                                                         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.


Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                    Page 1 of 24
[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).

      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                            Page 2 of 24
      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

      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016   Page 3 of 24
      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.

      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                            Page 4 of 24
              (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


      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016   Page 5 of 24
       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

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016     Page 6 of 24
       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.


       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                            Page 7 of 24
               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.

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                        Page 8 of 24
               (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).


       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016      Page 9 of 24
[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.

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                     Page 10 of 24
[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.
       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016   Page 11 of 24
[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




       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016   Page 12 of 24
       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.

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                        Page 13 of 24
               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
       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016      Page 14 of 24
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)).




Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016    Page 15 of 24
[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


       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016       Page 16 of 24
       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.



       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016     Page 17 of 24
[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;

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016    Page 18 of 24
               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

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016     Page 19 of 24
       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.




       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016    Page 20 of 24
[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.

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                        Page 21 of 24
       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.



       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                             Page 22 of 24
       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
       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016   Page 23 of 24
                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.

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1033 | July 6, 2016                            Page 24 of 24
