IN THE COURT OF APPEALS OF INDIANA Cause No. 35A02-1705 …

IN THE COURT OF APPEALS OF INDIANA

Cause No. 35A02-1705-CR-1060 WPTA-TV, Appellant (Intervenor below), v. STATE OF INDIANA, Appellee (Plaintiff below), v. JOHN C. MATHEW, Appellee (Defendant below).

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Appeal from the Huntington Circuit Court Trial Court Cause No. 35C01-1605-F3-000096 The Honorable Thomas M. Hakes, Judge

APPENDIX OF APPELLANT, WPTA-TV

Volume 2 of 2 Volumes Pages 1 through 18

Margaret M. Christensen, Atty. No. 27061-49 Jessica E. Whelan, Atty. No. 30779-49 BINGHAM GREENEBAUM DOLL LLP 2700 Market Tower 10 W. Market Street Indianapolis, IN 46204-4900 (317) 635-8900 (317) 236-9907 Fax [email protected] [email protected]

Attorneys for Appellant, WPTA-TV

APP_01

Filed: 6/20/2017 3:21 PM

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CHRONOLOGICAL CASE SUMMARYCASE NO. 35C01-1605-F3-000096

State of Indiana v. John C Mathew §§§§§§

Case Type: F3 - Felony 3Date Filed: 05/27/2016

Location: Huntington Circuit Court Protection Order Registry: 605720

RELATED CASE INFORMATION

Related Cases 35C01-1605-MC-000359 (Other) 35A02-1705-CR-01060 (Lower Trial Court Case)

PARTY INFORMATION

AttorneysDefendant Mathew, John C Male Indian Robert William Gevers

Retained809 S Calhoun StreetSuite 600Fort Wayne, IN 46802-0000

260-407-7071(W)

704 Rocky Run Huntington, IN 46750

State Plaintiff State of Indiana Amy Christine RichisonRoom 420, CourthouseHuntington, IN 46750-0000

CHARGE INFORMATION

Charges: Mathew, John C Statute Level Date 1. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit

by force or imminent threat of forc35-42-4-8(a)(1)(A) Felony 6 12/30/2015

Filed As: 35-42-4-1(a)(1)/F3: Rape when compelled by force or imminent threat of force. 35-42-4-1(a)(1) Felony 3 12/30/2015

2. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit by force or imminent threat of forc

35-42-4-8(a)(1)(A) Felony 6 01/20/2016

3. 35-42-2-1(b)(1)/MB:Battery 35-42-2-1(b)(1) Misdemeanor Class B 12/30/20154. 35-42-2-1(b)(1)/MB:Battery 35-42-2-1(b)(1) Misdemeanor Class B 12/30/2015

BondsHuntington Cash Bond $5,000

06/01/2016 CASH BOND RECEIVED BY CLERK04/25/2017 RELEASEDCounts:1, 2, 3, 4Comments: Bond posted 5-31-16

Huntington Non Corporate Surety Bond $30,000

06/01/2016 SURETY BOND RECEIVED BY CLERKCounts:1, 2, 3, 4Comments: Bond posted 5-31-16

EVENTS & ORDERS OF THE COURT

05/27/2016 Case Opened as a New Filing05/27/2016 Warrant or Writ of Attmnt for the Body of a Person Issued05/27/2016 Appearance Filed

For Party: State of IndianaAttorney: Richison, Amy ChristineFile Stamp: 05/27/2016

05/27/2016 Notice of Exclusion of Confidential InformationFiled By: Richison, Amy Christine

Page 1 of 5

6/16/2017https://mycase.in.gov/CaseDetail.aspx?CaseID=23260764

Appellant's Appendix, Volume 2Appellant's Appendix, Volume 2

APP_02

File Stamp: 05/27/201605/27/2016 Information Filed

Counts I, II, III, IVFiled By: Richison, Amy ChristineFile Stamp: 05/27/2016

05/27/2016 Probable Cause Affidavit FiledCounts I, II, III, IVFiled By: Richison, Amy ChristineFile Stamp: 05/27/2016

05/27/2016 Report FiledPolice Report. Same placed in confidential envelope.Filed By: Richison, Amy ChristineFile Stamp: 05/27/2016

05/31/2016 Appearance FiledAttorney Gevers files Appearance (by fax) on behalf of Defendant.For Party: Mathew, John CAttorney: Gevers, Robert WilliamFile Stamp: 05/31/2016

05/31/2016 Warrant or Writ of Attmnt for the Body of a Person Served06/01/2016 Cash Bond Entered in Clerk's Office06/01/2016 Surety Bond Entered in Clerk's Office06/01/2016 Amended Pleading Filed

Amended Appearance: TCN 3510025108Filed By: Richison, Amy ChristineFile Stamp: 06/01/2016

06/06/2016 Initial Hearing (9:30 AM) (Judicial Officer Hakes, Thomas) Result: Commenced and concluded

06/06/2016 Hearing Scheduling ActivityInitial Hearing scheduled for 06/06/2016 at 9:30 AM.

06/06/2016 Hearing Journal Entry (Judicial Officer: Hakes, Thomas ) State appears by Chief Deputy Prosecutor, Jamie Groves. Defendant appears in person and by counsel, Bob Gevers. Attorney Gevers waives reading of charges and files Receipt for Discovery. Omnibus date set for August 15, 2016 at 9:30 a.m. LNT: Prosecutor, Probation & Atty Gevers.

06/07/2016 Hearing Scheduling ActivityStatus Conference scheduled for 08/15/2016 at 9:30 AM.

07/05/2016 Administrative EventVictim Impact Statement filed.Filed By: Richison, Amy ChristineFile Stamp: 07/01/2016

07/14/2016 Affidavit FiledState of Indiana files Affidavit in Support of Search Warrant.Filed By: Richison, Amy ChristineFile Date: 07/14/2016

07/14/2016 Order Granting Request for Search WarrantCourt enters Search Warrant. Copy to Prosecutor for service, and copy to Attorney Gevers.Order Signed: 07/14/2016

08/15/2016 Status Conference (9:30 AM) (Judicial Officer Hakes, Thomas) Omnibus date

Result: Commenced and concluded08/15/2016 Hearing Journal Entry (Judicial Officer: Hakes, Thomas )

State appears by Chief Deputy Prosecutor, Jamie Groves. Defendant appears in person and by counsel, Bob Gevers. Matter is set for jury trial for four (4) days commencing March 21, 2017 at 9:00 a.m. Final pre-trial conference set for February 13, 2017 at 9:30 a.m. Court enters Pre-Trial Conference Order. Copy of Order to Prosecutor, & Atty Gevers. LNT: Probation & Sheriff's Dept.

08/15/2016 Order on Pretrial ConferenceOrder Signed: 08/15/2016

08/17/2016 Hearing Scheduling ActivityFinal PreTrial Conference scheduled for 02/13/2017 at 1:30 PM.

08/17/2016 Hearing Scheduling ActivityJury Trial scheduled for 03/21/2017 at 9:00 AM.

08/17/2016 Hearing Scheduling ActivityJury Trial scheduled for 03/21/2017 at 1:00 PM.







08/29/2016 Hearing Scheduling ActivityFinal PreTrial Conference originally scheduled on 02/13/2017 at 1:30 PM was rescheduled to 02/13/2017 at 9:30 AM. Reason: Data Entry Error.

02/02/2017 Motion In Limine FiledMotion in Limine Penalty.pdfFiled By: State of Indiana

Page 2 of 5



APP_03

File Stamp: 02/02/201702/02/2017 Motion In Limine Filed

Motion in Limine Rape Shield.pdfFiled By: State of IndianaFile Stamp: 02/02/2017

02/02/2017 Motion In Limine FiledMotionLimine Burden of Proof.pdfFiled By: State of IndianaFile Stamp: 02/02/2017

02/02/2017 Witness and/or Exhibit List FiledWitness List - Matthew, John - redacted copy.pdfFiled By: State of IndianaFile Stamp: 02/02/2017

02/02/2017 Witness and/or Exhibit List FiledWitness List - Matthew, John.pdfFiled By: State of IndianaFile Stamp: 02/02/2017

02/02/2017 Notice of Exclusion of Confidential InformationAR9 for W & E List.pdfFiled By: State of IndianaFile Stamp: 02/02/2017

02/03/2017 Preliminary Instructions FiledMathew Preliminary Jury Instructions.pdfFiled By: State of IndianaFile Stamp: 02/03/2017

02/13/2017 Final PreTrial Conference (8:00 AM) (Judicial Officer Hakes, Thomas) 02/13/2017 Reset by Court to 02/13/2017

Result: Continued02/13/2017 Hearing Journal Entry (Judicial Officer: Hakes, Thomas )

State appears by Chief Deputy Prosecutor, Jamie Groves. Defendant appears in person and by counsel, Bob Gevers. On motion of defense, the final pre-trial conference is continued to February 27, 2017 at 9:00 a.m.

02/15/2017 Hearing Scheduling ActivityFinal PreTrial Conference scheduled for 02/27/2017 at 8:00 AM.

02/27/2017 Final PreTrial Conference (8:00 AM) (Judicial Officer Hakes, Thomas) Change of plea hearing

Result: Commenced and concluded02/27/2017 Hearing Journal Entry (Judicial Officer: Springer, Karen -SR )

State appears by Chief Deputy Prosecutor, Jamie Groves. Defendant appears in person and by counsel, Bob Gevers. State files State's Notice of Amendment and State's Motion to Amend the Information. Defense does not object and Court enters Order granting motion to amend count 1 from "Rape as a level 3 felony" to "Sexual Battery as a level 6 felony". State files Information for Sexual Battery, a level 6 felony. Attorney Gevers waives reading of amended count 1 and parties file Motion to Enter a Plea of Guilty. Court reviews plea with defendant; makes findings; takes plea under advisement and sets hearing for April 17, 2017 at 8:00 a.m. to determine if it will accept or reject the plea. If the plea is accepted the court will move to immediate sentencing thereafter. The Probation Department is ordered to prepare a pre-sentence investigation report and provide to the prosecutor and defense counsel. The jury trial scheduled to commence 3/21/17 is vacated. Court to prepare Order on Entry of Guilty Plea.

02/27/2017 Notice FiledFiled By: State of IndianaFile Stamp: 02/27/2017

02/27/2017 Motion to Amend Information FiledFiled By: State of IndianaFile Stamp: 02/27/2017

02/27/2017 Order Granting Motion to Amend Information (Judicial Officer: Springer, Karen -SR ) Order Signed: 02/27/2017

02/27/2017 Information FiledFile Stamp: 02/27/2017

02/27/2017 Motion to Enter Plea Pursuant to Plea Agreement FiledFiled By: Gevers, Robert WilliamFiled By: Mathew, John CFiled By: State of IndianaFile Stamp: 02/27/2017

02/28/2017 Hearing Scheduling ActivitySentencing Hearing scheduled for 04/17/2017 at 8:00 AM.

02/28/2017 Hearing Scheduling ActivityJury Trial scheduled for 03/21/2017 at 9:00 AM was cancelled. Reason: Agreed Resolution.

02/28/2017 Hearing Scheduling ActivityJury Trial scheduled for 03/21/2017 at 1:00 PM was cancelled. Reason: Agreed Resolution.






02/28/2017 Hearing Scheduling Activity

Page 3 of 5



APP_04

Jury Trial scheduled for 03/24/2017 at 1:00 PM was cancelled. Reason: Agreed Resolution.03/01/2017 Automated ENotice Issued to Parties

Order Granting Motion to Amend Information ---- 2/27/2017 : Robert William Gevers;Amy Christine Richison03/02/2017 Order Issued

Order on Entry of Plea of Guilty entered.Order Signed: 02/27/2017

03/03/2017 Automated ENotice Issued to PartiesOrder Issued ---- 3/2/2017 : Robert William Gevers;Amy Christine Richison

03/21/2017 CANCELED Jury Trial (9:00 AM) (Judicial Officer Hakes, Thomas) Agreed Resolution

04/05/2017 Pre-Sentence Investigation Report FiledPreSentence Investigation ReportFiled By: Huntington County Probation DepartmentFile Stamp: 04/05/2017

04/06/2017 Notice FiledNotice of Letters of SupportFiled By: Mathew, John CFile Stamp: 04/06/2017

04/12/2017 Memorandum/Brief FiledSentencing MemorandumFiled By: Mathew, John CFile Stamp: 04/12/2017

04/13/2017 Correspondence to/from Court FiledSentencing Letters for Victim.pdfFiled By: State of IndianaFile Stamp: 04/13/2017

04/17/2017 Sentencing Hearing (8:00 AM) (Judicial Officer Hakes, Thomas) Result: Commenced and concluded

04/17/2017 Hearing Journal Entry (Judicial Officer: Hakes, Thomas ) Chief Deputy Prosecutor, Jamie Groves, appears on behalf of the State. Defendant appears in person and by counsel, Bob Gevers. Court reviews with the Defendant his plea of guilty and waiver of appeal. State presents several witnesses. Curriculum Vitae of Dr. Stephen Ross made a part of the record. Defense presents several witnesses. Arguments heard by State and Defense prior to sentencing. Court addresses the Defendant; accepts the plea; enters judgment of conviction and reviews aggravators and mitigators. On counts 1 & 2 the Defendant is sentenced to the Indiana Department of Corrections for two (2) years with counts to run consecutive to each other. The Court suspends the entire sentence of four (4) years to probation with the Defendant serving two (2) years on electronic monitoring/home detention as a condition of probation. Special Probation Conditions for Adult Sex Offenders entered and Defendant is required to register as a sex offender.

04/17/2017 Correspondence to/from Court FiledDr. Ross's Curriculum VitaeFiled By: State of IndianaFile Stamp: 04/17/2017

04/17/2017 Conditions of ProbationConditions of Probation (including special conditions for sex offenders)

04/17/2017 Judgment (Judicial Officer: Hakes, Thomas)1. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit by force or imminent threat of forc

Plea by Agreement2. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit by force or imminent threat of forc

Plea by Agreement3. 35-42-2-1(b)(1)/MB:Battery

Dismissed4. 35-42-2-1(b)(1)/MB:Battery

Dismissed

04/17/2017 Sentence (Judicial Officer: Hakes, Thomas)1. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit by force or imminent threat of forc

Comment (Counts run consecutive to each other with all suspended & 2 yrs on E.M.) Confinement to Commence 04/17/2017

County JailTerm:2 Yr Suspended: 2 Yr

2. 35-42-4-8(a)(1)(A)/F6: Sexual Battery Victim compelled to submit by force or imminent threat of forcComment (Counts run consecutive to each other with all suspended & 2 yrs on E.M.) Confinement to Commence 04/17/2017

County JailTerm:2 Yr Suspended: 2 Yr

04/19/2017 No Contact Order IssuedPOR - No Contact Order No Contact Order - Probation/Executed Sentence; Issued by: HON THOMAS M. HAKESOrder Signed: 04/17/2017

04/20/2017 Order of Confinement (Sentenced) (Judicial Officer: Hakes, Thomas ) Court enters Sentencing Order.Order Signed: 04/17/2017

04/20/2017 Abstract of Judgment Completed for non-DOC caseCourt enters Abstract Of Judgment.Date Signed: 04/17/2017

04/20/2017 Request for RecordsCourt receives request from TV station ABC 21 for access to public records.

Page 4 of 5



APP_05

File Stamp: 04/18/201704/20/2017 Order Issued

Court enters Order Limiting the Use of Court Record and Barring its Broadcast for Dissemination.Order Signed: 04/20/2017

04/21/2017 Automated ENotice Issued to PartiesNo Contact Order Issued ---- 4/19/2017 : Robert William Gevers;Amy Christine Richison Order of Confinement (Sentenced) ---- 4/20/2017 : Robert William Gevers;Amy Christine Richison Order Issued ---- 4/20/2017 : Robert William Gevers;Amy Christine Richison

04/25/2017 Clerk Releases Bond Per Order04/25/2017 Clerk Administrative Event

Per court order Clerk releases bond. Bond admin fee, fines & court costs, balance of bond applied to elec. monitoring fees05/02/2017 Appearance Filed

AppearanceFor Party: WPTA-TVFile Stamp: 05/01/2017

05/02/2017 Motion to Intervene FiledWPTA-TV's Verified Motion to Intervene and Reconsider Ordr of April 20, 2017Filed By: WPTA-TVFile Stamp: 05/01/2017

05/04/2017 Order IssuedCourt enters Order granting motion to intervene. The motion to reconsider will be handled per trial rule 60D.Served: Byron, Daniel PServed: Gevers, Robert WilliamServed: State of IndianaOrder Signed: 05/04/2017

05/05/2017 Automated ENotice Issued to PartiesOrder Issued ---- 5/4/2017 : Daniel P Byron;Robert William Gevers

05/17/2017 Order IssuedCourt enters Order on Motion to Reconsider.Served: Byron, Daniel PServed: Gevers, Robert WilliamServed: State of IndianaOrder Signed: 05/17/2017

05/18/2017 Automated ENotice Issued to PartiesOrder Issued ---- 5/17/2017 : Daniel P Byron;Robert William Gevers

05/19/2017 Notice of Appeal ReceivedClerk received Notice of Appeal from the Court of Appeals by electronic mail file stamped May 19, 2017File Stamp: 05/19/2017

05/24/2017 Notice of Completion of Clerk's RecordClerk sends Notice of Completion of Clerk's Record to Margaret Christensen, Attorney General and Court of Appeals by Certified Mail; to prosecutor by courthouse mail.

06/01/2017 Certified Mail ReturnedSigned by John HarveyParty Served: Christensen, Margaret MarieDate Signed: 05/26/2017

06/01/2017 Certified Mail ReturnedSigned by Scott Crays for Curtis Hill, Attorney General.Date Signed: 05/30/2017

06/05/2017 Certified Mail ReturnedStamped Received by Mail Clerk of The Courts for the Appellate Court Clerk.Date Signed: 05/30/2017

Please note that any Balance Due does not reflect interest that has accrued since the last payment.

Page 5 of 5



APP_06

Appellant's Appendix, Volume 2

APP_07

STATE OF INDIANA ) IN THE HUNTINGTON CIRCUIT COURT ) SS:

COUNTY OF HUNTINGTON ) )

STATE OF INDIANA ) Plaintiff )

) VS. ) CAUSE NO. 35C01-1605-F3-000096

) JOHN C. MATHEW )

Defendant

ORDER LIMITING THE USE OF COURT RECORD AND BARRING ITS BROADCAST OR DISSEMINATION

1. News Channel ABC 21 of Fort Wayne, Indiana, has requested a copy of the digitally recorded record from this case.

2. The Court is required to provide the record as requested.

3. The requesting person may not broadcast the record, subject to the , contempt power of this Court.

4. The requesting pers:on may not alter, add, delete or replace any part of the record provided.

5. The requesting person may not allow others to do the actions prohibited by paragraphs 3 and 4.

So Ordered This 20th Day of April. 2017

Thomas M. Hakes, Judge Huntington Circuit Court


APP_08

STATE OF INDIANA

COUNTY OF HUNTINGTON

STATE OF INDIANA Plaintiff

vs.

JOHN C. MATHEW Defendant

) IN THE HUNTINGTON CIRCUIT COURT ) SS: ) ) ) ) ) ) CAUSE NO. 35C01-1605-F3-000096 ) )

ORDER ON MOTION TO RECONSIDER

The Court has examined the Record in the case and has examined the Intervenors Motion to Reconsider. On April 18, 2017, the Court received the Request for Records; the Request was granted and the requested items were provided. On April 20, 2017, the Court issued the Order Limiting the Use of Court Record and Barring its Broadcast.

The Intervenors received as per their request the documents and CD on April, 2017. This was in proper compliance with Administrative Rule 9D. The providing of the requested items gave the intervenors the ability to inspect and copy a court record which is the definition of Public Access as found in Administrative Rule 9C(6).

The Court then, as required by Administrative Rule 9D(4) issued the order limiting the use of the record. The Intervenors entire argument in its Motion to Reconsider revolves around Administrative Rule 9G and the intervenors argument that the Court in prohibiting the use and dissemination of the Record violates the provisions of Rule 9G.

The Court followed Administrative Rule 9D4 and examined Judicial Conduct Rule 2.17 which states in part: "Except with prior approval of the Indiana Supreme Court, a Judge shall prohibit broadcasting, televising, recording or taking photos in the courtroom ... " The limit placed upon Intervenors is in compliance with this rule. Broadcasting all or parts of a court record is no different than the Intervenors making their own recording and then broadcasting it ... an act that is not allowed by the Rule.

Copies of all documents requested were promptly provided but limited in use by the Court in following the dictates of Administrative Rule 9D4.

The Intervenors Motion to Reconsider is DENIED.

So Ordered This 17th Day of May, 2017

Thomas M. Hakes, Judge Huntington Circuit Court


APP_09

State of Indiana

I

John J Mathew, efendant

6/20/201611:26AM SCANNED

In The Huntington Circuit Court State of Indiana

2016Term FftED MAY 2 7 2016

) ) ) ) ) )

~_u__ ~ ;bDv.J

cause No. 35C01-1605-F3-000

inistrative Rule 9{G)(5) Notice of Exclusion onfidential Information from Public Access

(FILED WITH TRIAL COURT CLERK)

ontempor eous with the filing of this notice, Amy C. Richison has filed confidential

informltion on gre n paper in accordance with Administrative Rule 9(G)(6). Pursuant to

A · .ltrative Ru 9(G)(5), Amy C. Richison, provides this notice that the confidential

infor tion conta' ed on that green paper is to remain excluded from public access in

nee with th authority listed below:

Hf1J Investig tive Report (7 pgs) Narrative Rept pg 1, 5, 8, 9, 14, 15 & 16 of

/ De .Jones · · · BMir Record of ohn Mathew (2 pgs)

Administrative Rule 9(G) grounds upon which exclusion is authorized.

9(G)(2)(f) & 9(G)(2)(g)(i) 9(G)(2)(g)(i)

9(G)(2)(f)


APP_10

State of Indiana,

In The Huntington Circuit Court State of Indiana

2017Term

Filed: 212/2017 2:19:36 PM Kittle Keiffer

Clerk Huntington County, Indiana

vs

) ) ) ) ) )

Cause No. 35C01-1605-F3-000096

John c. Mathew, Defendant

Administrative Rule 9(G)(5) Notice of Exclusion of Confidential Information from Public Access

(FILED WITH TRIAL COURT CLERK)

Contemporaneous with the filing of this notice, Jamie M. Groves has filed confidential

information on green paper in accordance with Administrative Rule 9(G)(6). Pursuant to

Administrative Rule 9(G)(5), Jamie M. Groves, provides this notice that the confidential

information contained on that green paper is to remain excluded from public access in

accordance with the authority listed below:

Name or description of document filed on green paper.

Witness & Exhibit List

Administrative Rule 9(Gl grounds upon which exclusion is authorized.

9(G)(2)(g)(i)

Respectfully submitted,

/s/Iamie M. Groves Jamie M. Groves, #19992-49


APP_11

ACCESS TO PUBLIC RECORDS REQUEST COUNTY OF HUNTINGTON

Name of requesting party: A\fY.\S 6 (d/ , A'f:f;2J W(JTl\-~ 1 '

Address of r~q_u~sting party: 3LiO I 6UtlOC erni) ~let~~ re.) )N '10 elf( ce\1 ·. (~)282- . . .

Phone Number: 91-Bo D e of Request: ~/ \8 I 13- Time: I ) ~ lS a YYl

v 35COI#<J5 F3 q0 Requesting to: [ ] inspect OR [ ] purchase copies.

STATE OF INDIANA ) IN THE HUNTINGTON CIRCUIT COURT)

COUNTY OF HUNTINGTON ) CAUSE NUMBER: 35C01-1605-F3-96

STATE OF INDIANA, )Plaintiff )

)vs. )

)JOHN C. MATHEW, )

Defendant )

WPTA-TV’S VERIFIED MOTION TO INTERVENE AND RECONSIDER ORDER OF APRIL 20, 2017

WPTA-TV, by counsel, and pursuant to Indiana Rule of Trial Procedure 24(A)(2), and

Indiana Administrative Rule 9(G), respectfully petitions the Court for leave to intervene in this

matter for the limited purpose of objecting to the Court’s April 20, 2017 Order (“Order”) and

moving for reconsideration of the same. In support of this request, WPTA-TV states as follows:

1. This criminal matter involves charges against Defendant for misdemeanor battery,

I.C. § 35-42-2-1(b)(1), and level 6 felony sexual battery where the victim was compelled to

submit by force or imminent threat of force, I.C. § 35-42-4-8(a)(1)(A).

2. On April 17, 2017, the Defendant entered a plea by agreement to the two level 6

felony charges. The two misdemeanor battery charges were dismissed. That same day, the

Court held its sentencing hearing.

3. On April 18, 2017, WPTA-TV filed a Request for Records, seeking access to a

digitally recorded victim impact statement (the “Record”).

4. On April 20, 2017, the Court issued its Order acknowledging that it was required

to provide the Record but limiting its use by, among other things, prohibiting WPTA-TV from

broadcasting the Record, subject to the Court’s contempt power. (Order at ¶¶ 2-5)

Filed: 5/1/2017 5:39:40 PMKittie Keiffer

ClerkHuntington County, Indiana


APP_12

2

I. Motion to Intervene

5. As set forth by Rule 24(A)(2) of the Indiana Rules of Trial Procedure:

anyone shall be permitted to intervene in an action: when the applicant claims and interest relating to a property, fund or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest in the property, fund or transaction, unless the applicant’s interest is adequately represented by existing parties.

(emphasis added).

6. WPTA-TV has a clear property interest in the victim impact statement which it

has requested and been provided, but which it is prohibited from broadcasting or disseminating

as a member of the free press. Accordingly, this Court shall permit WPTA-TV to intervene to

protect its rights and interests.

II. Motion to Reconsider

7. Prohibiting the use and dissemination of the Record in this manner violates the

provisions of Indiana Administrative 9(G), which does not contemplate the relief ordered.

Administrative Rule 9(G) allows for the restriction of public access of individual court records in

two instances.

8. First, under Administrative Rule 9(G)(2), certain individual case records must be

excluded from public access, including records declared confidential under federal law, state law

or court rule, social security numbers, financial account numbers, and so forth. Here, the Record

is not the type of individual case record that must be excluded from public access pursuant to

Administrative 9(G)(2), as recognized by the Order in its acknowledgment that it was required to

provide the requested record. (Order at ¶ 2)

9. Second, Administrative Rule 9(G)(4) states that, “in extraordinary

circumstances,” an otherwise publicly available court record may be excluded if the following


APP_13

3

four conditions are met: (a) a verified written request to prohibit public access to a court record;

(b) notice to all parties and the right to respond; (c) public hearing; and (d) a written order. By

sua sponte issuing a written order limiting the use of the Record here, the Court improperly

bypassed the provisions of Administrative Rule 9(G)(4)(a)-(c), and its Order is thus invalid. See

Allianz Ins. Co. v. Guidant Corp., 884 N.E.2d 405 (Ind. Ct. App. 2008) (trial court order sealing

litigation from public view violated Admin. R. 9 and was improper because no public hearing

was held).

10. Even if the procedures required pursuant to Administrative Rule 9(G)(4)(a)-(c)

were to be followed in this case, the victim impact statement would not qualify as a record that

may be excluded or limited in its use. See, e.g., In re T.B., 895 N.E.2d 321 (Ind. Ct. App. 2008)

(although juvenile court records are generally maintained confidentially affirming in part trial

court’s grant of access to newspaper of certain DCS and juvenile court records where newspaper

had legitimate interest in informing the public about death of child); cf. Angelopoulos v.

Angelopoulos, 2017 Ind. App. 170 (Ind. Ct. App. Apr. 19, 2017) (petitioner proved by clear and

convincing evidence that portions of deposition describing financial transactions should remain

excluded from public access because of increased risk to petitioner and his family, public figures

in native Greece should testimony be made public).

11. The commentary to Administrative Rule 9 makes clear that “given the societal

interests in access to court records, this rule also reflects the view that any restriction to access

must be implemented in a manner tailored to serve the interests in open access.” Commentary to

Ind. Admin. R. 9(A); see also Allianz, 884 N.E.2d at 408. The stringent restriction placed on

WPTA-TV by the Order – that WPTA-TV may not broadcast the Record – unnecessarily

impinges WPTA-TV’s ability to report the circumstances of this case, which are of legitimate

public interest. This restriction is not tailored to serve the interests of open access.


APP_14

4

12. Further, the Order amounts to an impermissible prior restraint on free speech by

prospectively restricting WPTA-TV’s use of a publicly accessible document. See In re K.D., 929

N.E.2d 863, 868 (Ind. Ct. App. 2010) (juvenile court order prohibiting mother from discussing

legal proceedings with the media following the establishment of paternity of her child

determined to be invalid prior restraint of mother’s free speech rights). Use of the Record at

issue here falls at the core of First Amendment protections and there is no basis to restrict

WPTA-TV’s method of reporting the allegations against the Defendant. See Nebraska Press

Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (“prior restraints on speech and publication are the

most serious and the least tolerable infringement on First Amendment rights” and are presumed

unconstitutional); U.S. v. Brown, 250 F.3d 907, 914-15 (5th Cir. 2001) (finding prior restraints

on media are constitutionally disfavored nearly to the point of extinction and will be upheld only

if the government can establish that the activity restrained either poses a clear and present danger

or a serious or imminent threat to a protected competing interest). The Order therefore violates

the First Amendment and must be vacated.

For the foregoing reasons, WPTA-TV respectfully requests that it be permitted to

intervene in this matter and that the Court vacate its Order which impermissibly restricts WPTA-

TV’s use of the victim impact statement at issue.


/s/ Margaret M. ChristensenDaniel P. Byron, Atty. No. 3067-49Margaret M. Christensen, Atty. No. 27061-49 Jessica Whelan, Atty. No. 30779-49BINGHAM GREENEBAUM DOLL [email protected]@[email protected] for Intervenor, WPTA-TV


APP_15

5

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 1st day of May, 2017, the foregoing document was electronically filed using the Indiana E-filing System (“IEFS”). I certify that the following were electronically served a copy of the foregoing document:

Richison, Amy ChristineRoom 420, CourthouseHuntington, IN 46750-0000

Gevers, Robert William 809 S Calhoun StreetSuite 600Fort Wayne, IN 46802-0000

/s/ Margaret M. ChristensenAn Attorney for Intervenor

Daniel P. Byron, Atty. No. 3067-49Margaret M. Christensen, Atty. No. 27061-49 Jessica Whelan, Atty. No. 30779-49BINGHAM GREENEBAUM DOLL LLP2700 Market Tower10 West Market StreetIndianapolis, IN 46204-2982(317) 635-8900(317) 236-9907 (facsimile)[email protected]@[email protected]

18431895


APP_16

VERIFICATION OF ACCURACY

I verify under penalties of perjury and pursuant to Appellate Rule 50(A)

that the documents in this 2-Volume Appendix of Appellant, WPTA-TV, are accurate copies of parts of the Record on Appeal.


/s/ Margaret M. Christensen Margaret M. Christensen, Atty. No. 27061-49

Jessica E. Whelan, Atty. No. 30779-49 BINGHAM GREENEBAUM DOLL LLP 2700 Market Tower, 10 W. Market Street Indianapolis, IN 46204-4900 (317) 635-8900 (317) 236-9907 Fax [email protected] [email protected]

Attorneys for Appellant, WPTA-TV


APP_17

Appendix of Appellant, WPTA-TV Volume 2

2

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on June 20, 2017, the foregoing 2-Volume Appendix

of Appellant, WPTA-TV was filed with the Clerk of the Indiana Court of Appeals via electronic filing utilizing the Indiana E-Filing System (IEFS). I further certify that on June 20, 2017, the foregoing 2-Volume Appendix of Appellant, WPTA-TV was served upon the following counsel of records via IEFS: Indiana Attorney General’s Office [email protected] Amy C. Richison Jamie Groves Huntington County Prosecutor’s Office [email protected] [email protected] Robert Gevers II [email protected] /s/ Margaret M. Christensen


APP_18

Documents

IN THE COURT OF APPEALS OF INDIANA Cause No. 35A02-1705 …