ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
James B. Martin
Deputy Attorney General
SUPREME COURT OF INDIANA
JAMES M. ROOP, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 79S00-9907-CR-405
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable George J. Heid, Judge
Cause No. 79D01-9712-CF-113
ON DIRECT APPEAL
June 30, 2000
James M. Roop, Jr. was convicted of child molesting as a Class A
felony, neglect of a dependent as a Class B felony, battery as a
Class D felony, and of being a habitual offender. He was sentenced
to concurrent terms of fifty years for child molesting, fifteen years for neglect
of a dependent, and three years for battery. The child molesting conviction
was enhanced by thirty years for the habitual, for an aggregate sentence of
eighty years imprisonment. In this direct appeal Roop contends that (1) the
trial court erred in excluding evidence that his father-in-law may have molested Roops
wife when she was a child, and (2) there is insufficient evidence to
support his convictions. We affirm the judgment of the trial court.
Factual and Procedural Background
In November of 1997, Roop resided in Lafayette with his wife Cassandra and
her fourteen-month-old daughter, K.S. Cassandras parents, William and Patty Robinson, lived next
door. On the evening of November 19, Cassandra changed K.S.s diaper and
put her to bed. Cassandra observed no injuries or bleeding at that
time. Roop and Cassandra went to bed sometime after 3:30 a.m.
When Cassandra and Roop heard K.S. awaken during the night, Roop got up
to attend to her. He did not return to bed. At
about 8:00 a.m., Roop awakened Cassandra and told her to come to the
living room. Cassandra found K.S. lying on the couch on an open,
bloody diaper. She was crying and shaking. Roop was cleaning blood
from his hands with baby wipes. Cassandra and Roop took K.S. to
the emergency room where Dr. Diane Begley observed a cut that extended into
the hymen and towards the rectum. Dr. Begley believed the injury was
the result of sexual molestation and contacted Child Protective Services. She arranged
for K.S. to be transferred to Indianapolis to be examined by Dr. Roberta
Hibbard, an expert in child sexual abuse. Dr. Hibbard concluded that K.S.
had been sexually assaulted. Dr. Trace Scherer, a pediatric surgeon, also examined
K.S. in Indianapolis and reached the same conclusion. Dr. Scherer surgically repaired
the injury after noting it was fifteen millimeters long and ten millimeters deep.
Roop spoke to police at the hospital in Lafayette and stated that he
awakened to change K.S.s diaper and noticed no injury. He changed her
diaper, fed her, and bathed her. He watched cartoons with her, put
her back to bed, and went to sleep on the sofa. He
later heard her fussing, and then noticed blood in her diaper. He
told police that K.S.s injury might have been caused by a razor blade
on the tub, or by her scratching herself while being changed, or that
the cat might have done it.
Roop was charged with two counts of child molesting, battery, neglect of a
dependent, and with being a habitual offender. His defense at trial was
that someone elsepossibly his father-in-lawmay have molested K.S. He did not dispute
that K.S.s injury was the result of sexual abuse. The jury found
him not guilty of one count of child molesting and guilty of the
remaining counts and the habitual enhancement. He was sentenced to an aggregate
term of eighty years imprisonment.
I. Exclusion of Evidence
Roop contends that the trial court erred by excluding testimony suggesting that William
may have molested Cassandra during her childhood. The excluded testimony was that
of Karen Anderson, a court-appointed special advocate for K.S. Anderson testified in
an offer of proof that she had received information from another person about
sexual molestation being in [the Robinson] family during Cassandras childhood. Anderson agreed
upon questioning by the State that any allegations that William had molested Cassandra
were obviously multiple hearsay. Moreover, Anderson also testified that Cassandra had told
her that everything had been fine in regard to her childhood relationship with
Roop correctly points out that under Indiana Evidence Rule 401 [e]vidence which tends
to show that someone else committed the crime is admissible because it logically
makes it less probable that the defendant committed the crime.
State, 678 N.E.2d 386, 389 (Ind. 1997). The trial court recognized and
adhered to this principle, observing that it would not preclude [the defense] in
any way from showing that Mr. Robinson was involved here or was the
actual perpetrator but you have to prove it in accordance with the Indiana
Rules of Evidence . . . . The trial court allowed testimony
showing that William had a key to Cassandras apartment, that the door to
the apartment was sometimes left unlocked, and that William had previously picked up
K.S. without knocking or informing anyone. In addition, Roops medical expert noted
a second injury to K.S. that he believed resulted from an object such
as a ring on a finger, and William testified that it was possible
he was wearing a ring with an onyx stone on November 20.
Nevertheless, William testified that he never took K.S. without Cassandras permission, and Patty
testified that William did not leave their apartment in the morning hours of
November 20. Finally, neither Roop nor Cassandra saw William in their apartment
during that time period.
The trial court properly excluded Andersons multiple hearsay testimony. It found that
testimony that William had molested Cassandra was barred by Evidence Rules 404(b) and
403. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident . .
The following test is applied in deciding whether the challenged evidence is admissible:
(1) the court must determine that the evidence of other crimes, wrongs,
or acts is relevant to a matter at issue other than the persons
propensity to commit the charged act; and (2) the court must balance the
probative value of the evidence against its prejudicial effect pursuant to Rule 403.
Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997); Thompson v. State,
690 N.E.2d 224, 233 (Ind. 1997). In short, if the evidence bears
on some issue other than criminal propensity and clears the balancing hurdle of
Rule 403, it is admissible.
II. Sufficiency of the Evidence
Roop asserts no proper 404(b) purpose for which Williams alleged molestation of Cassandra
was offered. Indeed, it appears that the testimony was offered solely to
suggest that William had molested before and therefore had a propensity to molest
again. This is, of course, the forbidden inference that Rule 404(b) prohibits.
Although a prior molestation may be admissible under Rule 404(b) when offered
for a permissible purpose such as intent, plan, or absence of mistake, no
such purpose is suggested here.
Its remoteness in time and the lack of any evidence that the molestation
of K.S. was in any way similar to the alleged incident involving Cassandra
further undermine its admissibility.
See Fisher v. State, 641 N.E.2d 105, 109
(Ind. Ct. App. 1994). In addition to the trial courts finding that
the testimony had almost no probative value, the testimony presented the possibility of
confusing or misleading the jury and could have caused undue protraction of the
trial. In light of these considerations, the trial court did not abuse
its discretion in excluding the evidence under Rules 404(b) and 403.
Roop contends there is insufficient evidence to support his conviction for child molesting.
When reviewing a claim of sufficiency of the evidence, we do not
reweigh the evidence or judge the credibility of witnesses. Spurlock v. State,
675 N.E.2d 312, 314 (Ind. 1996). We look to the evidence and
the reasonable inferences therefrom that support the verdict and will affirm a conviction
if evidence of probative value exists from which a jury could find the
defendant guilty beyond a reasonable doubt. Id. Mere presence at
the crime scene with the opportunity to commit a crime is not a
sufficient basis on which to support a conviction. See Wilson v. State,
455 N.E.2d 1120, 1122 (Ind. 1983). However, presence at the scene in
connection with other circumstances tending to show participation may be sufficient to sustain
a conviction. Menefee v. State, 514 N.E.2d 1057, 1059 (Ind. 1987).
When Cassandra put K.S. to bed on November 19, 1997, K.S. was not
injured or bleeding. Roop and Cassandra went to bed sometime after 3:30
a.m. on November 20. According to Roops own account, he is the
only person who had contact with K.S. between the time he awoke, changed
her diaper and bathed her, and the time he noticed blood in her
diaper and awakened Cassandra. The undisputed medical evidence is that K.S. was
sexually abused; the only issue is the identity of the perpetrator.
According to Roop, Cassandra or William could have molested K.S. Evidence suggesting
these possibilities was presented to and rejected by the jury. On appeal,
Roop suggests that Cassandra was in the apartment and had access to K.S.,
but concedes that in his statements to police he stated that Cassandra did
not attend to K.S. in those hours. He now merely suggests that
he could not have known what Cassandra was doing while he was asleep.
There is no evidence that William was in the apartment at or
near the time of the molestation of K.S., let alone that he molested
her. Finally, Roop told Cassandra en route to the hospital that he
wished he had gone to work that day [b]ecause this never would have
happened. Roop testified at trial that he had made this statement but
explained it as follows: I felt obligated, [K.S.] was under my care
and I kind of felt, you know, like since this happened under my
care, you know, it was my fault. I mean, I was caring
for her at the time . . . . On its face
this does not explain the statement that the injury never would have happened
if Roop had gone to work. The jury was free to consider
Roops statement en route to the hospital as an admission of guilt and
this, coupled with his opportunity and the lack of opportunity of others to
commit the offense, is sufficient evidence from which the jury could have reasonably
found him guilty of child molesting.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
The trial court found that any allegations regarding Cassandra were "remote" in
time and that they had "almost no probative value here with regard to
Footnote: As captioned, Roop's argument also alleges insufficiency of the evidence to support
the battery and neglect of a dependent convictions. However, the body of
his argument is devoted to sufficiency of the evidence relating to the child
molesting charge. The only mention of the other counts is the allegation:
"The charge for Neglect of a Dependant was predicated on the same
theory as the other charges--that Roop placed [K.S.] in danger by molesting and/or
committing a battery upon her; rather than on some alternate theory that he
placed her in danger by allowing someone else to commit the act upon
her." As we understand Roop's argument, if there is sufficient evidence of
child molesting, there is also sufficient evidence for the other counts. Accordingly,
we address only the sufficiency of the evidence of child molesting.
We also note that Roops convictions for child molesting, neglect of a dependent,
and battery appear to raise a claim under the Indiana Double Jeopardy Clause.
See Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Here, the
appellants brief was filed on December 29, 1999, and Richardson was readily available
to be raised. In any event, we note that raising the issue
would likely have had no practical effect because the sentences were ordered served