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Date: 06-29-2021
Case Style:
STEVEN CHURCH v. State of Indiana
Case Number: 21A-CR-00068
Judge: Elizabeth F. Tavitas
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
GeneraL
Defendant's Attorney:
Description:
Indianapolis, IN - Criminal defense attorney represented Steven Church with multiple counts of child molesting and attempted child molesting charges.
On March 10, 2020, the State charged Church with two counts of attempted
child molesting, Level 1 felonies, and four counts of child molesting, Level 4
1 Because we find Issue II to be dispositive, we need not address Issues I, III, and IV.Court of Appeals of Indiana | Opinion 21A-CR-68 | June 28, 2021 Page 3 of 10
felonies.2 On March 18, 2020, the Act, codified at Indiana Code Section 35-40-
5-11.5, took effect.
[4] On or about July 29, 2020, Church petitioned for authorization to depose thse
child victim (“the Petition”). Following a hearing and the parties’ submission
of briefs, the trial court denied the Petition on December 3, 2020. The trial
court cited the Act as its basis for denying the Petition. On December 15, 2020,
Church moved to certify the order for interlocutory appeal; the trial court
granted the motion that same day. This Court accepted jurisdiction, and
Church now brings this interlocutory appeal.
Analysis
[5] Although we ultimately resolve this appeal on one dispositive issue, we
acknowledge the competing interests of the defendant and the State that are
implicated by the remaining issues. The enactment of the Act requires courts to
thread a fine needle, weighing among other things: (1) a defendant’s
constitutional rights; (2) the “plausible” event of a defendant “attempt[ing] to
utilize depositions as a harassment technique, by forcing his or her victims to
unnecessarily relive the experience without the defendant having any real
expectation of obtaining new information[,]” Hale v. State, 54 N.E.3d 355, 359-
60 (Ind. 2016); (3) the likelihood that the State will enjoy unfettered access to
2 The State subsequently added one count of child molesting, a Level 4 felony, and revised the timeline
associated with the charged offenses. Court of Appeals of Indiana | Opinion 21A-CR-68 | June 28, 2021 Page 4 of 10
the child accuser to the accused’s detriment; and (4) the potential for a trial
court to arbitrarily grant or deny leave to take the deposition of a child accuser.
Because we can resolve Church’s appeal based on the conflict between the Act
and the Indiana Trial Rules, we leave for another day—and express no opinion
on—the merits of the remaining issues.
[6] Church argues, inter alia, that the trial court abused its discretion in denying his
Petition to depose the child victim because the Act impermissibly conflicts with
Indiana Trial Rule 26 and Indiana Trial Rule 30, governing discovery and
depositions. The standard of review in discovery matters is limited to
determining whether the trial court abused its discretion. Hale, 54 N.E.3d at
357 (quotations omitted).
[7] The Indiana Supreme Court “has recognized on multiple
occasions that the Indiana Trial Rules ‘are designed to allow
liberal discovery.’” “Trial courts have broad discretion on issues
of discovery.” [ ] Matters of statutory interpretation present pure
questions of law and are thus reviewed de novo. Matter of M.S.,
140 N.E.3d 279, 282 (Ind. 2020) (citing In re Adoption of B.C.H.,
22 N.E.3d 580, 584 (Ind. 2014)). We “presume[ ] that the
legislature intended for the statutory language to be applied in a
logical manner consistent with the statute’s underlying policy and
goals.” Id. (quoting Rodriguez v. State, 129 N.E.3d 789, 793 (Ind.
2019)).
Sawyer v. State, No. 20A-CR-1446, slip op. at 3 (Ind. Ct. App. May 19, 2021).
[8] The instant dispute arises from the denial, pursuant to the Act, of Church’s
request to take the deposition of the child accuser. “The [Act] is part of an Court of Appeals of Indiana | Opinion 21A-CR-68 | June 28, 2021 Page 5 of 10
article construed to preserve and protect the rights to which a victim is entitled
‘without interfering with the rights of the accused to receive a fair trial . . .
.’” Id. at 4 (quoting Ind. Code § 35-40-3-1). Applicable only to criminal cases
“involving a child less than sixteen years of age who is the victim or alleged
victim of a sex offense[,]” the Act provides, in part, as follows:
(c) A defendant may depose a child victim only in accordance
with this section.
(d) A defendant may not take the deposition of a child victim
unless the defendant contacts the prosecuting attorney before
contacting the child, and one (1) or more of the following apply:
(1) The prosecuting attorney agrees to the deposition. The
prosecuting attorney may condition the prosecuting
attorney’s agreement to the deposition upon the
defendant’s acceptance of the manner in which the
deposition shall be conducted.
(2) The court authorizes the deposition after finding,
following a hearing under subsection (f), that there is a
reasonable likelihood that the child victim will be
unavailable for trial and the deposition is necessary to
preserve the child victim’s testimony.
(3) The court authorizes the deposition after finding,
following a hearing under subsection (g), that the
deposition is necessary:
(A) due to the existence of extraordinary
circumstances; andCourt of Appeals of Indiana | Opinion 21A-CR-68 | June 28, 2021 Page 6 of 10
(B) in the interest of justice.
(e) If the prosecuting attorney does not agree to the deposition,
the defendant may petition the court for authorization to depose
the child victim under subsection (d)(2), (d)(3), or both subsection
(d)(2) and (d)(3). Upon receipt of the petition, the court shall
notify the prosecuting attorney and set a hearing to determine
whether to authorize a deposition of the child victim, and, if
applicable, to determine the manner in which the deposition shall
be conducted.
(f) The court shall authorize the deposition of a child victim
under subsection (d)(2) if the defendant proves by a
preponderance of the evidence that there is a reasonable
likelihood that the child victim will be unavailable for trial and
the deposition is necessary to preserve the child victim's
testimony.
(g) The court may not authorize the deposition of a child victim
under subsection (d)(3) unless the defendant establishes by a
preponderance of the evidence that the deposition is necessary:
(1) due to the existence of extraordinary circumstances;
and
(2) in the interest of justice.
I.C. § 35-40-5-11.5. This Court has found that the Act is a procedural law,
meaning that “[it] prescribe[s] the manner in which . . . rights and
responsibilities may be exercised and enforced in a court.” Sawyer, No. 20ACR-1446, slip op. at 5. Court of Appeals of Indiana | Opinion 21A-CR-68 | June 28, 2021 Page 7 of 10
[9] Church alleges the existence of a direct conflict between the Act and the
Indiana Trial Rules, where the former: (1) “empower[s]” the prosecutor, “at the
outset to determine whether a deposition will even occur and under what
conditions a deposition may occur”; and (2) “impos[es] [ ] several burdens upon
a defendant to request a hearing and prove that the deposition is necessary . . .
.” Church’s Br. p. 16.
[10] Church identifies conflicts between the Act and Indiana Trial Rules 26 and 30.
We have previously summarized Indiana Trial Rule 26 as follows:
Ind. Trial Rule 26 provides that parties may obtain discovery by
“depositions upon oral examination or written questions,” and
indicates that, “[u]nless the court orders otherwise under
subdivision (C) of this rule, the frequency of use of these methods
is not limited.” Ind. Trial Rule 26(C) deals with protective orders
and states that, upon motion and for good cause shown, the court
in which the action is pending or “alternatively, on matters
relating to a deposition, the court in the county where the
deposition is being taken,” may make “any order which justice
requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,
including one or more of the following,” and it lists several
examples, including that the discovery “not be had,” “may be
had only on specified terms and conditions, including a
designation of the time or place,” “may be had only by a method
of discovery other than that selected by the party seeking
discovery,” or that “certain matters not be inquired into, or that
the scope of the discovery be limited to certain matters.”
Sawyer, No. 20A-CR-1446, slip op. at 6.
[11] Indiana Trial Rule 30 provides in part as follows:Court of Appeals of Indiana | Opinion 21A-CR-68 | June 28, 2021 Page 8 of 10
(A) When depositions may be taken. After commencement of
the action, any party may take the testimony of any person,
including a party, by deposition upon oral examination. Leave
of court, granted with or without notice, must be obtained only if
the plaintiff seeks to take a deposition prior to the expiration of
twenty [20] days after service of summons and complaint upon
any defendant except that leave is not required:
(1) if a defendant has served a notice of taking deposition
or otherwise sought discovery; or
(2) if special notice is given as provided in subdivision
(B)(2) [a subdivision regarding the taking of a
deposition by the plaintiff] of this rule.
The attendance of witnesses may be compelled by the use of
subpoena as provided in Rule 45 . . . .
[12] Under Indiana law, where a statute and the Indiana Trial Rules are
“incompatible to the extent that both could not apply in a given situation,”
Bowyer v. Ind. Dep’t. of Nat. Res., 798 N.E.2d 912, 917 (Ind. 2003), “the rule
governs on matters of procedure.” Garner v. Kempf, 93 N.E.3d 1091, 1099 (Ind.
2018) (citation omitted). Additionally, our Supreme Court has stated,
unequivocally, that trial rules supersede procedural statutes. See A.C. v. Ind.
Dep’t. of Child Servs., 140 N.E.3d 279 (Ind. 2020).
[13] In Sawyer, this Court reversed the denial of Sawyer’s petition to depose his child
accusers on the following basis:
Considering [the Act] in light of the Indiana Trial Rules, we find
that they are incompatible to the extent that both cannot apply in
Sawyer’s situation. [The Act] contemplates that a defendant
“may depose a child victim only in accordance with this section,”
whereas Ind. Trial Rule 26 provides that, unless in the case of Court of Appeals of Indiana | Opinion 21A-CR-68 | June 28, 2021 Page 9 of 10
protective orders, the frequency of use of the discovery methods
including depositions “is not limited,” and Ind. Trial Rule 30(A)
provides that “any party may take the testimony of any person,
including a party, by deposition upon oral examination” after
commencement of the action. (Emphasis added). [The Act]
further conflicts with the Indiana Trial Rules when it necessitates
the prosecutor’s permission, compare Ind. Code § 35-40-5-
11.5(d), with Ind. Trial Rules 30 and 45(D), and when it requires
a defendant to move for a hearing when the permission sought is
not forthcoming and otherwise places the burden of proof on the
defendant at the contemplated hearing. Compare Ind. Code § 35-
40-5-11.5(e)-(g), with Ind. Trial Rule 26(C).
Sawyer, No. 20A-CR-1446, slip op. at p. 7 (internal citations omitted).
Concluding that, “[b]ecause the procedural provisions in the statute conflict
with those of the Indiana Trial Rules, the provisions of the Indiana Trial Rules
govern,” the Sawyer panel reversed the trial court’s denial of Sawyer’s request to
depose the child victim. Id.
[14] Here, as in Sawyer, the process prescribed in the Act for a defendant’s
deposition of a child accuser is incompatible with that enumerated in Trial
Rules 26 and 30 to such extent that the Act and the Trial Rules cannot both
apply to Church. In such a scenario, we are compelled to find that the Trial
Rules govern, see Bowyer, 798 N.E.2d at 917; because the trial court erroneously
resolved the conflict in favor of the Act, we conclude that the trial court abused
its discretion in denying the Petition. Accordingly, we reverse and remand. See
I.C. § 34-8-1-3 (“The supreme court has authority to adopt, amend, and rescind
rules of court that govern and control practice and procedure in all the courts of
Indiana. These rules must be promulgated and take effect under the rules Court of Appeals of Indiana | Opinion 21A-CR-68 | June 28, 2021 Page 10 of 10
adopted by the supreme court, and thereafter all laws in conflict with the supreme
court’s rules have no further force or effect.”) (emphasis added).
Outcome: The trial court abused its discretion in denying Church’s Petition to depose the
child accuser. We reverse and remand for proceedings consistent with this
opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: