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Appeal from the Madison Circuit Court. The Honorable David A. Happe, Judge. Cause No. 48C04-1311-FB-2175.
ATTORNEY FOR APPELLANT: David W. Stone IV, Anderson, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Angela N. Sanchez, Deputy Attorney General, Indianapolis, Indiana.
Najam, Judge. Friedlander, J., concurs. Baker, J., concurs in part and dissents in part with separate opinion.
Statement of the Case
[¶1] Ashonta Kenya Jackson appeals his convictions for three counts of robbery, as Class B felonies; his conviction for corrupt business influence, a Class C felony; and his adjudication as a habitual offender following a jury trial. Jackson presents the following issues for our review:
1. Whether the trial court erred when it denied his motion for change of judge.
2. Whether the State presented sufficient evidence to support his corrupt business influence conviction and his adjudication as a habitual offender.
3. Whether the trial court abused its discretion when it sentenced him.
[¶2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[¶3] On October 1, 2013, Jackson, Edwin Ricard, and Gerald Reed decided to rob the Keg N Bottle liquor store in Anderson. Ricard and Reed, who had a gun, entered the store and stole money after threatening to shoot the store's clerk. During the robbery, Jackson waited in a car down the street from the liquor store. After Ricard and Reed fled the scene, they later met up with Jackson, and they divided the stolen money three ways.
[¶4] On October 17, Jackson and Ricard decided to again rob the same liquor store. Jackson gave Ricard a gun to use, and Jackson's teenaged nephew drove Ricard to the store. Ricard, alone, entered the store, pointed the gun at the clerk, and ordered the clerk to give him money. Again, Jackson waited in a second car during the robbery. Jackson and Ricard met afterwards and divided the stolen money between the two of them.
[¶5] On October 28, Jackson, Ricard, and Reed planned to rob a bank in Anderson. Ricard and Reed arrived at the bank in one car, and Jackson waited in a second car while the other two men went inside. Ricard and Reed were both armed with handguns, one of which Jackson had provided. And Ricard and Reed covered their faces with bandannas and glasses. After the two men entered the bank, Reed approached a bank teller named Brittany Boyd and demanded money. While Boyd was putting money in a bag, Reed told her to hurry, and he struck her in the head with his handgun.
[¶6] Meanwhile, Ricard ran to another area of the bank, pointed his handgun at another teller, Joyce Stewart, and a bank manager, Courtney Barnes, and he demanded that they give him money. Stewart and Barnes complied and gave Ricard money, including " bait money," which triggers an alarm when it is removed. Tr. at 97. Ricard and Reed then fled the scene and drove to meet Jackson at a designated location. The men divided the stolen money three ways.
[¶7] Reed had borrowed the car he and Ricard used during the bank robbery from a woman named Dawn Flick. Ricard had covered the steering wheel and license plate of Flick's car with duct tape and, after the robbery, Ricard removed the duct tape before he drove off with Reed in Jackson's car. Reed contacted Flick and told her where she could find her car.
[¶8] Mitchell Brinker was working on a house across the street from where the men had parked Flick's car, and he observed the men removing the duct tape and engaging in other suspicious behavior. Brinker called police, and officers arrived a short time later to find Flick approaching her parked car. Officers advised Flick that her car had been used in a bank robbery, and Flick told the officers where they could find Reed. Officers arrested Reed and, after Brinker identified Ricard from a photo array, Ricard was eventually arrested. After his arrest, Ricard implicated Jackson in the robberies.
[¶9] The State charged Jackson with three counts of robbery, as Class B felonies, and one count of corrupt business influence, a Class C felony, and the State alleged that Jackson was a habitual offender. A jury found Jackson guilty as charged and adjudicated him to be a habitual
offender. The trial court entered judgment of conviction accordingly and sentenced Jackson as follows: fifteen years for each Class B felony conviction, with two of the terms to run consecutively and the third to run concurrent with the others; eight years for the Class C felony conviction to run consecutively to the other sentences; and twenty-five years for the habitual offender enhancement, for a total aggregate term of sixty-three years executed. This appeal ensued.
Discussion and Decision
Issue One: Motion for Change of Judge
[¶10] Jackson first contends that the trial court erred when it denied his motion for change of judge. The law presumes that a judge is unbiased and unprejudiced. Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003). The ruling on a motion for change of judge is reviewed under the clearly erroneous standard. Id. Reversal will require a showing which leaves us with a definite and firm conviction that a mistake has been made. Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind. 1999).
[¶11] The trial judge presiding over Jackson's trial " had appeared as prosecutor in one of the cases relied on to establish [Jackson]'s habitual offender status." Appellant's Br. at 9. Thus, Jackson alleged in his motion for change of judge that the trial judge's " continued involvement" in the trial " create[d] in reasonable minds a perception that the judge's ability to carry out its responsibilities in this case with impartiality [wa]s impaired." Appellant's App. at 42. On appeal, Jackson " acknowledges that[,] in the past[,] courts in this state have held that recusal was not necessary under facts similar to those in this case." Appellant's Br. at 14. Jackson invites us to " reconsider" those cases and hold that the trial court erred here. Id. We reject that invitation.
[¶12] In Dishman v. State, 525 N.E.2d 284 (Ind. 1988), the defendant appealed his convictions and adjudication as a habitual offender. Dishman alleged in relevant part that the trial court erred when it denied his motion for a change of judge because, " [i]n his capacity as prosecuting attorney, [the trial judge] had prosecuted appellant in the two cases on which the habitual offender charge was based." Id. at 285. Our supreme court rejected that contention and held as follows:
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 ...