      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                             FILED
      this Memorandum Decision shall not be                                        Jan 31 2019, 6:35 am
      regarded as precedent or cited before any
                                                                                         CLERK
      court except for the purpose of establishing                                  Indiana Supreme Court
                                                                                       Court of Appeals
      the defense of res judicata, collateral                                            and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Yvette M. LaPlante                                       Curtis T. Hill, Jr.
      Keating & LaPlante, LLP                                  Attorney General of Indiana
      Evansville, Indiana
                                                               Laura R. Anderson
      Barry M. Blackard                                        Deputy Attorney General
      Blackard & Brinkmeyer, LLC                               Indianapolis, Indiana
      Evansville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Justin M. Hornby,                                        January 31, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1227
              v.                                               Appeal from the
                                                               Gibson Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Robert D. Krieg, Judge
                                                               Trial Court Cause No.
                                                               26D01-1705-F3-437



      Kirsch, Judge.


[1]   In this interlocutory appeal, Justin M. Hornby (“Hornby”) appeals the trial

      court’s denial of his request for a second deposition to be taken of the alleged

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1227 | January 31, 2019                      Page 1 of 8
      victim in this case. He raises the following issue for our review: whether the

      trial court abused its discretion when it denied his request to depose the victim a

      second time.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On May 3, 2017, Hornby was charged with rape1 as a Level 3 felony for

      allegedly raping R.C. On May 5, Hornby was appointed indigent counsel, who

      subsequently filed a “Motion to Take Deposition at Public Expense” in order to

      depose R.C., among others. Appellant’s App. Vol. II at 21. Hornby’s motion was

      granted, and R.C. was deposed by Hornby’s appointed counsel on June 20,

      2017.


[4]   Several weeks later, Hornby hired new counsel, who filed an appearance on

      August 18, 2017. Id. at 43-44. Subsequently, Hornby indicated that he wished

      to re-depose R.C. The State filed an objection to a second deposition, asserting

      that the victim had previously been deposed by a qualified defense attorney

      who was experienced in sex crime cases, that the only new evidence since

      discovery was provided to Hornby was the laboratory analysis indicating the

      presence of Hornby’s DNA within R.C.’s body, and that depositions of crime

      victims are very emotional and intimidating. Id. at 55.




      1
          See Ind. Code § 35-42-4-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1227 | January 31, 2019   Page 2 of 8
[5]   A hearing was held on the State’s objection, at which the State reiterated its

      arguments raised in its earlier objection and additionally argued that the first

      deposition was “fairly extensive” and lengthy, and that despite the new DNA

      test results, nothing could be gained regarding that evidence from the victim

      and that the information would be proper for depositions of the DNA analyst

      and the person who obtained the sample. Tr. Vol. 2 at 5. The State asserted

      that there had to be “some justice for the victim” because the crime of rape is “a

      very personal, traumatic, emotional thing, and to sit through yet another

      deposition knowing we’re going to trial and they’re going to have to do it all

      again at trial . . . is more than justice requires.” Id. Hornby argued that a

      second deposition of R.C. was needed so that defense counsel, who was hired

      after the first deposition, could have an opportunity to observe the witness’s

      demeanor because counsel did not want trial to be the first opportunity to see

      her face to face. Id. at 6. Hornby further claimed that he needed to depose

      R.C. “especially on some of these issues that [the State] touched on that were

      not asked in the first deposition.” Id.


[6]   After argument was heard, the trial court found that Hornby already had an

      opportunity to depose R.C. and that an extensive deposition was taken. Id.

      The trial court further found that no new evidence, other than the DNA results,

      had been shown and that the DNA results did not require questioning of the

      victim but rather of the laboratory analyst. Id. at 7. The trial court also noted

      that it had the power “to prevent discovery that might unjustifiably delay [the]

      proceedings,” which a second deposition would do. Id. Therefore, the trial


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1227 | January 31, 2019   Page 3 of 8
      court found that a second deposition was not necessary to further the interests

      of justice and denied Hornby’s request to depose R.C. a second time. Id.

      Hornby now appeals the trial court’s decision in this interlocutory appeal.


                                     Discussion and Decision
[7]   The standard of review in discovery matters is limited to determining whether

      the trial court abused its discretion. Hale v. State, 54 N.E.3d 355, 357 (Ind.

      2016) (citing Crawford v. State, 948 N.E.2d 1165, 1169 (Ind. 2011)). The trial

      court abuses its discretion when its decision is against the logic and effect of the

      facts and circumstances before the court. Id. (citing Jacobs v. State, 22 N.E.3d

      1286, 1288 (Ind. 2015)). We do not reweigh the evidence, and instead, we

      determine whether the evidence before the trial court can serve as a rational

      basis for its decision. Id. (citing DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d

      729, 732 (Ind. 2015)).


[8]   Hornby argues that the trial court abused its discretion when it denied his

      request to depose R.C. for a second time. Hornby contends that the trial court’s

      ruling did not meet the standards set out in Indiana Trial Rule 26(C) that allow

      for the denial of a request to depose a witness. He asserts that he presented

      adequate reasons as to why a second deposition was necessary, including

      wanting an opportunity to observe R.C.’s demeanor and to question R.C. about

      issues not asked in the first deposition. Hornby maintains that the inability to

      re-depose R.C. will reduce new counsel’s ability to effectively prepare for cross-




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1227 | January 31, 2019   Page 4 of 8
       examination at trial and to effectively advise him regarding the likelihood of

       success at trial and on any offers made by the State.


[9]    Indiana Trial Rule 26(A) states that parties may obtain discovery through oral

       depositions, among other methods, and the frequency of use of such method is

       not limited unless the trial court otherwise orders under subsection (C) of the

       rule. Indiana Trial Rule 26(B), addresses the scope of discovery and provides

       that the frequency or extent of the use of the discovery methods provided for in

       the rule “shall be limited” if the trial court determines that:


                        (i) the discovery sought is unreasonably cumulative or
                        duplicative, or is obtainable from some other source that is
                        more convenient, less burdensome, or less expensive; (ii)
                        the party seeking discovery has had ample opportunity by
                        discovery in the action to obtain the information sought
                        or; (iii) the burden or expense of the proposed discovery
                        outweighs its likely benefit, taking into account the needs
                        of the case, the amount in controversy, the parties’
                        resources, the importance of the issues at stake in the
                        litigation, and the importance of the proposed discovery in
                        resolving the issues.


       Ind. Trial Rule 26(B)(1).


[10]   Subsection (C) of the rule further provides that, upon motion by any party, and

       for good cause shown, the trial court “may make any order which justice

       requires to protect a party or person from annoyance, embarrassment,

       oppression, or undue burden or expense” including that the discovery not be




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1227 | January 31, 2019   Page 5 of 8
       had. Pursuant to the trial rules, our Supreme Court has held a three-part test

       should be used to address a defendant’s discovery request in a criminal case:


               (1) there must be sufficient designation of the items sought to be
               discovered (particularity); (2) the items requested must be
               material to the defense (relevance or materiality); and (3) if the
               first two requirements are met, the trial court must grant the request
               unless there is a showing of “paramount interest” in
               nondisclosure.


       Hale, 54 N.E.3d at 359 (emphasis in original) (quoting Crawford, 948 N.E.2d at

       1168). Our Supreme Court has further noted several issues that could impact

       the “materiality” prong, including that a defendant could try to use 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” and that a deposition could amount to little more than a

       fishing expedition. Id. at 359-60.


[11]   Here, the trial court found that Hornby had already had an opportunity to

       depose R.C. in an extensive deposition and that a second deposition was not

       needed to further the interest of justice. Tr. Vol. 2 at 6-7. It further found that

       Hornby had not shown that there was any new evidence other than the DNA

       results to be examined through a deposition and that a deposition of the DNA

       analyst would better serve as a means to delve into that evidence. Id. at 7. The

       trial court stated that it had an inherent power to prevent discovery that might

       unjustifiably delay the proceedings and concluded that Hornby’s request would

       do so. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1227 | January 31, 2019   Page 6 of 8
[12]   Under the three-part test, Hornby was required to show a sufficient designation

       of what he sought to discover through a second deposition of R.C. Hornby

       asserts that a second deposition was necessary to observe R.C.’s demeanor

       because otherwise the only opportunity to observe her would be in the

       courtroom at trial. However, a video-recorded forensic interview of R.C. was

       taken by the police a few days after the alleged rape occurred. Appellant’s App.

       Vol. II at 4, 148. Therefore, an alternate means existed for Hornby to observe

       R.C.’s demeanor in order to make a credibility determination prior to trial.

       Trial Rule 26(B) provides that a trial court shall limit discovery if the evidence

       sought is cumulative or duplicative of other evidence or is obtainable through

       other means that are more convenient or less burdensome. Observing a video-

       recorded forensic interview of R.C. that had already been completed to observe

       the victim’s demeanor is more convenient and less burdensome than

       completing yet another interview of the victim via deposition.


[13]   Hornby also maintained that he wished to depose R.C. a second time in order

       to question her “on some of these issues that [the State] touched on that were

       not asked in the first deposition.” Tr. Vol. 2 at 6. The only evidence that the

       State referenced was the DNA laboratory results indicating the presence of

       Hornby’s DNA within R.C.’s body. Id. at 5. Any information regarding the

       laboratory results would be better sought from the DNA analyst who performed

       the analysis. Hornby does not give any specific designation of what he sought

       to discover through a second deposition. Therefore, because no particularity

       was shown as to what was sought, the first part of the test was not met.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1227 | January 31, 2019   Page 7 of 8
[14]   Because Hornby has not specified what new information he sought to glean

       from a second deposition of R.C., he has likewise not shown that the

       information is material to his defense. As to the DNA evidence, R.C. would

       not have any insight as to how the tests were done and how the results had been

       obtained. The only information that she could give was regarding her story as

       to the source of the DNA, and she had already been thoroughly questioned in

       her first deposition regarding that information. Appellant’s App. Vol. II at 87-

       162. The DNA results merely corroborated R.C.’s prior statements to the

       police and her testimony in the first deposition regarding the origin of the

       DNA. Further, Hornby’s claim that a second deposition was necessary to

       observe R.C.’s demeanor does not make clear its relevance when such

       information is available from another source, the video-recorded forensic

       interview of R.C.


[15]   Thus, as the first two prongs of the test have not been met, it is not necessary to

       determine whether there was a showing of “paramount interest” in

       nondisclosure. Hale, 54 N.E.3d at 359. We, therefore, conclude that the trial

       court did not abuse its discretion when it denied Hornby’s request to take a

       second deposition of R.C.


[16]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1227 | January 31, 2019   Page 8 of 8
