Crone, J.
After Aaron L. Riggs, II, was charged with child molesting and related crimes, he sought to depose the alleged child victim. Pursuant to the newly enacted Indiana Code Section 35-40-5-11.5 (the Child Deposition Statute), the prosecutor declined to consent to the deposition of the child victim. Riggs filed a motion to depose the child victim in accordance with the Indiana Rules of Trial Procedure arguing, among other things, that the Child Deposition Statute conflicts with the trial rules and therefore is a nullity. Following a hearing on the sole issue of whether the Child Deposition Statute is enforceable, the trial court issued an order ruling that the Child Deposition Statute is unenforceable because it conflicts with the trial rules and granting Riggs’s request to depose the child victim.
The State of Indiana now appeals that order, arguing that the Child Deposition Statute is enforceable because it is a substantive statute addressing rights granted to child victims by the Indiana Constitution and statute and therefore is not subject to the general rule that the Indiana Trial Rules supersede conflicting procedural statutes. The State further argues that, even if the Child Deposition Statute is considered a purely procedural statute, it does not conflict with the trial rules such that it should be deemed a nullity. We conclude that any substantive provisions of the Child Deposition Statute do not exempt the procedural provisions of the Statute from the general rule that the Indiana Trial Rules supersede conflicting procedural statutes. We also conclude that the procedural provisions of the Child Deposition Statute conflict with the trial rules, and therefore the procedural provisions are unenforceable. Accordingly, we affirm.
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The State argues that the trial court erred in concluding that the Child Deposition Statute is a nullity because it conflicts with Trial Rules 26 and 30.
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Specifically, the State contends that the Child Deposition Statute is enforceable because it is a substantive law that is not subject to the general rule regarding conflicts between procedural statutes and trial rules and, even if it is deemed to be a purely procedural statute, it is not in conflict with Trial Rules 26 and 30. Before addressing these arguments, we note that the enforceability of the Child Deposition Statute was recently addressed by other panels of this Court. See Sawyer v. State, No. 20A-CR-1446, 2021 WL 1991699 (Ind. Ct. App. May 19, 2021), trans. pending; Church v. State, No. 21A-CR-68, 2021 WL 2644110 (Ind. Ct. App. June 28, 2021). Although we ultimately reach a resolution in accord with those decisions, we note that they did not address the State’s arguments as articulated in the State’s briefs in this case. We now turn to the merits of this appeal.
We first address the State’s contention that the Child Deposition Statute is a substantive law that is not subject to the general rule regarding conflicts between procedural statutes and trial rules.
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We note that the Child Deposition Statute is part of Title 35, Article 40, entitled “Victim Rights.” Article 40 was enacted with the General Assembly’s expressed “intent” to “[e]nact laws that define, implement, preserve, and protect the rights guaranteed to victims by Article 1, Section 13 [of the Indiana Constitution and] ensure that Article 1, Section 13 … is fully and fairly implemented.” Ind. Code § 35-40-1-1. The General Assembly has decreed that Article 40 is to be construed “to preserve and protect the rights to which a victim is entitled without interfering with the rights of the accused to receive a fair trial or the duty of the prosecuting attorney to represent the people of Indiana.” Ind. Code § 35-40-3-1. Article 1, Section 13(a) protects the accused’s rights to a public trial by an impartial jury in the county in which the offense was committed; to be heard personally and by counsel; to demand the nature and cause of the accusation against him or her, and to have a copy thereof; to meet the witnesses face to face; and to have compulsory process for obtaining witnesses in his or her favor. Article 1, Section 13(b) provides, “Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process … to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.”
Turning now to the relevant trial rules, Trial Rule 26(A) provides that parties may obtain discovery by “depositions upon oral examination or written questions[,]” and “[u]nless the court orders otherwise under subdivision (C) of this rule, the frequency of use of these methods is not limited.” (Emphasis added.) Subdivision (C) addresses protective orders and provides that “[u]pon motion by any party or by the person from whom discovery is sought, and for good cause shown,” the court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” (Emphasis added.) Subdivision (C) also sets forth the ways in which the court may fashion such an order. For example, the court may (1) order that the discovery not be had; (2) specify the terms and conditions of the discovery, including the time or place; (3) specify the method of discovery; (4) limit the scope of discovery; and/or (5) limit who can be present during discovery to the parties, their attorneys, and persons designated by the court. Ind. Trial Rule 26(C).
Trial Rule 30(A) addresses when parties may take depositions.
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The State contends that the Child Deposition Statute is a substantive law because it gives “substance to the child victim’s constitutional and statutory rights to be treated with respect and dignity and to be protected from abuse throughout the criminal justice proceedings.” In addition, the State asserts that the Child Deposition Statute embodies the legislature’s decision not to grant a criminal defendant the substantive right to a discovery deposition in the context of a limited class of cases unless extraordinary circumstances exist. In sum, it is the State’s position that the Statute reflects the legislature’s balancing of the child victim’s substantive right to be treated with respect and protected from abuse against the defendant’s substantive right to a discovery deposition; therefore, it is a substantive law, and any of its procedural provisions do not fall within the general rule that a procedural trial rule takes precedence over a conflicting procedural statute.
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The Child Deposition Statute clearly addresses the method and manner in which a defendant may obtain a deposition of a child victim.
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We find our supreme court’s decision in [State ex rel. Blood v. Gibson Cir. Ct., 239 Ind. 394, 400, 157 N.E.2d 475, 478 (1959).] helpful because it illustrates how the procedural aspects of a statute are treated even where the right conveyed in the statute is substantive
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In other words, the Blood court concluded that even though the statute granted the substantive right to a change of judge in a levee proceeding, the timing for filing for a change of judge was procedural and thus that statutory provision was trumped by the trial rule.
Based on Blood, we conclude that regardless of whether the Child Deposition Statute embodies matters of substantive law, any and all procedural provisions of the Child Deposition Statute are subject to the well-established rule of law that a procedural statute that conflicts with a trial rule is a nullity.
We next address the State’s argument that the Child Deposition Statute does not conflict with Trial Rules 26 and 30. As previously noted, where a statute conflicts with the trial rules, the trial rules govern on matters of procedure. M.S., 140 N.E.3d at 284. To be in conflict, “[t]he rule and the statute need only be incompatible to the extent that both could not apply in a given situation.” Id. (quoting Bowyer, 798 N.E.2d at 917).
Specifically, the State asserts that the Child Deposition Statute and the trial rules are compatible because the trial rules do not grant defendants an unlimited right to depose a victim; that is, the right to depose witnesses is limited by Trial Rule 26(C), which allows a defendant’s otherwise unfettered right to take a deposition to be limited “for good cause shown.” The State maintains that the Child Deposition Statute constitutes a legislative finding that good cause has been shown for limiting a defendant’s right to take a deposition in the specific class of cases to which the Statute applies. According to the State, the “good cause” for limiting a defendant’s right is that child victims of molesting may suffer psychological harm from having to repeatedly relive their molesting while testifying about it. The State further claims that both the Statute and Trial Rule 26(C) leave the weighing of competing interests and ultimate decision to the trial court.
We are unpersuaded. Trial Rule 26 provides that, except in the case of protective orders, the frequency of use of discovery methods including depositions “is not limited.” In addition, Trial Rule 30(A) provides that “any party may take the testimony of any person, including a party, by deposition upon oral examination” after commencement of the action. Thus, a criminal defendant may freely obtain a child victim’s deposition unless a person seeks to limit the defendant’s right by filing a motion and establishing good cause for a protective order pursuant to Trial Rule 26(C). The Child Deposition Statute conflicts with these provisions by providing that a defendant may depose a child victim only in accordance with the Statute, by requiring the defendant to seek the prosecutor’s permission, by requiring the defendant to move for a hearing when the prosecutor does not grant permission, and by placing the burden of proof on the defendant to establish that there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim’s testimony and/or that the deposition is necessary due to the existence of extraordinary circumstances and in the interest of justice. Trial Rules 26 and 30 and the Child Deposition Statute are incompatible because both cannot apply in Riggs’s situation. As such, the trial rules prevail. See Sawyer, 2021 WL 1991699, at *7 (concluding that because procedural provisions of Child Deposition Statute conflict with trial rules, trial rules govern); Church, 2021 WL 2644110, at *4 (same). We conclude that the trial court did not err in finding that the Child Deposition Statute is unenforceable. Therefore, we affirm.
Affirmed.
Riley, J., and Mathias, J., concur.