Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 1 of 14

IN THE

Court of Appeals of Indiana

James D. Frye,

Appellant-Defendant

v.

State of Indiana,

Appellee-Plaintiff

July 31, 2024

Court of Appeals Case No.

23A-CR-1691

Interlocutory Appeal from the Greene Circuit Court

The Honorable Eric C. Allen, Judge

Trial Court Cause No.

28C01-2302-F3-2

Opinion by Judge May

Judge Brown and Senior Judge Shepard concur.

May, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 2 of 14

[1] In this interlocutory appeal, James D. Frye appeals the trial court’s decision to 

grant the State’s request for a protective order to prohibit Frye from questioning 

the alleged victim (“AV”) about her sexual history with Frye. Frye makes 

several arguments, which we consolidate and restate as whether the trial court 

abused its discretion when it granted the State’s motion for a protective order.

We reverse and remand.

1

Facts and Procedural History 

[2] Frye and AV were in a romantic relationship and lived together. In early 

January 2023, AV ended their romantic relationship. She left the apartment she 

shared with Frye for a few days and returned on January 5, 2023. The incident 

at issue in this case allegedly occurred during the morning of January 6, 2023.

[3] AV told2 Linton Police Department Officer Logan E. Hobbs:

When [AV] returned to the apartment [on January 5, 2023], she 

told Frye that the two of them would “never be romantic again” 

and “never be sexual again.” [AV] stated that Frye “absolutely 

understood” the living situation and that there was no longer [a] 

sexual relationship between him and [AV].

[AV] stated that Frye did not have a separate bed or his furniture 

in the residence, so she allowed him to sleep in her bed for the 

1 We held oral argument on this case on May 17, 2024, in the Randall T. Shepard Courtroom at The Old 

Courthouse in Evansville, Indiana, before participants of the Indiana State Bar Association’s Leadership 

Development Academy, as well as members of the public. We thank Courthouse staff for their hospitality 

and counsel for their able presentations.

2 As this case has not gone to trial, the facts stated herein come from the probable cause affidavit. 
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 3 of 14

night. [AV] stated that she believes Frye went to bed at 

approximately 0100 or 0200 on 6 January, and she went to bed at 

approximately 0500. [AV] stated that she woke up at 

approximately 0845 laying on her stomach and Frye was 

“literally inside” her. She later clarified that meant Frye’s penis 

was inside her vagina.

[AV] stated that when she woke up, she pushed Frye away. Frye 

then stopped, got off the bed, and began apologizing to her. She 

further stated that Frye told her “I’m so sorry,” “I just raped 

you,” and “I’m disgusting.” [AV] stated she asked Frye why he 

began having sex with her while she was asleep, and he told her 

that he had been “going down” on [AV] and thought she was 

awake. [AV] stated she then drove Frye to his father’s residence 

in Monroe County and then went to the hospital to have a 

SANE[3] examination done.

[AV] provided screenshots of text messages between her and Frye 

that were exchanged after she took him to his father’s residence. 

In those text messages, [AV] asks Frye “Why did you do this.” 

Frye responds that he is “really sorry” and “I should have just 

respected you as a person and your body I’m sorry I feel so low.” 

Frye then goes on to deny that the incident was rape because he’s 

woken [AV] up with sex in the past. [AV] clarified that those 

instances were consensual, and the incident on 6 January was

not.

3 SANE is an acronym for Sexual Assault Nurse Examiner, which is a nurse who conducts a physical

examination of a person after an alleged sexual assault.
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 4 of 14

(App. Vol. II at 15) (footnote added). Based on the information in the probable 

cause affidavit, on February 14, 2023, the State charged Frye with Level 3 

felony rape of a person who is unaware sexual conduct is occurring.

4

[4] On April 7, 2023, Frye filed notice that he wanted to take a deposition of AV. 

During pretrial conferences and communications between the parties, Frye 

indicated he “intend[ed] to inquire of [AV] about prior sexual behavior between 

[AV] and [Frye].” (Id. at 45.) On May 19, 2023, the State filed a motion for 

protective order arguing Indiana Evidence Rule 412 and Indiana Code section 

35-37-4-4 prohibited Frye from asking AV about her sexual history with Frye. 

The State asserted:

Because the Rape Shield law prohibits the introduction of such 

matters into evidence, inquiry into those same matters in 

discovery is not reasonably calculated to lead to the discovery of 

admissible evidence. Further, such matters are not material to 

any cognizable defense or fact at issue in this case. Finally, even 

should this Court determine otherwise, the prejudicial effect of 

the proffered evidence outweighs the probative value.

(Id.) The same day, Frye filed an objection to the State’s motion for a 

protective order and argued he had a right to depose AV about her sexual 

history with Frye because “[c]onsent may be an issue . . . [and] [i]t is necessary 

to ask [AV] questions regarding their relationship, sexual and in general.” (Id. 

at 47.) The trial court held a hearing on the matter on May 26, 2023, and on 

4 Ind. Code § 35-42-4-1(a)(2).
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 5 of 14

June 2, 2023, issued an order denying the State’s motion for a protective order. 

In that order, the trial court stated:

5. It appears the ultimate question is whether a competent adult 

can give advance consent to sexual activity while they are asleep 

or otherwise unconscious. If such advance consent is permitted 

then consent is at issue and is a question of fact. However, if 

such advance consent is not permitted then consent is not at issue 

and is a pure issue of law. The State has presented citations to 

legal authority that the general rule is that if a man has 

intercourse with a woman while she is asleep then the act is rape 

because the act is without consent. However, none of the cited 

cases address the issue of whether advance consent is a legal 

possibility, and the Court has been unable to locate any legal 

authority that addresses the issue of advance consent.

6. It appears the issue of whether a competent adult can give 

advance consent to sexual activity while they are asleep is 

unsettled, and the Court cannot make a final determination at 

this point whether evidence of advance consent is admissible or 

inadmissible. Therefore, inquiry into the prior sexual behavior of 

[Frye] and [AV] may lead to admissible evidence on the issue of 

consent.

(Id. at 54-5.)

[5] On June 5, 2023, the State filed a motion asking the trial court to reconsider the 

denial of its request for a protective order. Therein, the State cited several cases 

from other jurisdictions that had rejected the defense of advance consent. The 

State acknowledged: “[a]lthough no Indiana case has yet examined the concept 

of ‘advance consent’ as a defense to rape, every other State that had occasion to 

consider it has flatly rejected it as a defense[.]” (Id. at 57.) Therefore, the State 
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 6 of 14

contended it had “every reason to believe that the Indiana Supreme Court and 

the Indiana Courts [sic] of Appeal [sic] would also reject it as a defense[.]” (Id.) 

[6] On June 8, 2023, the trial court rescinded its previous order and entered a 

protective order prohibiting Frye from deposing AV about her sexual history 

with Frye. On June 14, 2023, Frye filed a motion to certify the trial court’s 

order for interlocutory appeal. On June 21, 2023, the trial court certified its 

order for interlocutory appeal, and we accepted jurisdiction on August 18, 

2023.

Discussion and Decision

[7] Frye challenges the trial court’s grant of the State’s protective order to prohibit 

him from deposing AV about her sexual history with Frye. 

The standard of review in discovery matters is limited to 

determining whether the trial court abused its discretion. An 

abuse of discretion occurs when the trial court’s decision is 

against the logic and effect of the facts and circumstances before 

it. 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. 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. 

Plouch v. State, 222 N.E.3d 357, 360 (Ind. Ct. App. 2023) (internal citations 

omitted). 

[8] Discovery-related protective orders can be requested pursuant to Indiana Trial 

Rule 26(C) and such orders are designed to “protect a party or person from 
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 7 of 14

annoyance, embarrassment, oppression, or undue burden or expense[.]” T.R. 

26(C). Under Trial Rule 26(C), the burden is initially on the party seeking the 

protective order to show “good cause” why such an order is required to protect 

the party from “annoyance, embarrassment, oppression, or undue burden or 

expense[.]” Estate of Lee ex rel. McGarrah v. Lee & Urbahns Co., 876 N.E.2d 361, 

367-8 (Ind. Ct. App. 2007) (quoting T.R. 26(C)). After a showing of good cause 

has been made, the burden shifts to the party seeking discovery of protected 

material to establish that the trial court’s protective order constitutes an abuse of 

discretion. Id. Frye contends the trial court abused its discretion when it 

granted the State’s motion because the protective order too excessively limits 

his ability to conduct discovery to determine any possible defenses and a trial 

strategy.

[9] Generally, Indiana has “very broad discovery rules[.]” Nat’l Collegiate Athletic 

Assoc. v. Finnerty, 191 N.E.3d 211, 220 (Ind. 2022). Under Indiana Trial Rule 

26(B)(1), parties may “obtain discovery regarding any matter, not privileged, 

which is relevant to the subject-matter of the pending action[.]” “[I]t is not 

ground for objection that the information sought will be inadmissible at trial if 

the information sought appears reasonably calculated to lead the discovery of 

admissible evidence.” Id. Discovery may be limited if the court determines: 

(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, 
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 8 of 14

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.

Id. The State argues “good cause” existed under Trial Rule 26(C) to limit 

Frye’s questions about the prior sexual relationship between himself and AV 

because of Indiana’s Rape Shield provisions. 

[10] In “a civil or criminal proceeding involving alleged sexual misconduct[,]”

evidence offered “to prove the victim . . . engaged in other sexual behavior” or 

offered to prove “a victim’s . . . sexual predisposition” is generally inadmissible. 

Evid. R. 412(a). However, if a criminal defendant asserts a defense of consent 

and seeks to offer evidence of “specific instances of a victim’s . . . sexual 

behavior with respect to the [defendant] . . . to prove consent[,]” the evidence 

may be admitted. Evid. R. 412(b)(1)(B). Indiana Evidence Rule 412 is often 

called the “Rape Shield Rule.” Graham v. State, 736 N.E.2d 822, 824 (Ind. Ct. 

App. 2002), trans. denied. Our Indiana Supreme Court noted the policy behind 

the Rape Shield Rule in State v. Walton:

[I]nquiry into a victim’s prior sexual activity is sufficiently 

problematic that it should not be permitted to become a focus of 

the defense. Rule 412 is intended to prevent the victim from 

being put on trial, to protect the victim against surprise, 

harassment, and unnecessary invasion of privacy, and, 

importantly, to remove obstacles to reporting sex crimes.

715 N.E.2d 824, 826 (Ind. 1999) (quoting Williams v. State, 681 N.E.2d 195, 200 

(Ind. 1997)).
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 9 of 14

[11] Indiana law also contains a “Rape Shield Statue” codified at Indiana Code 

section 35-37-4-4, which is similar, but not identical, to the Rape Shield Rule. 

Like the Rape Shield Rule, the Rape Shield Statute prohibits the admission of, 

as is relevant here, “evidence of the victim’s past sexual conduct[.]” Ind. Code 

§ 35-37-4-4(a)(1). However, evidence of the “victim’s . . . past sexual conduct 

with the defendant . . . may be introduced if the judge finds . . . that it is 

material to a fact at issue in the case and that its inflammatory or prejudicial 

nature does not outweigh its probative value.” Ind. Code § 35-37-4-4(b)(1). 

The Rape Shield Statute “was designed to protect victims of sex crimes from a 

general inquiry into their sexual past.” Baker v. State, 750 N.E.2d 781, 783 (Ind. 

2001).

[12] Frye is charged with the Level 3 felony rape of AV because he allegedly had 

sexual intercourse with her while she was “unaware” the sexual activity was 

occurring, that is, while she was asleep. See Ind. Code § 35-42-4-1(a)(2)

(defining sexual activity with an “unaware” person as rape). We examined the 

meaning of the word “unaware” in Nolan v. State, 863 N.E.2d 398 (Ind. Ct. 

App. 2007). We first stated:

[W]hile “unaware” has not been defined by the legislature, we 

have held that “‘[u]naware’ is defined as ‘not aware: lacking 

knowledge or acquaintance: UNCONSCIOUS.’” Becker v. State, 

703 N.E.2d 696, 698 (Ind. Ct. App. 1998) (quoting Webster’s 3d 

New Int’l Dictionary 2483 (1986 ed.)).

Circumstances in which we have found a victim to have been 

“unaware” include where the victim was asleep, as “a person is 
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 10 of 14

unconscious during sleep.” Id. In addition, we found a female 

victim unaware when she had “lost consciousness due to 

inebriation.” Glover v. State, 760 N.E.2d 1120, 1124 (Ind. Ct. 

App. 2002) (adopting the Becker definition of “unaware” to the 

corresponding provision of the rape statute, I.C. § 35-42-4-

1(a)(2)), trans. denied. And our supreme court has suggested that 

a victim’s illness and intoxication may lead to her being 

sufficiently “unaware” for the rape statute to apply, even if the 

victim never loses consciousness. See Bryant v. State, 644 N.E.2d 

859, 860 n.1 (Ind. 1994).

Id.

[13] We then examined the use of “unaware” in the statutory definition of Class B 

felony criminal deviate conduct:

(a) A person who knowingly or intentionally causes another 

person to perform or submit to deviate sexual conduct when:

(1) the other person is compelled by force or imminent 

threat of force;

(2) the other person is unaware that the conduct is 

occurring; or

(3) the other person is so mentally disabled or deficient 

that consent to the conduct cannot be given;

commits criminal deviate conduct, a Class B felony.

Ind. Code § 35-42-4-2(a)(2) (2004) (repealed by P.L. 158-2013, SEC. 438 and 

P.L. 214-2013, SEC. 37, eff. July 1, 2014). We noted the “criminal deviate 
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 11 of 14

conduct statute as a whole supports the proposition that ‘unaware’ is not 

‘unconscious’ and that, instead, the legislature intended a broader definition.” 

Nolan, 863 N.E.2d at 402. Looking at the statutory language as a whole, we 

observed:

[C]lause (1) [of Indiana Code § 35-42-4-2(a)] proscribes deviate 

sexual conduct on a person who cannot voluntarily consent to 

such conduct because he or she “is compelled by force or 

imminent threat of force.” Clause (2) prohibits deviate sexual 

conduct on a person who is “unaware” of the conduct, 

presumably because one who is “unaware” cannot voluntarily 

consent to the conduct. I.C. § 35-42-4-2(a)(2). And clause (3) 

expressly proscribes such conduct on one that cannot consent 

when he or she is “mentally disabled or deficient.” I .C. § 35-42-

4-2(a)(3). Especially in light of clause (3), the unifying theme to 

the separate situations of proscribed conduct is that in none of 

those situations can a victim give voluntary consent to the act. 

Hence, our focus in addressing whether a victim was “unaware” 

involves looking at the facts favorable to the verdict to determine 

if the victim was capable of voluntarily giving consent to the 

actor.

Id. at 403.

[14] Similar to the criminal deviate conduct statute at issue in Nolan, the statute 

under which Frye is charged states: 

[A] person who knowingly or intentionally has sexual intercourse 

with another person or knowingly or intentionally causes another 

person to perform or submit to other sexual conduct . . . when:

(1) the other person is compelled by force or imminent 

threat of force;
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 12 of 14

(2) the other person is unaware that the sexual intercourse 

or other sexual conduct . . . is occurring;

(3) the other person is so mentally disabled or deficient 

that consent to sexual intercourse or other sexual conduct . 

. . cannot be given; or

(4) the person disregarded the other person’s attempts to 

physically, verbally, or by other visible conduct refuse the 

person’s acts;

commits rape, a Level 3 felony.

Ind. Code § 35-42-4-1(a). 

[15] Given the similar statutory construction, we follow Nolan and hold the ability to 

consent is a “unifying theme to the separate situations of proscribed conduct” 

constituting Level 3 felony rape. Nolan, 863 N.E.2d at 403. Moreover,

“whether a victim was ‘unaware’ involves looking at the facts . . . to determine 

if the victim was capable of voluntarily giving consent to the actor.” Id. Thus, 

Frye should be able to ask AV questions about their shared sexual history to 

determine whether there is any basis by which he could defend himself from the 

charge against him by arguing the alleged acts of January 6, 2023, were 

consensual.

[16] Frye does not yet know what his defense to the criminal charge will be and he 

has been unable to conduct discovery. Although most information about a 

victim’s sexual history is, and certainly ought to be, inadmissible under our 
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 13 of 14

Rape Shield provisions, it is possible that details of AV’s prior sexual 

relationship with Frye may be relevant to the charge against Frye. See, e.g., Ind. 

Code § 35-37-4-4 (b)(1) (evidence of the “victim’s . . . past sexual conduct with 

the defendant . . . may be introduced if the judge finds . . . that it is material to a 

fact at issue in the case and that its inflammatory or prejudicial nature does not 

outweigh its probative value”). To prohibit Frye from asking AV any questions 

about their prior shared sexual relationship is tantamount to allowing the State 

to use our Rape Shield provisions “both as a shield and a sword.” Steward v. 

State, 636 N.E.2d 143, 150 (Ind. Ct. App. 1994), aff’d on trans. Steward v. State, 

652 N.E.2d 490 (Ind. 1995), reh’g denied. Frye must be permitted to ask AV 

questions – limited exclusively to their shared sexual relationship – to determine 

whether any form of consent defense is available to Frye. See Evid. R. 

412(b)(1)(B) (rendering admissible “specific instances of a victim’s . . . sexual 

behavior with respect to the [defendant] . . . to prove consent”). We therefore 

conclude the trial court abused its discretion when it issued a protective order 

prohibiting Frye from asking AV questions about their shared sexual history.5

5 The trial court’s order implicitly relies on the unavailability of the defense of advance consent to grant the 

State’s motion for a protective order. As Frye does not yet know what his defense will be because he has not

yet been able to depose AV, any question about the legal viability of the defense of advance consent is not yet 

ripe. We therefore decline to address it.
Court of Appeals of Indiana | Opinion 23A-CR-1691 | July 31, 2024 Page 14 of 14

Conclusion

[17] The trial court abused its discretion when it granted the State’s protective order 

to prohibit Frye from asking AV about their shared sexual history. We 

therefore reverse and remand for proceedings consistent with this opinion.

[18] Reversed and Remanded.

Brown, J., and Shepard, S.J., concur.

ATTORNEY FOR APPELLANT

Andrew Bernlohr

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Indiana Attorney General

Indianapolis, Indiana

Ellen H. Meilaender

Supervising Deputy Attorney General

Indianapolis, Indiana