Court of Appeals of Indiana | Memorandum Decision 18A-CR-1227 | January 31, 2019 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Yvette M. LaPlante

Keating & LaPlante, LLP

Evansville, Indiana

Barry M. Blackard

Blackard & Brinkmeyer, LLC

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Justin M. Hornby,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 31, 2019

Court of Appeals Case No.

18A-CR-1227

Appeal from the 

Gibson Superior Court

The Honorable 

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 2 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.
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[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 
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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-
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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 
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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.
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[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 videorecorded 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.
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[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.