MEMORANDUM DECISION Dec 31 2015, 8:50 am
Pursuant to Ind. Appellate Rule 65(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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA Herbert Popp, December 31, 2015 Appellant-Defendant, Court of Appeals Case No. 69A01-1504-CR-303 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan Appellee-Plaintiff. King, Judge Cause No. 69C01-1404-FC-18
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 1 of 11 STATEMENT OF THE CASE
[1] Appellant-Defendant, Herbert Popp (Popp), appeals his conviction and
sentence for child molesting, a Class C felony, Ind. Code § 35-42-4-3(b) (2013).
[2] We affirm.
ISSUES
[3] Popp raises two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion when it allowed the State to
introduce evidence of prior bad acts pursuant to Indiana Evidence Rule
404(b)(2) after Popp had opened the door to such evidence; and
(2) Whether his sentence is appropriate in light of the nature of the offense
and his character.
FACTS AND PROCEDURAL HISTORY
[4] On March 1, 2014, twelve-year-old K.B. and L.M. were friends. Popp was
married to L.M.’s mother. That day, K.B. went to L.M.’s house to hang out
and then stayed for a sleepover. At some point during the day, Popp drove
L.M., K.B., and another friend to Dick’s Sporting Goods so L.M. could
purchase a jacket. Eventually, the girls fell asleep on Popp’s bed. K.B. was
wearing basketball shorts and a t-shirt.
[5] Around 2:00 a.m., K.B. was awakened by Popp’s hand on her vaginal area.
Popp did not say anything but rubbed K.B.’s vaginal area in a back and forth
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 2 of 11 motion over her clothing for less than twenty seconds. Popp coughed a little,
and K.B. was unsure whether he was awake. Because K.B. was scared, she
awoke L.M., who was in the bed beside her, and told her she was homesick.
The girls left the bedroom and went to the living room. After K.B. explained to
L.M. what had happened, she asked to use L.M.’s cellphone to call her parents.
Although L.M. handed K.B. her cellphone, L.M. claimed not to remember the
password. Instead, K.B. used L.M.’s sister’s cell phone and K.B.’s father came
to pick her up. At home, K.B. told her mother what had happened. A couple
of days later, K.B.’s mother informed her husband, who, in turn, reported the
incident to the Indiana State Police.
[6] Detective Tracy Rohlfing of the Indiana State Police (Detective Rohlfing)
interviewed Popp. During the interview, Popp admitted to drinking that day
and crawling into the bed shared by the girls. Popp explained that he “shook”
the girls and “told’em to get up []to go to bed.” (Transcript p. 153). Popp
“thought they was getting ready to get up,[] cause kids sometimes they have a
hard time getting up at that time[,]” so he just “crawled in there” while he
“knew they were both still” in the bed. (Tr. p. 153). Popp denied fondling or
touching K.B.’s shorts. Popp told Detective Rohfling that he “can’t see
[him]self doing this.” (Tr. p. 157).
[7] On April 24, 2014, the State filed an Information, charging Popp with child
molesting, a Class C felony. On March 4, 2015, the trial court conducted a jury
trial. During the trial, Popp’s counsel asked Popp if he could see himself “doing
that.” (Tr. p. 157). Popp responded, “No, I can’t.” (Tr. p. 157). The
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 3 of 11 State then claimed, arguing that Popp’s response opened the door to admit
evidence that another friend of L.M. had made similar allegations about Popp,
i.e., that Popp had touched her vaginal area over her clothing while she was
sleeping.1 The trial court concurred that Popp’s “intent maybe [was] placed
into issue as well as lack of mistake or accident.” (Tr. p. 160). At the close of
the evidence, the jury returned a guilty verdict. On April 2, 2015, the trial court
sentenced Popp to seven years incarceration.
[8] Popp now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Indiana Rule of Evidence 404(b)
[9] Popp contends that the trial court abused its discretion when it allowed the
State to present evidence of a similar occurrence with another girl after the trial
court deemed Popp had opened the door for the admission of this evidence.
[10] A trial court has broad discretion in ruling on the admissibility of evidence and,
on review, we will disturb its ruling only on a showing of abuse or discretion.
Thompson v. State, 15 N.E.3d 1097, 1101 (Ind. Ct. App. 2014), reh’g denied.
When reviewing a decision under an abuse of discretion standard, we will
affirm if there is any evidence supporting the decision. Id. A claim of error in
the admission or exclusion of evidence will not prevail on appeal unless a
1 In fact, on the same day the State filed charges against Popp with respect to K.B., the State also filed an Information charging Popp with a Class C felony child molesting with respect to L.M.’s other friend, P.W.
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 4 of 11 substantial right of the party is affected. Ind. Evidence Rule 103(a). In
determining whether error in the introduction of evidence affected a defendant’s
substantial rights, we assess the probable impact of the evidence on the jury.
Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000).
[11] Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.”
However, Indiana Evidence Rule 404(b)(2) allows the introduction of evidence
of other crimes and wrongs for purposes other than proving propensity to
commit the charged crime, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
To be admissible under this exception, the evidence must be relevant to some
matter other than the defendant’s propensity to commit crimes and the
prejudicial effect of the evidence must not substantially outweigh its probative
value pursuant to Indiana Evidence Rule 403. Thompson, 15 N.E.3d at 1102.
[12] Initially, we address the State’s assertion that Popp waived appellate review of
this issue because he failed to contemporaneously object when the evidence was
admitted. The record reflects that when Popp testified to the statement which
allegedly opened the door, the State objected to alert the trial court that the door
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MEMORANDUM DECISION Dec 31 2015, 8:50 am
Pursuant to Ind. Appellate Rule 65(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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA Herbert Popp, December 31, 2015 Appellant-Defendant, Court of Appeals Case No. 69A01-1504-CR-303 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan Appellee-Plaintiff. King, Judge Cause No. 69C01-1404-FC-18
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 1 of 11 STATEMENT OF THE CASE
[1] Appellant-Defendant, Herbert Popp (Popp), appeals his conviction and
sentence for child molesting, a Class C felony, Ind. Code § 35-42-4-3(b) (2013).
[2] We affirm.
ISSUES
[3] Popp raises two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion when it allowed the State to
introduce evidence of prior bad acts pursuant to Indiana Evidence Rule
404(b)(2) after Popp had opened the door to such evidence; and
(2) Whether his sentence is appropriate in light of the nature of the offense
and his character.
FACTS AND PROCEDURAL HISTORY
[4] On March 1, 2014, twelve-year-old K.B. and L.M. were friends. Popp was
married to L.M.’s mother. That day, K.B. went to L.M.’s house to hang out
and then stayed for a sleepover. At some point during the day, Popp drove
L.M., K.B., and another friend to Dick’s Sporting Goods so L.M. could
purchase a jacket. Eventually, the girls fell asleep on Popp’s bed. K.B. was
wearing basketball shorts and a t-shirt.
[5] Around 2:00 a.m., K.B. was awakened by Popp’s hand on her vaginal area.
Popp did not say anything but rubbed K.B.’s vaginal area in a back and forth
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 2 of 11 motion over her clothing for less than twenty seconds. Popp coughed a little,
and K.B. was unsure whether he was awake. Because K.B. was scared, she
awoke L.M., who was in the bed beside her, and told her she was homesick.
The girls left the bedroom and went to the living room. After K.B. explained to
L.M. what had happened, she asked to use L.M.’s cellphone to call her parents.
Although L.M. handed K.B. her cellphone, L.M. claimed not to remember the
password. Instead, K.B. used L.M.’s sister’s cell phone and K.B.’s father came
to pick her up. At home, K.B. told her mother what had happened. A couple
of days later, K.B.’s mother informed her husband, who, in turn, reported the
incident to the Indiana State Police.
[6] Detective Tracy Rohlfing of the Indiana State Police (Detective Rohlfing)
interviewed Popp. During the interview, Popp admitted to drinking that day
and crawling into the bed shared by the girls. Popp explained that he “shook”
the girls and “told’em to get up []to go to bed.” (Transcript p. 153). Popp
“thought they was getting ready to get up,[] cause kids sometimes they have a
hard time getting up at that time[,]” so he just “crawled in there” while he
“knew they were both still” in the bed. (Tr. p. 153). Popp denied fondling or
touching K.B.’s shorts. Popp told Detective Rohfling that he “can’t see
[him]self doing this.” (Tr. p. 157).
[7] On April 24, 2014, the State filed an Information, charging Popp with child
molesting, a Class C felony. On March 4, 2015, the trial court conducted a jury
trial. During the trial, Popp’s counsel asked Popp if he could see himself “doing
that.” (Tr. p. 157). Popp responded, “No, I can’t.” (Tr. p. 157). The
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 3 of 11 State then claimed, arguing that Popp’s response opened the door to admit
evidence that another friend of L.M. had made similar allegations about Popp,
i.e., that Popp had touched her vaginal area over her clothing while she was
sleeping.1 The trial court concurred that Popp’s “intent maybe [was] placed
into issue as well as lack of mistake or accident.” (Tr. p. 160). At the close of
the evidence, the jury returned a guilty verdict. On April 2, 2015, the trial court
sentenced Popp to seven years incarceration.
[8] Popp now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Indiana Rule of Evidence 404(b)
[9] Popp contends that the trial court abused its discretion when it allowed the
State to present evidence of a similar occurrence with another girl after the trial
court deemed Popp had opened the door for the admission of this evidence.
[10] A trial court has broad discretion in ruling on the admissibility of evidence and,
on review, we will disturb its ruling only on a showing of abuse or discretion.
Thompson v. State, 15 N.E.3d 1097, 1101 (Ind. Ct. App. 2014), reh’g denied.
When reviewing a decision under an abuse of discretion standard, we will
affirm if there is any evidence supporting the decision. Id. A claim of error in
the admission or exclusion of evidence will not prevail on appeal unless a
1 In fact, on the same day the State filed charges against Popp with respect to K.B., the State also filed an Information charging Popp with a Class C felony child molesting with respect to L.M.’s other friend, P.W.
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 4 of 11 substantial right of the party is affected. Ind. Evidence Rule 103(a). In
determining whether error in the introduction of evidence affected a defendant’s
substantial rights, we assess the probable impact of the evidence on the jury.
Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000).
[11] Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.”
However, Indiana Evidence Rule 404(b)(2) allows the introduction of evidence
of other crimes and wrongs for purposes other than proving propensity to
commit the charged crime, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
To be admissible under this exception, the evidence must be relevant to some
matter other than the defendant’s propensity to commit crimes and the
prejudicial effect of the evidence must not substantially outweigh its probative
value pursuant to Indiana Evidence Rule 403. Thompson, 15 N.E.3d at 1102.
[12] Initially, we address the State’s assertion that Popp waived appellate review of
this issue because he failed to contemporaneously object when the evidence was
admitted. The record reflects that when Popp testified to the statement which
allegedly opened the door, the State objected to alert the trial court that the door
had been opened and to request the introduction of the prior bad act evidence.
At that time, Popp vigorously objected to the admission of the evidence.
Nevertheless, subsequently on cross-examination, when the State actually
questioned Popp on the earlier, similar occurrence with another one of L.M.’s
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 5 of 11 friends, Popp’s counsel failed to object. As a general rule, a defendant must
assert his objection at trial contemporaneously with the introduction of the
evidence. White v. State, 687 N.E.2d 178, 178 (Ind. 1997). This allows the trial
court an opportunity to make a final ruling on the matter in the context in
which the evidence is introduced. Id.
[13] In an effort to circumvent waiver of his argument, Popp relies on the
fundamental error doctrine. The fundamental error exception is “extremely
narrow, and applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error
denies the defendant fundamental due process.” Brown v. State, 929 N.E.2d
204, 207 (Ind. 2010) (citing Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)
(reh’g denied). The error claimed must either “make a fair trial impossible” or
constitute “clearly blatant violations of basic and elementary principles of due
process. Brown, 929 N.E.2d at 207 (citing Clark v. State, 915 N.E.2d 126, 131
(Ind. 2009) (reh’g denied). “This exception is available only in egregious
circumstances.” Brown, 929 N.E.2d at 207.
[14] Popp claims that his testimony did not open the door to the State to admit
evidence of a prior, similar bad act. Specifically, he asserts that he “merely
declared his innocence to the crime in much the same way he’d done
throughout the course of the case.” (Appellant’s Br. p. 11). The record reflects
that during testimony, Popp admitted to having told Detective Rohlfing that he
“can’t see myself doing that [i.e., touching K.B.’s vaginal area].” (Tr. p. 157).
Popp’s counsel then asked Popp “can you see yourself doing that?” (Tr. p.
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 6 of 11 157). Popp again responded, “No, I can’t.” (Tr. p. 157). The State asserts that
this statement left the jury with the false impression that Popp “was not the type
of man who would intentionally and improperly touch the vaginal area of a 12-
year old girl” and thus had opened the door for the admission of prior bad acts.
(Appellee’s Br. p. 14).
[15] The intent exception under Indiana Evidence Rule 404(b) is available when a
defendant goes beyond merely denying the charged culpability and alleges a
particular contrary intent, whether in opening statement, by cross-examination
of the State’s witnesses, or by presentation in the defendant’s own case-in-chief.
Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993). The State may respond by
offering evidence of prior crimes, wrongs, or acts to the extent genuinely
relevant to prove the defendant’s intent at the time of the charged offenses. Id.
The trial court must then determine whether to admit or exclude such evidence
depending upon whether “its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative
evidence.” Evid. R. 403.
[16] The relevant intent at issue in a Class C felony child molesting is the “intent to
arouse or to satisfy the sexual desires of either the child or the older person[.]”
See I.C.§ 35-42-4-3(b) (2013). Popp’s statement that he could not see himself
touching the vaginal area of a twelve-year-old girl could reasonably leave the
jury with the impression that Popp professed an intent contrary to the one
constituting a crime. Specifically, the jury was left with the impression that he
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 7 of 11 did not intend to do that, and that his action was merely a mistake or an
accident. This goes beyond merely asserting his innocence and squarely places
the absence of intent in front of the jury.
[17] With respect to the balancing required under Evidence Rule 403, we determine
that the probative value of the evidence outweighs its prejudicial effect. Here,
the probative value of the prior bad act arises from the inference that because
Popp committed a similar act in close proximity to the charged offense, his
claim of absence of intent or accident in the present instance is less likely than it
otherwise would be. See Evid. Rule 403. Thus, the prior bad act evidence is not
being used to prove the forbidden inference, i.e., that Popp committed the
current act of molestation, but rather to disprove his claim of accident or lack of
intent. Accordingly, the admission of the prior bad act is not unduly
prejudicial. Therefore, as the trial court properly admitted the evidence, no
error, let alone a fundamental error, occurred.
II. Sentence
[18] Popp contends that the seven year sentence imposed by the trial court is
“inappropriate in light of the nature of the offense and character of the
offender.” Ind. Appellate Rule 7(B). Under Appellate Rule 7(B), we may
“revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the [c]ourt finds that the sentence is inappropriate in light of
the nature of the offense and the character of the offender.” Although we may
review and revise a sentence, “[t]he principal role of appellate review should be
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 8 of 11 to attempt to leaven the outliers, and identify some guiding principles for trial
courts and those charged with improvement of the sentencing statutes, but not
to achieve a perceived ‘correct’ result in each case. Caldwell v. State, 895 N.E.2d
1219, 1225 (Ind. 2008). We must give “deference to a trial court’s sentencing
decision, both because Rule 7(B) requires us to give due consideration to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352,
355-56 (Ind. Ct. App. 2011), trans. denied (quoting Stewart v. State, 866 N.E.2d
858, 866 (Ind. Ct. App. 2007)) (internal quotation marks omitted).
[19] When we review the appropriateness of a sentence, we consider “the culpability
of the defendant, the severity of the crime, the damage done to others, and
myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at
1224. The defendant has the “burden to persuade us that the sentence
imposed by the trial court is inappropriate.” Shell v. State, 927 N.E.2d 413, 422
(Ind. Ct. App. 2010).
[20] The trial court sentenced Popp to seven years on a Class C felony child
molesting. The advisory sentence for a Class C felony is four years, with a
minimum sentence of two years and a maximum sentence of eight years. See
I.C. § 35-50-2-6. Accordingly, the trial court sentenced Popp close to the
maximum sentence.
[21] With respect to the nature of the crime, our supreme court has previously stated
that “crimes against children are particularly contemptible.” Walker v. State,
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 9 of 11 747 N.E.2d 536, 538 (Ind. 2001). Here, the charged offense occurred in the
middle of the night during a sleepover at a trusted friend’s house. Twelve-year-
old K.B. spent the day with her friend at her friend’s residence, hanging out and
shopping. During the night, she was awakened by Popp, her friend’s step-
father, molesting her, while he was the only adult in the house and K.B. was in
his care, custody, and control. At the sentencing hearing, K.B detailed in
writing the psychological damage she is still suffering as a result of Popp’s
crime.
[22] Turning to Popp’s character, we note that Popp’s criminal history is unrelated
to the instant charge. In 1981, he was convicted of attempted criminal
conversion, a Class A misdemeanor; a conviction for Class C misdemeanor
operating a vehicle with a BAC of .10 or more in 1994; and a conviction for
Class A misdemeanor driving while suspended in 1996. Nevertheless, on the
same day the State filed an Information for the current charge, it also brought a
charge of child molesting with respect to another one of L.M.’s friends. Popp
pled guilty to this second charge on May 18, 2015. See Tunstill v. State, 568
N.E.2d 539, 545 (Ind. 1991) (criminal charges which are pending at the time of
defendant’s sentencing hearing may properly be considered as an aggravating
circumstance). Mindful of the facts before us, we cannot say that the trial
court’s sentence is inappropriate. See Ind. Appellate rule 7(B).
CONCLUSION
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 10 of 11 [23] Based on the foregoing, we hold that the trial court properly admitted the prior
bad act evidence pursuant to T.R. 404(b) and Popp’s sentence is not
inappropriate in light of the nature of the offense and his character.
[24] Affirmed.
[25] Najam, J. and May, J. concur
Court of Appeals of Indiana | Memorandum Decision 69A01-1504-CR-303 | December 31, 2015 Page 11 of 11