Court of Appeals of Indiana | Opinion 23A

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- 436 | October 26, 2023 Page 1 of 8 A TTORNEY S FOR A PPELLANT Joshua Moudy Grace Atwater Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA

Isaac Wesley Plouch , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. October 26, 2023 Court of Appeals Ca se No. 23A

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- 436 Appeal from the Porter Superior Court The Honorable Michael A. Fish, Judge Trial Court Cause No. 64D01

- 2110

- F6

- 9751

Opinion by Chief Judge Altice Judges May and Foley concur.
A ltice, Chief Judge .Court of Appeals of Indiana | Opinion 23A

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- 436 | October 26, 2023 Page 2 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 vic tim’s handwritten journal that detailed the history of their sexual relationship was improperly restrict ed

.
[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 a fter the two had performed in a musical event at the University. At some point during th at trip, Plouch touch ed P.M. and tried to kiss her several time s , 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 o ff 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 Val paraiso University Police Department interviewed her on March 4, 2020. At that time, P.M. gave Detective Garber her handwritten j ournal that described the above incident and other prior sexual e ncounters that she hadCourt of Appeals of Indiana | Opinion 23A

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- 436 | October 26, 2023 Page 3 of 8 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 polic e. On September 7, 2022, Plouch filed a motion for specific discovery and request ed t he State to “produce the entire journal .” Id. at 68

- 69. Pl o uch asserted in his motion that only four partially

- redacted pages of the journal had been provided to him, and t hat he desired to review the entire journal because it documented the course of his sexual re lationship 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] T h e State filed a response, asserting that P.M.’s journal contain s “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 discove rable , 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 informatio n in the journal must be provided to the defense as well as information regarding P.M.’sCourt of Appeals of Indiana | Opinion 23A

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- 436 | October 26, 2023 Page 4 of 8 sexual conduct with Plouch. The trial court indicated , however, that P.M’s journal contain ed a “wealth of irrelevant evidence ,” to which Plouch was not entitled. Id

. at 74. Th us, 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 possibl y 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 extens ive 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 , t he principles support ing 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 irrelevan t material had been excluded from the defense, and that all journal entries d ocumenting 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 t hose 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)

. ( E mphasis added).Court of Appeals of Indiana | Opinion 23A

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- 436 | October 26, 2023 Page 5 of 8 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 in terlocutory appeal , we accepted jurisdiction, and this appeal ensues. 

### Discussion and Decis i on I. Standard of Review
[11] The standard of review in discovery matters is limited to determinin g whether the trial court abused its discretion. Hale v. State , 54 N.E.3d 355, 357 (Ind. 2016)

. A n 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 b ecause the natu re of discovery issues is fact

- sensitive, the trial court’s ruling is cloaked in a stron g presumption of correctness on appeal. Hinkle v. State , 97 N.E.3d 654, 664 (Ind. Ct. App. 2 018) , 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 portion s 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

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- 436 | October 26, 2023 Page 6 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) the re 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 w ithin 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 t he 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,” th ereby 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 journa l] 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 oppre ssion.” Id. at 15. Hence, the trial court determined thatCourt of Appeals of Indiana | Opinion 23A

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- 436 | October 26, 2023 Page 7 of 8 “[P.M.] shouldn’t be put in that . . . position, and that . . . is a paramount concern” for excluding certain portions o f 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

ou t that it is T.R. 26(C)(1) that permits the court to prohibit discovery to protect a person from annoyance, embar rassment, or oppression. A dditionally, 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 , t he trial cour t 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 furthe r 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 a buse 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 argumen t is waived. A copy ofCourt of Appeals of Indiana | Opinion 23A

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- 436 | October 26, 2023 Page 8 of 8 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.2 d 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

co py 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

.