 802, 805 (Ind. 2002); Randolph v. State, 516 N.E.2d 24, 25 (Ind.

       1987).


[25]   Here, Miller slit the victim’s throat with a three- to four-inch knife, requiring the

       victim to have over forty stitches to close the wound. The knife narrowly missed

       cutting the victim’s jugular vein and carotid artery, and had it been a slightly

       deeper cut, would have posed a risk of death. Under these facts and

       circumstances, the trial court, acting as the trier of fact, could reasonably

       conclude that Miller acted with the specific intent to kill when he slit the

       victim’s throat. Under our extremely deferential standard of review on claims of

       insufficient evidence, we can only conclude that the State presented evidence

       sufficient to support Miller’s conviction for attempted murder.


                                      II. Motion for Change of Judge

[26]   Miller also argues that the trial court erred when it denied his motion for a

       change of judge. Pursuant to Indiana Criminal Rule 12(B):


                In felony and misdemeanor cases, the state or defendant may
                request a change of judge for bias or prejudice. The party shall
                timely file an affidavit that the judge has a personal bias or prejudice

       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018            Page 14 of 23
        against the state or defendant. The affidavit shall state the facts and
        the reasons for the belief that such bias or prejudice exists, and
        shall be accompanied by a certificate from the attorney of record
        that the attorney in good faith believes that the historical facts
        recited in the affidavit are true. The request shall be granted if the
        historical facts recited in the affidavit support a rational inference
        of bias or prejudice.


Ind. Crim. Rule 12(B) (emphasis added). The timeliness of such motions is

governed by Criminal Rule 12(D), which provides:


        (D) Time Period for Filing Request for Change of Judge or
        Change of Venue. In any criminal action, no change of judge or
        change of venue from the county shall be granted except within
        the time herein provided.

              (1) Thirty Day Rule. An application for a change of judge or
              change of venue from the county shall be filed within thirty
              (30) days of the initial hearing. Provided, that where a cause
              is remanded for a new trial by the court on appeal, such
              application must be filed not later than thirty (30) days after
              the defendant first appears in person before the trial court
              following remand.

              (2) Subsequently Discovered Grounds. If the applicant first
              obtains knowledge of the cause for change of venue from the
              judge or from the county after the time above limited, the
              applicant may file the application, which shall be verified by
              the party specifically alleging when the cause was first
              discovered, how it was discovered, the facts showing the
              cause for a change, and why such cause could not have been
              discovered before by the exercise of due diligence. Any
              opposing party shall have the right to file counter-affidavits
              on such issue within ten (10) days, and after a hearing on the
              motion, the ruling of the court may be reviewed only for
              abuse of discretion.

Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018     Page 15 of 23
[27]   Criminal Rule 12(B) provides that the request for a change of judge “shall be

       granted if the historical facts recited in the affidavit support a rational inference

       of bias or prejudice.” Thus, a change of judge under this rule “is neither

       ‘automatic’ nor ‘discretionary.’” Sturgeon v. State, 719 N.E.2d 1173, 1181 (Ind.

       1999) (quoting Blanche v. State, 690 N.E.2d 709, 714 (Ind. 1998)). The

       appropriate standard of review of a trial judge’s decision to grant or deny such a

       motion is whether the judge’s decision was clearly erroneous. Id. at 1182.


[28]   This clearly erroneous standard, however, applies only to motions made within

       the “Thirty Day Rule” set forth in Criminal Rule 12(D)(1), i.e., motions filed

       no later than thirty days after the initial hearing or, if the case is remanded for a

       new trial by the court on appeal, no later than thirty days after the defendant

       first appears in person before the trial court following remand. If the motion for

       change of judge is made outside this thirty-day rule, then the motion is

       governed by Criminal Rule 12(D)(2), which provides that such motions “may

       be reviewed only for abuse of discretion.”


[29]   Here, Miller admits that his motion for a change of judge did not fall within the

       scope of Criminal Rule 12(D)(1), because it was not filed within thirty days of

       his initial hearing, nor was his case remanded for a new trial. Instead, it was

       remanded only for the trial court “to apply the appropriate legal standard to the

       existing evidence.” Miller II, 77 N.E.3d at 1197. Thus, Miller’s motion falls

       within the scope of Criminal Rule 12(D)(2), and as such is, by the explicit

       language of this rule, reviewable only for an abuse of discretion.



       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018   Page 16 of 23
[30]   In determining whether the trial court abused its discretion in denying Miller’s

       motion for a change of judge, we also keep in mind that we presume that a

       judge is not biased or prejudiced against a party. Garland v. State, 788 N.E.2d

       425, 433 (Ind. 2003). Nor may prejudice be derived from judicial rulings. Id. A

       trial judge’s exposure to evidence through judicial sources is, alone, insufficient

       to establish bias. Id. (citing Sturgeon, 719 N.E.2d at 1181). Nor does the fact that

       a defendant has appeared before a certain judge in prior cases establish the

       existence of bias or prejudice. Id. (citing Lasley v. State, 510 N.E.2d 1340, 1341

       (Ind. 1987)). A showing of prejudice sufficient to support a motion for a change

       of judge must be established from personal, individual attacks on a defendant’s

       character, or otherwise. Id. A defendant cannot merely assert prejudice on the

       grounds that the judge has ruled against him in a prior proceeding. Id.


[31]   In the present case, Miller relies wholly on the Revised Findings the trial court

       entered on remand to support his claim for a change of judge. Specifically, he

       argues that the substance of the Revised Findings demonstrates the trial judge’s

       bias and that the trial judge’s action of entering findings prematurely establish

       an appearance of bias or prejudice of the trial judge against him. We disagree.

[32]   First, we find no support for a claim of an appearance of bias or prejudice based

       on the trial court’s act of prematurely entering its findings on remand. Our

       supreme court issued its opinion on July 12, 2017. The trial court entered its

       findings on August 17, 2017, over one month after our supreme court’s opinion.

       Had Miller not filed a petition for rehearing, this would have been sufficient

       time for our supreme court’s opinion to have been certified. But here, Miller

       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018   Page 17 of 23
       had already filed a petition for rehearing on August 11, 2017, thereby

       postponing the certification until our supreme court could rule on the petition.

       The trial court may have been unaware of Miller’s petition for rehearing and

       therefore entered its findings prematurely, but this action does not establish any

       appearance of bias or prejudice on the part of the trial judge. And the fact that

       the premature findings were not in favor of Miller does not support any

       inference of bias. Although Miller claims that the premature findings “harmed”

       him and benefitted the State, the trial court’s premature findings were vacated

       upon Miller’s successful efforts to obtain a writ in aid of appellate jurisdiction.

       Thus, he was not harmed by the trial court’s premature actions.5


[33]   Miller also claims that the substance of the trial court’s Revised Findings

       supports an appearance of bias or prejudice against him. Again, we disagree.

       The trial court’s Revised Findings do exactly what the supreme court instructed

       the trial court to do on remand: reconsider the evidence under the appropriate

       legal standard, i.e., whether the evidence was sufficient to show that Miller

       acted with the specific intent to kill.


[34]   Miller also complains that the trial court “staunchly contended” that it had

       applied the proper legal standard in its original findings. Appellant’s Br. at 28–




       5
         We find Miller’s citation to State v. Marion Superior Court, 54 N.E.3d 995 (Ind. 2016), to be unavailing. At
       issue in that case was Indiana Trial Rule 76(C)(3), which provides for a right to a change of judge in civil
       cases. See Marion Superior Court, 54 N.E.3d at 995. Thus, as noted by the State, the court’s holding in Marion
       Superior Court was not premised upon the appearance of bias or prejudice.

       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018                          Page 18 of 23
29. The trial court’s Revised Findings do attempt to explain and justify the trial

court’s Original Findings. Specifically, the trial court wrote:


           This Court has given lengthy and thoughtful consideration to the
           appropriate standard for attempted murder, not only at the time
           that the [O]riginal Findings, Conclusions and Judgment of
           Conviction was entered but also upon remand. The charging
           information for Count 1 sets forth the incorrect mens rea, and the
           Court recited the charging information verbatim in two places in
           the [O]riginal Findings, Conclusions and Judgment of
           Conviction. However, the Trial Court’s purpose for reciting the
           charging information in original paragraph 2 was to indicate the
           charge of Attempted Murder had been filed in Count 1, and the
           purpose in original paragraph 8a was to make a finding that
           Defendant was guilty of Attempted Murder, a Level 1 felony,
           beyond a reasonable doubt. The Court did not consider the
           “knowing” standard and this conclusion is supported by the
           record of the case and the Court’s [O]riginal Findings,
           Conclusions and Judgment of Conviction.

           The Court specifically set forth in the [O]riginal Findings,
           Conclusions and Judgment of Conviction the following: “The
           Court finds and concludes that Defendant had the requisite intent
           to kill as he used a knife, which is a deadly weapon, to
           deliberately cut the victims throat in a manner that was likely to
           cause death or great bodily harm.” This is a specific finding and
           conclusion consistent with the Indiana Supreme Court’s Kiefer[6]
           opinion . . . which establishes that a trier of fact may infer intent
           to kill from the use of a deadly weapon in a manner likely to
           cause death or great bodily harm. This identifies the standard
           considered by the Court and the Court’s conclusion that
           Defendant had specific intent to kill the victim in the instant case.




6
    Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002).


Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018      Page 19 of 23
               Further, the framework the Court used to consider the evidence
               followed the standard clearly identified in the State’s closing
               argument . . . .

               Contrary to the concerns stated in the opinion of the Court of
               Appeals and by Justice Slaughter, this Court would not hesitate
               to change the original order if the evidence did not support the
               same conclusion under the appropriately stated standard. This
               Court specifically states that it did consider the specific intent to
               kill standard when deciding the case originally, and also re-
               evaluated and reconsidered all of the evidence under the
               specific intent to kill standard on remand. Without hesitation
               or reservation, the Court concludes that the evidence presented
               and the findings set forth herein support the conclusion that
               the State proved beyond a reasonable doubt that the Defendant
               had specific intent to kill.


       Appellant’s App. pp. 10–11 (italic emphasis in original, bold emphasis added).


[35]   Although the trial court did defend its Original Findings in its Revised

       Findings, we cannot say that this supports an appearance of bias or prejudice

       against Miller. The trial court still followed the instructions of our supreme

       court and reconsidered the evidence using the proper mens rea. That the trial

       court again ruled against Miller is not indicative of bias or prejudice. See

       Garland, 788 N.E.2d at 433 (noting that prejudice may not be derived from

       unfavorable judicial rulings).


[36]   Miller also complains that the trial court excluded him from participation in the

       process of reconsidering the evidence on remand. Miller claims that the trial

       court should have given him an opportunity to present further “argument,



       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018   Page 20 of 23
       evidence, briefs, or other input[.]”7 Appellant’s Br. at 27. But this is not what

       our supreme court instructed the trial court to do on remand. Instead, the court

       instructed the trial court to simply “apply the appropriate legal standard to the

       existing evidence.” Miller II, 77 N.E.3d at 1197. This is what the trial court did. 8


[37]   We also disagree with Miller’s contention that the trial court’s Revised Findings

       demonstrate that the trial judge was “unable to view the evidence

       dispassionately under a different legal standard than that applied in its original

       findings.” Id. at 30. To the contrary, the trial court’s Revised Findings clearly

       and explicitly reference the correct legal standard, i.e., that Miller acted with the

       specific intent to kill. That the trial court also contended that it had found that

       Miller acted with the specific intent to kill in its Original Findings does not

       mean that the trial court failed to apply the proper legal standard in its Revised

       Findings.


[38]   Miller also argues that the trial judge was required to disqualify or recuse

       himself by the Indiana Code of Judicial Conduct, specifically referring to Rule

       2.11(A). This rule provides in relevant part:




       7
         Contrary to Miller’s claim that the trial was argued under the wrong mens rea, the prosecuting attorney
       repeatedly argued at trial that there was sufficient evidence of Miller’s specific intent to kill. See Trial Tr. pp.
       203–04. And although Miller’s trial counsel stated one time in closing argument, “This wasn’t something
       [Miller] did knowingly or intentionally,” he also repeatedly argued that Miller did not have “the intent to
       murder somebody,” and that Miller did not “formulate[] any kind of intent to kill anybody.” Trial Tr. p. 215.
       Thus, both parties referenced the correct mens rea in their arguments to the trial court.
       8
        Again, we note that, to the extent that Miller claims this deprived him of due process or violated his rights
       under the Sixth Amendment, his argument is with our supreme court’s instructions on remand, which we are
       not at liberty to second guess.

       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018                              Page 21 of 23
               (A) A judge shall disqualify himself or herself in any proceeding
               in which the judge’s impartiality might reasonably be questioned,
               including but not limited to the following circumstances:

                     (1) The judge has a personal bias or prejudice concerning a
                     party or a party’s lawyer, or personal knowledge of facts that
                     are in dispute in the proceeding. . . .


       Ind. Code Judicial Conduct Rule 2.11. Miller also cites to the first two

       comments to this rule, which provide:


               [1] Under this Rule, a judge is disqualified whenever the judge’s
               impartiality might reasonably be questioned, regardless of
               whether any of the specific provisions of paragraphs (A)(1)
               through (6) apply. In many jurisdictions, the term “recusal” is
               used interchangeably with the term “disqualification.”

               [2] A judge’s obligation not to hear or decide matters in which
               disqualification is required applies regardless of whether a
               motion to disqualify is filed.


       Id., comments [1], [2].


[39]   Miller contends that all of his above-referenced arguments show that an

       objective person with knowledge of the complete circumstances of his case

       would have a reasonable basis for doubting the trial judge’s impartiality. Yet

       again, we disagree. The trial court was doing exactly what it was told to do by

       the Supreme Court, and simply entering its findings prematurely did not bear

       on the question of the trial judge’s presumed impartiality. Furthermore, nothing

       in the court’s Revised Findings establishes that the trial judge’s impartiality




       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018   Page 22 of 23
       might reasonably be questioned. Thus, the trial judge was not required to recuse

       or disqualify himself under the Indiana Code of Judicial Conduct.


[40]   In short, the trial court did not abuse its discretion or otherwise err when it

       denied Miller’s motion for a change of judge. Nothing in the trial court’s

       Revised Findings or the fact that the trial court entered findings prematurely

       supports Miller’s claim that there is an appearance that the trial judge was

       biased or prejudiced against him.


                                                   Conclusion
[41]   The evidence was sufficient to support an inference that Miller acted with the

       specific intent to kill required to convict him of attempted murder, and the trial

       court did not abuse its discretion by denying Miller’s motion for a change of

       judge on remand.


[42]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 28A01-1712-CR-2918 | July 13, 2018   Page 23 of 23
