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
                                                                                 and Tax Court
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.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019                     Page 1 of 17
                                      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


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 2 of 17
        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


Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 3 of 17
                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



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 4 of 17
      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

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 5 of 17
       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?

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 6 of 17
        [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?



Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 7 of 17
               [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,


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 8 of 17
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.


        *****



Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 9 of 17
        [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




Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 10 of 17
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 11 of 17
       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.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 12 of 17
       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
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 13 of 17
        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?

Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 14 of 17
        [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.


        *****




Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 15 of 17
               [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
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 16 of 17
       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.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 17 of 17
