Brim v. State, 982S341

• Decision Date: 10 December 1984
• Docket Number: No. 982S341,982S341
• Citation: 471 N.E.2d 672
• Parties: Paul M. BRIM, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 672

471 N.E.2d 672

Paul M. BRIM, Appellant, v. STATE of Indiana, Appellee.

No. 982S341.

Supreme Court of Indiana.

Dec. 10, 1984.

Aaron E. Haith, Choate, Visher & Haith, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted by the court of Robbery and Confinement, both Class B felonies, and Possession of a Sawed-Off Shotgun, a Class D felony. He was sentenced to serve concurrent prison terms of twenty (20) years for each of the Class B felonies and two (2) years for the Class D felony.

Appellant was also charged with Robbery and Confinement in a separate cause, those charges arising from the same fact situation as the instant offenses. The causes were joined by agreement and tried simultaneously. Subsequently, appellant filed separate direct appeals; because all the offenses arise from the same fact situation, we will recite the facts as relevant to all of the charged offenses. See Brim v. State, (1984) Ind., 471 N.E.2d 676.

At approximately 8:50 P.M. on December 28, 1981, appellant, Kevin Flemmonds and James Watkins entered the Village Pantry at 303 South Emerson Avenue in Indianapolis. Appellant, who was armed with a shotgun, stood in the doorway and declared "this is a robbery." An employee, Kathy McDole, was ordered, along with three customers, to lie on the floor. Watkins opened the cash register with McDole's assistance. After taking all the money from the cash drawer, the three men fled.

About forty-five minutes later, the trio entered A.M.C. Liquors at 4379 North Shadeland Avenue, also in Indianapolis. Appellant, again brandishing a shotgun, demanded money from the cashier, Cynthia Johnson. He forced Johnson to lie on the floor while the other two men removed money from the cash register and bottles of liquor from the shelves.

Upon exiting, the three men encountered Ray Vickers, who was approaching the store. Appellant first ordered Vickers to reenter and remain in his van, then forced him at gunpoint to enter the liquor store. Appellant instructed Vickers to lie on the floor, where Vickers emptied his pockets and appellant forcibly removed Vickers' watch. The three men then left the liquor store.

Shortly thereafter appellant and his companions were stopped by Lawrence police in the 5300 block of North Shadeland. A search of their vehicle revealed cash, including bait money planted by Indianapolis police in the Village Pantry cash register, bottles of liquor from A.M.C. Liquors, a shotgun and a handgun. Johnson and Vickers were transported to the site and both positively identified appellant as one of the perpetrators of the liquor store robbery.

Appellant first alleges error in the trial court's denial of his motion for change of judge. He contends that the judge was biased and prejudiced because he presided at appellant's aborted guilty plea hearing and accepted a guilty plea from Flemmonds, his co-defendant, which included a factual basis implicating appellant.

A ruling on a motion for a change of judge is made within the trial court's discretion, and will be reversed only for a clear abuse of that discretion. Ind.R.Cr.P. 12; White v. State, (1982) Ind., 431 N.E.2d 488. On May 19, 1982, appellant filed a written plea agreement with the court. During the guilty plea hearing the court granted appellant's request to withdraw the plea. The court immediately set the cause for trial at 1:30 P.M. that day. When the court reconvened, appellant orally moved for a change of judge, which motion was denied.

The fact that a defendant has appeared before a certain judge in prior actions does not establish the existence of any bias or prejudice. Clemons v. State, (1981) Ind., 424 N.E.2d 113. We have previously held that the act of rejecting a plea agreement is not of itself sufficient to require a change of judge. Id.; Meadows v. State, (1981) Ind., 428 N.E.2d 1232. Here, appellant chose to withdraw his plea after the commencement of the guilty plea hearing. The fact that the judge presiding at that hearing also conducted appellant's bench trial was not sufficient to require a change of judge. Accordingly, we find no abuse of discretion in the denial of appellant's oral motion for change of judge.

Appellant next raises two issues relating to the admission of testimony regarding the sawed-off shotgun used in the perpetration of the charged offenses. Appellant argues the trial court erred in admitting, without adequate foundation, opinion testimony as to the length of the shotgun barrel. He further argues that if this Court concludes such testimony was inadmissible, there was insufficient evidence to establish the length element of the offense of possession of a sawed-off shotgun.

James Parish, a police officer for the City of Lawrence, testified that he measured the sawed-off shotgun with a steel ruler upon discovering it in appellant's vehicle. We cannot agree with appellant that Officer Parish' testimony was an opinion. Rather, the testimony was a personal observation of the length of the barrel, and therefore did not require the foundation necessary for the admission of opinion testimony.

As the testimony was admissible, we cannot conclude that there was insufficient evidence to convict appellant for possession of a sawed-off shotgun. Officer Parish testified that he measured the barrel of the shotgun to be 12...