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

MEMORANDUM DECISION

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

John Andrew Goodridge

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Charles James Popp,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

November 6, 2019

Court of Appeals Case No.

19A-PC-324

Appeal from the Vanderburgh 

Superior Court

The Honorable Mary Margaret 

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 2 of 17

Statement of the Case

[1] Charles Popp appeals the post-conviction court’s denial of his petition for postconviction 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 postconviction 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 postconviction 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.