Isaac Wesley Plouch v. State of Indiana

FILED Oct 26 2023, 9:13 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Joshua Moudy Theodore E. Rokita Grace Atwater Indiana Attorney General Indianapolis, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Isaac Wesley Plouch, October 26, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-436 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Michael A. Fish, Appellee-Plaintiff. Judge Trial Court Cause No. 64D01-2110-F6-9751

Opinion by Chief Judge Altice Judges May and Foley concur.

Altice, Chief Judge. Court of Appeals of Indiana | Opinion 23A-CR-436 | October 26, 2023 Page 1 of 8

Case Summary [1] In this sexual battery case, Isaac Plouch brings an interlocutory appeal,

claiming that the trial court abused its discretion in denying his discovery

request. Specifically, Plouch contends that his access to the alleged victim’s

handwritten journal that detailed the history of their sexual relationship was

improperly restricted. [2] We affirm and remand for further proceedings consistent with this opinion.

Facts and Procedural History [3] According to the probable cause affidavit, Plouch and P.M.—students at

Valparaiso University (the University)—were in a romantic relationship from

spring of 2019 until sometime in the late fall of that year. P.M. alleged that on

November 4, 2019—after the relationship had ended—she agreed to drive

Plouch to his residence after the two had performed in a musical event at the

University. At some point during that trip, Plouch touched P.M. and tried to

kiss her several times, even though P.M. told him, “no.” Appellant’s Appendix

Vol. II at 16. Plouch eventually grabbed the vehicle’s steering wheel, causing

P.M. to drive off the road. Plouch then put the car in park, grabbed P.M. by the

hair, and forced her to perform oral sex on him. [4] P.M. reported the incident to University officials, and Detective Kevin Garber

of the Valparaiso University Police Department interviewed her on March 4,

2020. At that time, P.M. gave Detective Garber her handwritten journal that

described the above incident and other prior sexual encounters that she had

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with Plouch. P.M. was interviewed on subsequent occasions, and on October

28, 2021, the State charged Plouch with sexual battery, a Level 6 felony,

regarding the November 2019 incident. [5] During the course of discovery, Plouch learned that P.M. had given her journal

to police. On September 7, 2022, Plouch filed a motion for specific discovery

and requested the State to “produce the entire journal.” Id. at 68-69. Plouch

asserted in his motion that only four partially-redacted pages of the journal had

been provided to him, and that he desired to review the entire journal because it

documented the course of his sexual relationship with P.M. Plouch maintained

that the journal “could very well contain exculpatory information, and [he] has

an absolute right to that.” Id. at 68. [6] The State filed a response, asserting that P.M.’s journal contains “multiple

pages of extremely personal and private material written by P.M.” Id. at 71.

While the State agreed that references to the sexual relationship between

Plouch and P.M. were discoverable, it argued that “all other personal and

extremely private material is non-discoverable.” Id. at 72. Thus, the State

requested that the trial court conduct an in camera review of the journal and

determine what additional journal entries and pages—if any—should be

provided to Plouch. [7] On September 22, 2022, the trial court issued an order stating that it had

reviewed the journal and concluded that any exculpatory information in the

journal must be provided to the defense as well as information regarding P.M.’s

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sexual conduct with Plouch. The trial court indicated, however, that P.M’s

journal contained a “wealth of irrelevant evidence,” to which Plouch was not

entitled. Id. at 74. Thus, the trial court determined that only thirteen pages of

P.M.’s journal—with redactions—would be provided to Plouch. [8] On September 29, 2022, Plouch filed an objection to the trial court’s ruling,

claiming that the entire journal “likely will provide context for the entries

already produced, lead to additional discoverable evidence, and possibly even

contain Brady material.” Id. at 89. Plouch further noted that while the trial

court “cited the rape shield statute as its reason for the extensive redactions of

the journal, . . . Rape Shield[ 1] is a rule of evidence, not of discovery.” Id. [9] During a hearing on Plouch’s objection, the trial court stated that while the

Rape Shield Statute does not operate as a privilege to preclude discovery, the

principles supporting it are consistent with Ind. Trial Rule 26, which allows a

court to limit discovery to protect a person’s privacy. The trial court further

commented that it “spent a lot of time” reviewing P.M.’s journal, that irrelevant

material had been excluded from the defense, and that all journal entries

documenting the sexual relationship between Plouch and P.M. had already

been provided. The trial court remarked that it was P.M.’s “innermost thoughts

. . . and reflections upon those incidents [that] aren’t relevant to this proceeding

in any way, shape, or form.” Id. at 14. Following the hearing, the trial court

1 The Rape Shield Statute provides in part that “In a prosecution for [sexual battery], evidence of the victim’s past sexual conduct; may not be admitted.” Ind. Code § 35-37-4-4 (a)(1). (Emphasis added).

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entered an order summarily overruling Plouch’s objection to the excluded and

redacted portions of the journal. [10] The trial court granted Plouch’s request to certify its order for interlocutory

appeal, we accepted jurisdiction, and this appeal ensues.

Discussion and Decision

I. Standard of Review [11] 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). An abuse of discretion occurs when the trial court’s decision is against

the logic and effect of the facts and circumstances before it. Robinson v. State,

91 N.E.3d 574, 577 (Ind. 2018). And because the nature of discovery issues is

fact-sensitive, the trial court’s ruling is cloaked in a strong presumption of

correctness on appeal. Hinkle v. State, 97 N.E.3d 654, 664 (Ind. Ct. App. 2018),

trans. denied. We also note that a trial court’s discovery ruling will be sustained

on any legal basis in the record, even if it is not the basis enunciated by the trial

court. Norton v. State, 137 N.E.3d 974, 985 (Ind. Ct. App. 2019), trans. denied.

II. Discovery of the Entire Journal [12] Plouch argues that the trial court erred in excluding and redacting portions of

P.M.’s journal. Plouch maintains that the trial court erred in relying on the

Rape Shield Statute and T.R. 26 in denying access to the complete journal.

Court of Appeals of Indiana | Opinion 23A-CR-436 | October 26, 2023 Page 5 of 8 [13] We initially observe that when a defendant requests discovery in a criminal

case, the following test must be applied to determine whether the information is

discoverable:

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

In re WTHR-TV, 693 N.E.2d 1, 6 (Ind. 1998). Further, it is within the trial

court’s discretion to conduct an in camera review to determine the validity of

any objection to the production of material. Id. at 8. [14] In deciding whether to exclude portions of the journal from discovery, the

record shows that the trial court considered the three factors in WTHR. More

particularly, the trial court declared that it was satisfied that it had gathered the

most important information from the journal that Plouch could use “in

furtherance of [his] defense,” thereby satisfying the sufficient designation

requirement. Transcript at 11. As for relevance and materiality, the trial court

reviewed the journal and concluded that “about ninety-nine percent of [the

journal] is just not relevant at all.” Id. Finally, as for the paramount interest

factor, the trial court “tracked” the provisions of T.R. 26 and noted that a court

is permitted “to enter a protective order . . . to protect a person from

embarrassment or oppression.” Id. at 15. Hence, the trial court determined that

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“[P.M.] shouldn’t be put in that . . . position, and that . . . is a paramount

concern” for excluding certain portions of the journal from discovery. Id. [15] Contrary to Plouch’s contentions, the trial court did not maintain that the Rape

Shield Statute operates to preclude discovery. Rather, the trial court pointed

out that it is T.R. 26(C)(1) that permits the court to prohibit discovery to protect

a person from annoyance, embarrassment, or oppression. Additionally, T.R.

26(C)(4) allows a trial court to order “that certain matters not be inquired into,

or that the scope of the discovery be limited to certain matters.” [16] Following the in camera review in this case, the trial court determined that the

“journal, by its very nature, contains personal matters to which the author,

[P.M.], is entitled to the utmost privacy. The public disclosure of such

information could cause [P.M.] permanent harm.” Id. at 74. The trial court

further observed that there was a “wealth of irrelevant evidence” in the journal

and noted that “all relevant, [and] possibly exculpatory . . . entries are

contained in the 13 pages hereby disclosed by the Court.” Id. [17] Because the trial court conducted an in camera review of the journal and

determined that it had released the relevant information contained therein to

Plouch, we cannot say that denying Plouch’s request to review P.M.’s journal

in its entirety was an abuse of discretion. Moreover, while Plouch also

challenges the trial court’s denial of his discovery request because the excluded

and redacted entries would add context to what has already been produced or

they might include exculpatory evidence, this argument is waived. A copy of

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the complete journal is not in the record, and Plouch did not petition this court

for an in camera review of the journal, thus limiting our review of the substance

of the trial court’s decision. See, e.g., Lewis v. State, 726 N.E.2d 836, 844 (Ind.

Ct. App. 2000) (determining that defendant’s request to discover victim’s diary

on his claim that the excluded entries might have contained false accusations or

inconsistent statements was properly denied because, among other things, no

copy of the diary was included in the record, and the defendant failed to

petition this court for an in camera review of the document), trans. denied. [18] Affirmed and remanded for further proceedings consistent with this opinion.

May, J. and Foley, J., concur.

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