Court of Appeals of Indiana | Memorandum Decision 69A01

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### 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.



### A TTORNEY FOR 

### A PPELLANT

Leanna Weissmann

Lawrenceburg, Indiana 

### A TTORNEYS FOR 

### A PPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana



### I N T H E



# COURT OF APPEALS OF INDIANA

Herbert Popp,

Appellant

- Defendant,

v.



### State of Indiana,

Appellee

- Plaintiff. December 31, 2015

Court of Appeals Case No.

69A01

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- CR

- 303

Appeal from the Ripley Circuit

Court

The Honorable Ryan

King

, Judge

Cause No. 69C01

- 1404

- FC

- 18



### Riley, Judge.Court of Appeals of Indiana | Memorandum Decision 69A01

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### 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 forthCourt of Appeals of Indiana | Memorandum Decision 69A01

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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). TheCourt of Appeals of Indiana | Memorandum Decision 69A01

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- 303 | December 31, 2015 Page 4 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

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- 303 | December 31, 2015 Page 5 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 crim es 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.’sCourt of Appeals of Indiana | Memorandum Decision 69A01

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- 303 | December 31, 2015 Page 6 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

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- 303 | December 31, 2015 Page 7 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 heCourt of Appeals of Indiana | Memorandum Decision 69A01

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- 303 | December 31, 2015 Page 8 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 beCourt of Appeals of Indiana | Memorandum Decision 69A01

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- 303 | December 31, 2015 Page 9 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

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- 303 | December 31, 2015 Page 10 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).



### CONCLUSIONCourt of Appeals of Indiana | Memorandum Decision 69A01

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- 303 | December 31, 2015 Page 11 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