Popp v. State
Decision Date | 20 February 2013 |
Docket Number | No. 82A01–1205–CR–197.,82A01–1205–CR–197. |
Citation | 984 N.E.2d 259 |
Parties | Charles James POPP, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Vanderburgh Superior Court; The Honorable Mary Margaret Lloyd, Judge; Cause No. 82D02–1104–FA–413.
Gregory F. Zoeller, Attorney General of Indiana, Indianapolis, IN, Attorneys for Appellee.
Scott L. Barnhart, Keffer Gilley Barnhart LLP, Andrew Falk, Deputy Attorney General, Indianapolis, IN, Attorney for Appellant.
Charles Popp appeals his convictions for sexual misconduct with a minor as a Class C felony, nine counts of sexual misconduct with a minor as Class B felonies, and intimidation as a Class A misdemeanor. He raises two issues on appeal: whether the trial court erred when it denied his motion to dismiss or exclude evidence; and whether the court properly allowed the jury to review evidence during deliberations. Concluding that the court did not err on either issue, we affirm.
When A.R. was twelve or thirteen, her mother worked with Popp's girlfriend, and eventually the families became friends. At some point, Popp gained custody of four of his nieces and nephews, and A.R. would come over to babysit them. In December of 2009, when A.R. was fourteen, she fell asleep on Popp's couch. Popp came up next to her and put his hand down her pants, telling her that it was okay. A.R. ran to the bathroom and Popp told her that if she told anyone, he would kill her. A.R. continued to go to Popp's house after this, and the incidents continued and escalated, with Popp forcing A.R. to participate in oral sex, and attempting intercourse with her, despite her screaming for him to stop. A.R. kept a diary specifically of the incidents with Popp, and referred to this diary at trial in order to recall exactly what Popp did to her on a given date. Eventually, around the summer of 2010, A.R. was able to come up with an excuse to stop going to Popp's house. In April of 2011, A.R. spoke to a school resource officer and then to a detective about Popp. The detective then questioned Popp at the police station and recorded the interrogation. On April 18, 2011, Popp was charged with twenty-one counts stemming from these incidents.
In August 2011, Popp deposed A.R. It appears that at the deposition Popp first learned that A.R. had kept a second diary, and Popp claims that there was an unrecorded discussion following the deposition in which someone indicated that the second diary might be of interest to Popp. The next month Popp filed a pretrial discovery motion requesting a copy of the second diary. Thereafter, it was learned that the second diary had been destroyed. There was conflicting testimony about both when the second diary was destroyed, and whether it might have had any information regarding the incidents with Popp. A.R.'s youth pastor, Hugh Crowe, told a detective that A.R. had destroyed a diary during an exercise in which members got rid of something from their past, and that the exercise had taken place in the summer of 2011. In an affidavit and at trial, Crowe testified that the exercise had taken place in March of 2011, and that A.R. had told him that the diary contained some information about what happened to her in her case. At trial, A.R. referenced the diary that she kept of the incidents in order to remember the details of each event, and that diary was admitted into evidence. She also testified that she kept a separate second diary in which she had written about normal daily events like school and sports, but not the incidents with Popp. A.R. testified that she had destroyed the second diary in October or November of either 2010 or 2011; she did not remember which year. In both January and March of 2012, Popp filed motions to dismiss the case or in the alternative to exclude evidence or testimony regarding A.R.'s diary; both motions were denied.
A jury trial was held in March 2012. After deliberations had started, the jury requested the recording of the detective's interrogation of Popp. The State argued that the jury should be permitted to review the recording, and Popp argued that the jury could not focus on one item of evidence. The court decided to bring the jury in to see whether there was a disagreement among the jury members as to the testimony in the recording. The court questioned the jury foreperson:
Transcript at 242–43. The court then replayed the recording of the interview for the jury, over Popp's objection, and without allowing question or comment from the jury. The jury was then taken back to the jury room to resume deliberations.
The jury found Popp guilty of sexual misconduct with a minor as a Class C felony, nine counts of sexual misconduct with a minor as Class B felonies, and intimidation as a Class A misdemeanor; Popp was found not guilty on the remaining ten counts. The court sentenced Popp to a total of fifty-five years executed. This appeal followed.
Because Popp had the burden of proving all facts necessary to support a motion to dismiss, we review the trial court's ruling for an abuse of discretion and will only reverse if the evidence leads inescapably to the conclusion that he was entitled to dismissal. State v. Gill, 949 N.E.2d 848, 849 (Ind.Ct.App.2011), trans. denied; Wright v. State, 700 N.E.2d 1153, 1155 (Ind.Ct.App.1998); see also Ind.Code § 35–34–l–8(f). Likewise, we review a trial court's decision to admit or exclude evidence for an abuse of discretion. Franciose v. Jones, 907 N.E.2d 139, 144(Ind.Ct.App.2009), aff'd on reh'g, trans. denied.
Popp argues that the State, “by way of the actions of A.R., intentionally destroyed a second diary and precluded Mr. Popp from seeing it or using it in his defense.” Brief of Appellant at 11. Popp concedes that there was no bad faith on the part of the State, but argues that the State should nonetheless be held responsible for the destruction of the diary.
Popp is correct that destruction of or failure to preserve evidence by the State may constitute a denial of due process. Evidence is classified as either potentially useful evidence or material exculpatory evidence. Samek v. State, 688 N.E.2d 1286, 1288 (Ind.Ct.App.1997), trans. denied. For potentially useful evidence, the State's destruction of evidence must have been committed in bad faith in order to be a violation of due process; good or bad faith is irrelevant where the destroyed evidence was material exculpatory evidence. Id. Popp seems to argue that bad faith is irrelevant here because the second diary was material exculpatory evidence, although he only argues the point of materiality and not the exculpatory nature of the diary. We have serious doubts as to how the diary would fare if we were to address its material exculpatory nature. However, Popp seems to miss the larger point, which is that the diary was never in the State's possession, and there is no evidence that the State had anything to do with its destruction or was even aware of the impending destruction before the fact. We therefore need not address whether the second diary may have risen to the level of material exculpatory evidence.
We find no case law to support holding the State responsible for destroyed evidence where the State was not in possession of the evidence. See Glasscock v. State, 576 N.E.2d 600, 602 (Ind.Ct.App.1991) () disapproved of on other grounds by Abney v. State, 821 N.E.2d 375 (Ind.2005); Everroad v. State, 570 N.E.2d 38, 46–47 (Ind.Ct.App.1991) ( )aff'd in part, vacated in part on other grounds,590 N.E.2d 567 (Ind.1992) and abrogated on other grounds by Cook v. State, 810 N.E.2d 1064 (Ind.2004). Therefore, regardless of the material exculpatory nature of the diary—and regardless of the timing of its destruction—the State here is not responsible because they never had the diary in their possession and there is no evidence or suggestion that they directed or were involved in its destruction. Without the State's involvement, there was no denial of due process when the diary was destroyed. We conclude that it was not an abuse of discretion for the trial court to have denied Popp's motion.
Popp next argues that the trial court erred by replaying the detective's interrogation of him. Popp correctly notes that there is both a statute and case law relevant to the jury's review of evidence once deliberations have started.
Indiana Code section 34–36–1–6 states:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case;
the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.
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