James E. Rogers v. State of Indiana , 60 N.E.3d 256 ( 2016 )

FILED
Jul 06 2016, 5:34 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jonathan C. Little Gregory F. Zoeller
Saeed & Little, LLP Attorney General of Indiana
Indianapolis, Indiana Ellen H. Meilaender
Susan D. Rayl Deputy Attorney General
Smith Rayl Law Office, LLC Indianapolis, Indiana
Indianapolis, Indiana
ATTORNEY FOR AMICUS
Michael Ray Smith CURIAE SHEPHERD
Smith Rayl Law Office, LLC COMMUNITY, INC. D/B/A
Fishers, Indiana SHEPHERD COMMUNITY
CENTER
Philip R. Zimmerly
Bose McKinney & Evans LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Rogers, July 6, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1508-CR-1033
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Marc T. Rothenberg, Judge
Trial Court Cause No.
49G02-1408-FA-38280
Kirsch, Judge.
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[1] During the pre-trial discovery phase of this criminal action, counsel for
defendant James E. Rogers (“Rogers”) took the audio-taped statement of a
woman named Amy Wallace (“Wallace”), and, during the questioning by
Roger’s counsel, Wallace’s counsel directed Wallace not to answer four
questions on the basis of counselor/client privilege. Rogers filed a motion to
compel, seeking an order that Wallace be ordered to answer the questions, and
the trial court denied the motion after a hearing. Rogers filed this interlocutory
appeal and raises four issues that we consolidate and restate as: whether the
trial court abused its discretion when it denied Rogers’s motion to compel on
the basis that the information sought was privileged under Indiana Code section
25-23.6-6-1.
[2] We reverse and remand.
Facts and Procedural History
[3] In August 2014, the State charged Rogers with two counts of Class A felony
child molesting, one count of Class C felony intimidation, two counts of Class
D felony child solicitation, and one count of Class D felony battery resulting in
bodily injury.1 The charges stemmed from allegations made by B.L., Rogers’s
then-eight-year-old niece, after she was at Rogers’s house for a sleepover with
her younger sisters and cousins. The allegations generally were that during the
1
See Ind. Code §§ 35-42-4-3(b) (child molesting); 35-45-2-1(a)(1) (intimidation); 35-42-4-6(b) (child
solicitation); and 35-42-2-1(a)(2)(b) (battery resulting in bodily injury).
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night Rogers woke up B.L., forcibly grabbed her by the arm and removed her
from the family room to the bathroom, forced B.L. to manually stimulate him,
attempted to force her to fellate him, and threatened her with a knife. Rogers
“steadfastly maintain[s]” that the allegations are “completely false.” Appellant’s
Br. at 2, 4.
[4] Shepherd Community, Inc. d/b/a Shepherd Community Center (“Shepherd”)
is a faith-based, non-profit community center located on the near-eastside of
Indianapolis that works with neighborhood youth and their families to break
the cycle of poverty by providing programs and services to meet “the spiritual,
physical, emotional, and academic needs of its neighbors.” Appellant’s App. at
131. Shepherd is partnered with an academy known as the Horizon Christian
School, which provides pre-k through fourth grade education.
[5] At some point in time prior to the present allegations against Rogers, the
alleged victim, B.L., had been a student at Horizon Christian School. While
preparing Rogers’s defense and investigating the case, Rogers’s counsel learned
that individuals on the staff at Shepherd, including its pastor and chief executive
officer Reverend Jay Height, had concerns that B.L.’s mother (“Mother”), at
some prior time, may have been prostituting B.L. in exchange for receipt of
drugs for Mother’s own use. Rogers’s counsel also learned there may have
been one or more Department of Child Services (“DCS”) reports filed against
B.L. or her parents that involved B.L.’s interaction with another child or
children, either at home or at school. Given that B.L.’s accusations against
Rogers reflected knowledge of sexual matters not ordinarily known to a child of
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her age, and because the alleged prior sexual interactions with others may have
affected B.L.’s sexual knowledge, Rogers sought to further investigate those
prior situations.
[6] As is relevant here, Rogers took the audio-recorded deposition2 of one of
Shepherd’s staff members, Wallace, who had provided social services support
to B.L. and her family. Present for the deposition, in addition to Wallace, were
1) counsel for Rogers, 2) the prosecutor on behalf of the State, and 3) attorney
Philip Zimmerly (“Zimmerly”) on behalf of Shepherd and Wallace. Among
other things, Rogers sought information from Wallace regarding her knowledge
of B.L.’s prior exposure to or involvement in matters of a sexual nature.
Zimmerly objected and instructed Wallace not to answer the following four
questions based on the counselor/client privilege found in Indiana Code section
25-23.6-6-1:
(1) Did your counseling relationship with B.L. and her family
involve anything other than [Mother’s] injury?3
(2) What did Jay Height tell you that he heard about any sexual
or otherwise inappropriate behavior between B.L. and other
children?
2
We note that in Marion Superior Court, “[a]ny sworn tape-recorded interview in which the prosecutor, the
defense attorney and the witnesses are present shall be considered a deposition under the Indiana Trial Rules.
Deputy prosecutors and public defenders shall cooperate in using such recorded statements instead of formal
depositions under any circumstance that will expedite case preparation.” Marion LR49-CR00-107(5); Hale v.
State, No. 35S02-1601-CR-37 at *4 n.6 (Ind. June 16, 2016).
3
The reference to Mother’s “injury” refers to the fact that, at some prior point in time, Mother had been
involved in a vehicular accident that resulted in the loss of both of her legs.
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(3) What conversations did you have with other staff members at
Horizon Christian School regarding their or your concerns about
B.L.’s behavior prior to your employment at Shepherd that were
related to previous [DCS] reports?
(4) Provide the names of parents who filed [DCS] reports on
B.L. and/or her parents or siblings.
Appellant’s App. at 155-56.
[7] Rogers filed a Motion for Order Compelling Deponent to Answer Deposition
Questions (“Motion to Compel”). Thereafter, Wallace’s counsel filed a Non-
Party Deponent’s Opposition to Motion to Compel, and the State also filed a
response, opposing Rogers’s Motion to Compel. In May 2015, the trial court
held a hearing on the matter, at which counsel presented argument. The trial
court advised the parties that, in order to make a decision, it desired to receive
further testimony, either live or by affidavit, about such matters as: how
Shepherd “is set up,” Wallace’s position at Shepherd and her relationship with
B.L., and whether Wallace consults with other staff members. Tr. at 30.
Therefore, additional proceedings on the Motion to Compel were held in June
2015. Id. at 37.
[8] At that hearing, Wallace testified and identified her position at Shepherd as
“Family Ministries Team Leader.” Id. at 38. Wallace holds a Bachelor’s
Degree in Social Work, but is not a licensed social worker. She testified that
her primary responsibilities as Family Ministries Team Leader are to oversee
the case management of various programs, such as home visits to teach
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parenting skills and food distribution through food pantries. She described,
“The majority of what I do is the case management social work end of it,” but
added that she does “some counseling with the families and children.” Id. at
40.
[9] When asked to further describe what she did in terms of counseling, Wallace
stated that she provides direction to families and gives them options on how to
address issues that arise, meeting with clients both in a one-on-one setting and
in family settings. Wallace indicated that she considers those meetings
confidential, but explained that, on occasion, she might share information with
a Shepherd staff member if he or she “was directly involved” and had “a need
to . . . know.” Id. at 41. For instance, depending on the particular situation,
Wallace might share information with a teacher at the Horizon Christian
School. If faced with a situation where she had questions about whether it was
appropriate to share information, Wallace testified that she would seek the
instruction of her direct supervisor, Andrew Green (“Green”), who is a licensed
social worker.
[10] As for her relationship with B.L. and her family, Wallace testified that she had
worked with all of the family members in her capacity as Family Ministries
Team Leader. When asked “Did you work with [B.L.] in a counseling
setting?” Wallace replied, “Not a set counseling session like you would consider
meeting with a therapist. There were times I would talk to her.” Id. at 45. She
elaborated, “[I]f there was a concern, . . . I could pull her aside and just talk to
her at the school. But as far as a counseling – full-out counseling, no.” Id. at
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46. Other times, Wallace met with B.L. and her family during home visits,
although some home visits occurred at times when only Mother was home. At
one or more of those visits, Mother told Wallace about “some situations with
another student.” Id. at 47. Wallace testified that she would have advised
Mother that what she told Wallace was confidential. Id.
[11] Reverend Height, who is both the pastor and executive director of Shepherd,
also testified. Reverend Height’s recollection was that he only spoke with B.L.
on occasions when her family was present and that he did not speak with her
individually at any time. Reverend Height testified that, when speaking with
the family, he would have advised them that they were speaking to him “as
their pastor” and that what they told him would be confidential. 4 Id. at 51-52.
Upon questioning, Reverend Height acknowledged that sometimes Mother’s
friends were present when he talked with Mother or with the family. Id. at 56.
He recalled that on one occasion he shared information he obtained during a
pastoral visit with Wallace due to her role “as case manager for that family,”
and he felt she needed to be aware of the information “for the safety of the
children.” Id. at 52-53.
[12] The trial court took the matter under advisement, and after receiving additional
authority from the parties, it issued an order in July 2015 denying Rogers’s
Motion to Compel. It stated:
4
Further questioning of Reverend Height was suspended pending this appeal. See Appellant’s Br. at 6 n.3.
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The Court finds that communications within Amy Wallace’s
position as a “Family Ministries Team Leader” at Horizon
Christian School at Shepherd Community Center are privileged
under Indiana Code 25-23.6.
Id. at 65. Upon Rogers’s request, the trial court certified the questions, and this
court granted Rogers’s request to file an interlocutory appeal. 5
Discussion and Decision
[13] Generally, the grant or denial of a discovery motion is within the trial court’s
discretion and will be overturned only for an abuse of discretion. Williams v.
State, 819 N.E.2d 381, 384 (Ind. Ct. App. 2004), trans. denied. An abuse of
discretion will not be found unless the decision is clearly against the logic and
effect of the facts and circumstances. Howard v. Dravet, 813 N.E.2d 1217, 1221
(Ind. Ct. App. 2004). However, to the extent the court’s order is based on
interpretation of a statute, our review is de novo. State v. Int’l Bus. Machs. Corp.,
964 N.E.2d 206, 209 (Ind. 2012). We therefore “independently review the
statute’s meaning and apply it to the facts of the case under review.” Id.
[14] The scope of discovery is broad, as provided in Indiana Trial Rule 26(B):
5
We note that after Shepherd filed its Brief of Amicus Curiae on March 18, 2016, Rogers filed a Verified
Motion for Leave to File Amended Notice of Appeal, in which Rogers sought request to file an Amended
Notice of Appeal in order to name Wallace as a Non-Party/Appellee. We will deny Rogers’s Verified
Motion by separate order.
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(B) Scope of discovery. Unless otherwise limited by order of the
court in accordance with these rules, the scope of discovery is as
follows:
(1) In general. Parties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject-matter
involved in the pending action, whether it relates to the claim or
defense of the party seeking discovery or the claim or defense of
any other party, including the existence, description, nature,
custody, condition and location of any books, documents, or
other tangible things and the identity and location of persons
having knowledge of any discoverable matter. It is not ground
for objection that the information sought will be inadmissible at
the trial if the information sought appears reasonably calculated
to lead to the discovery of admissible evidence.
Howard, 813 N.E.2d at 1220.
[15] Our Supreme Court has recognized that “the Constitution guarantees criminal
defendants ‘a meaningful opportunity to present a complete defense,’” but that
“‘[t]here is no general constitutional right to discovery in a criminal case.’” In
re Crisis Connection, Inc., 949 N.E.2d 789, 800 (Ind. 2011) (quoting Weatherford v.
Bursey, 429 U.S. 545, 559 (1977) and Kubsch v. State, 784 N.E.2d 905, 923-24
(Ind. 2003)). In determining whether a defendant’s constitutional right to
present a complete defense would be violated by nondisclosure of information,
courts must balance the interest advanced by the privilege at issue against the
individual’s right to prepare his defense. See Crisis Connection, Inc., 949 N.E.2d
at 801 (recognizing need to weigh potential value of evidence against
justification for its exclusion).
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[16] Here, Wallace was instructed by her counsel6 not to answer the four questions
at issue on the basis that they asked for matters within the scope of the
counselor/client privilege. In Indiana, privileges are statutory in nature, and it
is within the General Assembly’s power to create them. Id. at 793. A grant of
privilege and the scope of that privilege are policy choices of the Legislature.
Int’l Bus. Machs. Corp., 964 N.E.2d at 210. “And provided the result is
constitutional, choices of policy are solely within the purview of the
Legislature.” Id. As our Supreme Court has acknowledged, when the General
Assembly creates a privilege, it puts two policies of the law in direct conflict:
On the one hand is a policy which dictates exclusion of material
and relevant evidence for its effectuation; on the other is the
policy which favors full disclosure of all relevant facts at trial in
order to arrive at a just determination of the issues presented.
While the latter must give sway to the former where applicable, it
would seem unwise indeed to give unwarranted effect to the
former so as to utterly and unreasonably frustrate the fact finding
process.
Id. (quoting Collins v. Blair, 256 Ind. 230, 236-37, 268 N.E.2d 95, 98 (1971) and
referring to Indiana’s physician-patient privilege, peer review privilege, and
probation officer-juvenile privilege).
6
In the trial court, attorney Philip Zimmerly had filed an appearance on behalf of both Shepherd Community
Center and Wallace.
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[17] The counselor/client evidentiary privilege is established by Indiana Code
section 25-23.6-6-1 and provides, in part, as follows:
Matters communicated to a counselor in the counselor’s official
capacity by a client are privileged information and may not be
disclosed by the counselor to any person, except under the
following circumstance:
....
(2) If the communication reveals the contemplation or
commission of a crime or a serious harmful act.
(3) If:
(A) the client is an unemancipated minor or an adult
adjudicated to be incompetent; and
(B) the information communicated to the counselor
indicates the client was the victim of abuse or a crime.
....
(8) Circumstances under which the privileged communication is
abrogated under Indiana law.
The purpose of Indiana Code section 25-23.6-6-1 is to grant a privilege to
protect confidential communication between a counselor and the counselor’s
client. J.B. v. E.B., 935 N.E.2d 296, 299 (Ind. Ct. App. 2010) (citing State v.
Pelley, 828 N.E.2d 915, 918 (Ind. 2005)). “The counselor/client privilege is in
derogation of common law, so it must be strictly construed.” Id. at 299-300.
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[18] We begin by examining the four questions at issue, and, more particularly, we
ask: do they seek to obtain information “matters communicated to a counselor
in the counselor’s official capacity by a client.” See Ind. Code § 25-23.6-6-1.
Rogers asserts that the four questions, other than possibly the first one, do not
invoke application of the privilege at all because they do not seek information
communicated from B.L., or even her family, to Wallace. That is, even if
Wallace is a qualified social worker within the counselor/client privilege
(which Rogers argues she is not because she is not a licensed social worker), the
information sought is not the type of information that falls within
counselor/client privilege. The State, however, maintains that “[t]he
information about which [Rogers] seeks discovery is information
communicated to Wallace in her role as a social worker and as such is
privileged under Indiana Code section 25-23.6-6-1 . . . and is not subject to
disclosure.” Appellant’s Br. at 12.
[19] The first of the disputed questions asks, “Did your counseling relationship with
B.L. and her family involve anything other than [Mother’s] injury?” Appellant’s
App. at 155. This appears to require a yes or no response, and does not ask
Wallace to identify the substance of what B.L. or her family told Wallace,
although any follow up likely would do so. The fourth question asks Wallace
to “Provide the names of parents who filed [DCS] reports on B.L. and/or her
parents or siblings.” Id. at 156. This question does not ask Wallace to reveal
what B.L. or her family said to her concerning the content of the reports, nor
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otherwise inquire into the substance of the DCS reports.7 The second and third
posed questions – which ask, respectively, “What did Jay Height tell you that
he heard about any sexual or otherwise inappropriate behavior between B.L.
and other children?” and “What conversations did you have with other staff
members at Horizon Christian School regarding their or your concerns about
B.L.’s behavior prior to your employment at Shepherd that were related to
previous [DCS] reports?”— inquire about what Shepherd staff members knew
or told each other, not what B.L. told Wallace. Id. at 155. Nevertheless,
assuming without deciding that the sought-after information in any of the
questions could seek perceived privileged information, we proceed to address the
scope of the counselor/client privilege and, more specifically, whether
Wallace’s communications with B.L. and her family are privileged and
undiscoverable.
[20] At its core, the inquiry in this appeal is whether Wallace, who is an unlicensed
social worker employed at Shepherd as Family Ministries Team Leader, is a
“counselor” as contemplated by Indiana Code section 25-23.6-6-1 such that her
communications with B.L. and her family are privileged. “Counselor” is
defined in Article 23.6 (Marriage and Family Therapists) as follows:
Except as provided . . . “counselor” refers to a social worker, a
clinical social worker, a marriage and family therapist, a mental
7
We recognize that, generally, reports prepared by the Department of Child Services on matters of child
abuse and neglect are confidential and may be made available only to certain persons and entities. Ind. Code
§§ 31-33-18-1, -2.
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health counselor, an addiction counselor, or a clinical addiction
counselor who is licensed under this article.
Ind. Code § 25-23.6-1-3.8 (emphasis added). The parties in this case are in
disagreement as to whether the statute’s ending phrase “who is licensed under
this article” applies to all of the six types of professions listed, or whether it
applies only to the last one in the list.
[21] Rogers’s position is that “who is licensed” applies to all six types of professions
listed, including social workers. Therefore, “counselor” as used in the
counselor/client privilege statute refers to, as is relevant here, licensed social
workers, and because unlicensed social workers are not within the definition of
“counselor,” the counselor/client privilege does not apply to Wallace, and her
communications with B.L. are not privileged and are discoverable.
Consequently, Rogers argues, the trial court should have granted his Motion
asking the trial court to compel Wallace to answer the questions at issue. The
State, on the other hand, asserts that the phrase “who is licensed” applies only
to the last of the six professions in the statute’s list, namely “a clinical addiction
counselor.” That is, the State argues, the privilege applies to “a social worker . .
. or a clinical addiction counselor who is licensed[,]” and as the privilege
extends to communications with unlicensed social workers, Wallace’s
communications involving B.L. are privileged and not discoverable.
[22] The primary goal when interpreting a statute is to effectuate the legislative
intent. State v. I.T., 4 N.E.3d 1139, 1143 (Ind. 2014); State v. Prater, 922 N.E.2d
746, 748 (Ind. Ct. App. 2010), trans. denied. The best evidence of that intent is a
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statute’s text. Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012). When a statute
is clear and unambiguous, we apply the plain and ordinary meaning of the
language. Id. “[T]here is no need to resort to any other rules of statutory
construction[,]” and “we need not delve into legislative history[.]” Id.
However, “when a statute is susceptible to more than one interpretation, it is
deemed ambiguous and is thus open to judicial construction.” In re Howell, 27
N.E.3d 723, 726 (Ind. 2015). In that case, we resort to the rules of statutory
construction. Adams, 960 N.E.2d at 798.
[W]here meaning is uncertain, the courts will look also to the
situation and circumstances under which [the statute] was
enacted, to other statutes, if there are any upon the same subject,
whether passed before or after the statute under consideration,
whether in force or not, as well as to the history of the country,
and will carefully consider in this connection the purpose sought
to be accomplished.
Int’l Bus. Machs. Corp., 964 N.E.2d at 209 (citations and quotation marks
omitted). Courts should avoid interpretations that depend on selective reading
of individual words. Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008),
trans. denied. Statutes relating to the same general subject matter should be
construed together so as to produce a harmonious statutory scheme. Marion
Cnty. v. State, 888 N.E.2d 292, 303 (Ind. Ct. App. 2008). In a criminal case, we
construe an ambiguous statute in favor of the defendant. Adams, 906 N.E.2d at
798 (citing State v. Turner, 567 N.E.2d 783 (Ind. 1991) (applying rule of lenity)).
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[23] Here, as is evidenced by the parties’ arguments, application of the phrase “who
is licensed under this article” can be interpreted in two different ways, and each
yields a different result; thus, Indiana Code section 25-23.6-6-1 is subject to
judicial interpretation. Our Supreme Court has recognized that, in enacting the
counselor/client privilege, the Indiana General Assembly extended to
counselors the same privilege that exists for physicians. Pelley, 828 N.E.2d at
918. “[T]he focus of both privileges is the same, namely, protecting
communication.” Id. 918-19. “The intent and dominant purpose of the statute
is to grant a privilege to protect confidential communication between a
counselor and the counselor’s client.” Id.
[24] In support of its position that “who is licensed under this article” applies only to
the last in the series of professions listed, the State urges us to apply a
grammatical construction known as “the last antecedent rule,” which states that
“descriptive words in a phrase should, in the absence of punctuation, be
referred to their nearest antecedent[.]” Appellee’s Br. at 16. That is, as applied to
a statute, “where one phrase of a statute modifies another, the modifying phrase
applies only to the phrase immediately preceding it, unless there is a comma
between the modifier and the preceding phrase.” Id. Applying this principle to
the present statute, the State argues that “who is licensed under this article”
phrase refers only to “a clinical addiction counselor,” which immediately
precedes “who is licensed,” and that it does not apply to any of the other
categories of professionals listed because the General Assembly did not place a
comma before the modifying phrase. However, a review of the legislative
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amendments to the statute at issue informs our interpretation and suggests
otherwise.
[25] Effective July 2009, the General Assembly amended Indiana Code section 25-
23.6-1-3.8, which defines “counselor,” by adding two more categories of
professions to the list. The amendment added and deleted language as follows:
Sec. 3.8. Except as provided in IC 25-23.6-7-5, as used in this
chapter, “counselor” refers to a social worker, a clinical social
worker, a marriage and family therapist, or a mental health
counselor, an addiction counselor, or a clinical addiction
counselor who is licensed under this article.
P.L. 122-2009, Section 14. Thus, two types of professions, namely an addiction
counselor and a clinical addiction counselor, were inserted into the list before
the phrase “who is licensed under this article.” This manner of amendment
reflects that, contrary to the State’s argument, the “who is licensed” applies to
all those listed, not just the last one. If, as the State claims, the “who is
licensed” only applies to the last profession listed, then before amendment the
“who is licensed” applied to only “a mental health counselor,” as that was the
last profession that was listed in the series; consequently, after amendment, the
statute would need to have read: “. . . a mental health counselor who is
licensed, an addiction counselor, or a clinical addiction counselor who is
licensed.” The statute does not so provide, and the amendment suggests to us
that the Legislature intended the “who is licensed” phrase to apply to all
categories of professions listed, not just the final one in the series.
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[26] Our finding in this regard is further supported by viewing other related statutes.
For instance, Indiana Code section 25-23.6-6-1 reflects that the counselor-client
privilege is subject to several exceptions, under which the privilege does not
apply, and, in particular, Subsection (8) provides that the privilege is
unavailable in “circumstances under which the privileged communication is
abrogated under Indiana law.” One of the circumstances when the privilege is
abrogated is found in Indiana Code section 31-32-11-1, entitled “Admissibility
of privileged communications,” and that statute abrogates the counselor/client
privilege in proceedings resulting from reports of child abuse. It reads, in
pertinent part:
The privileged communication between:
....
(3) a:
(A) licensed social worker;
(B) licensed clinical social worker;
(C) licensed marriage and family therapist;
(D) licensed mental health counselor;
(E) licensed addiction counselor; or
(F) licensed clinical addiction counselor;
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and a client of any of the professionals described in clauses (A)
through (F);
....
is not a ground for excluding evidence in any judicial proceeding
resulting from a report of a child who may be a victim of child
abuse or neglect or relating to the subject matter of the report or
failing to report as required by IC 31-33.
Ind. Code § 31-32-11-1 (emphasis added). Of import is the fact that Indiana
Code section 31-32-11-1 lists the same six categories of professions, in the same
order, as are found in Indiana Code section 25-23.6-1-3.8, and it refers to “the
privileged communication” that exists between each of those six licensed
professionals and his or her client. As we have held, statutes relating to the
same subject matter are in pari material and should be construed together so as
to produce a harmonious statutory scheme. Glover v. State, 760 N.E.2d 1120,
1124 (Ind. Ct. App. 2002), trans. denied. We find that this statute tracks Indiana
Code section 25-23.6-1-3.8 (which defines “counselor” for purposes of the
counselor/client privilege) and that the State’s limited reading – which suggests
that the licensing requirement applies only to the last in the series – is not
harmonious with Indiana Code section 31-32-11-1.
[27] As the State correctly observes, “social worker” is defined in Indiana Code
section 25-23.6-1-10 as “an individual who graduates from a program
accredited by the Council on Social Work Education,” as Wallace did, and that
this definition does not require that a social worker hold a license. The State
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also reminds us that “licensed social worker” is separately defined. Ind. Code §
25-23.6-1-4.8 (licensed social worker means “an individual who is licensed
under IC 25-23.6-5.”). The State asserts that the fact that “social worker” is so
defined reflects the Legislature’s intent that unlicensed social workers are within
the scope of the counselor/client privilege, making Wallace’s communications
privileged. The State argues that “[t]he only category for which the General
Assembly has intentionally drawn a distinct line between the categories of
licensed and unlicensed individuals is the category of social workers, and for
purposes of defining the term “counselor,” the General Assembly deliberately
chose to use the broader term that encompasses unlicensed individuals rather
than the statutorily-defined narrower term limited to licensed individuals.”
Appellee’s Br. at 15-16.
[28] However, there are other statutes to consider in the equation. For instance,
Indiana Code section 25-23.6-4-1, found in a chapter titled “Social Worker;
Unlawful Practices; Penalty,” provides, in pertinent part, that an individual
may not “profess to be a social worker . . . use the title social worker . . . or use
any other title containing the words social worker . . . unless the individual is
licensed under this article.” Ind. Code § 25-23.6-4-1 (emphasis added). In fact,
doing so constitutes a Class A misdemeanor. Ind. Code § 25-23.6-4-4. Another
subsection provides, “A person who is not licensed under this article” but who
provides social services at certain identified entities, “may use the title ‘social
service designee.’” Ind. Code § 25-23.6-4-3.
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[29] The State directs us to another subsection, Indiana Code section 25-23.6-4-2,
which reflects that, so long as the individual does not use the title “social
worker,” the unlawful practices statute “may not be construed to limit the social
work or clinical social work services provided by[,]” among others, members of
the clergy, school counselors, governmental employees, and employees or
volunteers “for an organization performing charitable, religious, or educational
functions, providing pastoral assistance, or other assistance.” Ind. Code § 25-
23.6-4-2. The State urges that this statute expressly allows individuals such as
Wallace (an employee of a non-profit who provided social services and used the
title “Family Ministries Team Leader,” not social worker) to provide social
services work and that this permission reflects the General Assembly’s intention
that such communications be privileged and undiscoverable.8 We disagree.
Although it was permissible for Wallace, in her role as Family Ministries Team
Leader at Shepherd, to provide social services work to individuals and their
families, this ability to provide services does not mandate a finding that her
communications are privileged under the counselor/client privilege found in
Indiana Code section 25-23.6-6-1. Rather, we find that the legislative history of
the term “counselor” reveals that, for purposes of the counselor-client privilege,
the Legislature intended only licensed social workers to be covered by that
8
“The practice of social work” is defined as “professional services that are designed to effect change in
human behavior, emotional responses, and social conditions of individuals, couples, families, groups, and
communities and that involve specialized knowledge and skill related to human development, including an
understanding of unconscious motivation, the potential for human growth, the availability of social
resources, and knowledge of social systems. The term includes planning, administration, and research for
community social services delivery systems.” Ind. Code § 25-23.6-1-8.
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privilege. Related statutes support this determination, as well as the principles
that evidentiary privileges such as the counselor/client privilege must be strictly
construed and that, in criminal cases, ambiguous statutes should be construed
in favor of a defendant. We thus conclude that a social worker must be licensed
in order to fall within the scope of the counselor/client privilege found in
Indiana Code section 25-23.6-6-1.9
[30] We find that this case presents a similar set of facts, although through a
different procedural context, as our Supreme Court encountered in Hall v. State,
36 N.E.3d 459 (Ind. 2015), and even though Hall’s appeal occurred after he was
convicted and involved application of Indiana Evidence Rule 412, known as the
Rape Shield Rule,10 we nevertheless find Hall worthy of brief discussion as it
recognizes, as least implicitly, the intended breadth of our discovery rules.
[31] There, Hall, who was the boyfriend of the child’s mother, was convicted of
having molested the mother’s minor daughter. Prior to trial, Hall was aware of
a prior incident, sexual in nature, which had occurred several years before
between the child-victim and a boy of her age in Kentucky, and Hall sought to
9
On appeal, Rogers offers the alternative argument that, “even if privilege does apply [to Wallace], the
information is excepted from the privilege under 25-23.6-6-1(2) because the information communicated
indicates B.L. was the victim of crime (child solicitation) or abuse[.]” Appellant’s Br. at 10. Because we find
the “who is licensed” applies to all the categories of professionals in the list – and thus the counselor/client
privilege does not extend to Wallace – we do not reach this argument.
10
Indiana Evidence Rule 412 prohibits, subject to listed exceptions, the admission into evidence in a civil or
criminal proceeding involving alleged sexual misconduct evidence offered to prove a victim’s prior sexual
behavior or sexual predisposition.
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ask the mother about it during a deposition. She refused to answer, the
deposition question was certified, and Hall filed a motion to compel her to
answer it, arguing that “the information requested related to evidence that the
alleged victim may have previously accused another and then recanted, which .
. . is highly relevant in a case involving an accusation of improper sexual
conduct.” Id. at 462-63. The trial court denied Hall’s motion. Id. at 463. Prior
to the start of trial, the State filed a motion in limine to exclude any evidence
regarding prior sexual conduct of, among others, the child victim pursuant to
Indiana Evidence Rule 412, known as Indiana’s Rape Shield Rule. Id.
[32] On appeal to this court, Hall argued that the trial court’s ruling prevented him
from obtaining information about what he asserted was a prior false accusation
of sexual misconduct by the child-victim, and thus, the ruling deprived him of
the ability to fully confront his accuser under the Confrontation Clause. Hall v.
State, 15 N.E.3d 1107, 1119 (Ind. Ct. App. 2014), trans. granted. A majority of
this court agreed with Hall and found that by failing to require the child-
victim’s mother to answer the deposition question about “what had happened”
between the victim and a boy in Kentucky, the trial court prevented Hall from
obtaining discovery on a relevant non-privileged matter that bore on the child-
victim’s credibility. Id. at 1121. On transfer, our Supreme Court stated,
Like all three judges on the Court of Appeals, we find that [the
mother’s] response to Hall’s question about the Kentucky
incident could have revealed potentially relevant information
under Indiana Trial Rule 26(B)(1) that could have provided Hall
with knowledge of what he classifies as [the child’s] alleged prior
false accusation of sexual misconduct in order to potentially
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establish its admissibility at trial. Accordingly, the trial court
should have granted Hall’s motion to compel discovery in order
to fully secure his Sixth Amendment right to confront witnesses
against him.
Hall, 36 N.E.3d at 467.11
[33] Finding as we do that the counselor/client privilege of Indiana Code section 25-
23.6-6-1 does not include communications with unlicensed social workers, we
hold that the trial court erred in denying Rogers’s Motion to Compel on that
basis, and we reverse and remand for further proceedings consistent with this
opinion.12
[34] Reversed and remanded.
[35] Riley, J., and Pyle, J., concur.
11
But see In re Crisis Connection, Inc., 949 N.E.2d 798 (Ind. 2011) (holding that defendant in child molesting
prosecution was not entitled to inspect records of nongovernmental counseling agency because neither the
Sixth Amendment nor Due Process Clause requires disclosure of information protected by victim/advocate
privilege, Indiana Code section 35-27-6-9). We make no finding as to whether B.L. is a “Victim” or
Shepherd is a “Victim Service Provider” under Indiana Code chapter 36-27-6, as that issue is not before us.
12
The State observes that, with respect to discovery of non-privileged information, trial courts are to follow a
three-step analysis to determine whether discovery is authorized, including whether the information sought is
“material to the defense,” and they have discretion to limit discovery that, among other things, is
unreasonably cumulative or duplicative, can be obtained from another more convenient source, is less
burdensome, or less expensive. Appellee’s Br. at 30. Although the State urges us to find that Rogers has not
made the adequate showing that the information sought is material to his defense, is calculated to lead to
admissible evidence, or can be obtained elsewhere, we make no determination on those matters. Rather, we
find only that the four questions that deponent Wallace did not answer are not included in the
counselor/client privilege, and we defer to the trial court on remand to assess if and to what extent the
information is discoverable, whether in-camera as the State suggests, or otherwise.
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