Pursuant to Ind.Appellate Rule 6 5(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 : ATTORNEYS FOR APPELLEE : MARK K. LEEMAN GREGORY F. ZOELLER Logansport, Indiana Attorney General of Indiana JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

ROB ERT BOWEN, ) ) Appellant

- Defendant, ) ) vs. ) No. 08A04

- 1206

- CR

- 305 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE CARROLL SUPERIOR COURT The Honorable Kurtis D. Fouts, Judge Cause No. 08D01

- 1103

- FD

- 20
May 8, 2013 MEMORANDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant , Robert Bowen (Bowen), appeals his conviction for Count I, possession of a controlled substance , a Class D felony, Ind. Code § 35

- 48

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- 7(a); and Count II, possession of paraphe rnalia, a Class A misdemeanor, I.C. § 35

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- 8.3(a)(1). We affirm.
ISSUE S Bowen raises two issues for review, which we restate as the following: (1) Whether the trial court abused its discretion by admitting evidence obtained through execution of a search war rant; and (2) Whether the trial judge committed error by failing to disqualify himself from the proceedings due to judicial bias.

FACTS AND PROCEDURAL HISTORY On March 21, 2011, Robert Glenn (Glenn) was stopped for driving on a suspended license by Officer Shane Bernhardt (Officer Bernhardt) of the Delphi Police Department. On that same day, both Glenn and Officer Bernhardt submitted their affidavits in support of probable cause to search Bowen’s garage in Delphi, Indiana for firearms and methamphetamine m anufacturing precursors

. In his affidavit, Glenn stated that earlier in the day he had spoken to Bowen who told Glenn that he was hiding in his garage because of an outstanding warrant for his arrest. Glenn had been in the garage the previous week and sa w a rifle and shotgun that Glenn had shot a month previously

.3

Glenn stated that Bowen had manufactured methamphetamine in the past and that he saw “empty Pyrex baking dishes, battery strips, and match strips” in the garage. (Motion to Suppress Hearing , S tate’s Exh. 1). In his affidavit, Officer Bernhardt cited Glenn’s affidavit as well as Bowen’s outstanding arrest warrant and prior searches of his property
that had resulted in seized guns, drugs, and stolen property. That same day, the trial court iss ued a search warrant. Officer Bernhardt along with other officers from the Delphi Police Department, Carroll County Sheriff’s Office, and Indiana State Police went to Bowen’s garage to execute the search warrant. Carroll County Sheriff’s Deputy Dennis Ra ndle (Deputy Randle) knocked on the door of Bowen’s garage and announced that police would enter if Bowen did not answer.
Officers heard m ovement inside the garage but the y entered by force because Bowen did not respond

. Upon entry, Deputy Randle saw a c lear jar with grayish white power inside. He also found a gold smoking pipe that was later found with marijuana residue inside. Police found approximately 80 white hydrocodone tablets, Bowen’s wallet, and a set of digital scales. Bowen was later found h iding in a camper parked on the side of his
garage. On March 22, 2011, the State filed an Information charging Bowen with Count I, possession of a controlled substance, a Class D felony, I.C. § 35

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- 7(a), and Count II, possession of paraphernalia, a Cla ss A misdemeanor, I.C. § 35

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- 8.3(a)(1). On August 12, 2011, Bowen filed a motion to suppress, arguing that the search warrant was not supported by probable cause because it was based on stale information. On4

September 8, 2011, the trial court held a hearing on the motion, which it denied the following day

. On January 17, 2012, a jury trial was held. Prior to voir dire , Bowen renewed his motion to suppress, which the trial court denied. No further elaboration was given either by the trial court or Bo wen. B efore it rested its case in chief , the State moved to admit hydrocodone tablets and the smoking pipe seized from Bowen’s garage into evidence. Bowen’s counsel d id not object. Afterward, however, the trial court stated “ [w] e’ll show
for the record [] continuing objection [] based on the pretrial motion that was filed.” (Transcript p. 117). The jury later found Bowen guilty as charged. On May 10, 2012, the trial court held a sentencing hearing. Bowen testified at the hearing. Following his testim ony, his counsel asked, “is there anything else that you want Judge Fouts to know before he sentences you?” Bowen replied as follows: [BOWEN]: That when Judge Fouts represented m y daughter, in a case, [sic] calendar year prior to this offense, as her law yer he mentioned something that just irked me. And I [...], there was only [sic] person that had an objection to having it dismissed, those charges[,] was Judge Fouts and he didn’t believe that uh. I believe Judge Fouts is biased. I don’t believe it. [BOW EN’S COUNSEL]: Okay so you just wanted to get that out there and let the Judge know that’s what you are thinking correct? [BOWEN]: I believe he is.
* * * [STATE]: So the bottom line Mr. Bowen is that you don’t bel ieve Judge Fouts would be bias ed aga inst you? And irrespective of what may have happened in the past, is that what you’re telling the [c]ourt?5

[BOWEN]: I just don’t believe Jud ge Fouts used the proper termin ology when he was representing my daughter. [STATE]: I understand that. But y ou don’t think there’s any r e ason um why he could not sentence you in this case do you? [BOWEN]: No I don’t. No I don’t.
* * * [TRIAL COURT]: He’s chosen to put it on the record. The [c]ourt doesn’t harbor any biased [sic] against Mr. Bowen. [BOWEN ]: I don’t believe ..

. [TRIAL COURT]: [...] this is the first time the [c]ourt is hearing anything about this uh but the [c]ourt did as I believe as the [g]uardian [a]d [l]item uh or an attorney

. Might have been as an attorney. Uh represent the interest of his juvenile daughter in a delinquency matter. And uh the [c]ourt withdrew from that case. I don’t know whether it ’s been disposed of. I don’ t have any idea whether her case has been disposed of. I don’t see her here today. So that makes me think she’s placed outside the ho me. Pro bably as a result of that case. Um and I have a vague recollection of perhaps making some nega ti ve comments uh about her parents. Because I felt like they were being hard on her frankly given her tender age. Uh they fe lt differently. I don’t know I suppose in retrospect I don’t know who was right. Maybe they were. Mayb e I was. I don’t know. But certainly nothing about that uh the [c]ourt’s had a lot of contact with the family, CHINS cases [juvenile delinquency] cas es, and other cases. So that’s not uh at all on the [c]ourt’s mind as we go forward today but um noth ing ’s been filed th ro ug h out this case uh alleging there was any kind of problem and uh the [c]ourt didn’t see that there was any potenti al even for a conf lict in this matter. [BOWEN]: To answer your question Mr. District Attorney I just didn’t understand the example that Judge Fouts made at that time as her lawyer. But I don’t recognize her as a poltergeist. I don’ t recognize an entit y. But I don’t r ecognize a[n] extraterrestrial. I do recognize God with good questi o n in the [c]ourt’s [sic] in this land but I just don’t recognize those three terms.6

[TRIAL COURT]: I’m not sure where to go with that but I guess my point is [...] that I appreciate that [the State is] trying to make a record, but I just feel like with Mr. Bowen’s sitting I’m gonna about [sic] to pronounce sentence on him, that’s a heck of time [sic] to ask him w h e ther he thinks I’m a good guy. (Sentencing Tr. pp. 12

- 15). No further inqu iry regarding the trial court’s purported bias thereafter occurred. Subsequently, the trial court reviewed mitigating and aggravating factors before pronouncing sentence. It found Bowen’s criminal history to be an aggravating factor and his military serv ice, health, undiagnosed mental illness , and the hardship on his family resulting from incarceration as mitigating factors. The trial court sentenced Bowen to three years on Count I and one year on Coun t II, with sentences to run concurrently.
Bowen now appeals. Additional facts will be provided as necessary.

D ISCUSSION AND DECISION
Bowen asserts that the trial court erred in denying his motion to suppress evidence seized during the execution of a search warrant. B ecause Bowen appeals following a

c onviction, the issue is more appropriately framed as whether the trial court properly admitted the evidence at trial. A trial court has broad discretion in ruling on the admissibility of evidence. Fentress v. State , 863 N.E.2d 420, 422

- 23 (Ind. Ct. App. 2007). Accordingly, we will reverse an evidentiary ruling only when the trial court
abuses that discretion. Id

. An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id

. I. Waiver7

On appeal, Bowen argues that the affidavits submitted by the police failed to establish probable cause for the search warrant based upon Glenn’s credibility , the reliability of his information , and the staleness of his observations. As a res ult, Bowen contends that the hydrocodone pills were discovered and seized in violation of the Fourth Amendment to the United States Constitution, Article 1, Section 11 of the Indiana Constitution, and the hearsay requirements for issuance of a search warra nt pursuant to I.C. § 35

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- 2 (b)

. He also asserts that seizure of the hydrocodone pills cannot be justified by good faith reliance upon the search warrant by the police

. However, t he State
argues that Bowen has waived th ese argument s because his trial counsel failed to make timely objections to evidence regarding the hydrocodone pills

. We agree with the State. To preserve an error for review on appeal, the specific objection relied upon on appeal must have been stated in the trial court as a basis for the objection. Hale v. State , 976 N.E.2d 119, 123 (Ind. Ct. App. 2012). The purpose of this rule is to give the trial court the opportunity to evaluate the objection under the basis relied upon. Id

. Prior to trial, Bowen filed a motion to suppress invo king the Fourth Amendment and Section 11 to suppress all evidence obtained through execution on the grounds of staleness. At the hearing on the motion, Bowen confined his argument to the staleness of Glenn’s observations and Officer Bernhardt’s specificat ion that Bowen was a serious violent felon in possession of firearms. The trial court denied the motion and did so again when Bowen renewed his motion to suppress , but made no additional argument , during voir dire

. By failing to state these grounds to th e trial court, w e therefore conclude that8

Bowen has waived his argument on appeal regarding Glenn’s credibility , the reliability of his information , compliance with I.C. § 35

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- 2 (b) , staleness, good faith reliance on the warrant by the police, and his c hallenge under Section 11. See Owensby v. Lepper , 666 N.E.2d 1251, 1254 (Ind. Ct. App. 1996), reh’g denied

. 1 Further, a pre - trial motion to suppress does not preserve an error for appellate review; the defendant must make a contemporaneous objection suffi cient to preserve the issue for appeal. Berry v. State , 574 N.E.2d 960, 965 (Ind. Ct. App. 1991), trans. denied

. The failure to make such an objection waives any claim on appeal that the evidence was improperly admitted. See Brown v. State , 783 N.E.2d 1 121, 1125 (Ind. 2003). E ven when lodging a continuous objection to evidence ruled admissible at a suppression hearing , waiver results wh en counsel makes “no objection” to such evidence at trial. See Haywort h v. State , 904 N.E.2d 684, 69 3

- 94 (Ind. Ct. App

. 2009). Before it rested its case in chief, the State moved to admit the hydrocodone pills seized from Bowen’s garage into
evidence. When asked by the trial court if he had any objection to the admission of such evidence, Bowen’s trial counsel clearly s tated “ No judge not to this

. ” (Tr. p . 116 ). Notwithstanding the trial court ’s i dentifi cation of a continuing objection after the evidence was admitted , w e deem this insufficient to overcome trial counsel’s failure to object when the evidence was offered. See Hayworth , 904 N.E.2d at 693

. I I

. S taleness

1 Likewise, by raising the issue for the first time in his reply brief, Bowen has waiv ed his argument regarding the specificity of the warrant authorizing the search for any manner of firearms. See Ashworth v. Ehrgott , 982 N.E.2d 366, 376 n.3 (Ind. Ct. App. 2013).9

Waiver notwithstanding, we address Bowen ’s claim that the “the portion of the warrant authorizing the search of methamphetamine precursors was also inva lid because it was based on stal e information.” (Appe llant’s Br. p. 14). In general, stale information will not support a finding of probable cause. See Smith v. State , 95 3 N.E.2d 651 , 659 ( Ind. Ct. App. 2011 ) , trans. denied

. Our courts have not established a br ight

- line rule regarding the amount of time that may elapse between obtaining the facts upon which the search warrant is based and the issuance of the warrant. Id . Instead, whether the information is tainted by staleness must be determined by the facts and circumstances of each particular case. Id

. Here, Glenn observed the Pyrex baking dishes, battery strips, and match strips in Bowen’s garage one week before the execution of the search warrant. Officer Bernhardt, based on his training and experience, identified these items as precursors to meth amphetamine manufacture. At the same time, Glen n also observed firearms in the garage which he had used a month earlier. Bowen argues that the items identified by Glenn were “presumably small [...] and easily disposed of

. ” (Appellant’s Br. p. 15).
Howeve r, t he identified precursors and firearms were not money or drugs , items that are easily consumed

. See Foster v. State , 633 N.E.2d 337, 345 (Ind. Ct. App. 1994), trans. denied

. Bowen also argues that the facts contradict Officer Bernhardt’s assertion tha t methamphetamine manufacture is an ongoing process . T hat Officer Bernhardt failed to find methamphetamine at Bowen’s garage one year previously does not necessarily suggest an isolated incident. See Breitweiser v. State , 704 N.E.2d 496, 500 (Ind. Ct. Ap p.10

1999) . We therefore conclude that the information here was not too stale to support a finding of probable cause. See Raymer v. State , 482 N.E.2d 253, 255 (Ind. 1985). The trial court did not abuse its discretion in admitting the hydrocodone pills sei zed pursuant to a search warrant.
I I I

. Judicial Bias
Bowen also argues that the trial court erred when the trial judge refused to recuse himself at sentencing

. H e contends that the trial judge , who represent ed Bowen’s daughter in a prior juvenile actio n , was biased against him . Bowen asserts that this purported bias resulted in the trial court ascribing lesser weight to a contested mitigating factor , namely , whether Bowen’s incarceration would pose a hardship on his family. We first note that Bowen failed to object or move for recusal and has thus waived the issue. See Carr v. State , 799 N.E.2d 1096, 1098 (Ind. Ct. App. 2003). Timeliness is important on recusal issues. Id . A party may not lie in wait and only raise the recusal issue after receivi ng an adverse decision. Id

. Waiver notwithstanding, Bowen argues that fundamental error occurred and recusal was mandatory. To qualify as fundamental

error, an error must be so prejudicial to the rights of the defendant as t o make a fair trial impossibl e. Ruggieri v. State , 804 N.E.2d 859 , 863 (Ind. Ct. App. 2004 ). To b e fundamental, the error must constitute a blatant violation of basic principles, the harm, or potential for harm must be substantial, and the resulting error must deny the def endant fun damental due process. Id

.11

Bowen’s argument relies on Ind. Judicial Conduct Cannon 2, Rule 2.11 (A) , which provides that under certain circumstances “a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiali ty might rea sonably be questioned.” Two
such circumstances exist where the judge: has a personal bias or prejudice concer ning a party or personal knowledge of facts that ar e in dispute in th e proceeding

. [ or ] served in governmental employment and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy. Jud. Cond. Cannon 2, Rule 2.11(A)(1) &(6)(b). Under such circumstances, the obligation to recuse is required whether or not a motion for recusal is filed. See Jud. Cond. Cannon 2, Rule 2.11, cmt. 2. Further, t he “appearance of bias and partiality requires recusal just
as does the actual ex istence of those impediments.” T hakkar v. State , 644 N.E.2d 609, 612 (Ind. Ct. App. 1994). The question is “whether an objective person, knowledgeable of all the circumstances, would have a ration al basis for doubting the judge’ s impartiality.” Id

. Unles s the evidence suggests otherwise, we assume the trial judge would have disqualified himself had his impartiality been reasonably called into question. Austin v.
State , 528 N.E.2d 792, 794 (Ind. Ct. App. 1998). Merely because the trial judge once argued a case against a defendant “does not compel a determination that the trial judge harbored any bias or prejudice.” Brown v. State , 830 N.E.2d 956, 962 (Ind. Ct. App.12

2005). During his sentencing hearing, Bowen told the trial court that he believed the tri al judge was biased. However, when pressed by the State to clarify whether he believed that the judge could not sentence him, Bowen replied, “No I don’t. No I don’t.” (Sentencing Tr. p. 13). The trial court then confirmed its prior involvement with
Bow en’s daughter , either as a guardian ad litem or an attorney, and stated that it was not biased. Bias or prejudice exists when the trial judge has expressed an opinion on the merits of the controversy before him. See Wallace v. State , 486 N.E.2d 445, 456 (Ind. 1985), reh’g denied, cert. denied , 478 U.S. 1010 (1986). However, “[t]rial judges may consider the conduct and attitude of the defendant when imposing sentence.” Hollins v.
State , 679 N.E.2d 1305 (Ind. 1997). The trial court proceeded to find fou r factors in mitigation, including that incarceration would pose a hardship on Bowen or his dependents. It attributed less weight to that factor because t he hardship resulted , to some extent, from Bowen’s conduct

. T he trial court stated that Bowen’s inca rceration would be “in some level [a] calming influence perhaps if he’s absent for a period of time.” (Sentencing Tr. p. 26). A ny negative comments by the trial court regarding Bowen’s character and the effect his incarceration may have on his family d uring sentencing do not establish bias. See id

. Finally, Bowen was sentenced to the maximum term of three years on Count I. However, a maximum sentence for an offense does not reflect bias per se . See Radcliff v.
State , 579 N.E.2d 71, 73 (Ind. 1991) . This finding was well supported by evidence of13

Bowen’s prior criminal history, which included probation violations and pending felony charges. In light of the foregoing , we do not conclude that an objective person, knowledgeable of all the circumstance s , would have a rational basis to doubt the trial judge’s impartiality

. See Brown , 830 N.E.2d at 962.
CONCLUSION Based on the foregoing, we conclude that the trial court did not abuse its discretion by admitting evidence seized pursuant to a search warra nt and that the trial judge did not commit error by failing to disqualify himself from the proceedings due to judicial bias. Affirmed. BAKER, J. and BARNES, J. concur