Pope v. State

• Decision Date: 28 December 2000
• Docket Number: No. 77A05-0003-CR-118.,77A05-0003-CR-118.
• Citation: 740 N.E.2d 1247
• Parties: Gregory L. POPE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

740 N.E.2d 1247

Gregory L. POPE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 77A05-0003-CR-118.

Court of Appeals of Indiana.

December 28, 2000.

William E. Daily, Danville, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BAKER, Judge

Today we confront the task of construing various provisions of our child exploitation statute. Appellant-defendant Gregory Pope appeals his conviction for Child Exploitation,¹ a class C felony, and Possession of Child Pornography,² a class A misdemeanor. Specifically, he asserts that the trial court erred in permitting the State to offer evidence of uncharged "bad acts" and that the evidence was insufficient to support the convictions. Pope also asserts that he was improperly sentenced.

FACTS

The facts most favorable to the verdict are that the Cook County Sheriff's Department in Illinois had a special child exploitation unit that investigated child pornography and other instances of child sexual exploitation on the internet. On August 28, 1998, Detective William Plahm of the Sheriff's Department entered a "chat room" on the internet known as "Kinky Pre-teen Sex." Record at 663. While online, Detective Plahm assumed the identity of a thirteen-year-old female and used the screen name, "Nikki 13." R. at 663.

Pope, who resided in Brazil Indiana, eventually contacted the detective on his home personal computer under the user name of "Mnight." R. at 663. During the course of the "chat," Pope asked whether Nikki 13 had "ever seen a man's c - - k" and further inquired as to whether she would like to "see some pics of girls doing it with men." R. at 665. Pope proceeded to send photos of young girls performing fellatio and engaging in sexual intercourse to Nikki 13 over the internet. He then offered to "teach" Nikki 13 how to perform such acts. Pope suggested that they continue corresponding by email with the intention of eventually meeting in person.

As a result of these transmissions, Detective Plahm learned Pope's internet service provider number, state of residence, age, email address and physical description. Detective Plahm and Pope continued emailing each other until January 23, 1999. On that day, Pope sent Detective Plahm, a/k/a Nikki 13, his home telephone number. Cook County Sheriff's Deputy Janet Monticelo then called Pope posing as Nikki 13. Deputy Monticelo was chosen to play the part of Nikki 13 because she has the voice of a much younger person, is physically small and looks very young. R. at 727. As a result of their conversation, Deputy Monticelo and Pope arranged to meet at an Illinois Holiday Inn on the evening of January 23. Near the end of the conversation, Detective Monticelo remarked to Pope that "I wish I was twenty years old, but I'm only thirteen." R. at 816.

A number of Cook County deputies set up surveillance at the Holiday Inn. At one point, Pope walked into the hotel, looked at Deputy Monticelo and went to his hotel room. Deputy Monticelo then telephoned Pope in his room and he indicated the desire to meet her on the second floor. When Pope greeted Deputy Monticelo, two other police officers approached, detained Pope, and transported him to Cook County Police headquarters. After being advised of his rights, Pope admitted to the officers that he planned on having sex with the thirteen-year-old girl if she consented. The officers informed Pope of the photographs they had received from an individual using the screen name "Mnight," and asked Pope if he had sent the emails to Nikki 13. Pope admitted that he had sent the emails and the pictures. R. at 783, 788.

The Cook County Police Department then notified the Indiana State Police and a search warrant was obtained for Pope's home. After the police completed an examination of Pope's home computer, approximately twenty-six photographs of children having sex or posing in sexually explicit positions were discovered on the computer's hard drive.

As a result, Pope was charged with the two offenses set forth above. Pope filed a pretrial motion in limine seeking exclusion of any evidence of his interactions with Detective Plahm, except for that communication which had occurred during the August 28, 1998 "chat." R. at 85. Pope also requested the exclusion of all evidence relating to the events that occurred at the Holiday Inn, as well as Deputy Monticelo's testimony. R. at 86-87. The trial court denied the motion in limine.

At Pope's jury trial, the State introduced evidence of the events that occurred at the Holiday Inn, the questioning by the Cook County law enforcement officers and the email and internet interactions that occurred between Detective Plahm and Pope. Notwithstanding Pope's objections to this evidence, the trial court permitted the evidence to be admitted in order to establish Pope's identity as "Mnight."

At the conclusion of the trial on January 26, 2000, Pope was found guilty on both counts and received a four-year sentence with one year suspended for child exploitation. He was also sentenced to one year for possessing child pornography which was ordered to run consecutively with the child exploitation conviction. Thus, he was sentenced to an aggregate term of four years, the presumptive term for a class C felony. Pope now appeals.

DISCUSSION AND DECISION

I. Admission of Evidence

Pope contends that the trial court erred in admitting evidence of other uncharged "bad acts" at trial. Specifically, he asserts that his convictions must be reversed because the trial judge erroneously admitted evidence with respect to the meeting at the Illinois Holiday Inn and his communications with Detective Plahm.

To resolve this issue, we first note that the trial court is vested with broad discretion in ruling on the relevancy of evidence and will be reversed only for an abuse of discretion. Marcum v. State, 725 N.E.2d 852, 862 (Ind.2000). Additionally, we note that Ind. Evidence Rule 404(b) provides in relevant part as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

This rule excludes evidence when it is introduced to prove the "forbidden inference" of demonstrating a defendant's propensity to commit the charged crime. Sanders v. State, 724 N.E.2d 1127, 1130 (Ind.Ct.App.2000). We note, however, that evidence of uncharged misconduct which is "inextricably bound up" with the charged offense is properly admissible under Evid. R. 404. Id.

Next we note that an analysis of admissibility under Evid. R. 404(b) necessarily incorporates the relevancy test of Ind. Evidence Rule 401 and the balancing test of Ind. Evidence Rule 403. Sanders v. State, 704 N.E.2d 119, 123 (Ind.1999). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Utley v. State, 699 N.E.2d 723, 727-28 (Ind.Ct.App.1998),trans. denied. Only where the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence will that evidence be excluded. Evid. R. 403. The trial court has wide latitude in weighing the probative value of the evidence against the possible prejudice of its admission. Sanders, 704 N.E.2d at 124.

In the instant case, we note that Pope's defense at trial was that someone else had sent the photographs from his computer without his knowledge. R. at 1014. The testimony regarding the circumstances of his meeting with Deputy Monticelo at the Holiday Inn was offered to show that Pope went there to teach "Nikki 13" how to have sex. Put another way, this testimony demonstrated that Pope's motive for sending the pornographic photographs to "Nikki 13" was to seduce her into meeting him to have sex. Cf. Spencer v. State, 703 N.E.2d 1053, 1056 (Ind.1999)

(evidence of defendant's prior assaults and confrontations with the victim were admissible to show the hostile relationship between the parties as a motive for the murder).

We also note that Pope denied having sent any photographs to "Nikki 13" or having met her in the chat room on August 28, 1998. Pope testified at trial that he had no knowledge of how the photographs had been generated on his home computer. As set forth in the FACTS, it is apparent that "Mnight" sent the photographs to "Nikki 13" on August 28, 1998, after asking "Nikki 13" if she wanted him to teach her how to have sex. R. at 694-97. Thus, Pope's statements and behavior when he encountered Detective Monticelo, who was chosen for the assignment because of her youthful appearance, was relevant to prove that it was indeed Pope who had sent the photographs to "Nikki 13" under his user name of "Mnight."

While Pope also maintains that the evidence was erroneously admitted because it was overly prejudicial, the evidence was highly probative in showing that Pope was the "Mnight" that sent the photographs. The evidence pertained to Pope's actions in response to the internet correspondence that is "inextricably intertwined" with or "part and parcel" of the charges against him. See Sanders, 724 N.E.2d at 1131

. We cannot say that the evidence was offered only to create an inference that Pope is a person of bad character. Rather, the evidence was highly probative of Pope's identity and his purposeful transmission of the pornographic photographs.

Inasmuch as the evidence was highly probative of Pope's perpetration of the charged offense, we decline to hold that the danger of unfair prejudice that may have inured to Pope...