MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Nov 06 2019, 9:27 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
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estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Andrew Goodridge Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles James Popp, November 6, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-324
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Mary Margaret
Appellee-Respondent. Lloyd, Judge
Trial Court Cause No.
82D03-1307-PC-5
Barnes, Senior Judge.
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Statement of the Case
[1] Charles Popp appeals the post-conviction court’s denial of his petition for post-
conviction relief. We affirm.
Issue
[2] Popp raises two issues for our review, which we restate as one: whether the
post-conviction court erred when it concluded that Popp was not denied the
effective assistance of trial counsel.
Facts and Procedural History
[3] The underlying facts, as stated in Popp’s direct appeal, are as follows:
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
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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. . . . 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
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found not guilty on the remaining ten counts. The court
sentenced Popp to a total of fifty-five years executed.
Popp v. State, No. 82A01-1205-CR-197 (Ind. Ct. App. Feb. 20, 2013), trans.
denied.
[4] On direct appeal, Popp argued that the trial court improperly denied his motion
to dismiss the case or in the alternative to exclude evidence of A.R.’s second
diary and improperly replayed for the jury, after deliberations had begun, the
recording of his police interview. This Court affirmed his convictions in
February 2013, and the Indiana Supreme Court thereafter denied transfer. See
id.
[5] In July 2013, Popp filed his pro se petition for post-conviction relief. At some
point, counsel appeared for Popp, and a hearing on his post-conviction petition
was held on August 2, 2017. The court took the matter under advisement and
allowed the parties to submit further evidence and proposed findings of fact and
conclusions of law. After numerous extensions of time, the parties filed their
post-hearing documents, and, on January 11, 2019, the court entered its
findings of fact and conclusions of law denying Popp’s petition for post-
conviction relief. This appeal ensued.
Discussion and Decision
[6] Popp contends the post-conviction court erred by concluding he failed to show
that his trial counsel’s performance was deficient. He argues that his counsel
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was ineffective for failing to obtain and present exculpatory evidence and for
conceding his guilt in closing argument.
[7] To the extent the post-conviction court has denied relief, the petitioner appeals
from a negative judgment and faces the rigorous burden of showing that the
evidence, as a whole, leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Harris v. State, 762 N.E.2d
163, 166 (Ind. Ct. App. 2002), trans. denied. A post-conviction court’s findings
and judgment will be reversed only upon a showing of clear error — that which
leaves us with a definite and firm conviction that a mistake has been made.
Kistler v. State, 936 N.E.2d 1258, 1261 (Ind. Ct. App. 2010), trans. denied. In this
review, findings of fact are accepted unless they are clearly erroneous, and no
deference is accorded to conclusions of law. Id. The post-conviction court is
the sole judge of the weight of the evidence and the credibility of witnesses.
Witt v. State, 938 N.E.2d 1193, 1196 (Ind. Ct. App. 2010), trans. denied.
[8] To prevail on a claim of ineffective assistance of counsel, a defendant is
required to establish both (1) that counsel’s performance was deficient and (2)
that counsel’s deficient performance prejudiced the defendant. Johnson v. State,
948 N.E.2d 331, 334 (Ind. 2011) (citing Strickland v. Washington, 466 U.S. 668,
687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To satisfy the first element,
the defendant must show that counsel’s representation fell below an objective
standard of reasonableness and that counsel’s errors were so serious that the
defendant was denied the counsel guaranteed by the Sixth Amendment. Bethea
v. State, 983 N.E.2d 1134, 1138 (Ind. 2013). In order to satisfy the second
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element, the defendant must show prejudice; that is, a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been
different. Id. at 1139. There is a strong presumption that counsel rendered
effective assistance and made all significant decisions in the exercise of
reasonable professional judgment, and the defendant has the burden of
overcoming this presumption. Harris, 762 N.E.2d at 168-69.
[9] Popp first claims that his trial counsel was ineffective due to her failure to
obtain and present exculpatory evidence to the jury. Specifically, Popp, who
had a penile piercing, asserts that counsel should have photographed him with
the piercing in place and presented the photos to the jury in order to impeach
the victim.
[10] Although photographs of Popp’s piercing were not presented to the jury, the
existence of the piercing was. In cross-examination of the victim, defense
counsel asked:
[Defense counsel]: Back during the time that you testified about .
..
[A.R.]: Oh . . .
[Defense counsel]: Okay. Did – does [Popp] have any
piercing[]s?
[A.R.]: Yes.
[Defense counsel]: Where?
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[A.R.]: He had his tongue pierced.
[Defense counsel]: His tongue. Alright. Anything else?
[A.R.]: He might have had ear, but I don’t remember.
[Defense counsel]: Okay. Anything – anything else?
[A.R.]: No.
Trial Tr., Ex. Vol. 6, pp. 98-99. Defense counsel also brought up Popp’s
piercings during direct examination of his fiancée:
[Defense counsel]: Does [Popp] have any piercing[]s? Let me
rephrase that, I didn’t ask that very good or very well. Back
during the December 09 through June 2010, that period [of] time,
did [Popp] have piercing[]s?
[Fiancée]: Yes.
[Defense counsel]: What?
[Fiancée]: Three ear holes and a Prince Albert piercing.
[Defense counsel]: What is a Prince Albert piercing?
[Fiancée]: A piercing on the tip of the penis.
[Defense counsel]: Did he have his tongue – an ear – I call it an
earring – an earring in his tongue?
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[Fiancée]: Not during that time period.
Id. at 175.
[11] In addition, during her closing argument, defense counsel highlighted the issue:
I have to point out what I would say is fairly obvious. She –
when I asked [A.R.] about piercing[]s and she said [Popp] had a
tongue piercing and maybe some in his ears and then from
[Popp’s fiancée] we find out that he has what’s known as Prince
Albert piercing, which is where he has a piercing at the tip of his
penis. I submit to you that’s something that’s going to be fairly
obvious. If – if [A.R.] is [sic] allegations are as she states. That’s
not something you’re going to not notice.
Id. at 229. In its rebuttal, the State did not attempt to refute the existence of the
piercing but rather claimed that its existence did not matter:
And – and hinging on this obscenity of – of piercing the penis
and I – I remember when the testimony came and I saw some of
the men up there, I mean you literally winced when you heard
that description. And, yeah, so did I. But what does that have to
do with anything. Because if yeah he admitted to some of them
[offenses] and she wants you to find him guilty of some of them,
what difference does it make, if he had it in or didn’t have it in.
It makes no difference. It makes no difference at all.
Id. at 234.
[12] Finally, for purposes of post-conviction relief, Popp deposed his trial counsel.
In her deposition, she testified that the manner in which she dealt with Popp’s
piercing was a matter of strategy. She had practiced law for thirty-two years,
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during which time she had served as a public defender and a magistrate. As a
defense attorney, Popp’s trial counsel had handled a minimum of fifty high
level sex offense cases. When asked about dealing with the issue of Popp’s
piercing, she testified:
[Trial counsel]: We discussed it. We had trial testimony.
[PCR Counsel]: Now, in reviewing –
[Trial counsel]: I asked the complaining witness about it, both in
deposition and at trial, and she didn’t know what I was talking
about. So we used part of that in argument that this is obviously
– had he penetrated her, had he engaged in the activities that
she’s complaining of, she would have noticed this. There’s no
way, shape or form she would have not noticed this.
[PCR counsel]: In that regard, did you use any visual –
[Trial counsel]: No.
[PCR counsel]: -- depiction?
[Trial counsel]: No.
*****
[Trial counsel]: And it was uncontested that he had that
piercing.
*****
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[Trial counsel]: My belief, it was not necessary to go into detail
because it came out in testimony and it was uncontested. So why
I – my fear was I’m going to alienate everybody I’ve got on my
side in this jury. I’m not going to do that.
[PCR counsel]: How would you alienate?
[Trial counsel]: By offending them, by berating a point that had
already been proven. Once I prove a point, move on. I’ve
proven it; let’s go. [The prosecutor] even brought it up during his
closing argument, talking about the disgusting piercing and the
fact that yes, he had the piercing. It’s been proven. It’s
disgusting. Thank God we didn’t – something, you know, like
thank God they didn’t bring it out or whatever. So it was an
uncontested issue, so there was no need.
*****
[Trial counsel]: I just – I stand by how I handled that issue.
[PCR counsel]: Okay.
[Trial counsel]: Because it did nothing – in my view, my
strategy, it didn’t do anything to take away what he admitted to
in the statement. It may – the fact that we proved it went to
[A.R.’s] credibility. So that helped get the not guilties and the
lesser includeds on the things that we ultimately were able to be
successful on.
Appellant’s App. Vol. V, pp. 170-71, 172-74. In addition, Popp’s trial counsel
testified that “the jury really, really didn’t like” the detective that worked on
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Popp’s case. Id. at 175. Moreover, counsel testified that the jury liked her but
“didn’t like the prosecutors at all.” Appellant’s App. Vol. II, p. 68.
[13] “Counsel is given significant deference in choosing a strategy which, at the time
and under the circumstances, he or she deems best.” Wrinkles v. State, 749
N.E.2d 1179, 1191 (Ind. 2001). The evidence here clearly shows that even if
counsel had taken pictures of Popp’s piercing, she would not have used them at
trial because evidence of the existence of the piercing was presented to the jury
and that evidence was uncontradicted; defense counsel specifically pointed to
the existence of the piercing as a basis for questioning the credibility of A.R.;
counsel testified that, having practiced law for several decades in the
community, she determined that explicit details and/or photos of the piercing
had the potential to offend the jury so she made the tactical decision not to go
into great detail in describing the piercing and/or to introduce photos of the
piercing; and counsel did not want to alienate a jury she perceived to be friendly
to the defense. See, e.g., id. at 1190-91 (finding that counsel were not ineffective
for not presenting an insanity defense based on defendant’s methamphetamine
addiction because counsel presented evidence of defendant’s addiction and its
role in offenses and counsel believed it would be more harmful than helpful and
would “put an additional layer of bad” on defendant). We cannot say the post-
conviction court erred in concluding that Popp’s trial counsel was not
ineffective.
[14] For his second claim of ineffective assistance of trial counsel, Popp asserts that
his counsel conceded his guilt in closing argument. Particularly, he refers to
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counsel’s comments regarding the offenses he admitted committing in his
videotaped interrogation.
[15] Popp was charged with twenty-one counts stemming from his alleged actions
with A.R., two of which were Class A felonies and the bulk of which were
Class B felonies. As part of their investigation of these offenses, the police
conducted a videotaped interrogation of Popp, in which he admitted to some of
the charged offenses. At trial, the video was admitted into evidence and viewed
by the jury.
[16] Popp does not specify in his brief the portion of counsel’s closing with which he
claims error; however, in closing counsel stated:
I have to say this, I have to – I have to, because I want to
maintain my credibility with you. I’m not suggesting and I’m
not arguing that the State’s burden wasn’t met in some of the
instances. Why else would I have gone through all of the counts
and told you what I think the evidence was. But what I’m urging
you to do is this, as a collective unit and as individual[s], I’m
asking you to determine if you are satisfied beyond a reasonable
doubt that each and every element was proven in each and every
count separately, considering the evidence you heard and
observed.
*****
And, I’m going to ask you to find [Popp] guilty only of those
things that you are convinced that ha[ve] been proven beyond a
reasonable doubt, considering all of the evidence. And of those
things[] you are not convinced of, then I ask you to find him not
guilty.
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Trial Tr., Ex. Vol. 6, p. 228, 230-31.
[17] In her deposition testimony for purposes of Popp’s post-conviction claim, trial
counsel testified:
[PCR counsel]: So your trial strategy was –
[Trial counsel]: Didn’t happen, not guilty.
[PCR counsel]: Actual innocence?
[Trial counsel]: Yeah.
[PCR counsel]: At any time during the trial, did you modify that
strategy?
[Trial counsel]: During closing argument, what I did was – we
were able to – during testimony, during the evi [sic] -- during the
evidentiary part of the trial, through cross examination as well as
witnesses, we were able to put forward evidence that on dates
alleged, these acts could not have happened. So it was not
through testimony of Mr. Popp. It was through other witnesses.
Whether it was cross examination or direct defense witnesses, we
were able to show that on certain dates [sic] could not have
happened because of X, Y, and Z. And I spent a lot of time then
– because the counts, the 21 counts were not in sequential order.
There were dates floating every which way. So it was very
difficult for us – both the state, I would think, the Court, I – and I
knew for the jury to keep track of what dates did things belong in.
So then during closing argument I actually had taken all of the
dates and put them in sequential order. And so in my argument
– in closing argument, I said, okay, here is [sic] counts – like, for
example, Counts I and IV, these are the dates for them. They
belong together. If you’ll remember, witnesses testified X, Y, and
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Z, so we know that couldn’t have happened because of this. And
so what ultimately ended up was some of the dates were dates
that coincided with the videotaped statement and that we were
unable to bring forward, through cross examination or other
witnesses, anything to contradict those.
So my argument in closing was she’s not believable because of
yada, yada, yada, that witnesses have shown us these couldn’t
have happened because of this, which leaves us with this handful
of counts yada, yada, yada and dates. So if you’re – if you find
that those are his statements, his words are believable, we ask
you to find him guilty only of those things that they’ve proven
and that he admitted to.
[PCR counsel]: Did you have a discussion with Mr. Popp
regarding that strategy in closing argument prior to?
[Trial counsel]: I think I did, yeah.
[PCR counsel]: Did he agree to it?
[Trial counsel]: Oh, no.
[PCR counsel]: What was his position?
[Trial counsel]: That’s not me on the video. I didn’t say those
things.
[PCR counsel]: That’s not him on the video?
[Trial counsel]: Correct.
[PCR counsel]: Wow. How did you deal with that?
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[Trial counsel]: I said Mr. Popp, it is you. It’s you talking. I
don’t know what else to say. And he maintained that was not
him saying those words. He could not have said those words.
That was not him.
Appellant’s App. Vol. V, pp. 164-68. Trial counsel also explained:
[Trial counsel]: [Popp] never thought that it was him talking in
the video.
[PCR counsel]: How did that [a]ffect your trial strategy? Or did
it?
[Trial counsel]: Uh, I don’t think it did affect it. My main trial
strategy was going after the girl.
[PCR counsel]: Um, was it part of your strategy to try and get
not guilty on certain counts and then accept –
[Trial counsel]: My strategy going into it was to try and get not
guilty on everything.
*****
[Trial counsel]: [A]s a lawyer we also have credibility so in order
to get [the jury] to understand, I’m not feeding them a line of bull
you can’t convict him on that stuff because we’ve shown you that
it couldn’t have happened, but you have to decide about these
other things.
*****
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[PCR counsel]: Do you think your closing argument was
consistent with your trial strategy?
[Trial counsel]: Yeah.
[PCR counsel]: Do you think at any point you ever abandoned
your trial strategy of “he didn’t do it, it didn’t happen?”
[Trial counsel]: I don’t know if you abandon it or try to dance
around it.
*****
[Trial counsel]: [Y]ou dance around so again you don’t lose
credibility because of it.
Appellant’s App. Vol. II, p. 73, 67, 76.
[18] Undoubtedly, counsel was in a difficult position of reconciling her trial strategy
of maintaining Popp’s innocence with preserving the credibility she had
established with the jury. Consequently, rather than ignore Popp’s statement
and risk diminishing her credibility with the jury, counsel acknowledged it,
stating, “Let’s talk about [Popp]’s statement for a minute. You know, we’ve
got to talk about that.” Trial Tr., Ex. Vol. 6, p. 225. She then painstakingly set
about minimizing the damage Popp’s statement caused by asking the jury to
determine whether the statement was improperly obtained by the police—
specifically mentioning “trickery” and “deceit”—and, if so, not to consider it;
explaining to the jury that a guilty verdict may not be rendered solely upon a
defendant’s confession; and asking the jury to consider whether it was satisfied
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beyond a reasonable doubt that each and every element was proven on each
and every separate count, while specifically pointing out inconsistencies in
A.R.’s testimony. Id. at 226.
[19] The evidence does not show that Popp’s trial counsel conceded his guilt.
Rather, she made a strategic decision to acknowledge Popp’s statement in a
manner that not only preserved her credibility with the jury but also attempted
to persuade the jury to consider Popp’s innocence, in spite of his statement,
especially concerning the offenses to which he did not confess. In straddling
this fine line, counsel reminded the jury of the State’s onerous burden, urged it
to hold the State accountable on each and every element, and attacked the
credibility of the victim. This strategy appears to have been successful because
Popp was found guilty on only eleven of twenty-one charged offenses. We
cannot say the post-conviction court erred in concluding that Popp’s trial
counsel was not ineffective.
Conclusion
[20] For the reasons stated, we conclude that Popp has failed to satisfy his burden of
showing that the evidence leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court.
[21] Affirmed.
Najam, J., and Riley, J., concur.
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