By GARY POPP
Charges were dropped and a plea deal that avoided jail time was reached before opening arguments began Monday morning in a trial that could have sent a Jeffersonville man to prison for 70 years.
It all hinged on a phone call.
James L. Rogers II, 67, was facing class A felony child molesting and class B felony sexual misconduct charges following accusations he had a sexual relationship with a girl for four years that began in 2008 when she was 11 years old.
A critical piece of evidence for Clark County Chief Deputy Prosecutor Jeremy Mull was a phone conversation recorded by Jeffersonville police between the girl and Rogers in which she talked about having to take a polygraph test.
It was the mention of the polygraph test — deemed inadmissible in court by Clark County Circuit Court Judge Vicki Carmichael — that led to the plea arrangement in which Rogers pled guilty to felony battery.
“Once [the recorded-phone conversation was ruled inadmissible], about three quarters of our case was taken away, and we were not going to be able to show any of that to the jury,” Mull said after the deal was reached. “So, in that position, we did reach the plea agreement this morning that had him plea guilty to felony battery.”
The class D felony battery conviction stems from an incident in which Rogers stuck the child in her face during an argument, according to his attorney, Perry McCall, but he could not say when the incident occurred, other than it took place when the child was less than 15 years old. She is currently 16 years old.
McCall voiced confidence in his client’s innocence.
“I’m 100 percent sure that James Rogers did not commit child molesting as a class A felony, class B felony,” McCall said, adding that he found hundreds of inconsistencies in the girl’s statements and the overall case.
McCall said he didn’t want to speak too much about the child’s private life, but said she may have fabricated the sexual abuse from Rogers to take the attention from other matters that confronted her.
“There was a dynamic going on in her life that was causing her a great personal problem and stress, and, therefore, something to take the attention away from that, something to make her not be the bad guy, [but] to be the victim,” McCall said.
He said the prosecution had made other offers leading up to the trial, but Rogers had declined and always maintained his innocence.
“He stuck to, ‘I did not do this,’ and I believed him, and we had the evidence to show he didn’t do it when she said he did,” McCall said.
Police first became aware of the allegations when the child was being questioned in February 2012 on an unrelated matter when she told police that Rogers had begun molesting her four years earlier.
From the Jeffersonville Police Department, the child placed the recorded phone call to Rogers, with investigators listening to the conversation. The girl told Rogers she had been questioned by police and feared authorities knew about their relationship.
Rogers responded, “Not if you don’t say nothing. They don’t know a thing about us,” according to an affidavit.
She also told Rogers during the phone call that she was concerned about having to take a polygraph test. According to the affidavit, Rogers told her that she was too young to have to take a polygraph test. Later in the day, Rogers went to the police department to speak with investigators, and after the interview he was placed under arrest.
Despite the molestation and misconduct charges being dropped, Mull said the plea includes Rogers having to undergo a sexual perpetrator assessment, at which time a clinician could require he submits to counseling.
“Basically, we were left without most of our evidence in this case with this ruling this morning,” Mull said. “Certainly, we were pursuing the child molesting conviction, but when most of our evidence is ruled inadmissible in court, we can’t simply walk in and present a case with little or no evidence.”
While the court’s ruling stripped the state of the majority of its evidence for the child molesting and sexual misconduct charges, Mull said he still feels the felony battery conviction is an accomplishment.
“I think the community is well served by the guilty plea,” Mull said. “He will be on probation. He will be monitored. I think the community will be safe as a result.”
Mull said a no contact order was also issued to prevent Rogers from communicating with the child for at least 18 months.