Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 1 of 15

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

Philip R. Skodinski

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Duane Herron,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 31, 2017

Court of Appeals Case No.

71A04-1704-CR-743

Appeal from the

St. Joseph Superior Court

The Honorable

Elizabeth C. Hurley, Judge

Trial Court Cause No.

71D08-1501-F6-17

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 2 of 15

[1] Following a jury trial, Duane Herron (“Herron”) was convicted of Level 6 

felony battery with moderate bodily injury.1 He appeals and raises the 

following two restated issues:

I. Whether the State presented sufficient evidence to convict 

him; and 

II. Whether the trial judge should have recused herself.

[2] We affirm.

Facts and Procedural History

[3] In January 2015, Herron was living with his then-girlfriend, J.G. At that time, 

she was working the 11:00 p.m. to 7:00 a.m. shift at her job.2 On January 5, 

2015, J.G. came home from work and slept until mid-afternoon. After she 

awoke, Herron started an argument with J.G., who did not want to argue and 

tried to ignore him. He made several statements to her that he was “not no 

psycho” and “not no creep,” and eventually she responded “yeah, you are[,]” at 

which point Herron grabbed her phone from her and began beating her. Tr. 

Vol. II at 36-37. Initially, J.G. was on the couch, and Herron repeatedly hit her 

in the face. He then pulled her off the couch and across the room, such that 

J.G. was lying on the floor by the fireplace. Herron sat on her chest, straddling 

 

1

See Ind. Code § 35-42-2-1(b)(1), (d)(1). We note that Indiana Code section 35-42-2-1 was amended effective 

July 1, 2016; however, we apply the statute that was in effect at the time that Herron committed his offense.

2 Herron worked for the same employer.
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 3 of 15

her, and continued to hit her face and head. J.G. struggled to breathe with 

Herron sitting on her. Id. at 37. Eventually, he stopped hitting her, stood up, 

and sat on the couch. Herron yelled and cursed at her, telling her to get up off 

the floor. Initially, she was not able to get herself off the floor, as her head was 

“spinning,” and she kept falling backward, but eventually, she pulled herself up 

and reached a chair. Id. J.G. said to Herron, “you could have killed me,” and 

he replied, “I was trying to.” Id. at 38. During the incident, J.G.’s shirt got 

ripped, her earring was pulled from her ear, and her blood got on her clothing 

and Herron’s clothing. Her face and ear were bruised and bloodied. Herron 

told her to go get an icepack for her face, which she did, and she also cleaned 

her face and ear with a wet rag “to try to get some of the blood off[.]” Id.

[4] Later, around the time that J.G. went to her bedroom to get ready for work, 

Herron gave her phone back to her. Using her phone, she took pictures of her 

face, which were admitted without objection into evidence. Herron drove J.G.

to work because her vehicle would not start. Herron told her, “[T]ell everybody 

that you and your sister got into a fight, tell everybody that you wrecked your 

truck.” Id. at 51. When she got to work, her boss, Timothy Chapman 

(“Chapman”) immediately said, “[W]hat the f*ck happened to your face?” Id. 

at 51. She said, “Duane got me,” and at Chapman’s suggestion, J.G. called the 

police. South Bend Police Department Officer Alan Wiegand (“Officer 

Wiegand”) responded to J.G.’s place of employment, where he met with her. 

J.G. was crying, and Officer Wiegand observed and took pictures of injuries to 

her face and neck.
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 4 of 15

[5] Officers were dispatched to Herron’s residence, and they ordered Herron to 

come out, but he did not. When police called him on his phone, he told officers 

that he was at another location, but after officers checked and determined he 

was not there, they returned to his house, and he eventually came out and was 

arrested. While in jail, Herron made telephone calls to J.G. trying to convince 

her not to testify against him, suggesting that she could testify that she could not 

remember what happened. 

[6] On January 12, 2015, the State charged Herron with Level 6 felony battery with 

moderate bodily injury and Class A misdemeanor interference with the 

reporting of a crime.

3

 On April 11, 2016, Herron filed a motion for change of 

judge, which the trial court denied, and he filed a motion to reconsider, which 

was also denied. Appellant’s App. Vol. II at 11, 165-76, 188-91. On June 28, 

2016, Herron filed a motion to proceed pro se, and he asked the trial court to 

recuse herself. Id. at 151-52. After a hearing, the trial court granted Herron’s 

request to proceed pro se, but maintained the public defender as stand-by 

counsel; it denied his request for recusal. Id. at 14.

[7] At the November 2016 jury trial, the State appeared by counsel, and Herron 

appeared in person and with his stand-by counsel. Prior to the start of trial, 

Herron made an oral motion for the judge to recuse herself. Herron alleged the 

 

3

In March 2015, Herron pleaded guilty, but the trial court rejected that plea on May 28, 2015. On February 

10, 2016, Herron requested to proceed pro se, which the trial court granted, and on March 1, 2016, he pleaded 

guilty as charged, but this plea was withdrawn on May 18, 2016, and his case was set for trial and a public 

defender was appointed at Herron’s request. 
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 5 of 15

following in support of his motion seeking recusal: (1) the trial court failed to 

remedy what Herron asserted was a violation of the rules of Professional 

Conduct by the prosecutor, based on an email letter that the prosecutor had sent 

to Herron’s counsel with the terms and conditions of a plea offer, which Herron 

asserted included the use of some “false charges” as leverage; (2) the trial court 

had determined that probable cause existed for an obstruction of justice charge 

in another cause, No. 71D08-1507-F6-480 (“Cause 480”), and set bond at 

$50,000; Herron’s conviction on that charge was overturned because the wrong 

subsection had been charged and the trial court had misinterpreted the 

obstruction of justice statute; (3) the trial court improperly denied Herron credit 

time at his sentencing on Cause 480 by ordering the sentence to run consecutive 

to a parole violation; (4) the trial court “duped” Herron into not filing a motion 

to correct error in Cause 480; and (5) Herron was intimidated from speaking at 

his sentencing in Cause 480 because, he claimed, a sheriff in the courtroom

threatened Herron with a taser and told him to “shut up.” Tr. Vol. II at 9-17. 

[8] After hearing Herron’s arguments, the trial court denied Herron’s motion, 

finding as follows: Regarding the finding of probable cause and the credit time 

issue, Herron’s allegations were merely adverse rulings. Id. at 22-23, 26. With

regard to the motion to correct error, the record showed that the trial court had 

entered an order in favor of Herron, allowing him to file a belated motion, and 

had explained to Herron that he needed to let his appellate counsel know of his 

intention to file such a motion because it could affect the time allowed for filing

an appeal. Id. at 22. As to the alleged threat by a sheriff, the trial court found 
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 6 of 15

that, while it is common practice for security personnel to be in the courtroom, 

employing a taser is not the practice in her courtroom or any courtroom she has 

been in, that there has never been a circumstance where a taser has ever been 

necessary or threatened, and that if any such action occurred, it was not at her 

directive. Id. at 23. The trial court further found that its misinterpretation of 

the obstruction of justice statute, resulting in reversal on appeal, did not 

prejudice or bias the judge against Herron, and, rather, “it just furthers my 

education with regard to the law. And I appreciate that.” Id. at 12, 24. The 

judge further stated that she had spoken with an attorney who works with the 

judicial qualifications commission about whether that situation warranted 

recusal, and that attorney advised that recusal was not appropriate or necessary. 

Id. at 21, 25-26. The trial court then denied Herron’s request for recusal, and 

the matter proceeded to trial.

[9] During the jury trial, J.G. testified to the above sequence of events, where 

Herron held her down and beat her. She described that Herron was “smacking 

[her] as hard as he could,” and that after he dragged her from the couch and to 

the floor and was straddling her, he hit her “over and over nonstop.” Id. at 36-

37. She “begged him to get off of [her]” because he was on her chest and she 

“couldn’t breath[e].” Id. at 37. When she eventually made it to a chair, Herron

told her to get an icepack for herself. She recalled that Herron was angry that 

her blood was on his clothes. J.G. testified that police came to her place of 

employment and later to her home. Pictures taken by police of J.G., both at 

work and later at her home, were admitted at trial. She described that her 
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 7 of 15

bruising worsened in the following days, and that, as a result of the incident, 

she suffered pain and bruising that lasted for months, and ongoing issues with

vertigo and hearing loss.

[10] Chapman testified that, when J.G. got to work, he observed that her face was 

swollen, and she was distraught. He described that she looked like “she had 

gotten beaten up kind of badly.” Id. at 75. He testified that he “instructed her 

to go into the office and call the police[.]” Id. at 76. Chapman testified that 

J.G.’s face was swollen, she had a black eye, and “the cheek bone was pretty 

messed up.” Id. He recalled that the injuries J.G. sustained were visible for 

three weeks “if not longer[.]” Id. 

[11] Officer Wiegand testified that he responded to J.G.’s place of employment, and 

he observed that she was crying and had injuries to her face and neck. He 

testified that other officers were dispatched to Herron’s home, but that he also 

went to Herron’s residence after he had met with J.G., and he arrived as other

officers were ordering Herron to exit the home. Officer Wiegand testified that 

he spoke briefly to Herron, who asked what charges he was facing. Officer 

Wiegand testified, “[S]o I advised him of what he was being charged with at 

that time. And he stated he hoped [J.G.] changed her mind and didn’t press 

charges.” Id. at 83-84.

[12] Herron testified in his defense, stating that, on the day in question, J.G. had 

been doing drugs and was shaking, and there was heroin in the house. He 

testified that when he took her drugs away from her, she attacked him and 
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 8 of 15

came toward him with a knife, so he grabbed her, threw her to the ground and 

sat on her, until she let go of the knife. Id. at 104-05. He acknowledged that he 

had grabbed J.G.’s phone, but explained that he did not give it back to her for a 

period of time because he wanted to contact her drug dealer “to stop some of 

the things that were going on.” Id. at 106. Herron testified that the altercation 

occurred because he believed his life was in danger, “and I just kind of reacted.” 

Id. at 108. On cross-examination, counsel presented Herron with pictures taken 

by police of J.G.’s injuries, and Herron acknowledged that he caused the “main 

injury” to her eye. Id. at 109.

[13] The jury found Herron guilty of Level 6 felony battery with moderate injury 

and not guilty of Class A misdemeanor interference with reporting of a crime. 

The trial court imposed a sentence of two years, but suspended it and placed 

Herron on probation. Appellant’s App. Vol. II at 21. Herron now appeals.

Discussion and Decision

I. Sufficiency of Evidence

[14] Herron argues that the evidence was insufficient to support his conviction for 

Level 6 felony battery with moderate injury. In reviewing the sufficiency of the 

evidence, we consider only the evidence and reasonable inferences most 

favorable to the conviction, neither reweighing the evidence nor reassessing 

witness credibility. Burgh v. State, 79 N.E.3d 955, 957 (Ind. Ct. App. 2017). We 

will affirm the judgment unless no reasonable factfinder could find the 

defendant guilty. Id. It is not necessary that the evidence overcome every 
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 9 of 15

reasonable hypothesis of innocence. Boyd v. State, 889 N.E.2d 321, 325 (Ind. 

Ct. App. 2008), trans. denied. “A conviction can be sustained on only the 

uncorroborated testimony of a single witness, even when that witness is the 

victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). 

[15] To convict Herron of Level 6 felony battery as charged, the State was required 

to prove beyond a reasonable doubt that Herron knowingly or intentionally 

touched J.G. in a rude, insolent, or angry manner resulting in moderate bodily 

injury to J.G. Ind. Code § 35-42-2-1(b)(1), (d)(1); Appellant’s App. Vol. II at 19. 

Moderate bodily injury means any impairment of physical condition that 

includes substantial pain. Ind. Code § 35-31.5-2-204.5. 

[16] Herron asserts that “there were two distinct versions of how the injuries were 

incurred[,]” claiming that he told the jury “a consistent and believable story,”

whereas J.G.’s story was not believable and was “inconsistent with what the 

jury determined other evidence to be.” Appellant’s Br. at 8-9. 

[17] We reject Herron’s claims. It is well-settled that it is for the factfinder to decide 

which witnesses to believe. Holeton v. State, 853 N.E.2d 539, 541 (Ind. Ct. App. 

2006). In this case, the jury chose to believe J.G., who testified that Herron 

started an argument with her and that he hit her in the face and head, dragged 

her to the ground, sat on top of her, and continued to hit her face and head. 

When he stopped, and she told him, “You could’ve killed me,” Herron replied,

“I was trying to.” Tr. Vol. II at 38. Her shirt was ripped, an earring was pulled 

from her ear, her face and ear were red and bruised and bloodied. She testified 
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 10 of 15

that she had pain for months and continued to suffer vertigo and hearing loss. 

Id. at 52. J.G.’s testimony was consistent with the testimony of Chapman and 

of Officer Wiegand, who observed her appearance and her distraught 

demeanor. She told each of them that Herron had caused her injuries. Herron 

admitted to causing injury to her eye. Herron’s sufficiency argument is a 

request for us to reweigh the evidence on appeal, which we cannot do. Palacios 

v. State, 926 N.E.2d 1026, 1034 (Ind. Ct. App. 2010). The State presented 

sufficient evidence to convict Herron of Level 6 felony battery with moderate 

injury. 

II. Recusal

[18] Prior to the start of trial, Herron made an oral motion for the trial judge (“Judge 

Hurley”) to recuse herself. He asserted a number of grounds in support, 

although on appeal Herron states that “[t]he primary reason had to do with 

[Herron] being found guilty in an Obstruction of Justice charge in [Cause 480,]” 

which the Court of Appeals later reversed, finding that Judge Hurley should 

have granted his motion for a directed verdict, but failed to do so because she 

had misinterpreted a subsection of the obstruction of justice statute. Appellant’s 

Br. at 9. Herron’s argument is that her error and the reversal, combined with 

his other allegations – relating to denial of jail time credit, allegedly being 

“duped” into not filing a motion to correct error, and “his treatment in her 

courtroom” by security who allegedly threatened to use a taser on Herron –

created the appearance of bias. Id. at 10.
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 11 of 15

[19] A ruling upon a motion to recuse rests within the sound discretion of the trial 

judge and will be reversed only upon a showing of abuse of that discretion, 

which occurs when the trial court’s decision is against the logic and effect of the 

facts and circumstances before it. Bloomington Magazine, Inc. v. Kiang, 961 

N.E.2d 61, 63 (Ind. Ct. App. 2012). As this court has explained, 

When reviewing a trial judge’s decision not to disqualify herself, 

we presume that the trial judge is unbiased. In order to overcome 

that presumption, the appellant must demonstrate actual 

personal bias. In addition, the mere appearance of bias and 

partiality may require recusal if an objective person, 

knowledgeable of all the circumstances, would have a rational 

basis for doubting the judge’s impartiality. Upon review of a 

judge’s failure to recuse, we will assume that a judge would have 

complied with the obligation to recuse had there been any 

reasonable question concerning impartiality, unless we discern 

circumstances which support a contrary conclusion.

Id. at 64 (internal quotation and citations omitted). 

[20] In support of his position, Herron refers us to Rule 1.2 of the Code of Judicial 

Conduct, providing that a “Judge shall act at all times in a manner that 

promotes public confidence in independence, integrity, and impartiality of the 

judiciary, and shall avoid impropriety and the appearance of impropriety.” He 

urges that the appearance of impropriety, including “the mere appearance of 

bias or partiality,” may require recusal if an objective person, knowledgeable of 

all circumstances, would have a rational basis for doubting the judge’s 

impartiality. Id. at 9-10 (citing to Rule 2.11 of the Code of Judicial Conduct, 

providing, in part, that “a judge is disqualified whenever the judge’s impartiality 
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 12 of 15

might reasonably be questioned[.]”). Herron argues that, in this case, “[w]hen 

all things are considered, a reasonable person could perceive [Judge Hurley] 

was biased and partial.” Id. at 10. We reject Herron’s claim.

[21] As an initial matter, we observe that, other than making general allegations that 

Judge Hurley was biased or that an appearance of impropriety existed, Herron 

has not provided any specific evidence or explanation as to how or in what way 

Judge Hurley acted in a biased or partial way. Thus, his claim regarding 

recusal is waived for failure to support it with cogent reasoning. Ind. Appellate 

Rule 46(A)(8)(a). 

[22] Waiver notwithstanding, we find no error in the trial court’s denial of Herron’s 

motion. “‘Merely asserting bias and prejudice does not make it so. The law 

presumes that a judge is unbiased and unprejudiced.’” In re Estate of Wheat, 858 

N.E.2d 175, 183 (Ind. Ct. App. 2006) (quoting Smith v. State, 770 N.E.2d 818, 

823 (Ind. 2002)). To rebut that presumption, a defendant must establish from 

the judge’s conduct actual bias and prejudice against the defendant that places 

him in jeopardy. Smith, 770 N.E.2d at 823. Such bias exists only where there is 

an undisputed claim or where the judge expressed an opinion on the merits of 

the pending controversy. Id. Adverse rulings by a trial judge from past 

proceedings with respect to a particular party are generally not sufficient

reasons to believe the judge has a personal bias or prejudice. Voss v. State, 856 

N.E.2d 1211, 1217 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 13 of 15

[23] Here, Herron provides no instance in which Judge Hurley expressed an opinion 

on the merits of the pending controversy, and he has not shown that her 

conduct evinced bias and prejudice that placed him in jeopardy. Herron’s 

primary challenge relies on the fact that, in Cause 480, Judge Hurley had found 

that probable cause existed for an obstruction of justice charge, and his 

conviction on that charge was later overturned on appeal because the 

subsection under which the State had charged Herron was inapplicable to him. 

In its decision, the Court of Appeals found that the trial court erred when it 

denied his motion for a directed verdict on the obstruction of justice charge, 

having misinterpreted a subsection of the statute. Herron v. State, 61 N.E.2d 

1246, 1250-51 (Ind. Ct. App. 2016). Upon receipt of the appellate opinion, 

Judge Hurley recognized the error and advised that she would remedy the 

situation, after the opinion was certified, by entering judgment of conviction 

only on the other three offenses for which Herron had been found guilty. Tr. 

Vol. II at 12-14, 24. As the State observes, “The mere fact that a trial judge has 

presided over a previous trial which resulted in a conviction and a subsequent 

reversal does not necessarily disqualify the judge from presiding over the 

retrial.” Appellee’s Br. at 14 (citing Flowers v. State, 738 N.E.2d 1051, 1060 (Ind.

2000)). In this case, Judge Hurley presided over, not a retrial, but a different set 

of criminal charges that Herron faced, and she consulted with the judicial 

qualifications commission, who advised her that recusal was not appropriate or 

necessary. Tr. Vol. II at 21, 25-26. We reject Herron’s claim that Judge Hurley 

was necessarily and automatically prejudiced against him because, in another of 
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 14 of 15

his criminal cases, the Court of Appeals had determined that Judge Hurley had 

misinterpreted a statute.

[24] We likewise find that his other claims in support of bias are unfounded. The 

record suggests that the trial court’s determination of credit time in Cause 480, 

although adverse to Herron, was in accordance with the law, and even if it was 

not, and was an error, this does not equate to bias.4 The record also does not 

support his claim that he was duped into not filing a motion to correct error;

indeed, the record indicates that Judge Hurley entered an order reminding 

Herron that he had until April 23, 2016 to file a belated motion to correct error. 

Appellant’s App. Vol. II at 177. Nor does the record support his claim that a 

sheriff’s deputy threatened him with a taser: (1) The prosecutor stated that she 

did not witness any threatening of taser use; (2) Judge Hurley stated that she 

was not aware of any such action by the deputy, noting that it would not be the 

standard course of practice in her courtroom, and that if the deputy had acted in 

that manner, it was not at her directive or request; and (3) Herron admitted that 

he did not see the threatened taser use, but was “under the impression that . . . 

I was being threatened with a taser” because he heard a belt unbuckle. Tr. Vol. 

II at 16-17. His claim regarding the taser was, at best, speculative and failed to 

establish any bias or prejudice on the part of Judge Hurley. Given this record, 

we find that Herron has failed to meet his burden to show that Judge Hurley 

 

4 As the State observes, Herron did not appeal his sentence on the obstruction of justice conviction and thus 

has “implicitly conceded that [the sentencing] ruling did not rise to the level of reversible error[.]” Appellee’s 

Br. at 16. 
Court of Appeals of Indiana | Memorandum Decision 71A04-1704-CR-743 |October 31, 2017 Page 15 of 15

was biased or prejudiced against him.5 The trial court did not err when it 

denied Herron’s motion asking for her recusal. 

[25] Affirmed.

[26] Najam, J., and Brown, J., concur.

 

5 We note that Herron does not make any argument on appeal concerning his assertion, made prior to trial,

claiming that the trial court failed to remedy what Herron asserted was a violation of the rules of Professional 

Conduct by the prosecutor, related to the prosecutor’s letter to Herron’s counsel outlining the terms and 

conditions of a plea offer. Herron has thus waived that argument. Ind. Appellate Rule 46(A)(8)(a).