Kirsch, J.
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.
We reverse and remand.
Facts and Procedural History
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. 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. …
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 …
… 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. … Rogers sought to further investigate those prior situations.
… Rogers took the audio-recorded deposition of one of Shepherd’s staff members, Wallace, who had provided social services support to B.L. and her family. … 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…
Rogers filed a Motion for Order Compelling Deponent to Answer Deposition Questions (“Motion to Compel”). Thereafter, … the trial court held a hearing on the matter, at which counsel presented argument.…
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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:
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.
Discussion and Decision
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. …
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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)). …
Here, Wallace was instructed by her counsel 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. …
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The counselor/client evidentiary privilege is established by Indiana Code section 25-23.6-6-1 …
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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.
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. …
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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 statute’s text. Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012). … 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). …
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Here … 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. …
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… 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 privilege. …
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.
Reversed and remanded.
Riley, J., and Pyle, J., concur.