                                                                             FILED
                                                                         Oct 08 2019, 8:50 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                            Curtis T. Hill, Jr.
Bargersville, Indiana                                      Attorney General of Indiana
                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Marty Friend,                                              October 8, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2359
        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           20D03-1509-FA-20



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                              Page 1 of 22
[1]   Marty Friend appeals his conviction for Level 1 Felony Child Molestation,1

      arguing that the trial court erred by denying his motions for preliminary

      discovery of privileged records and by refusing to admit certain evidence.

      Finding no error, we affirm.


                                                     Facts
[2]   In 2010, Friend and his wife, Kathy Friend (Kathy), adopted seven-year-old

      A.F. from a Russian orphanage and brought her to Indiana. A.F. had trouble

      adjusting to life in the United States. She did not follow rules, did not respect

      her teachers’ authority, and was terrified to sleep in a room by herself. A.F.

      would often sleep on the floor of her parents’ bedroom and felt confused and

      alone because of the language barrier. A.F. would aggressively wrestle with her

      classmates “because of the way that she was used to playing with other kids” in

      Russia. Tr. Vol. IV p. 129. A.F. was repeatedly cited for bullying and frequently

      got into trouble. A.F. would often laugh at inappropriate times in class and was

      unable to communicate her true feelings due to her poor English skills. A.F.

      and Friend had difficultly bonding during this period and for most of her

      childhood.


[3]   After Friend and Kathy divorced in the summer of 2012, Kathy, who had

      physical custody of A.F., moved with the child to Bloomington. A.F. stayed




      1
          Ind. Code § 35-42-4-3(a)(1).


      Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019       Page 2 of 22
      with Friend in Kokomo every other weekend. During those visits, Friend and

      A.F. constantly fought and called each other names. A.F. complained about the

      time she had with Friend, and Kathy noticed that A.F. would return from these

      weekend visits “unkempt, hadn’t showered[] . . . like an animal.” Id. at 184.

      Also, A.F. continued to have academic and social problems at school.


[4]   In 2014, Kathy became so worried about A.F.’s condition that she arranged for

      A.F. to see a private social worker, Kate Creason. As part of her overall

      evaluation, A.F. was assessed for Reactive Attachment Disorder (RAD), which

      is a psychological condition that results from a lack of an intimate bond

      between parent and child during infancy. RAD is often diagnosed in adopted

      children due to their sometimes unstable upbringing; it is characterized by

      meanness, physical aggression, lying, cruelty to animals, and an apparent lack

      of empathy. Creason did not diagnose A.F. with RAD, and neither Friend nor

      Kathy received records or other documents from those sessions.


[5]   In February 2015, when A.F. was in sixth grade, Kathy received a phone call

      from the school therapist telling her that A.F. was cutting her wrist with a dull

      knife. Kathy talked with A.F. and asked her what had been going on. Unable to

      put her thoughts into words, A.F. wrote down the following passage in a

      notebook:


              Dad touches me inappropriate places

              down their and up their and last Friday

              he made me suck it

      Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019      Page 3 of 22
              like he put his thing in my thing ☹


      Appellant’s App. Vol. II p. 37; State’s Ex. 5(A) (capitalization, punctuation,

      and spelling in original). Kathy promised A.F. that she would stop it.


[6]   A.F. testified that Friend had started molesting her during weekend visits just

      after he and Kathy split up and divorced in 2011-12. Friend would give A.F. a

      back massage and then start to move his hands “[a]ll over [A.F.’s] body.” Tr.

      Vol. V p. 149. Friend’s hands would then move to and grope A.F.’s breasts and

      vagina. Friend would squeeze A.F.’s breasts and insert his fingers into her

      vagina. A.F. stated that “[i]t didn’t feel bad, but it was confusing.” Id. at 153.

      Friend would then direct A.F. to put her hands on his penis and move them up

      and down until “[w]hite stuff,” id. at 161, came out of his body. Friend also

      directed A.F. to put her mouth on his penis until the same thing happened. All

      the while, Friend twice ordered A.F. “not to tell [Kathy].” Id. at 171.


[7]   On September 2, 2015, the State charged Friend with one count of Class A

      felony child molestation and one count of Level 1 felony child molestation. On

      March 7, 2016, Friend filed a verified motion seeking all medical records from

      A.F.’s one-on-one sessions with Creason. Friend argued that Creason’s reports

      might contain information that A.F. had been diagnosed with RAD, and

      consequently, that she could have been lying about the molestation allegations.

      Following a August 5, 2016, evidentiary hearing on the motion, the trial court

      denied Friend’s request, finding that Friend “has simply not made a

      substantiated claim that the records he seeks do in fact contain material or

      Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019        Page 4 of 22
       exculpatory information.” Appellant’s App. Vol. II p. 123. Friend filed two

       motions to reconsider, including one request that the trial court conduct an in

       camera review of the materials and one request to seal the records, which the

       trial court denied on December 21, 2016, and August 30, 2017, respectively.


[8]    On October 4, 2017, Friend filed a notice of intent to use evidence in the form

       of 137 emails and text messages along with testimony from expert witness Dr.

       Gerald Wingard. In response, the State filed a motion in limine seeking to

       exclude that evidence. Friend requested a pretrial admissibility ruling on this

       motion. Following a hearing, the trial court issued an order on May 9, 2018,

       granting the State’s motion and excluding the evidence from trial. The trial

       court denied Friend’s motions to reconsider on July 31, 2018.


[9]    Following Friend’s August 20-23, 2018, jury trial, Friend was found guilty of

       Level 1 felony child molestation but not guilty of Class A felony child

       molestation. Thereafter, on September 20, 2018, the trial court sentenced

       Friend to forty years imprisonment in the Department of Correction, with ten

       years suspended to probation. Friend now appeals.


                                Discussion and Decision
                                     I. Preliminary Discovery

[10]   First, Friend argues that the trial court erroneously denied his requests for

       preliminary discovery of A.F.’s privileged records. First, he argues that some of

       the information in those records might have been material to his defense. Next,

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019       Page 5 of 22
       he argues that his federal constitutional rights entitle him to the records so that

       he may construct a complete defense.


[11]   We will reverse discovery matter rulings “only where the trial court has reached

       an erroneous conclusion which is clearly against the logic and effect of the facts

       [and circumstances] of the case.” Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12,

       15 (Ind. Ct. App. 1996). “Due to the fact-sensitive nature of discovery matters,

       the ruling of the trial court is cloaked in a strong presumption of correctness on

       appeal.” Id. “We may affirm the trial court’s ruling if it is sustainable on any

       legal basis in the record, even though this was not the reason enunciated by the

       trial court.” Williams v. State, 819 N.E.2d 381, 384-85 (Ind. Ct. App. 2004).


                                           Materiality and Privilege

[12]   Friend sought A.F.’s records from her one-on-one sessions with Creason, the

       social worker, arguing that the results of the RAD evaluation were essential to

       Friend’s defense that A.F. was fabricating the molestation allegations. Lying, a

       lack of empathy, and aggressive behavior are well-known symptoms of RAD,

       so Friend contends that proof that A.F. was diagnosed with the disorder was

       material to his claim that A.F. had been lying.


[13]   In Jorgensen v. State, our Supreme Court held that:


               [w]ith respect to nonprivileged information, there are two principal
               questions which a trial court must consider in ruling on questions
               relating to discovery in a criminal trial: (1) is there a sufficient
               designation of the items sought to be discovered; and (2) are the
               items sought material to the defense? If the answers to both
               questions are affirmative, the trial court must grant the discovery

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019        Page 6 of 22
               motion unless the State makes a showing of paramount interest in
               nondisclosure.


       574 N.E.2d 915, 917 (Ind. 1991) (emphasis added). So, we must first decide

       whether information is privileged before we conduct a Jorgensen inquiry. If it is

       privileged, the Jorgensen inquiry does not apply. If it is not privileged, the

       Jorgensen inquiry does apply and we must conduct that inquiry. “Put differently,

       [if] there is no chance that the information sought . . . is anything other than

       privileged[] . . . that ends the inquiry.” In re Crisis Connection, Inc., 949 N.E.2d

       789, 795 (Ind. 2011).


[14]   In Indiana, “privileges are statutory in nature and . . . it is within the power of

       the legislature to create them.” State v. Pelley, 828 N.E.2d 915, 918 (Ind. 2005).

       Indiana Code section 25-23.6-6-1 states that “[m]atters 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 specific circumstances enumerated in the statute. The statutory definition

       of “counselor” includes social workers. I.C. § 25-23.6-1-3.8.


[15]   Our Supreme Court has defined the importance of this privilege:


               By enacting I.C. § 25-23.6-6-1 the Legislature extended to
               counselors the same privilege that exists for physicians. 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. . . . [T]he focus of [the privilege] is the same,
               namely, protecting communication.




       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019          Page 7 of 22
       Pelley, 828 N.E.2d at 918-19. The record plainly shows that the documents

       compiled during the course of A.F.’s one-on-one sessions with Creason are

       privileged and may not be disclosed unless they fall under one of the statutorily-

       defined exceptions—none of which apply here. Because this information is

       privileged, we may not conduct a Jorgensen inquiry. Friend is not entitled to

       relief on this basis.


                                          Friend’s Constitutional Rights

[16]   Next, Friend argues that his federal constitutional rights entitle him to

       Creason’s records so that he may present a complete defense.


[17]   It is well settled that “criminal defendants have the right to the government’s

       assistance . . . to put before a jury evidence that might influence the

       determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987). To that

       end, “the government has the obligation to turn over evidence in its possession

       that is both favorable to the accused and material to guilt or punishment.” Id. at

       57 (emphasis added). In contrast, our Supreme Court has held that non-

       government actors are not compelled to produce evidence under the Sixth or

       Fourteenth Amendments. In re Crisis, 949 N.E.2d at 799-800. Because Creason

       is not a government actor, she cannot be compelled to produce documents as if

       she were a prosecutor under a Ritchie analysis.2




       2
         Additionally, the State is correct in pointing out that it did not receive an “unfair advantage” regarding its
       access to the records. For one thing, there is no proof that the State had these records in its possession. And if
       the State had the records, it would be compelled under Brady v. Maryland, 373 U.S. 83, 87-88 (1963), to

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                                  Page 8 of 22
[18]   Friend also argues that the trial court should have conducted an in camera

       evaluation of these privileged records. But, “Indiana’s [counselor-client]

       privilege is one that generally prohibits disclosure for even in camera review of

       confidential information.” Id. at 802 (emphases in original). Our Supreme

       Court has reasoned that a criminal defendant’s rights to a fair trial and to

       present a complete defense are well protected by “extensive access to other

       sources of evidence.” Id.; see also In re WTHR-TV, 693 N.E.2d 1, 5 (Ind. 1998)

       (holding that liberal rules of discovery allow a defendant to access information

       that does not disturb privilege and does not invoke a constitutional analysis).

       Friend had ample opportunities during his trial to access non-privileged

       information to show that A.F. was showing symptoms of RAD. We cannot say

       that Friend’s constitutional rights were violated under these circumstances.


[19]   In sum, we find that the trial court did not err by denying Friend’s requests for

       pretrial discovery of privileged records.


                            II. Admission of Pretrial Evidence

[20]   Next, Friend argues that the trial court erroneously refused to admit certain

       pretrial evidence—namely, (1) written and testimonial evidence proffered to




       disclose them if they contained exculpatory information. Based on what we can gather from the record, only
       Creason maintained the documents at all times as a private, independent, non-government actor.

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                            Page 9 of 22
       prove that A.F. suffered from RAD;3 and (2) additional evidence proffered to

       prove A.F.’s biases against Friend.


[21]   Reversal of a trial court’s admissibility determination is appropriate only where

       the decision is clearly against the logic and effect of the facts and circumstances.

       Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). “Moreover, we will sustain the

       trial court[’s] [decisions on the admission of certain evidence] if it can be done

       on any legal ground apparent in the record.” Jester v. State, 724 N.E.2d 235, 240

       (Ind. 2000).


                                                   RAD Evidence

[22]   First, Friend argues that the trial court erred when it refused to admit his

       proffered evidence that, Friend alleges, proved that A.F. had been suffering

       from RAD. Specifically, Friend submitted 137 exhibits containing text

       messages and emails between Kathy and A.F. and between Friend and A.F.

       along with testimony from Friend’s expert witness, Dr. Wingard.


[23]   In its pretrial order excluding this evidence, the trial court stated the following:


                [Friend] seeks to introduce two (2) primary types of evidence at
                the trial in this matter, which he classifies as “behavioral
                evidence” related to Reactive Attachment Disorder (R.A.D.). This
                topic has been heavily litigated in this case through various
                motions. [Friend] initially sought discovery of A.F.’s therapy



       3
        Friend also argues that the trial court erroneously omitted this evidence from the record, thereby preventing
       us from reviewing his evidentiary appeal. However, this argument is moot because Friend’s exhibits and
       evidence eventually became part of Clerk’s Record, and henceforth, the record on appeal. See generally
       Appellant’s App. Vol. V.

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                              Page 10 of 22
               records and confidential notes compiled by counselor Kate
               Creason. Throughout the Court’s review and consideration of
               [Friend’s] numerous motions on this issue, the conclusion reached
               is that A.F. has not absolutely been diagnosed with R.A.D.
               syndrome. At the evidentiary hearing held on December 20, 2017,
               Dr. Gerald Wingard testified that based only on documents of text
               messages exchanged between [Friend], A.F., and [Kathy], he was
               viewing mere “glimpses of behavior” of A.F. There is no indicia of
               evidence that A.F. actually suffers from R.A.D. other than
               speculation on the part of [Friend]. Furthermore, [Friend] has not
               discovered any witness to the State to form the basis to elicit any
               such testimony, nor has any expert reports or records been
               provided in support of such opinion.

               The information before the Court does not support permitting a
               defense regarding that A.F. suffers from R.A.D. because it has not
               been established that she does. Evidence of such a diagnosis, its
               signs and symptoms, without any basis or evidence that A.F.
               actually suffers from R.A.D. amounts to jury speculation at best.
               In this regard, such evidence is prejudicial as it lacks foundation.
               As noted by the Court in previous orders, [Friend] is certainly free
               to test A.F.’s credibility and conduct impeachment in any
               permissible manner. However, direct testimony about R.A.D. to
               suggest that A.F. might suffer from it would be misleading.
               Accordingly, [Friend’s] Request for Admissibility of Behavioral
               Evidence is denied.


       Appellant’s App. Vol. III p. 194-95.


[24]   As a general matter, any relevant evidence may be excluded “if its probative

       value is substantially outweighed by a danger of one or more of the following:

       unfair prejudice, confusing the issues, misleading the jury, undue delay, or

       needlessly presenting cumulative evidence.” Ind. Evidence Rule 403.


[25]   Nothing in these exhibits of text messages or emails indicates that A.F. is

       suffering from RAD. In fact, many of the conversations between A.F. and


       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019      Page 11 of 22
       Friend are quite positive, undercutting Friend’s arguments that A.F.

       “consistently called Friend names, was disrespectful of adults, lied, stole, was

       mean and aggressive towards others, blamed others for her issues, was angry,

       triangulated adults against one another, demanded gifts, and presented unusual,

       possibly even delusional, behavior.” Appellant’s Br. p. 41. And, without an

       official diagnosis or, at the very least, a more solid foundation that Friend was

       actually suffering from RAD, the trial court did not err by concluding that this

       bevy of information should be excluded.


[26]   Moreover, Evidence Rule 403 precludes needlessly presenting cumulative

       evidence. It is not unreasonable to find that the 137 exhibits of text messages

       and conversations between A.F. and Friend and A.F. and Kathy, in addition to

       the lengthy testimony of Dr. Wingard, amounted to cumulative evidence. See,

       e.g., Morse v. Davis, 965 N.E.2d 148, 160 (Ind. Ct. App. 2012) (finding that in a

       medical malpractice action, the exclusion of one additional chart proving a

       family history of cancer was not in error because it was cumulative of other

       evidence that was already proffered to demonstrate a patient’s failure to

       inform). Friend was already planning to, and in fact did, argue that A.F.

       suffered from RAD and submitted evidence in support thereof, so an endless

       review of the text messages would have been superfluous.


[27]   Friend also maintains that Dr. Wingard should have been permitted to testify.

       Dr. Wingard would have testified as follows:


               [A.F.] needs an evaluation now. I obviously was present when Mr.
               Friend was testifying and said that a RAD assessment had been

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019     Page 12 of 22
               done but had not been given any information about it. I’m not sure
               what an evaluation—what good an evaluation does if there—if
               parents are not notified about the results; but there’s—there’s no
               question that the list of exhibits that I’ve just gone through would
               say we need to do an in-depth psychological evaluation.


       Tr. Vol. II p. 194. Dr. Wingard admits that he had not witnessed any of A.F.’s

       symptoms nor had he conducted an independent evaluation of A.F. Rather, all

       of Dr. Wingard’s conclusions about A.F. potentially suffering from a

       psychological disorder were based on conjecture, and he merely speculates that

       A.F. needs a psychological evaluation sometime in the future. In other words,

       there was no foundation laid for Dr. Wingard’s conclusions. Therefore, the trial

       court did not err by precluding this testimony.


[28]   Moreover, if the trial court did err by excluding this evidence, the error was, at

       most, harmless. “Errors in the admission or exclusion of evidence are to be

       disregarded as harmless error unless they affect the substantial rights of the

       party.” Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014). The decision

       to exclude evidence is harmless if its probable impact on the jury is sufficiently

       minor. Id. Here, the decision to exclude was harmless because Kathy, Friend,

       and A.F. all testified at trial as to A.F.’s ongoing behavioral issues. While

       Friend did not get a chance to question Dr. Wingard as an expert witness, these

       witnesses nevertheless discussed A.F.’s problems of communicating her

       problems, lying to Friend, complaining of her weekend visits to Friend’s home,

       having thoughts of worthlessness, overcoming the language barrier, behaving

       strangely, and even performing self-harming acts. The 137 exhibits and Dr.


       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019      Page 13 of 22
       Wingard’s potential testimony would have only expounded upon A.F.’s

       behavioral issues, proving that Friend’s substantive rights were not affected by

       the exclusion.


[29]   Thus, the trial court did not err when it refused to admit Friend’s proffered

       evidence about A.F. allegedly suffering from RAD.


                                                   Bias Evidence

[30]   Next, Friend argues that the trial court erred when it refused to admit his

       proffered evidence that, Friend alleges, tends to show A.F. was biased against

       him. Specifically, Friend moved to admit evidence that A.F. once stole money

       from another person; that A.F. once falsely said that their dog was dead; and

       that A.F. had taken and deleted inappropriate photos of herself on a phone.


[31]   Indiana Evidence Rule 616 says that “[e]vidence that a witness has a bias,

       prejudice, or interest for or against any party may be used to attack the

       credibility of the witness.” We have recognized that evidence of bias, prejudice,

       or ulterior motives is relevant at trial because it may discredit the witness or

       affect the weight of the witness’s testimony. Kirk v. State, 797 N.E.2d 837, 840

       (Ind. Ct. App. 2003). However, for such evidence to be admissible, the

       defendant must demonstrate that he was prejudiced, or else there is no error in

       excluding it. Id. at 840-41.


[32]   On its face, none of this evidence shows that A.F. was biased against Friend.

       These three disparate incidents merely consist of A.F. acting erratically and

       doing something characteristic of someone who has ongoing behavioral issues

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019       Page 14 of 22
       or is simply a rebellious teenager. The actions of stealing money from someone,

       lying about a dead dog, and taking and deleting photos have no bearing on

       Friend’s case, and he makes no cognizable claim that any of these incidents

       actually prejudiced him. Instead, Friend contends, without any further

       explanation, that all of these incidents “present evidence that A.F. was lying in

       retaliation for Friend’s punishment of her escalating behavior in the months

       before the accusation.” Appellant’s Br. p. 47.


[33]   Moreover, Friend had ample opportunity to cross-examine both A.F. and

       Kathy during trial to probe for genuine pretext and bias. Nevertheless, Friend

       narrows in on these random events, which neither relate to nor support his

       argument that A.F. was so biased against him as to fabricate molestation

       allegations. While a party may inquire into such collateral matters on cross-

       examination, those collateral matters cannot be “used in a manner solely to

       prejudice a jury against a witness and [are] not material to the litigation[.]” Kien

       v. State, 782 N.E.2d 398, 409 (Ind. Ct. App. 2003). These “evidentiary

       harpoons” are pieces of evidence that would not be independently admissible,

       and therefore, their admission even on cross-examination is improper. Id.

       Because Friend does not present any cogent argument that he was prejudiced

       by these events and because these events are not independently relevant or

       material, we find that the trial court did not err by refusing to admit them.4




       4
        As a final matter, Friend also argues that the trial court erred when it did admit evidence of A.F.’s written
       disclosures and journal entries, wherein A.F. described the molestation and her strained relationship with

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                                Page 15 of 22
[34]   The judgment of the trial court is affirmed.


       Kirsch, J., concurs.
       Crone, J., concurs in part and dissents in part with a separate opinion.




       Friend. We find that, at most, the trial court committed harmless error. “The erroneous admission of
       evidence that is merely cumulative of other admissible evidence is not grounds for reversal.” Crawford v. State,
       770 N.E.2d 775, 781 (Ind. 2002). It was firmly established at trial that Friend and A.F. had a strained
       relationship, and A.F. testified at length about how and when Friend molested her. Therefore, the admission
       of the journal entries and written disclosures was merely cumulative of evidence already presented.

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                               Page 16 of 22
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Marty Friend,                                              Court of Appeals Case No.
                                                                  18A-CR-2359
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff



       Crone, Judge, concurring in part and dissenting in part.


[35]   I respectfully disagree with the majority’s conclusion that the trial court did not

       abuse its discretion5 in denying Friend’s request for pretrial discovery of social

       worker Creason’s records. The majority states that “we may not conduct a

       Jorgensen inquiry” because “[t]he record plainly shows that the documents

       compiled during the course of A.F.’s one-on-one sessions with Creason are

       privileged[.]” Id. at 8. Although the matters that A.F. communicated to




       5
        “Our standard of review in discovery matters is abuse of discretion.” Williams, 819 N.E.2d at 384. “This
       applies to requests for in camera review of items to determine if they are discoverable.” Id.

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                           Page 17 of 22
       Creason are specifically privileged pursuant to Indiana Code Section 25-23.6-6-

       1, Creason’s diagnosis of A.F. is not.6 The State does not argue that the

       diagnosis is insufficiently particular or immaterial for purposes of Jorgensen, and

       any such argument would be meritless.


[36]   But even assuming that the diagnosis is otherwise privileged and/or that

       Creason’s records might contain other privileged information material to

       Friend’s defense (such as statements by A.F. that might be mentioned in

       Creason’s RAD evaluation), “the privilege must yield to [Friend’s]

       constitutional rights.” Crisis Connection, 949 N.E.2d at 795. “In determining

       whether [Friend’s] constitutional right to present a complete defense would be

       violated by nondisclosure of [Creason’s] records, we weigh the interest

       advanced by Indiana’s [counselor-client] privilege ‘against the inroads of such a

       privilege on the fair administration of criminal justice.’” Id. at 801 (quoting

       United States v. Nixon, 418 U.S. 683, 711-712 (1974)). The interest advanced by

       the counselor-client privilege is substantially similar to that advanced by the

       victim advocate privilege at issue in Crisis Connection, namely, to foster “an

       atmosphere of confidence and trust in which the patient is willing to make a

       frank and complete disclosure of facts, emotions, memories, and fears.” Id.

       (quoting Jaffee v. Redmond, 518 U.S. 1, 10 (1996)).




       6
         The majority states that “Creason did not diagnose A.F. with RAD[.]” Slip op. at 3. In fact, the record is
       silent regarding Creason’s diagnosis.

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                             Page 18 of 22
[37]   Unlike the victim advocate privilege, however, the counselor-client privilege is

       not absolute; Indiana Code Section 25-23.6-6-1 authorizes the disclosure of

       privileged information under certain circumstances, including “[c]ircumstances

       under which privileged communication is abrogated under Indiana law.”

       Friend argues (persuasively, in my view) that this “catchall exception illustrates

       the Legislature anticipated that some interests will trump the need for

       counselor-client confidentiality, thus clearly distinguishing this case from [Crisis

       Connection].” Appellant’s Br. at 29. He further argues that


                  the fair administration of justice trumps the interests of protecting
                  the client-counselor confidentiality within A.F.’s records. Friend
                  tried every possible avenue to discover whether A.F. suffered
                  from RAD and to present such evidence but was unsuccessful at
                  every turn. He translated records from the [Russian] orphanage
                  and had an expert review A.F.’s behaviors to explain them. The
                  trial court held that all of it was inadmissible without a diagnosis
                  of RAD, which of course, Friend could not discover because of
                  the privilege.[7] Further, there is a strong likelihood that Friend
                  would discover material evidence within the records. This is a
                  rare case where the defendant knows there was a RAD
                  assessment, but just does not know the results. Health care
                  providers do not test for disorders they have no reason to think
                  exist.[8]

                  In a criminal context, the counselor-client privilege unfairly
                  favors the prosecution over the defense. If an alleged victim’s



       7
           This is precisely the kind of “catch-22” that our supreme court confronted in Jorgensen. 574 N.E.2d at 917.
       8
         The State asserts that “[t]he fact that Creason never told either parent that A.F. had RAD is extremely
       strong evidence that the result of her evaluation was a conclusion that A.F. did not have RAD.” Appellee’s
       Br. at 29. This is pure speculation.

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                                Page 19 of 22
               counseling records are helpful, the alleged victim has the choice
               to waive the privilege so they can be used. However, when there
               are relevant psychological issues, inconsistent stories or motives
               to lie that may undermine the alleged victim’s credibility, the
               alleged victim will most likely not waive the privilege. Thus, the
               real-world application of the privilege is unbalanced for the State.


       Id. at 33-34 (citations omitted). Under the facts of this particular case, at least, I

       must agree. See Turney v. State, 759 N.E.2d 671, 678 (Ind. Ct. App. 2001) (“In

       sex-related cases, which often turn largely on questions of credibility, we are

       ever mindful that: ‘The jury’s estimate of the truthfulness and reliability of a

       witness may well be determinative of guilt or innocence, and it is upon such

       subtle factors as the possible interest of the witness in testifying falsely that a

       defendant’s life or liberty may depend.’”) (quoting State v. Bowens, 722 N.E.2d

       368, 370 (Ind. Ct. App. 2000)), trans. denied (2002).


[38]   In Crisis Connection, the court expressed its concern that “if the records protected

       by Indiana’s victim advocate privilege were subject to even an in camera review

       in cases like the present one, ‘confidential conversations between [victim

       advocates and victims] would surely be chilled, particularly when it is obvious

       that the circumstances that [gave] rise to the need for treatment will probably

       result in litigation.’” 949 N.E.2d at 801 (quoting Jaffee, 518 U.S. at 11-12)

       (alterations in Crisis Connection). Friend points out, however, that Creason’s

       records in this case


               originated from counseling with nothing to do with alleged abuse
               and everything to do with A.F.’s behavioral issues and a failure
               to bond with Friend, which itself could be a motive for a false

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019         Page 20 of 22
                  accusation. Friend paid for the sessions and even participated in
                  them. Had Friend not been accused of molesting A.F., he would
                  have full access to the records.


       Appellant’s Br. at 34 (citing Ind. Code §§ 16-39-1-7 and 16-39-2-9).9 Based on

       the foregoing, I agree with Friend that “the interest in maintaining

       confidentiality of A.F.’s counseling is outweighed by the need for fair

       administration of justice regarding the truth of A.F.’s accusation.” Id.


[39]   Accordingly, I would hold that Friend “is entitled to know whether [Creason’s]

       file contains information that may have changed the outcome of his trial had it

       been disclosed” and therefore “a remand is necessary” for an in-camera review

       by the trial court. Ritchie, 480 U.S. at 61. If the review would reveal

       information that would have been material to Friend’s defense, then the trial

       court would have to “determine whether to grant a new trial by viewing such

       information as newly-discovered evidence and applying the law as it relates to




       9
           Indiana Code Section 16-39-1-7 reads in pertinent part,

                (a) Except as provided in subsection (b), a custodial parent and a noncustodial parent of a child
                have equal access to the parents’ child’s health records.

                (b) A provider may not allow a noncustodial parent access to the child’s health records if:
                       (1) a court has issued an order that limits the noncustodial parent’s access to the child’s
                       health records; and

                       (2) the provider has received a copy of the court order or has actual knowledge of the
                       court order.
       Section 16-39-2-9 contains similar provisions regarding a child’s mental health records. There is no statute
       that specifically addresses counseling records. Friend notes that the State “provided no reason [at the trial
       level] why the Legislature would treat counseling records different than other mental health records” and that
       the foregoing statutes “illustrate that children have less expectation of confidentiality when it comes to their
       pre-accusation disclosures.” Appellant’s Reply Br. at 10.

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                                    Page 21 of 22
       newly discovered evidence.” Jorgensen, 574 N.E.2d at 918; see Denney v. State,

       695 N.E.2d 90, 93 (Ind. 1998) (to warrant a new trial based on newly

       discovered evidence, it must be shown “that the evidence (1) has been

       discovered since the trial; (2) is material and relevant; (3) is not cumulative; (4)

       is not merely impeaching; (5) is not privileged or incompetent; (6) was not

       discoverable upon due diligence in time for trial; (7) is worthy of credit; (8) can

       be produced on a retrial of the case; and (9) will probably produce a different

       result.”).10


[40]   All that being said, I agree with the majority’s determination that the trial

       court’s other evidentiary rulings did not constitute reversible error. It bears

       mentioning, however, that the trial court’s rationale for excluding Dr.

       Wingard’s proffered testimony regarding RAD would stand on much shakier

       ground if Creason did in fact diagnose A.F. with RAD.




       10
         I would decline Friend’s request to remand with instructions to order Creason’s record transmitted to this
       Court for review, as the trial court would be in a superior position to determine whether any newly
       discovered evidence will probably produce a different result on retrial.

       Court of Appeals of Indiana | Opinion 18A-CR-2359 | October 8, 2019                             Page 22 of 22
