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:

SCOTT L. BARNHART                                GREGORY F. ZOELLER
Keffer Gilley Barnhart LLP                       Attorney General of Indiana
Indianapolis, Indiana
                                                 ANDREW FALK
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Feb 20 2013, 9:26 am
                              IN THE
                                                                                   CLERK
                    COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




CHARLES JAMES POPP,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 82A01-1205-CR-197
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                       The Honorable Mary Margaret Lloyd, Judge
                            Cause No. 82D02-1104-FA-413




                                     February 20, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

       Charles Popp appeals his convictions for 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. He raises two issues on appeal: whether the trial

court erred when it denied his motion to dismiss or exclude evidence; and whether the

court properly allowed the jury to review evidence during deliberations. Concluding that

the court did not err on either issue, we affirm.

                                Facts and Procedural History

       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 and recorded the interrogation. On April 18, 2011, Popp was charged with

twenty-one counts stemming from these incidents.
                                              2
      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. After deliberations had started, the jury

requested the recording of the detective’s interrogation of Popp. The State argued that

the jury should be permitted to review the recording, and Popp argued that the jury could
                                           3
not focus on one item of evidence. The court decided to bring the jury in to see whether

there was a disagreement among the jury members as to the testimony in the recording.

The court questioned the jury foreperson:

       THE COURT: Alright. The question are you wanting to re-hear that
       testimony, is that what you’re asking?
       JUROR RIDEOUT: We just had issues...
       THE COURT: Is there a disagreement regarding what is in that exhibit...
       JUROR RIDEOUT: Yes.
       THE COURT: That would possible [sic] assist you by hearing that.
       JUROR RIDEOUT: Yes.
       THE COURT: Are - regarding that testimony?
       JUROR RIDEOUT: (Inaudible).
       THE COURT: Alright. You may be seated, sir. And, if there’s any
       question and further questions from the jury, they always need to be
       submitted in writing.

Transcript at 242-43. The court then replayed the recording of the interview for the jury,

over Popp’s objection, and without allowing question or comment from the jury. The

jury was then taken back to the jury room to resume deliberations.

       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 found not guilty on the remaining ten counts. The court

sentenced Popp to a total of fifty-five years executed. This appeal followed.

                                 Discussion and Decision

                                  I. Standard of Review

       Because Popp had the burden of proving all facts necessary to support a motion to

dismiss, we review the trial court’s ruling for an abuse of discretion and will only reverse

if the evidence leads inescapably to the conclusion that he was entitled to dismissal. State

v. Gill, 949 N.E.2d 848, 849 (Ind. Ct. App. 2011), trans. denied; Wright v. State, 700

                                             4
N.E.2d 1153, 1155 (Ind. Ct. App. 1998); see also Ind. Code § 35-34-1-8(f). Likewise, we

review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

Franciose v. Jones, 907 N.E.2d 139, 144(Ind. Ct. App. 2009), aff’d on reh’g, trans.

denied.

                         II. Motion to Dismiss or Exclude Evidence

         Popp argues that the State, “by way of the actions of A.R., intentionally destroyed

a second diary and precluded Mr. Popp from seeing it or using it in his defense.” Brief of

Appellant at 11. Popp concedes that there was no bad faith on the part of the State, but

argues that the State should nonetheless be held responsible for the destruction of the

diary.

         Popp is correct that destruction of or failure to preserve evidence by the State may

constitute a denial of due process. Evidence is classified as either potentially useful

evidence or material exculpatory evidence. Samek v. State, 688 N.E.2d 1286, 1288 (Ind.

Ct. App. 1997), trans. denied. For potentially useful evidence, the State’s destruction of

evidence must have been committed in bad faith in order to be a violation of due process;

good or bad faith is irrelevant where the destroyed evidence was material exculpatory

evidence. Id. Popp seems to argue that bad faith is irrelevant here because the second

diary was material exculpatory evidence, although he only argues the point of materiality

and not the exculpatory nature of the diary. We have serious doubts as to how the diary

would fare if we were to address its material exculpatory nature. However, Popp seems

to miss the larger point, which is that the diary was never in the State’s possession, and

there is no evidence that the State had anything to do with its destruction or was even


                                              5
aware of the impending destruction before the fact. We therefore need not address

whether the second diary may have risen to the level of material exculpatory evidence.

       We find no case law to support holding the State responsible for destroyed

evidence where the State was not in possession of the evidence. See Glasscock v. State,

576 N.E.2d 600, 602 (Ind. Ct. App. 1991) (“Where the police and the prosecution did not

possess evidence, the rule requiring reversal of a conviction based upon evidence which

was negligently destroyed does not apply.”) disapproved of on other grounds by Abney v.

State, 821 N.E.2d 375 (Ind. 2005); Everroad v. State, 570 N.E.2d 38, 46-47 (Ind. Ct.

App. 1991) (“ [T]he Everroads cite no authority which extends this rule to cases

involving evidence never possessed by the prosecution or police.”) aff’d in part, vacated

in part on other grounds, 590 N.E.2d 567 (Ind. 1992) and abrogated on other grounds by

Cook v. State, 810 N.E.2d 1064 (Ind. 2004). Therefore, regardless of the material

exculpatory nature of the diary—and regardless of the timing of its destruction—the State

here is not responsible because they never had the diary in their possession and there is

no evidence or suggestion that they directed or were involved in its destruction. Without

the State’s involvement, there was no denial of due process when the diary was

destroyed. We conclude that it was not an abuse of discretion for the trial court to have

denied Popp’s motion.

                             III. Jury’s Review of Evidence

       Popp next argues that the trial court erred by replaying the detective’s

interrogation of him. Popp correctly notes that there is both a statute and case law

relevant to the jury’s review of evidence once deliberations have started.

       Indiana Code section 34-36-1-6 states:
                                             6
       If, after the jury retires for deliberation:
               (1) there is a disagreement among the jurors as to any part of the
               testimony; or
               (2) the jury desires to be informed as to any point of law arising in
               the case;
       the jury may request the officer to conduct them into court, where the
       information required shall be given in the presence of, or after notice to, the
       parties or the attorneys representing the parties.

Our supreme court has interpreted the statute to require that juries expressly manifest a

disagreement about the testimony in order for the statute to apply, and that a jury request

is not in itself an inherent expression of disagreement such that the statute would

automatically be triggered. Bouye v. State, 699 N.E.2d 620, 627-28 (Ind. 1998). What

appears to remain unanswered is the extent to which a judge may or should question a

jury to determine whether there is a disagreement if one is not obvious in the request—

that is, whether the jury must expressly manifest a disagreement independently and

contemporaneously with the request, or whether the existence of a disagreement can be

elicited from the jury by the court.

       We believe the court may conduct an inquiry when the initial request does not

unequivocally indicate a disagreement. See Foster v. State, 698 N.E.2d 1166, 1170 (Ind.

1998) (noting, less than two months after Bouye, that the trial court must supply the

requested information after it, “in the exercise of its discretion, has determined that a

question posed or information requested by the jury relates to ‘a disagreement’ among the

jurors”); Counceller v. State, 466 N.E.2d 456, 461 (Ind. 1984) (stating that, “[w]e do not

believe that the judge committed any error by not asking if there was disagreement before

asking if the jury wanted the testimony replayed,” where the issue was the sequence of

events in which the court asked the jury if it wanted testimony replayed, and then

                                             7
determined whether there was a disagreement) overruled on other grounds by Wright v.

State, 658 N.E.2d 563 (Ind. 1995); Pettrie v. State, 713 N.E.2d 910, 913 (Ind. Ct. App.

1999) (“Nonetheless, the trial judge could, upon receiving the jury’s note and in her

discretion, question the jury further to determine whether the jurors had a disagreement as

to the content of the requested testimony.”); but see Robinson v. State, 699 N.E.2d 1146,

1149 (Ind. 1998) (“Because the note in the instant case merely indicates what items the

jury wanted to see and does not suggest any type of disagreement, under Bouye the

statutory provision does not apply.”). We believe that this comports not only with the

“disagreement” requirement of the language of the statute, and its interpretation by our

supreme court in Bouye, but also with the reality that juries will almost certainly not

know the language of the statute, and so it is unreasonable to expect them to

independently and explicitly indicate any disagreement when asking to reexamine

evidence—even though such a disagreement may well exist. As such, the court did not

err here by questioning the jury, and once a disagreement was established, the court was

required by statute to provide the requested information to the jury.

       However, even if the statute does not apply, there is applicable common law.

Guidelines have been established regarding which materials a court, in its discretion,

should allow a jury to review during deliberations. Robinson v. State, 699 N.E.2d at

1149-50. Considerations include “(i) whether the material will aid the jury in a proper

consideration of the case; (ii) whether any party will be unduly prejudiced by submission

of the material; and (iii) whether the material may be subjected to improper use by the

jury.” Id. at 1150.


                                             8
       For the first factor, we presume that the material aided the jury in proper

consideration of the case unless there is evidence to the contrary, which here there is not.

Goodrich v. Ind. Mich. Power Co., 783 N.E.2d 793, 798 (Ind. Ct. App. 2003), trans.

denied. In Goodrich, we determined that the second factor weighed in favor of finding an

abuse of discretion because the trial court sent only the requested exhibit to the jury room

rather than all of the exhibits. Id. Here however, the nature of the material requested

appears to be different from that in Goodrich, as there is no indication in that opinion that

the requested exhibit was something other than a hard copy of documentary evidence.

Our supreme court has noted previously that while audio tapes are technically exhibits,

the jury deliberation statute has been construed to apply to tapes even though the statute

refers only to “testimony.” Robinson v. State, 699 N.E.2d at 1149. And we have

previously held that there was no error where a court played a video tape for the jury in

open court after deliberations had begun. Sturma v. State, 683 N.E.2d 606, 610 (Ind. Ct.

App. 1997). We do not therefore believe the jury here was unduly prejudiced when the

court replayed the recording of Popp’s interrogation. Finally, there is no indication here

that the material was subjected to improper use by the jury.

       Popp states that he was “unduly prejudiced by the jury’s review of his

interrogation because it unduly and needlessly emphasized that evidence,” but does not

explain how he was prejudiced, nor does he elaborate on how the other two factors would

weigh in favor of finding an abuse of discretion. Br. of Appellant at 15. For its part, the

State replies that Popp is implying that he was unduly prejudiced merely because a piece

of evidence was replayed for the jury, and if that were the case, then no evidence could

ever be replayed for the jury once deliberations started. We agree that the mere replaying
                                             9
of a recording at the jury’s request does not itself unduly prejudice the jury, and we

conclude that the trial court did not abuse its discretion in replaying the interrogation for

the jury.

                                        Conclusion

       Concluding that the trial court did not abuse its discretion in either denying Popp’s

motion to dismiss or in replaying the interrogation for the jury, we affirm.

       Affirmed.

MAY, J., and PYLE, J., concur.




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