MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      May 16 2018, 11:02 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeffery Haupt                                           Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Matthew B. Mackenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Higgason, III,                                    May 16, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        64A04-1710-CR-2329
        v.                                              Appeal from the Porter Superior
                                                        Court
State of Indiana,                                       The Honorable Mary R. Harper,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        64D05-1611-F6-10253



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018                 Page 1 of 8
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, James Higgason, III (Higgason), appeals his conviction

      for theft, a Level 6 felony, Ind. Code § 35-43-4-2(a).


[2]   We affirm.


                                                   ISSUE
[3]   Higgason presents us with one issue on appeal, which we restate as: Whether

      the trial court showed bias and prejudice towards Higgason which prevented

      him from getting a fair trial.


                      FACTS AND PROCEDURAL HISTORY
[4]   In October 2016, Indiana Department of Transportation (INDOT) employee,

      Tyrone Hare (Hare), received a tip that an individual who might be responsible

      for copper wire thefts from INDOT light poles was living around 25th and Burr

      Streets in Gary, Indiana, and driving a maroon Ford pickup truck. Indiana

      State Police obtained a search warrant and placed a GPS tracker on the truck.

      While monitoring the vehicle through the GPS tracker, Indiana State Police

      Detective, Brian Kubiak (Detective Kubiak), received an alert on November 7,

      2016, that the vehicle had broken a geo-fence boundary around some INDOT

      light poles in the Lakeland Park area. When he arrived in the area, Detective

      Kubiak noticed a vehicle that matched the description provided to Hare.

      During the three hours that the vehicle was in the Lakeland Park area,

      Higgason exited the truck, waded through a watery ditch, and began removing

      the copper wiring from several light poles. Upon leaving the area, Detective
      Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018   Page 2 of 8
      Kubiak followed the truck. Indiana State Police Trooper Andrew Rasala pulled

      over the maroon truck Higgason was driving for a traffic infraction and

      observed a large amount of wiring in the bed of the truck. The wiring in the

      truck matched the description and gauge of the wiring used by INDOT.


[5]   On November 8, 2016, the State filed an Information, charging Higgason with

      one Count of theft, a Level 6 felony. On July 20, 2017, Higgason proceeded to

      a jury trial where he represented himself pro se and, at the conclusion of the

      evidence, was found guilty as charged. On August 15, 2017, the trial court

      sentenced him to serve 912 days at the Department of Correction.


[6]   Higgason now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
[7]   Electing to represent himself at trial, Higgason contends that the trial court, on

      numerous occasions, exhibited a partiality and bias towards him. A trial before

      an impartial judge is an essential element of due process. Everling v. State, 929

      N.E.2d 1281, 1287 (Ind. 2010). In assessing a trial court’s partiality, we

      examine the judge’s actions and demeanor while recognizing the need for

      latitude to run the courtroom and maintain discipline and control of the trial.

      Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997), reh’g denied. “Even where

      the court’s remarks display a degree of impatience, if in the context of a

      particular trial they do not impart an appearance of partiality, they may be

      permissible to promote an orderly progression of events at trial.” Id. Bias and

      prejudice violate a defendant’s due process right to a fair trial only where there

      Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018   Page 3 of 8
      is an undisputed claim or where the judge expressed an opinion of the

      controversy over which the judge was presiding. Smith v. State, 770 N.E.2d 818,

      823 (Ind. 2002). Adverse rulings are not sufficient to show bias or prejudice on

      the part of the trial judge. Flowers v. State, 738 N.E.2d 1051, 1060 n.4 (Ind.

      2000), reh’g denied. Nevertheless, Indiana law presumes that a judge is unbiased

      and unprejudiced. See Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003). To

      rebut this presumption, a defendant must establish from the judge’s conduct

      actual bias or prejudice that places the defendant in jeopardy. Smith, 770

      N.E.2d at 823. Looking at the trial in its entirety, Higgason maintains that “the

      cumulative impact of the trial court’s rulings and statements both in front of

      and outside the presence of the jury [] impacted his ability to have a fair trial.”

      (Appellant’s Br. p. 10).


[8]   Prior to trial, Higgason dismissed his attorney and elected to proceed pro se.

      “Pro se litigants without legal training are held to the same standard as trained

      counsel and are required to follow procedural rules.” Wright v. State, 722

      N.E.2d 449, 463 (Ind. Ct. App. 2002). Although “a trial court is not required to

      guide pro se litigants through the judicial system,” the trial court spent a

      considerable amount of time explaining to Higgason the process of voir dire,

      how to introduce exhibits, questioned Higgason about the witnesses he

      intended to question, and informed him of his right to testify prior to the

      commencement of the jury trial. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct.

      App. 2004). During trial, the trial court repeatedly reminded Higgason not to

      testify himself but instead to question the witness, and advised him how to

      Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018   Page 4 of 8
      rephrase questions. Despite all this, the trial court had to admonish Higgason

      that he “simply [was] not utilizing appropriate procedures.” (Transcript Vol. I,

      p. 91). Prior to the start of the second day of trial, and outside the presence of

      the jury, the trial court cautioned Higgason that he


              intentionally inserted what, if the State did it, would possibly be
              grounds for a mistrial into the record when you were examining
              the female witness and waiving this paper in the air and talking
              about her having been arrested for Auto Theft, which you knew
              was highly inadmissible. Don’t do that kind of thing again.
              Don’t do it. Follow the rules. You, you know, you’re making a
              habit of saying things that are statements that, you know, you’re
              trying to testify without testifying. And you just follow the rules.
              Perhaps you don’t know the rules, but I know you knew that
              rule, the 609 rule. I know you knew that rule. Follow the rules.


              The other thing that I would tell you is, you know, you may have
              things that you want to move into evidence today because we’re
              going to get to your case, I think, pretty soon. In order for your
              materials to be submitted into evidence you need to follow the
              proper procedure to do that. And if you don’t follow the proper
              procedure to do that, it won’t be admissible. Just so you
              understand.


              That’s one of the reasons that I tried and tried to get you to have
              a Public Defender. You’ve decided you can try your case on
              your own. That’s your rights [sic], but you need to do it
              correctly.


      (Tr. Vol. II, pp. 35-36).


[9]   Higgason claims that the trial court showed bias and partiality by allowing the

      State to present objections without allowing him to respond. Specifically,

      Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018   Page 5 of 8
       Higgason points to several instances where the State objected based on facts not

       in evidence, speculation, or because Higgason’s questioning was outside the

       scope of the State’s direct. Numerous times during these objections, the trial

       court, while sustaining the State’s objection, advised Higgason to clarify or

       rephrase his question for the witness. In turn, Higgason also points to instances

       where he objected to the State’s questioning on hearsay and authenticity

       grounds, which the trial court overruled. The record reflects that the State

       responded to Higgason’s objections and while the State was not successful

       every time, the trial court properly listened to the arguments raised by both

       sides and ruled accordingly. As we have noted before, the mere assertion that

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

       establish the requisite showing of prejudice. See Voss v. State, 856 N.E.2d 1211,

       1217 (Ind. 2006).


[10]   Higgason also contends that the trial court addressed his arguments in an

       improper tone that influenced the jury. He points, in part, to the following

       examples:


               [Higgason]: But am I allowed to let him read this? Maybe he
               can recite it? Because it has the multiple uses for this wire.
               [Trial Court]: If you do it the right way.
               [Higgason]: May I present this to the witness?
               [Trial Court]: I was asking you if you wanted a Public Defender
               that I told you that there were certain things that the Public
               Defender knows to do.

       (Tr. Vol. II, p. 57).




       Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018   Page 6 of 8
               [Higgason]: This is Exhibit 1 for the Defendant. Let me show
               you this picture. Is that one of the tipsters?
               [Witness]: Yes, that looks to be one of them. Yes.
               [Higgason]: Okay. For the record, this is Daniel Allison.
               [Trial Court]: uh, uh, uh.
               [State]: Object –
               [Trial Court]: Now you’re testifying.
               [Higgason]: Oh, I’m sorry.
               [Trial Court]: You have the witness identify your picture.
               [Higgason]: Okay.
               [Trial Court]: It’s done.
               [Higgason]: So what I want to do – do I put this on record? I
               don’t know your format.
               [Trial Court]: My format is the Rules of Evidence.

       (Tr. Vol. II, p. 90).


[11]   Examining the trial court’s actions and demeanor throughout the trial, we

       cannot say that the trial court was biased as to impair Higgason’s right to a fair

       trial. At no point did the trial judge express an opinion of the controversy over

       which she was presiding. All of the trial court’s comments reflect on the trial

       court’s responsibility to maintain discipline and control of the trial, even if the

       remarks displayed a degree of impatience. See Timberlake, 690 N.E.2d at 256.

       The cumulative effect of the trial court’s rulings and remarks indicate a trial

       judge repeatedly aiding Higgason by explaining the mechanics of trial

       procedure and by maintaining proper decorum in the courtroom, in accordance

       with the Indiana Rules of Trial Procedure and the Indiana Rules of Evidence.

       As such, on those occasions noted by Higgason, the trial judge was merely

       attempting to move the trial forward in an efficient manner. Therefore,

       Higgason has failed to demonstrate that the trial judge was biased.



       Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018   Page 7 of 8
                                             CONCLUSION
[12]   Based on the foregoing, we hold that Higgason failed to establish that the trial

       court showed bias and prejudice towards him which prevented him from getting

       a fair trial.


[13]   Affirmed.


[14]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018   Page 8 of 8
