MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Oct 31 2017, 11:46 am

regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Philip R. Skodinski                                      Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Duane Herron,                                            October 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1704-CR-743
        v.                                               Appeal from the
                                                         St. Joseph Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Elizabeth C. Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1501-F6-17



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017            Page 1 of 15
[1]   Following a jury trial, Duane Herron (“Herron”) was convicted of Level 6

      felony battery with moderate bodily injury.1 He appeals and raises the

      following two restated issues:


                I. Whether the State presented sufficient evidence to convict
                him; and


                II. Whether the trial judge should have recused herself.


[2]   We affirm.


                                   Facts and Procedural History
[3]   In January 2015, Herron was living with his then-girlfriend, J.G. At that time,

      she was working the 11:00 p.m. to 7:00 a.m. shift at her job.2 On January 5,

      2015, J.G. came home from work and slept until mid-afternoon. After she

      awoke, Herron started an argument with J.G., who did not want to argue and

      tried to ignore him. He made several statements to her that he was “not no

      psycho” and “not no creep,” and eventually she responded “yeah, you are[,]” at

      which point Herron grabbed her phone from her and began beating her. Tr.

      Vol. II at 36-37. Initially, J.G. was on the couch, and Herron repeatedly hit her

      in the face. He then pulled her off the couch and across the room, such that

      J.G. was lying on the floor by the fireplace. Herron sat on her chest, straddling




      1
       See Ind. Code § 35-42-2-1(b)(1), (d)(1). We note that Indiana Code section 35-42-2-1 was amended effective
      July 1, 2016; however, we apply the statute that was in effect at the time that Herron committed his offense.
      2
          Herron worked for the same employer.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017            Page 2 of 15
      her, and continued to hit her face and head. J.G. struggled to breathe with

      Herron sitting on her. Id. at 37. Eventually, he stopped hitting her, stood up,

      and sat on the couch. Herron yelled and cursed at her, telling her to get up off

      the floor. Initially, she was not able to get herself off the floor, as her head was

      “spinning,” and she kept falling backward, but eventually, she pulled herself up

      and reached a chair. Id. J.G. said to Herron, “you could have killed me,” and

      he replied, “I was trying to.” Id. at 38. During the incident, J.G.’s shirt got

      ripped, her earring was pulled from her ear, and her blood got on her clothing

      and Herron’s clothing. Her face and ear were bruised and bloodied. Herron

      told her to go get an icepack for her face, which she did, and she also cleaned

      her face and ear with a wet rag “to try to get some of the blood off[.]” Id.


[4]   Later, around the time that J.G. went to her bedroom to get ready for work,

      Herron gave her phone back to her. Using her phone, she took pictures of her

      face, which were admitted without objection into evidence. Herron drove J.G.

      to work because her vehicle would not start. Herron told her, “[T]ell everybody

      that you and your sister got into a fight, tell everybody that you wrecked your

      truck.” Id. at 51. When she got to work, her boss, Timothy Chapman

      (“Chapman”) immediately said, “[W]hat the f*ck happened to your face?” Id.

      at 51. She said, “Duane got me,” and at Chapman’s suggestion, J.G. called the

      police. South Bend Police Department Officer Alan Wiegand (“Officer

      Wiegand”) responded to J.G.’s place of employment, where he met with her.

      J.G. was crying, and Officer Wiegand observed and took pictures of injuries to

      her face and neck.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 3 of 15
[5]   Officers were dispatched to Herron’s residence, and they ordered Herron to

      come out, but he did not. When police called him on his phone, he told officers

      that he was at another location, but after officers checked and determined he

      was not there, they returned to his house, and he eventually came out and was

      arrested. While in jail, Herron made telephone calls to J.G. trying to convince

      her not to testify against him, suggesting that she could testify that she could not

      remember what happened.


[6]   On January 12, 2015, the State charged Herron with Level 6 felony battery with

      moderate bodily injury and Class A misdemeanor interference with the

      reporting of a crime.3 On April 11, 2016, Herron filed a motion for change of

      judge, which the trial court denied, and he filed a motion to reconsider, which

      was also denied. Appellant’s App. Vol. II at 11, 165-76, 188-91. On June 28,

      2016, Herron filed a motion to proceed pro se, and he asked the trial court to

      recuse herself. Id. at 151-52. After a hearing, the trial court granted Herron’s

      request to proceed pro se, but maintained the public defender as stand-by

      counsel; it denied his request for recusal. Id. at 14.


[7]   At the November 2016 jury trial, the State appeared by counsel, and Herron

      appeared in person and with his stand-by counsel. Prior to the start of trial,

      Herron made an oral motion for the judge to recuse herself. Herron alleged the




      3
       In March 2015, Herron pleaded guilty, but the trial court rejected that plea on May 28, 2015. On February
      10, 2016, Herron requested to proceed pro se, which the trial court granted, and on March 1, 2016, he pleaded
      guilty as charged, but this plea was withdrawn on May 18, 2016, and his case was set for trial and a public
      defender was appointed at Herron’s request.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017            Page 4 of 15
      following in support of his motion seeking recusal: (1) the trial court failed to

      remedy what Herron asserted was a violation of the rules of Professional

      Conduct by the prosecutor, based on an email letter that the prosecutor had sent

      to Herron’s counsel with the terms and conditions of a plea offer, which Herron

      asserted included the use of some “false charges” as leverage; (2) the trial court

      had determined that probable cause existed for an obstruction of justice charge

      in another cause, No. 71D08-1507-F6-480 (“Cause 480”), and set bond at

      $50,000; Herron’s conviction on that charge was overturned because the wrong

      subsection had been charged and the trial court had misinterpreted the

      obstruction of justice statute; (3) the trial court improperly denied Herron credit

      time at his sentencing on Cause 480 by ordering the sentence to run consecutive

      to a parole violation; (4) the trial court “duped” Herron into not filing a motion

      to correct error in Cause 480; and (5) Herron was intimidated from speaking at

      his sentencing in Cause 480 because, he claimed, a sheriff in the courtroom

      threatened Herron with a taser and told him to “shut up.” Tr. Vol. II at 9-17.


[8]   After hearing Herron’s arguments, the trial court denied Herron’s motion,

      finding as follows: Regarding the finding of probable cause and the credit time

      issue, Herron’s allegations were merely adverse rulings. Id. at 22-23, 26. With

      regard to the motion to correct error, the record showed that the trial court had

      entered an order in favor of Herron, allowing him to file a belated motion, and

      had explained to Herron that he needed to let his appellate counsel know of his

      intention to file such a motion because it could affect the time allowed for filing

      an appeal. Id. at 22. As to the alleged threat by a sheriff, the trial court found


      Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 5 of 15
      that, while it is common practice for security personnel to be in the courtroom,

      employing a taser is not the practice in her courtroom or any courtroom she has

      been in, that there has never been a circumstance where a taser has ever been

      necessary or threatened, and that if any such action occurred, it was not at her

      directive. Id. at 23. The trial court further found that its misinterpretation of

      the obstruction of justice statute, resulting in reversal on appeal, did not

      prejudice or bias the judge against Herron, and, rather, “it just furthers my

      education with regard to the law. And I appreciate that.” Id. at 12, 24. The

      judge further stated that she had spoken with an attorney who works with the

      judicial qualifications commission about whether that situation warranted

      recusal, and that attorney advised that recusal was not appropriate or necessary.

      Id. at 21, 25-26. The trial court then denied Herron’s request for recusal, and

      the matter proceeded to trial.


[9]   During the jury trial, J.G. testified to the above sequence of events, where

      Herron held her down and beat her. She described that Herron was “smacking

      [her] as hard as he could,” and that after he dragged her from the couch and to

      the floor and was straddling her, he hit her “over and over nonstop.” Id. at 36-

      37. She “begged him to get off of [her]” because he was on her chest and she

      “couldn’t breath[e].” Id. at 37. When she eventually made it to a chair, Herron

      told her to get an icepack for herself. She recalled that Herron was angry that

      her blood was on his clothes. J.G. testified that police came to her place of

      employment and later to her home. Pictures taken by police of J.G., both at

      work and later at her home, were admitted at trial. She described that her


      Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 6 of 15
       bruising worsened in the following days, and that, as a result of the incident,

       she suffered pain and bruising that lasted for months, and ongoing issues with

       vertigo and hearing loss.


[10]   Chapman testified that, when J.G. got to work, he observed that her face was

       swollen, and she was distraught. He described that she looked like “she had

       gotten beaten up kind of badly.” Id. at 75. He testified that he “instructed her

       to go into the office and call the police[.]” Id. at 76. Chapman testified that

       J.G.’s face was swollen, she had a black eye, and “the cheek bone was pretty

       messed up.” Id. He recalled that the injuries J.G. sustained were visible for

       three weeks “if not longer[.]” Id.


[11]   Officer Wiegand testified that he responded to J.G.’s place of employment, and

       he observed that she was crying and had injuries to her face and neck. He

       testified that other officers were dispatched to Herron’s home, but that he also

       went to Herron’s residence after he had met with J.G., and he arrived as other

       officers were ordering Herron to exit the home. Officer Wiegand testified that

       he spoke briefly to Herron, who asked what charges he was facing. Officer

       Wiegand testified, “[S]o I advised him of what he was being charged with at

       that time. And he stated he hoped [J.G.] changed her mind and didn’t press

       charges.” Id. at 83-84.


[12]   Herron testified in his defense, stating that, on the day in question, J.G. had

       been doing drugs and was shaking, and there was heroin in the house. He

       testified that when he took her drugs away from her, she attacked him and


       Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 7 of 15
       came toward him with a knife, so he grabbed her, threw her to the ground and

       sat on her, until she let go of the knife. Id. at 104-05. He acknowledged that he

       had grabbed J.G.’s phone, but explained that he did not give it back to her for a

       period of time because he wanted to contact her drug dealer “to stop some of

       the things that were going on.” Id. at 106. Herron testified that the altercation

       occurred because he believed his life was in danger, “and I just kind of reacted.”

       Id. at 108. On cross-examination, counsel presented Herron with pictures taken

       by police of J.G.’s injuries, and Herron acknowledged that he caused the “main

       injury” to her eye. Id. at 109.


[13]   The jury found Herron guilty of Level 6 felony battery with moderate injury

       and not guilty of Class A misdemeanor interference with reporting of a crime.

       The trial court imposed a sentence of two years, but suspended it and placed

       Herron on probation. Appellant’s App. Vol. II at 21. Herron now appeals.


                                      Discussion and Decision

                                     I. Sufficiency of Evidence
[14]   Herron argues that the evidence was insufficient to support his conviction for

       Level 6 felony battery with moderate injury. In reviewing the sufficiency of the

       evidence, we consider only the evidence and reasonable inferences most

       favorable to the conviction, neither reweighing the evidence nor reassessing

       witness credibility. Burgh v. State, 79 N.E.3d 955, 957 (Ind. Ct. App. 2017). We

       will affirm the judgment unless no reasonable factfinder could find the

       defendant guilty. Id. It is not necessary that the evidence overcome every


       Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 8 of 15
       reasonable hypothesis of innocence. Boyd v. State, 889 N.E.2d 321, 325 (Ind.

       Ct. App. 2008), trans. denied. “A conviction can be sustained on only the

       uncorroborated testimony of a single witness, even when that witness is the

       victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).


[15]   To convict Herron of Level 6 felony battery as charged, the State was required

       to prove beyond a reasonable doubt that Herron knowingly or intentionally

       touched J.G. in a rude, insolent, or angry manner resulting in moderate bodily

       injury to J.G. Ind. Code § 35-42-2-1(b)(1), (d)(1); Appellant’s App. Vol. II at 19.

       Moderate bodily injury means any impairment of physical condition that

       includes substantial pain. Ind. Code § 35-31.5-2-204.5.


[16]   Herron asserts that “there were two distinct versions of how the injuries were

       incurred[,]” claiming that he told the jury “a consistent and believable story,”

       whereas J.G.’s story was not believable and was “inconsistent with what the

       jury determined other evidence to be.” Appellant’s Br. at 8-9.


[17]   We reject Herron’s claims. It is well-settled that it is for the factfinder to decide

       which witnesses to believe. Holeton v. State, 853 N.E.2d 539, 541 (Ind. Ct. App.

       2006). In this case, the jury chose to believe J.G., who testified that Herron

       started an argument with her and that he hit her in the face and head, dragged

       her to the ground, sat on top of her, and continued to hit her face and head.

       When he stopped, and she told him, “You could’ve killed me,” Herron replied,

       “I was trying to.” Tr. Vol. II at 38. Her shirt was ripped, an earring was pulled

       from her ear, her face and ear were red and bruised and bloodied. She testified


       Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 9 of 15
       that she had pain for months and continued to suffer vertigo and hearing loss.

       Id. at 52. J.G.’s testimony was consistent with the testimony of Chapman and

       of Officer Wiegand, who observed her appearance and her distraught

       demeanor. She told each of them that Herron had caused her injuries. Herron

       admitted to causing injury to her eye. Herron’s sufficiency argument is a

       request for us to reweigh the evidence on appeal, which we cannot do. Palacios

       v. State, 926 N.E.2d 1026, 1034 (Ind. Ct. App. 2010). The State presented

       sufficient evidence to convict Herron of Level 6 felony battery with moderate

       injury.


                                                 II. Recusal
[18]   Prior to the start of trial, Herron made an oral motion for the trial judge (“Judge

       Hurley”) to recuse herself. He asserted a number of grounds in support,

       although on appeal Herron states that “[t]he primary reason had to do with

       [Herron] being found guilty in an Obstruction of Justice charge in [Cause 480,]”

       which the Court of Appeals later reversed, finding that Judge Hurley should

       have granted his motion for a directed verdict, but failed to do so because she

       had misinterpreted a subsection of the obstruction of justice statute. Appellant’s

       Br. at 9. Herron’s argument is that her error and the reversal, combined with

       his other allegations – relating to denial of jail time credit, allegedly being

       “duped” into not filing a motion to correct error, and “his treatment in her

       courtroom” by security who allegedly threatened to use a taser on Herron –

       created the appearance of bias. Id. at 10.



       Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 10 of 15
[19]   A ruling upon a motion to recuse rests within the sound discretion of the trial

       judge and will be reversed only upon a showing of abuse of that discretion,

       which occurs when the trial court’s decision is against the logic and effect of the

       facts and circumstances before it. Bloomington Magazine, Inc. v. Kiang, 961

       N.E.2d 61, 63 (Ind. Ct. App. 2012). As this court has explained,


               When reviewing a trial judge’s decision not to disqualify herself,
               we presume that the trial judge is unbiased. In order to overcome
               that presumption, the appellant must demonstrate actual
               personal bias. In addition, the mere appearance of bias and
               partiality may require recusal if an objective person,
               knowledgeable of all the circumstances, would have a rational
               basis for doubting the judge’s impartiality. Upon review of a
               judge’s failure to recuse, we will assume that a judge would have
               complied with the obligation to recuse had there been any
               reasonable question concerning impartiality, unless we discern
               circumstances which support a contrary conclusion.


       Id. at 64 (internal quotation and citations omitted).


[20]   In support of his position, Herron refers us to Rule 1.2 of the Code of Judicial

       Conduct, providing that a “Judge shall act at all times in a manner that

       promotes public confidence in independence, integrity, and impartiality of the

       judiciary, and shall avoid impropriety and the appearance of impropriety.” He

       urges that the appearance of impropriety, including “the mere appearance of

       bias or partiality,” may require recusal if an objective person, knowledgeable of

       all circumstances, would have a rational basis for doubting the judge’s

       impartiality. Id. at 9-10 (citing to Rule 2.11 of the Code of Judicial Conduct,

       providing, in part, that “a judge is disqualified whenever the judge’s impartiality

       Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 11 of 15
       might reasonably be questioned[.]”). Herron argues that, in this case, “[w]hen

       all things are considered, a reasonable person could perceive [Judge Hurley]

       was biased and partial.” Id. at 10. We reject Herron’s claim.


[21]   As an initial matter, we observe that, other than making general allegations that

       Judge Hurley was biased or that an appearance of impropriety existed, Herron

       has not provided any specific evidence or explanation as to how or in what way

       Judge Hurley acted in a biased or partial way. Thus, his claim regarding

       recusal is waived for failure to support it with cogent reasoning. Ind. Appellate

       Rule 46(A)(8)(a).


[22]   Waiver notwithstanding, we find no error in the trial court’s denial of Herron’s

       motion. “‘Merely asserting bias and prejudice does not make it so. The law

       presumes that a judge is unbiased and unprejudiced.’” In re Estate of Wheat, 858

       N.E.2d 175, 183 (Ind. Ct. App. 2006) (quoting Smith v. State, 770 N.E.2d 818,

       823 (Ind. 2002)). To rebut that presumption, a defendant must establish from

       the judge’s conduct actual bias and prejudice against the defendant that places

       him in jeopardy. Smith, 770 N.E.2d at 823. Such bias exists only where there is

       an undisputed claim or where the judge expressed an opinion on the merits of

       the pending controversy. Id. Adverse rulings 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. Voss v. State, 856

       N.E.2d 1211, 1217 (Ind. 2006).




       Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 12 of 15
[23]   Here, Herron provides no instance in which Judge Hurley expressed an opinion

       on the merits of the pending controversy, and he has not shown that her

       conduct evinced bias and prejudice that placed him in jeopardy. Herron’s

       primary challenge relies on the fact that, in Cause 480, Judge Hurley had found

       that probable cause existed for an obstruction of justice charge, and his

       conviction on that charge was later overturned on appeal because the

       subsection under which the State had charged Herron was inapplicable to him.

       In its decision, the Court of Appeals found that the trial court erred when it

       denied his motion for a directed verdict on the obstruction of justice charge,

       having misinterpreted a subsection of the statute. Herron v. State, 61 N.E.2d

       1246, 1250-51 (Ind. Ct. App. 2016). Upon receipt of the appellate opinion,

       Judge Hurley recognized the error and advised that she would remedy the

       situation, after the opinion was certified, by entering judgment of conviction

       only on the other three offenses for which Herron had been found guilty. Tr.

       Vol. II at 12-14, 24. As the State observes, “The mere fact that a trial judge has

       presided over a previous trial which resulted in a conviction and a subsequent

       reversal does not necessarily disqualify the judge from presiding over the

       retrial.” Appellee’s Br. at 14 (citing Flowers v. State, 738 N.E.2d 1051, 1060 (Ind.

       2000)). In this case, Judge Hurley presided over, not a retrial, but a different set

       of criminal charges that Herron faced, and she consulted with the judicial

       qualifications commission, who advised her that recusal was not appropriate or

       necessary. Tr. Vol. II at 21, 25-26. We reject Herron’s claim that Judge Hurley

       was necessarily and automatically prejudiced against him because, in another of


       Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017   Page 13 of 15
       his criminal cases, the Court of Appeals had determined that Judge Hurley had

       misinterpreted a statute.


[24]   We likewise find that his other claims in support of bias are unfounded. The

       record suggests that the trial court’s determination of credit time in Cause 480,

       although adverse to Herron, was in accordance with the law, and even if it was

       not, and was an error, this does not equate to bias.4 The record also does not

       support his claim that he was duped into not filing a motion to correct error;

       indeed, the record indicates that Judge Hurley entered an order reminding

       Herron that he had until April 23, 2016 to file a belated motion to correct error.

       Appellant’s App. Vol. II at 177. Nor does the record support his claim that a

       sheriff’s deputy threatened him with a taser: (1) The prosecutor stated that she

       did not witness any threatening of taser use; (2) Judge Hurley stated that she

       was not aware of any such action by the deputy, noting that it would not be the

       standard course of practice in her courtroom, and that if the deputy had acted in

       that manner, it was not at her directive or request; and (3) Herron admitted that

       he did not see the threatened taser use, but was “under the impression that . . .

       I was being threatened with a taser” because he heard a belt unbuckle. Tr. Vol.

       II at 16-17. His claim regarding the taser was, at best, speculative and failed to

       establish any bias or prejudice on the part of Judge Hurley. Given this record,

       we find that Herron has failed to meet his burden to show that Judge Hurley



       4
        As the State observes, Herron did not appeal his sentence on the obstruction of justice conviction and thus
       has “implicitly conceded that [the sentencing] ruling did not rise to the level of reversible error[.]” Appellee’s
       Br. at 16.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017                Page 14 of 15
       was biased or prejudiced against him.5 The trial court did not err when it

       denied Herron’s motion asking for her recusal.


[25]   Affirmed.


[26]   Najam, J., and Brown, J., concur.




       5
         We note that Herron does not make any argument on appeal concerning his assertion, made prior to trial,
       claiming that the trial court failed to remedy what Herron asserted was a violation of the rules of Professional
       Conduct by the prosecutor, related to the prosecutor’s letter to Herron’s counsel outlining the terms and
       conditions of a plea offer. Herron has thus waived that argument. Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017             Page 15 of 15
