Presiding Circuit Judge Ashley McKathan Wednesday heard a motion for a new trial in the case of the man who was convicted in August for the more than 20-year-old murder of a Heath convenience store owner.

Peter Bush, attorney for Eugene Wallace Black, petitioned the court for a new trial citing no physical evidence in that there was not a weapon presented, uncorroborated testimony from witnesses, a witness who received a plea deal from the state in return for his testimony, and the need for a change of venue due to pretrial and trial publicity.

Bush maintained that the witnesses testified there was no evidence that Black was at the scene of the crime.

Bush also said that since McKathan didn’t think there was enough evidence for a robbery charge that there wasn’t enough evidence for an attempted robbery charge.

McKathan said his thinking was that it could not be a completed robbery if he didn’t actually get money.

“My thinking was it was sufficient to show he went there,” McKathan said. “I didn’t think the bulge in the pants was enough to say he got the money.”

McKathan was referring to testimony from Black’s co-defendant Sandra Lynn, who plead to lesser charges in exchange for her testimony, who said that when Black got back to the house, he had a bulge in his pants.

Bush also claimed that Lynn’s psychiatric evaluation was not made available to them.

He also cited technical problems while trying to play Lynn’s interview. He also said he asked for Lynn’s grand jury testimony because she had changed her testimony multiple times.

Chief Assistant District Attorney Grace Jeter said that Lynn’s testimony was corroborated by witnesses who took the stand.

Jeter said the state made available a witness list to the defense, as well.

Jeter addressed the change of venue issue.

She said that in order for their to be a change of venue there has to be so many jurors from the pole who could not perform the duty due to being tainted by pretrial publicity.

“There was no indication that was the case,” she said.

Bush also brought up the fact that a gun was used to show the type of gun that could have been used to kill Barton.

“There was no evidence the handgun was the murder weapon, and it was not entered into evidence,” Jeter said. “The defendant was not prejudiced.”

Bush also claimed that a judicial robe worn by McKathan prejudiced the jury against his client.

Jeter presented two unpublished memorandums that showed that a robe worn by the trial judge is not prejudiced.

McKathan said the robe he was wearing at court on Wednesday was the same robe he was wearing during the cold case trial.

“It does not have the Ten Commandments on it,” he said. “You are welcome to approach the bench and see.”

Ruling on the new trial should be the last thing McKathan needs to do before the case goes to the appeals court, he said.

He urged the defense to get him anything he needed for that as soon as possible because he his last day on the bench will be March 15, 2016.