Opinion
Court of Appeals Case No. 21A-CR-732
10-28-2021
STATE of Indiana, Appellant-Plaintiff, v. Brendan BROWN, Appellee-Defendant.
Attorney for Appellant: Theodore E. Rokita, Attorney General of Indiana, Samuel J. Dayton, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Theodore E. Rokita, Attorney General of Indiana, Samuel J. Dayton, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[1] The State brings this interlocutory appeal from the trial court's order granting Brendan P. Brown's motion to depose M.B., a minor and the alleged victim in each of the State's six pending sex-related charges against Brown. The State argues on appeal that the trial court's order is contrary to Indiana Code section 35-40-5-11.5 (2021) ("the Child Deposition Statute"). On five occasions since the March 2020 effective date of the Child Deposition Statute, our court has held that the statute is contrary to the Indiana Rules of Trial Procedure and, thus, is invalid. Sawyer v. State , 171 N.E.3d 1010, 1016–18 (Ind. Ct. App. 2021), trans. pending ; Church v. State , 173 N.E.3d 302, 305–07 (Ind. Ct. App. 2021), trans. pending ; State v. Riggs , ––– N.E.3d ––––, 2021 WL 3200826, at *8 (Ind. Ct. App. July 29, 2021), trans. pending ; see also State v. Wells , No. 21A-CR-89, 2021 WL 3478637, at *3–5 (Ind. Ct. App. Aug. 9, 2021), trans. pending (memorandum decision); Pate v. State , No. 21A-CR-287, 2021 WL 3478663 (Ind. Ct. App. Aug. 9, 2021), trans. pending (memorandum decision). We agree with those decisions and, following their holdings, affirm the trial court's judgment.
Facts and Procedural History
[2] On August 11, 2020, the State filed the following charges against Brown:
Count 1: Child Molesting, as a Level 3 felony.
Count 2: Child Molesting, as a Level 4 felony.
Count 3: Child Solicitation, as a Level 5 felony.
Count 4: Performing Sexual Conduct in the Presence of a Minor, as a Level 6 felony.
Count 5: Strangulation, as a Level 6 felony.
Count 6: Inappropriate Communication with a Child, as a Class B misdemeanor.
The State alleged that M.B., a minor, was the victim of each alleged offense.
[3] In September, Brown attempted to depose M.B., but was unable to do so because M.B. lived out of state. Brown and the State attempted to arrange a deposition either by having M.B. travel to Indiana or by traveling to M.B.’s location, but the parties could not reach an agreement. Brown also offered to hold the deposition remotely. Ultimately, the State objected to any deposition of M.B.
[4] Thereafter, Brown filed his motion to allow a virtual deposition of M.B. After a hearing at which the parties presented argument, the trial court granted Brown's request. Specifically, the court concluded that "extraordinary circumstances existed for [Brown] to take the deposition of [M.B.]" and that "it was in the interest of justice, particularly [Brown's] Sixth Amendment Right of Confrontation, to take the deposition of [M.B.]." Appellant's App. Vol. 2 at 111–12. The State then requested this discretionary interlocutory appeal, which the trial court and then our court granted. See Ind. Appellate Rule 14(B).
Standard of Review
[5] We generally review a trial court's orders on discovery for an abuse of discretion. See Bedolla v. State , 123 N.E.3d 661, 666 (Ind. 2019). However, where the issue on appeal is a pure question of law, we review the issue de novo. Berg v. Berg , 170 N.E.3d 224, 227 (Ind. 2021). We further note that Brown has not filed an appellee's brief. Thus, the State's burden on appeal is to show prima facie error. Salyer v. Washington Regular Baptist Church Cemetery , 141 N.E.3d 384, 386 (Ind. 2020). Prima facie error means "at first sight, on first appearance, or on the face of it." Id. (quotation marks omitted).
Discussion and Decision
[6] On appeal, the State asserts that the trial court erred in granting Brown's motion for two reasons. First, the State acknowledges the conflict between the Child Deposition Statute and our Trial Rules, but it argues that we should not consider the conflict in this appeal because it was not argued below. Second, the State argues that, under the Child Deposition Statute, Brown failed to present sufficient evidence of extraordinary circumstances and the interests of justice to support allowing the deposition of M.B.
[7] The State's arguments are misplaced. When we review a trial court's discretionary decisions, we may affirm "on any legal theory supported by the record." Whitenack v. State , 68 N.E.3d 1123, 1126 (Ind. Ct. App. 2017), trans. denied ; see also Baesler's Super-Valu v. Ind. Comm'r of Labor ex rel. Bender , 500 N.E.2d 243, 246 (Ind. Ct. App. 1986) ("We must affirm unless the appellant has shown an abuse of discretion, or that the decision of the trial court cannot be sustained upon any legal theory."). And in reviewing the trial court's grant of Brown's motion, we will not disregard the several recent opinions from this court that support the trial court's judgment under our Trial Rules.
[8] As this court has explained:
It is a fundamental rule of law in Indiana that in the event of a conflict between a procedural statute and a procedural rule adopted by the supreme court, the latter shall take precedence. When a statute conflicts with the Indiana rules of trial procedure, the rules of procedure govern, and phrases in statutes which are contrary to the rules of procedure are considered a nullity. To be in conflict, it is not necessary that the rule and the statute be in direct opposition. The rule and the statute need only be incompatible to the extent that both could not apply in a given situation. A procedural statute may not operate as an exception to a procedural rule having general application. A procedural statute that does not conflict with any of the trial rules may be held operative. However, any statute conflicting with procedural rules enacted by our supreme court shall have no force or effect.
Bowyer v. Ind. Dep't of Nat. Res. , 798 N.E.2d 912, 916–17 (Ind. Ct. App. 2003) (citations and quotation marks omitted).
[9] In our court's recent decision in Sawyer and in each ensuing decision addressing the issue, we held that the Child Deposition Statute is procedural. 171 N.E.3d at 1016 ; see also Church , 173 N.E.3d at 305–07 ; Riggs , ––– N.E.3d at ––––, 2021 WL 3200826, at *8. As we explained in Riggs :
the Child Deposition Statute requires the defendant to seek the prosecutor's consent, requires the trial court upon the defendant's motion to hold a hearing if the prosecutor does not consent, sets forth the burden of proof, and places the burden of proof on the defendant. These provisions are procedural. The State attempts to cast the provisions governing the burden of proof as substantive matters, but the burden of proof is a matter of procedure. See Shepard v. Schurz Commc'ns, Inc. , 847 N.E.2d 219, 224 (Ind. Ct. App. 2006) (resolving inconsistency between the anti-SLAPP statute and Trial Rule 56 in favor of Rule 56 where anti-SLAPP statute provided that summary judgment is appropriate only when the movant has "proven by a preponderance of the evidence" that the act underlying the claim is a lawful act, and Rule 56 placed a burden upon the movant to make a "prima facie" showing of entitlement to judgment.). As noted above, procedural laws "prescribe the manner in which ... rights and responsibilities may be exercise[d] and enforced in a court." [ State ex rel. Blood v. Gibson Cir. Ct. ,] 239 Ind. [394,] 400, 157 N.E.2d [475,] 478 [(1959)]. The Child Deposition Statute clearly addresses the method and manner in which a defendant may obtain a deposition of a child victim.
––– N.E.3d at ––––, 2021 WL 3200826, at *6.
[10] Further, we have repeatedly held that the Child Deposition Statute is in conflict with our Trial Rules. In Riggs , we again explained:
Trial Rule 26 provides that, except in the case of protective orders, the frequency of use of discovery methods including depositions "is not limited." In addition, Trial Rule 30(A) provides that "any party may take the testimony of any person, including a party, by deposition upon oral examination" after commencement of the action. Thus, a criminal defendant may freely obtain a child victim's deposition unless a person seeks to limit the defendant's right by filing a motion and establishing good cause for a protective order pursuant to Trial Rule 26(C). The Child Deposition Statute conflicts with these provisions by providing that a defendant may depose a child victim only in accordance with the Statute, by requiring the defendant to seek the prosecutor's permission, by requiring the defendant to move for a hearing when the prosecutor does not grant permission, and by placing the burden of proof on the defendant to establish that there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim's testimony and/or that the deposition is necessary due to the existence of extraordinary circumstances and in the interest of justice. Trial Rules 26 and 30 and the Child Deposition Statute are incompatible because both cannot apply in [this defendant's] situation. As such, the trial rules prevail.
Id. at *8.
[11] We agree with the consistent opinions and analyses of this court, as first held in Sawyer , that the Child Deposition Statute is procedural and impermissibly conflicts with our Trial Rules. We therefore conclude that the trial court's judgment on Brown's motion is to be reviewed under the standards for obtaining a child victim's testimony provided for under Trial Rules 26 and 30. The State presents no argument in this appeal that, under those standards, the trial court abused its discretion in allowing M.B. to be deposed. We therefore conclude that the State has not made a prima facie showing of reversible error, and we affirm the trial court's judgment.
[12] Affirmed.
Tavitas, J., and Weissmann, J., concur.