APPEAL FROM LAWRENCE CIRCUIT COURT, The Honorable Linda L. Chezem, Judge, Cause No. C 82 CR 13.
Givan, J., Shepard, C.j., Pivarnik and Dickson, JJ., concur. DeBruler, J., concurs in result without separate opinion.
Appellant was convicted of Robbery, a Class C felony, for which he received a sentence of eight (8) years and Conspiracy to Commit Robbery, a Class C felony, for which he received a sentence of twenty (20) years, the sentences to run concurrently.
Appellant's original conviction was reversed by this Court. Jones v. State (1984), Ind., 467 N.E.2d 1179. Upon retrial, appellant was again convicted and this appeal resulted.
The facts are: On January 28, 1982, Ray Pierce, the manager of a Swifty Service Station, near Bedford, Indiana, was robbed of approximately $170 by an armed man wiring a stocking mask over his head. Police investigation disclosed that Brad Bartlett, Mark Pridemore, and appellant had committed the robbery. Bartlett and Pridemore were arrested and gave statements implicating appellant. Appellant's girl friend also gave a statement implicating him. All three testified against appellant at trial.
Appellant claims the court erred when it overruled his motion for a change of venue from the Judge and from the county and his motion for disqualification of the prosecutor and appointment of a special prosecutor. Both requests were made in a single consolidated motion which was not verified as required by Ind.R.Cr.P. 12 as far as the change of venue was concerned or Ind.Code § 33-14-1-6 as far as the motion for special prosecutor was concerned. Appellant apparently attempted to comply with Ind.R.Tr.P. 11(B) which provides in part as follows:
"When in connection with any civil or special statutory proceeding[,] it is required that any pleading, motion, petition, supporting affidavit, or other document of any kind, be verified, or that an oath be taken, it shall be sufficient if the subscriber simply affirms the truth of the matter to be verified by an affirmation in substantially the following language:
'I (we) affirm, under penalties of perjury, that the foregoing representation(s) is (are) true.
However, in his attempted affirmation, appellant simply stated: "I hereby affirm that the above is true and correct, all to my own information, knowledge and personal belief." Appellant's attempted affirmation does not comply with the rule in that it contains no statement that the affirmation is made under penalties of perjury. See Hendricks v. state (1981), Ind., 426 N.E.2d 367.
The trial court was correct in denying the consolidated motions.
Appellant claims the trial court erred in refusing to give his Tendered Instruction No. 3. which reads as follows:
"Members of the jury, I instruct you that if the testimony in this case, in its weight and effect, be such that two Conclusions can be reasonably drawn from it, the one favoring the defendant's, Louis C. Jones, innocence and the other tending to ...