Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Jeffery Haupt

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. Mackenzie

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

James Higgason, III,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 16, 2018

Court of Appeals Case No.

64A04-1710-CR-2329

Appeal from the Porter Superior 

Court

The Honorable Mary R. Harper, 

Judge

Trial Court Cause No.

64D05-1611-F6-10253

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 2 of 8

STATEMENT OF THE CASE

[1] Appellant-Defendant, James Higgason, III (Higgason), appeals his conviction 

for theft, a Level 6 felony, Ind. Code § 35-43-4-2(a). 

[2] We affirm.

ISSUE

[3] Higgason presents us with one issue on appeal, which we restate as: Whether 

the trial court showed bias and prejudice towards Higgason which prevented 

him from getting a fair trial. 

FACTS AND PROCEDURAL HISTORY 

[4] In October 2016, Indiana Department of Transportation (INDOT) employee, 

Tyrone Hare (Hare), received a tip that an individual who might be responsible 

for copper wire thefts from INDOT light poles was living around 25th and Burr 

Streets in Gary, Indiana, and driving a maroon Ford pickup truck. Indiana 

State Police obtained a search warrant and placed a GPS tracker on the truck. 

While monitoring the vehicle through the GPS tracker, Indiana State Police 

Detective, Brian Kubiak (Detective Kubiak), received an alert on November 7, 

2016, that the vehicle had broken a geo-fence boundary around some INDOT 

light poles in the Lakeland Park area. When he arrived in the area, Detective 

Kubiak noticed a vehicle that matched the description provided to Hare. 

During the three hours that the vehicle was in the Lakeland Park area, 

Higgason exited the truck, waded through a watery ditch, and began removing 

the copper wiring from several light poles. Upon leaving the area, Detective 
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Kubiak followed the truck. Indiana State Police Trooper Andrew Rasala pulled 

over the maroon truck Higgason was driving for a traffic infraction and 

observed a large amount of wiring in the bed of the truck. The wiring in the 

truck matched the description and gauge of the wiring used by INDOT. 

[5] On November 8, 2016, the State filed an Information, charging Higgason with 

one Count of theft, a Level 6 felony. On July 20, 2017, Higgason proceeded to 

a jury trial where he represented himself pro se and, at the conclusion of the 

evidence, was found guilty as charged. On August 15, 2017, the trial court 

sentenced him to serve 912 days at the Department of Correction. 

[6] Higgason now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

[7] Electing to represent himself at trial, Higgason contends that the trial court, on 

numerous occasions, exhibited a partiality and bias towards him. A trial before 

an impartial judge is an essential element of due process. Everling v. State, 929 

N.E.2d 1281, 1287 (Ind. 2010). In assessing a trial court’s partiality, we 

examine the judge’s actions and demeanor while recognizing the need for 

latitude to run the courtroom and maintain discipline and control of the trial. 

Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997), reh’g denied. “Even where 

the court’s remarks display a degree of impatience, if in the context of a 

particular trial they do not impart an appearance of partiality, they may be 

permissible to promote an orderly progression of events at trial.” Id. Bias and 

prejudice violate a defendant’s due process right to a fair trial only where there 
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is an undisputed claim or where the judge expressed an opinion of the 

controversy over which the judge was presiding. Smith v. State, 770 N.E.2d 818, 

823 (Ind. 2002). Adverse rulings are not sufficient to show bias or prejudice on 

the part of the trial judge. Flowers v. State, 738 N.E.2d 1051, 1060 n.4 (Ind. 

2000), reh’g denied. Nevertheless, Indiana law presumes that a judge is unbiased 

and unprejudiced. See Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003). To 

rebut this presumption, a defendant must establish from the judge’s conduct 

actual bias or prejudice that places the defendant in jeopardy. Smith, 770 

N.E.2d at 823. Looking at the trial in its entirety, Higgason maintains that “the 

cumulative impact of the trial court’s rulings and statements both in front of 

and outside the presence of the jury [] impacted his ability to have a fair trial.” 

(Appellant’s Br. p. 10). 

[8] Prior to trial, Higgason dismissed his attorney and elected to proceed pro se. 

“Pro se litigants without legal training are held to the same standard as trained 

counsel and are required to follow procedural rules.” Wright v. State, 722 

N.E.2d 449, 463 (Ind. Ct. App. 2002). Although “a trial court is not required to 

guide pro se litigants through the judicial system,” the trial court spent a 

considerable amount of time explaining to Higgason the process of voir dire, 

how to introduce exhibits, questioned Higgason about the witnesses he 

intended to question, and informed him of his right to testify prior to the 

commencement of the jury trial. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. 

App. 2004). During trial, the trial court repeatedly reminded Higgason not to 

testify himself but instead to question the witness, and advised him how to 
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rephrase questions. Despite all this, the trial court had to admonish Higgason 

that he “simply [was] not utilizing appropriate procedures.” (Transcript Vol. I, 

p. 91). Prior to the start of the second day of trial, and outside the presence of 

the jury, the trial court cautioned Higgason that he

intentionally inserted what, if the State did it, would possibly be 

grounds for a mistrial into the record when you were examining 

the female witness and waiving this paper in the air and talking 

about her having been arrested for Auto Theft, which you knew 

was highly inadmissible. Don’t do that kind of thing again. 

Don’t do it. Follow the rules. You, you know, you’re making a 

habit of saying things that are statements that, you know, you’re 

trying to testify without testifying. And you just follow the rules. 

Perhaps you don’t know the rules, but I know you knew that 

rule, the 609 rule. I know you knew that rule. Follow the rules.

The other thing that I would tell you is, you know, you may have 

things that you want to move into evidence today because we’re 

going to get to your case, I think, pretty soon. In order for your 

materials to be submitted into evidence you need to follow the 

proper procedure to do that. And if you don’t follow the proper 

procedure to do that, it won’t be admissible. Just so you 

understand.

That’s one of the reasons that I tried and tried to get you to have 

a Public Defender. You’ve decided you can try your case on 

your own. That’s your rights [sic], but you need to do it 

correctly.

(Tr. Vol. II, pp. 35-36). 

[9] Higgason claims that the trial court showed bias and partiality by allowing the 

State to present objections without allowing him to respond. Specifically, 
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Higgason points to several instances where the State objected based on facts not 

in evidence, speculation, or because Higgason’s questioning was outside the 

scope of the State’s direct. Numerous times during these objections, the trial 

court, while sustaining the State’s objection, advised Higgason to clarify or 

rephrase his question for the witness. In turn, Higgason also points to instances 

where he objected to the State’s questioning on hearsay and authenticity 

grounds, which the trial court overruled. The record reflects that the State 

responded to Higgason’s objections and while the State was not successful 

every time, the trial court properly listened to the arguments raised by both 

sides and ruled accordingly. As we have noted before, the mere assertion that 

certain adverse rulings by a judge constitute bias and prejudice does not 

establish the requisite showing of prejudice. See Voss v. State, 856 N.E.2d 1211, 

1217 (Ind. 2006). 

[10] Higgason also contends that the trial court addressed his arguments in an 

improper tone that influenced the jury. He points, in part, to the following 

examples:

[Higgason]: But am I allowed to let him read this? Maybe he 

can recite it? Because it has the multiple uses for this wire.

[Trial Court]: If you do it the right way.

[Higgason]: May I present this to the witness?

[Trial Court]: I was asking you if you wanted a Public Defender 

that I told you that there were certain things that the Public 

Defender knows to do.

(Tr. Vol. II, p. 57).
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[Higgason]: This is Exhibit 1 for the Defendant. Let me show 

you this picture. Is that one of the tipsters?

[Witness]: Yes, that looks to be one of them. Yes.

[Higgason]: Okay. For the record, this is Daniel Allison.

[Trial Court]: uh, uh, uh.

[State]: Object –

[Trial Court]: Now you’re testifying.

[Higgason]: Oh, I’m sorry.

[Trial Court]: You have the witness identify your picture.

[Higgason]: Okay.

[Trial Court]: It’s done.

[Higgason]: So what I want to do – do I put this on record? I 

don’t know your format.

[Trial Court]: My format is the Rules of Evidence.

(Tr. Vol. II, p. 90).

[11] Examining the trial court’s actions and demeanor throughout the trial, we 

cannot say that the trial court was biased as to impair Higgason’s right to a fair 

trial. At no point did the trial judge express an opinion of the controversy over 

which she was presiding. All of the trial court’s comments reflect on the trial 

court’s responsibility to maintain discipline and control of the trial, even if the 

remarks displayed a degree of impatience. See Timberlake, 690 N.E.2d at 256. 

The cumulative effect of the trial court’s rulings and remarks indicate a trial 

judge repeatedly aiding Higgason by explaining the mechanics of trial 

procedure and by maintaining proper decorum in the courtroom, in accordance 

with the Indiana Rules of Trial Procedure and the Indiana Rules of Evidence. 

As such, on those occasions noted by Higgason, the trial judge was merely 

attempting to move the trial forward in an efficient manner. Therefore, 

Higgason has failed to demonstrate that the trial judge was biased. 
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CONCLUSION

[12] Based on the foregoing, we hold that Higgason failed to establish that the trial 

court showed bias and prejudice towards him which prevented him from getting 

a fair trial.

[13] Affirmed. 

[14] May, J. and Mathias, J. concur