APPEAL FROM THE NEWTON SUPERIOR COURT, The Honorable Stephen C. Bower, Judge.
Garrard, P.j., Hoffman, J. and Robertson, J. Concur.
Appellant Christopher A. Wilson appeals from his conviction by a jury for child molesting, a Class B felony, and child molesting, a Class C felony, and his sentences of 10 and 5 years which are to run concurrently.
The facts show that on November 11, 1985 C. P., mother of the 12-year old victim, J.P., invited four people including the appellant over to the trailer she and Kelly Hess shared to watch a football game. Shortly after 9:00 p.m. Wilson crept into J.P.'s bedroom where she was asleep and began licking and fondling her vaginal area. J.P. screamed and ran out of the bedroom. C.P. reported the incident to the authorities and this prosecution and conviction ensued.
Appellant raises four issues for our review:
I. Did Judge Molter err by reassuming jurisdiction over this case after he had earlier disqualified himself?
II. Did the trial court abuse its discretion by denying appellant's request for a psychiatric examination of the victim?
III. Did the trial court err by permitting the state to impeach appellant with a drug-related prior conviction?
IV. Did the trial court abuse its discretion by limiting the evidence concerning the alleged previous molestation of the victim by another person?
Appellant argues that it was improper for Judge Molter to reassume jurisdiction in this case and rule on the state's motion to correct errors for two reasons. First, appellant contends that it is improper for a Judge to assume jurisdiction over a case and make rulings in that case once another Judge has presided at the trial of that case unless the Judge presiding at the trial is shown to be unavailable. Second, appellant argues that Molter could not have reinstated himself following disqualification unless valid grounds affirmatively appear for reinstatement which do not appear on this record.
In the case at hand the record reflects that Temporary Judge Molter presided over several preliminary matters but prior to trial disqualified himself in order to avoid the appearance of impropriety because Judge Molter had been appointed public defender for Newton County. Permanent Temporary Judge Stephen Bower assumed jurisdiction and presided over the trial, sentencing and first motion to correct errors. Judge Bower partially granted appellant's motion to correct errors. Judge Bower partially granted appellant's motion to correct errors by overturning the jury's conviction of the Class B felony and the ten year sentence. However, Judge Molter reappeared and resumed jurisdiction to consider and then grant the state's motion to correct errors which was filed in response to the partial granting of appellant's motion to correct errors. The effect of Judge Molter's ruling was to reinstate the jury conviction of appellant of the Class B felony count and its accompanying ten year sentence.
Once a Judge disqualifies himself from a case he cannot thereafter reinstate himself without revoking or setting aside his prior order of disqualification. The Judge cannot attempt to rescind that disqualification and reinstate himself unless it affirmatively appears that valid grounds for such reinstatement exist. If no valid reason is shown he may not revoke or set aside his own disqualification. State ex rel Mosshammer v. Allen Superior Court ...