 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                 MEMORANDUM DECISION - NOT FOR PUBLICATION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

                                               3
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
