Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                              Jan 21 2014, 10:05 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

STEVEN E. RIPSTRA                                GREGORY F. ZOELLER
Ripstra Law Office                               Attorney General of Indiana
Jasper, Indiana
                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TIMOTHY J. PADGETT,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 51A01-1305-CR-228
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE MARTIN CIRCUIT COURT
                           The Honorable Lynne E. Ellis, Judge
                              Cause No. 51C01-1203-FB-28



                                      January 21, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Timothy J. Padgett appeals his conviction for burglary as a class B felony. Padgett

raises two issues which we revise and restate as:

       I.     Whether the court erred in denying Padgett’s request for a change of
              judge; and

       II.    Whether the evidence is sufficient to sustain Padgett’s conviction.

We affirm.

                        FACTS AND PROCEDURAL HISTORY

       In October 2011, Edward Bullock had some roofing work completed on his house

in Loogootee by Huff Construction. Padgett was a member of the crew that performed

the work on Bullock’s house. The crew stored some items in Bullock’s garage and was

at Bullock’s residence when he went to work in the morning and came home for lunch.

At some point, Bullock had a conversation with Padgett in the grocery store where

Bullock worked.

       On February 14, 2012, Bullock left his home around 7:00 a.m., noticed fresh snow

on the ground, and went to work. That same morning, Tom Trambaugh began driving

into town at approximately 9:00 or 9:30 a.m., and noticed a blue vehicle with a black

front fender parked at the edge of the roadway on Cherry Street which was very unusual.

Trambaugh also observed a person walking on Bullock’s driveway toward Cherry Street

who he later identified as Padgett. Approximately thirty minutes later, Trambaugh saw

the vehicle parked at a gas station and Padgett standing outside of the vehicle.

       Bullock returned to his home around noon for lunch per his typical schedule. He

went to unlock his door and noticed pry marks on both sides of the latch and that the door

was partially open. He went into the house and saw that cabinet doors that had been
                                        2
closed were now open and medicine was missing, and he called the Loogootee Police

Department. Loogootee Police Chief Kelly Rick Rayhill arrived at the residence, noticed

a footprint on the front sidewalk, and took a picture of the shoe print. Chief Rayhill and

Bullock examined footprints in the snow which consisted of only one particular footprint

and the footprints went “to the front door, they came back, they went around the house to

the back, they came back again and went back to the entry door . . . .” Transcript at 99.

Chief Rayhill observed that the shoe prints had a fairly distinctive tread and observed that

the door from the garage to the house was torn “from damage which appeared to be from

a crowbar.” Id. at 140. Bullock saw that pill bottles for prescription medicine and a

watch were missing.

       That same day, Padgett and his girlfriend Ashley Ingler went to Goodies to

purchase new shoes for him because he told her that he had a hole in his shoes. Ingler

thought it was odd that Padgett purchased shoes in a smaller size than the shoes that he

had. He put his old shoes into a trash can outside of Goodies. Ingler also observed that

Padgett was wearing a watch while he did not usually wear one. The watch was loose on

Padgett, and he asked Ingler to adjust it for him.

       On February 15, 2012, Martin County Sheriff’s Deputy Steven Noland stopped a

vehicle in which Padgett was riding for a reason unrelated to the burglary, an inventory

search of the vehicle was conducted, and the police discovered a crowbar on the

passenger rear floorboard. The police also retrieved Padgett’s old shoes from a dumpster

at Goodies.



                                              3
       Approximately two or three weeks later, Keith Greenwell was taking a walk with

his wife and found pill bottles that had the names of Bullock and his wife on them.

Greenwell called the police and Bullock, and the police picked up the bottles.

       On March 23, 2012, the State charged Padgett with burglary as a class B felony in

cause number 51C01-1203-FB-28 (“Cause No. 28”). On May 1, 2012, the parties filed a

proposed plea agreement in which Padgett agreed to plead guilty as charged in Cause No.

28 as well as to charges in two other cause numbers and admit to a probation violation in

another cause. The State agreed to recommend a sentence of ten years in Cause No. 28.

On July 10, 2013, the court rejected the plea agreement and it was explained because of

Padgett’s substantial criminal history, that there was nothing in the plea agreement that

Padgett be responsible for the money he owed to the county, the plea agreement called

for Padgett to be housed with the local police department instead of the Department of

Correction, and the sentence with respect to the probation violation was not legal. The

court stated that it would consider other plea agreements.

       On July 10, 2012, Padgett filed a verified motion for recusal of judge in cause

number 51C01-0811-FD-130 (“Cause No. 130”) and cause number 51C01-1202-FD-17

(“Cause No. 17”). The motion alleged that the trial judge’s continued involvement

created a perception that the judge’s ability to carry out her responsibilities with

impartiality was impaired. The motion attached Padgett’s affidavit in which he alleged

that the trial judge rejected his plea agreement, said that she was sick of Padgett, and told

the deputy that he needed to remove Padgett from the courtroom.



                                             4
       On July 19, 2012, the court held a hearing in cause number 51C01-1203-FB-27

(“Cause No. 27”) and Cause Nos. 17, 28, and 130. Padgett’s counsel indicated that he

wished to add the two counts involving offenses as class B felonies to the written verified

motion for recusal. The court denied Padgett’s motion for recusal and stated:

       [Y]our client is entitled to a jury trial, that is his constitutional right. The
       comments made by the Court have nothing to do with his constitutional
       rights to a trial by jury. Uh, it was, uh, made at a time when a plea
       agreement, an illegal plea agreement, was presented to the Court and there
       were situations that if someone would like to know the facts and
       circumstances, uh, at the initial hearing your client lied to me. And it was
       just a continuous situation by your client, uh, his lying not once but twice. I
       see no reason why this Court can not give your client a fair trial and that is
       what he has a right to.

Id. at 30.

       On July 23, 2012, Padgett filed a verified motion for change of judge in Cause

Nos. 17, 27, 28, and 130. The motion stated that it was being filed pursuant to Ind.

Criminal Rule 12(D)(2), alleged that Padgett appeared in court on May 1, 2012, to

present a plea agreement, and referred to his affidavit.

       On July 24, 2012, the court entered an order denying Padgett’s motion for recusal.

The order referenced Padgett’s July 23, 2012 filing and stated that such motion was filed

solely for the purpose of complying with Criminal Rule 12 procedures and for no other

purpose and therefore no hearing was required on the motion.

       On August 1, 2012, Padgett filed a request for certification of an order for

interlocutory appeal in Cause Nos. 17, 27, 28, and 130. On August 6, 2012, the court

denied Padgett’s request for certification.



                                              5
       In March 2013, the court held a jury trial in Cause No. 28.              During direct

examination, Bullock testified that he received his mail at the mailbox at the end of the

driveway and did not receive a daily newspaper. He described where the electric meter

and water meter were located and said that he did not have anything advertised for sale in

the newspaper or by word of mouth. Ingler identified the vehicle pictured in State’s

Exhibit 15 as belonging to her and said that Padgett was allowed to use her vehicle and

routinely did so. She testified that Padgett used her car the morning of February 14,

2012, and that Padgett said he needed new shoes because he had a hole in his. Upon

examining the shoes at trial Ingler testified that the shoes did not have holes but had a

piece of missing fabric. Trambaugh identified the vehicle pictured in State’s Exhibit 15

as the vehicle he saw that day. The jury found Padgett guilty as charged, and the court

sentenced Padgett to fourteen years.

                                       DISCUSSION

                                              I.

       The first issue is whether the court erred in denying Padgett’s request for a change

of judge. Padgett argues that the trial court “clearly found [him] to be a ‘liar’ and

characterized his lack of veracity as ‘a continuous situation.’” Appellant’s Brief at 11

(quoting Transcript at 30). He contends that “the prejudice, the jeopardy, is in the effect

the court’s recriminations have upon [his] inclination to seek, or accept, a plea agreement

instead of a trial” and that “[i]f the statements contained in [his] affidavit, certified to by

his trial counsel, are accurate, these certainly create, at best, the appearance of

impropriety: bias and prejudice.” Id. at 11-12. He concludes that “[i]n reality, the facts

                                              6
may be Padgett’s fault because he was not truthful, but the facts and the court’s reaction

still exist.” Id. at 12.

       The State argues the exchange described by Padgett does not appear anywhere in

the transcript of the hearing and that Padgett did not avail himself of the procedure set

forth in Appellate Rule 31 to supply the deficiency in the transcribed record. The State

also argues that there is no reason to conclude that the trial judge held any personal bias

against Padgett and points out that the record does not disclose the context in which the

court’s alleged statements were made or what else may have been happening in the

courtroom.

       Ind. Criminal Rule 12(B) provides:

       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 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.

“Adjudicating a request for change of judge based on Rule 12(B) requires an objective,

not subjective, legal determination by the judge, who is ‘to examine the affidavit, treat

the facts recited in the affidavit as true, and determine whether these facts support a

rational inference of bias or prejudice.’” Voss v. State, 856 N.E.2d 1211, 1216 (Ind.

2006) (quoting Sturgeon v. State, 719 N.E.2d 1173, 1181 (Ind. 1999)). A party is entitled

to a change of judge only if the historical facts recited in the affidavit support a rational

inference of bias or prejudice. Id. This is not limited to cases in which the judge has

                                              7
expressed an opinion on guilt or innocence or the merits of the case. Id. It does not

depend on a subjective showing that the trial judge is actually biased or prejudiced. Id.

In considering a motion for change of judge, the challenged judge’s ruling does not

depend upon a self-assessment of actual bias or prejudice. Id. The judge must instead

determine whether the historical facts presented in support of the motion lead to a rational

inference of bias or prejudice.        Id.   A change of judge is neither automatic nor

discretionary, but rather requires the trial judge to make a legal determination, not a self-

analysis, of actual bias or prejudice. Id. Adverse rulings and findings by a trial judge

from past proceedings with respect to a particular party are generally not sufficient

reasons to believe the judge has a personal bias or prejudice. Id. at 1217. The mere

assertion that certain adverse rulings by a judge constitute bias and prejudice does not

establish the requisite showing. Id.

       “The law presumes that the judge is unbiased and unprejudiced.” Buggs v. State,

844 N.E.2d 195, 205 (Ind. Ct. App. 2006) (citing Garland v. State, 788 N.E.2d 425, 432

(Ind. 2003)), reh’g denied, trans. denied. Exposure to evidence through judicial sources

is not, by itself, sufficient to establish bias. Sturgeon, 719 N.E.2d at 1182. Nor is

rejection of a plea agreement. Haynes v. State, 656 N.E.2d 505, 508 (Ind. Ct. App.

1995). Upon appeal, we review the trial court’s decision on a motion for change of judge

for clear error, reversing only when our review of the record “leaves us with a definite

and firm conviction that a mistake has been made.” Noble v. State, 725 N.E.2d 842, 848

(Ind. 2000).

       In his petition, Padgett averred:

                                               8
       That I appeared in Court for presentation of my plea on May 1, 2012. On
       that date the Court began reciting the terms of my plea. When the Court
       came to that portion of the plea that stated that I could serve my time in the
       Martin County Jail, the Court became upset and my attorney and the deputy
       prosecutor approached the bench. After they returned to the tables the
       Court stated that it was “sick of this client and sick of this case”. The Judge
       immediately left the Court room without making further record.

       The Judge then returned to the bench to take up other matters and another
       defendant was called to the table. I was seated back where the inmates are
       kept, but I could still be seen by the Judge. The Judge then told Deputy
       Tony Dant that “he needed to get me out of the Courtroom”. During this
       entire process I did not know what was happening because the Judge did
       not make any more record in my case. There were lots of other people in
       Court and the Judge raised her voice very loudly when she made these
       statements.

       A few days later I received notice by docket sheet that the Court had
       rejected my plea. I signed a paper in Court that had one date and then the
       docket sheet had a different date. My case was rescheduled a few more
       times until we finally came to Court on July 2, 2012, when I was again
       advised that the Court would not accept my plea, but no record was made at
       that time because of problems with the recording equipment.

Appellant’s Appendix at 40.

       To the extent that Padgett may rely upon the rejection of the plea agreement, we

observe that rejection of a plea agreement is not by itself sufficient to establish bias.

Haynes, 656 N.E.2d at 508. Further, the record reveals that the trial court rejected the

plea agreement because of Padgett’s substantial criminal history, that there was nothing

in the plea agreement that Padgett be responsible for the money he owed to the county,

and the plea agreement called for Padgett to be housed in the county jail instead of the

Department of Correction. The court further referred to the sentence with respect to the

probation violation as illegal. Padgett does not argue that the bases for rejecting the plea



                                             9
agreement were improper. We also observe that after rejecting the plea agreement, the

court stated:

       Uh, in chambers I did advise counsel that if they wanted to bring something
       to me that was, uh, concluded at DOC, uh, incarceration that I would
       consider that plea agreement. I also advised counsel that if, if the defendant
       was willing to serve his full time on his probation violation that I was
       willing to wipe away the Eighteen Hundred Dollars ($1800.00) or at least
       consider that. But I don’t negotiate plea agreements. I advise counsel what
       I am willing to accept and I am not willing to accept the plea agreement as
       written on this gentleman. Uh, I think if you go back to the initial hearing
       this gentleman was given a great opportunity. He advised the Court that he
       was working and he would be paying for his counsel. And, uh, he lied to
       the Court. But my reason for rejection has two bases, number one that is
       unheard of to, to commit someone to a local jail on two B felonies, and
       number two, seventy-seven (77) days credit on the probation violation is
       against statute and can not be accepted by this Court.

Transcript at 21.

       As pointed out by the State, Padgett concedes that “[i]n reality, the facts may be

Padgett’s fault because he was not truthful . . . .” Appellant’s Brief at 12. Further, as

pointed out by the State, the record does not reveal the context surrounding the trial

judge’s alleged request to remove Padgett from the courtroom. Under the circumstances,

we cannot say that clear error exists or that we are left with a definite and firm conviction

that a mistake has been made.

                                             II.

       The next issue is whether the evidence is sufficient to sustain Padgett’s conviction

for burglary as a class B felony. When reviewing claims of insufficiency of the evidence,

we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656

N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the

reasonable inferences therefrom that support the verdict.        Id.   We will affirm the
                                        10
conviction if there exists evidence of probative value from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt. Id. It is well established

that circumstantial evidence will be deemed sufficient if inferences may reasonably be

drawn that enable the trier of fact to find the defendant guilty beyond a reasonable doubt.

Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001).

       Mere presence at the crime scene with the opportunity to commit a crime is not a

sufficient basis on which to support a conviction. Id. at 436. However, presence at the

scene in connection with other circumstances tending to show participation, such as

companionship with the one engaged in the crime, and the course of conduct of the

defendant before, during, and after the offense, may raise a reasonable inference of guilt.

Id.; Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).

       Identification testimony need not necessarily be unequivocal to sustain a

conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996). Elements of

offenses and identity may be established entirely by circumstantial evidence and the

logical inferences drawn therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind.

1990). As with other sufficiency matters, we will not weigh the evidence or resolve

questions of credibility when determining whether the identification evidence is sufficient

to sustain a conviction.   Id.   Rather, we examine the evidence and the reasonable

inferences therefrom that support the conviction. Id.

       Ind. Code § 35-43-2-1 provides that “[a] person who breaks and enters the

building or structure of another person, with intent to commit a felony in it, commits

burglary, a Class C felony. However, the offense is . . . a Class B felony if . . . the

                                            11
building or structure is a . . . dwelling . . . .” Thus, the State was required to prove

beyond a reasonable doubt that Padgett broke and entered Bullock’s dwelling with the

intent to commit a felony in it.

       Padgett argues that there is no evidence that he was in the house or touched any of

the missing items, and that the footprints may have belonged to another person or perhaps

were made by Padgett for a legitimate reason such as searching for help after having car

trouble. He contends that the essential elements of this crime were not proven beyond a

reasonable doubt.    The State argues that the evidence points to the conclusion that

Padgett did not have any car trouble because he was later seen fueling the vehicle in town

and was later driving the vehicle, and that it was reasonable for the jury to conclude that

he was the person who burglarized Bullock’s home.

       To the extent that Padgett appears to argue that the essential elements of breaking

and entering were not proven beyond a reasonable doubt, we observe that Bullock

noticed pry marks on both sides of the latch on his door and that the door would not close

because the latch “had been messed up on the door.” Transcript at 97. The State also

introduced pictures of the damaged door frame. Further, Bullock testified that he did not

give anyone permission to enter his residence that day.

       On the day of the burglary which included theft of Bullock’s watch, Padgett threw

out his shoes, purchased new shoes, and was wearing a watch which was loose on him

and which was unusual because Padgett did not typically wear a watch. Further, Chief

Rayhill observed that the door from the garage to the house was torn from damage which



                                            12
appeared to be from a crowbar, and when Padgett was stopped by police the day after the

burglary he had a crowbar on the passenger rear floorboard.

       With respect to the identification, the evidence contains a photograph of a

footprint in the snow and a photograph of the soles of the shoes that Padgett threw into a

trash can the same day as the burglary. Trambaugh testified that he saw Padgett walking

on Bullock’s property on the morning that Bullock’s residence was burglarized. During

the direct examination of Trambaugh, the following exchange occurred:

       Q      Uh, did you have any trouble seeing him?

       A      No, I did not.

       Q      Any question that this was him?

       A      No, there is not.

Id. at 187.

       While the jury could have made different inferences from the evidence, we cannot

say that the inferences made by the jury here were unreasonable. Based upon our review

of the evidence and testimony most favorable to the conviction as set forth in the record

and above, we conclude that sufficient evidence exists from which the trier of fact could

find Padgett guilty beyond a reasonable doubt of burglary as a class B felony.

                                     CONCLUSION

       For the foregoing reasons, we affirm Padgett’s conviction and sentence for

burglary as a class B felony.

       Affirmed.

ROBB, J., and BARNES, J., concur.

                                            13
