author: LARRY JOPLIN, Vice-Chief J.

text:
    2002 OK CIV APP 104
    Mark OFFIELD, o/b/o Joseph OFFIELD, Deceased, Plaintiff/Appellant, v. PARK VIEW HOSPITAL, Park View Ambulance Service, and Kathy Gunter, P.A., Defendants/Appellees, Clinton Strong, M.D., Mercy Health Center, Inc., Paul Orcutt, M.D., and Lonnie Lamprich, M.D., Defendants.
    No. 95,662.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    July 12, 2002.
    Certiorari Denied Oct. 15, 2002.

      Michael Brady, Louis Falesetti, Brady, Schaulat & Falesetti, Oklahoma City, for Appellant.
    A. Scott Johnson, Chris L. Fox, Johnson, Hanan & Heron, Oklahoma City, for Appel-lees.
   LARRY JOPLIN, Vice-Chief J.

¶ 1 PlaintiffyAppellant Mark Offield, o/b/o Joseph Offield, Deceased (Plaintiff), seeks review of the trial court’s order granting the motion for summary judgment of Defendants/Appellees Park View Hospital (PVH), Park View Ambulance Service (PVAS), and Kathy Gunter, P.A. (Gunter, or collectively with PVH and PVAS, Defendants) on Plaintiffs claims of medical negligence and violation of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. §§ 1395dd, et seq. (EMTALA), arising from the death of Decedent. In this accelerated review proceeding, Plaintiff asserts the trial court erred in granting judgment to Defendants because (1) Hospital is not a public trust hospital entitled to invoke the protections of the Oklahoma Governmental Tort Claims Act (OGT-CA or Act), 51 O.S. § 151, et seq., (2) Hospital waived any protection of the OGTCA, under § 152(8)(d), by contribution to political advocacy, and (3) the OGTCA does not insulate Defendants from liability on EMTALA claims. Having reviewed the record, however, we find no error as alleged and hold the order of the trial court should be affirmed.

¶ 2 The evidentiary materials on summary judgment show that on the morning of March 4, 1997, Decedent tripped, fell and struck his head on the floor of the garage at his residence. Decedent was transported to the emergency room of PVH by private vehicle, arriving at about 11:45 a.m. PVH staff examined Decedent, obtained x-rays and, at about 12:30 p.m., discharged Decedent to return home.

¶ 3 Upon returning home, however, Decedent experienced vomiting, and around 2:00 p.m., was transported back to the emergency room of PVH by PVAS. PVH staff obtained a CT scan of Decedent’s head, showing an acute right subdural hematoma. Decedent was transferred to Defendant Mercy Hospital, where he died the following day.

¶ 4 On March 4, 1999, Plaintiff commenced the instant action, alleging Defendants’ negligence and violations of EMTALA caused Decedent’s death. Defendants answered, denying generally and specifically the allegations of Plaintiffs petition, and asserted, among other defenses, immunity from liability under the OGTCA and full compliance with the standards of EMTALA.

¶ 5 In April 2000, Defendants filed a motion for summary judgment, and attached evidentiary materials demonstrating the facts we have recounted. Defendants also submitted evidentiary materials argued to show creation of PVH as a public trust hospital, PVAS as part of PVH, Gunter as an employee of PVH acting within the scope of her employment, and Defendants’ immunity from liability under the OGTCA.

¶ 6 Plaintiff responded, objecting to summary judgment, and offered evidentiary materials argued to show that PVH was a public trust hospital in form only, and not entitled to OGTCA protections. See, Roberts v. South Community Hospital Trust, 1986 OK 52, 742 P.2d 1077. Plaintiff also submitted evidentiary materials argued to show PVH’s membership in the Oklahoma and American Hospital Associations (OHA and AHA, respectively), trade groups using members’ dues to forward a political agenda, and asserted that PVH — even if a public trust hospital — consequently enjoyed none of the OGTCA’s protections pursuant to § 152(8)(d). Plaintiff further offered eviden-tiary materials argued to show Defendants’ failure to properly examine, evaluate and treat Decedent, either initially or subsequently prior to his transfer to Defendant Mercy Hospital, constituting negligence and violating EMTALA.

¶ 7 Upon a continuance to permit additional discovery and consideration of the submitted materials, the trial court held:

1. [PVH] is a “public trust” ...[;]
2. [PVH] is a “political subdivision” as defined under [51 O.S.] § 152(8)(d) and thus, protected by the [OGTCA] ... [;]
3. [PVH’s] status as a “political subdivision” under the [OGTCA] is not effected [sic] by the fact that it is a member of the [OHA] and/or [AHA]. Further, [OHA] and/or [AHA] have not conducted any acts and/or omissions which this Court finds excepts [PVH] as ... a “political subdivision” ... under ... § 152(8)(d)[;]
4. Plaintiff failed to provide Defendants with “notice of claims” as required by [51 O.S.] § 156 of the [OGTCA][;]
5. Plaintiffs federal EMTALA claim ... is encompassed under the “notice of claims” requirement of the [OGTCA]. 51 [O.S.] § 156. The “notice of claims” requirement ... of the [OGTCA] does not directly conflict -with the two year statute of limitations [governing EMTALA claims] [; and]
6. This Court finds the analysis in Roberts v. South Community Hospital Trust, [1986 OK 52,] 742 P.2d 1077 (Okla.1986), must be applied in conjunction with the Legislature’s 1987 amendment to the definition of “political subdivision” (subsequent to [the] Roberts decision). Further, after taking into consideration both the applicable law and facts, this Court finds that [PVH] is a political subdivision protected by the OGTCA.

(Emphasis original.) The trial court consequently granted Defendants’ motion for summary judgment, disposing of all of Plaintiffs claims against them.

¶ 8. Plaintiff subsequently filed an application for entry of a final appealable order pursuant to 12 O.S. § 994(A), which, over Defendants’ objections, the trial court granted. Plaintiff then commenced the instant appeal, and the matter stands submitted to this Court for resolution on the trial court record.

¶ 9 In the first substantive proposition of the petition in error, Plaintiff asserts the trial court erred in ruling that PVH is a public trust hospital. See, 51 ’ O.S. § 152(8)(d); 60 O.S. § 176, et seq. In a related proposition, Plaintiff asserts the trial court erred in its application of the Roberts analysis to determine PVH’s status as a protected “political subdivision” under the Act.

¶ 10 In Roberts, the Supreme Court held that a “true municipal hospital,” “created and funded” pursuant to 11 O.S. § 30-101 et seq., is “an extension of and an agency of the municipality” entitled to a timely notice of claim under the Act.1986 OK 52, ¶ 8, 742 P.2d at 1081. However, the Supreme Court in Roberts also held that a hospital “operating-under only a mere trust authority,” and “not being conducted as a trust for the public benefit ... is an illusory public trust, which [does not] qualify under [the Act] as a true political subdivision.” 1986 OK 52, ¶ 7, 742 P.2d at 1080. In that inquiry, the Supreme Court focused on the administrative and fiscal relationship between the hospital and the municipality. Roberts, 1986 OK 52, ¶¶ 8, 10-11, 15, 742 P.2d at 1080, 1081, 1082, 1083. See also, Kluver v. Weatherford Hospital Authority, 1993 OK 85, ¶ 9, 859 P.2d 1081, 1083; Fowler v. Norman Municipal Hospital, 1991 OK 30, ¶ 8, 810 P.2d 822, 824. The controversy “concerning the hospital’s status as a true public trust” “presents a question of law under Roberts,” “reviewable by a de novo standard and an appellate court claims for itself plenary independent and non-deferential authority to reexamine a trial court’s legal rulings.” Kluver, 1993 OK 85, ¶ 14, 859 P.2d at 1084.

¶ 11 Roberts and its progeny concerned claims that arose when the Act either (1) defined “political subdivision” to include “public trusts” without any specific reference to hospitals, or (2) expressly excluded “hospitals operating under a trust authority” from the definition of “political subdivision.” See, 51 O.S.1981 § 152(6)(d); 51 O.S. Supp.1984 § 152(8)(d). Under these circumstances, there was good reason to inquire whether a hospital trust was illusory.

¶ 12 After Roberts, however, the Oklahoma Legislature again amended the Act to specifically include municipal hospitals “operated for the public benefit by a public trust created pursuant to [60 O.S.] Section 176 et seq.” within the definition of a “political subdivision.” 51 O.S. Supp.1987 § 152(8)(d). The 1987 amendment to § 152(8)(d) should accordingly be regarded as the Legislature’s response to Roberts and evincing an intent to change the law. Special Indem. Fund v. Archer, 1993 OK 14, ¶ 11, 847 P.2d 791, 796, fn. 5; Huff v. State, 1988 OK 118, ¶ 4, 764 P.2d 183, 185 ; Irwin v. Irwin, 1965 OK 145, ¶ 11, 433 P.2d 931, 934; Magnolia Pipe Line Co. v. Oklahoma Tax Commission, 1946 OK 113, ¶ 11, 167 P.2d 884, 888.

¶ 13 In this respect, by amended § 152(8)(d), the Legislature clearly defined “public trust” and “political subdivision” to include a municipal hospital, county hospital, or a joint municipal/county hospital “that is operated for the public benefit by a public trust created pursuant to [60 O.S.] § 176 et seq.... and managed by a governing board appointed or elected by the municipality, county, or both, who exercises control of the hospital, subject to the approval of the governing body of the municipality, county, or both.” A public trust so managed is presumed to exist for the public benefit. 60 O.S. § 176.1(A), (B).

¶ 14 Reading amended § 152(8)(d) of the Act together with § 176.1, we therefore hold by statutory definition, the Legislature consequently limited the “political subdivision” inquiry to whether the charged municipal or county hospital is: (1) operated for the public benefit by a public trust created pursuant to 60 O.S. § 176, et seq.; and (2) managed and controlled by a governing board appointed by and answerable to the superintending municipal or county authority. As a question of law, we therefore do not believe the Roberts analysis properly applies in this case.

¶ 15 On summary judgment below, Defendants submitted authorities and uncon-troverted evidentiary materials showing PVH’s initial creation, as well as subsequent organization and operation, as a municipal hospital for the use and benefit of the people of El Reno. Defendants also submitted authorities and uncontroverted evidentiary materials showing acts of the superintending El Reno City Council: approving a public trust indenture to create the “Park View Hospital of El Reno Authority” with the power to issue obligations and provide funds to operate PVH for the use and benefit of the municipality and its citizens in stated compliance with 60 O.S. § 176, et seq.; and, appointing a functioning, governing board of trustees — including the mayor and answering to the City Council — with the right, power and duty to manage and control PVH’s fiscal and other affairs separate and independent of the affairs of the municipality. 60 O.S. §§ 176, 176.1. In the face of these uncontro-verted facts, we hold the trial court did not err in finding PVH to be a “public trust” and “political subdivision” under § 152(8)(d).

¶ 16 In the second, third and fourth substantive propositions, Plaintiff asserts the trial court erred in holding PVH had not shed its immunity from liability under the Act. Here, Plaintiff points to the evidence of PVH’s memberships in the OHA and AHA, organizations arguably using its members’ dues to engage in political advocacy, and divesting PVH of the Act’s protections under the specific terms of § 152(8)(d). In this respect, § 152(8)(d) indeed excludes from the definition of a protected “political subdivision” “hospitals or trusts which purchase advertising or which belong to organizations which purchase advertising, in which public funds have been used, in any media the purpose of which is to influence legislation on the civil justice system or to advocate support for or opposition to a candidate for public office, .... ”

¶ 17 In the present case, PVH admitted its dues-paying membership in the AHA and OHA. However, according to the affidavits of the PVH administrator and OHA director, no public money had been used to purchase advertising in any media either to influence legislation or to advocate for or against any candidates for public office. In opposition to summary judgment, Plaintiff offered the affidavits of the Director of the Oklahoma Trial Lawyers Association, and a researcher for the American Trial Lawyers Association, argued to show use of OHA and AHA monies, derived wholly or partly from member dues, by those organizations to purchase advertising either to influence legislation or to advocate support for/opposition to candidates for public office.

¶ 18 On this evidence, the trial court concluded PVH’s “status as a political subdivision [was] not affected by” its memberships in OHA or AHA, and that neither OHA nor AHA “conducted any acts and/or omissions which excepts [PVH] as ... a ‘political subdivision’ ” under the Act. As the issues have been framed, we must consequently determine whether, by adoption of § 152(8)(d), the Oklahoma Legislature intended to remove a public trust hospital from the Act’s protections where a public trust hospital’s membership dues to a trade association are arguably used by the trade association to purchase advertising aimed at influencing legislation or the election of political candidates.

¶ 19 As a matter of statutory construction, we are guided by the plain language of the statute. Greenlease-Ledterman, Inc. v. Hawkins, 1947 OK 323, ¶ 0, 186 P.2d 318. “The cardinal rule of statutory construction, to which all other rules are subordinate, is to ascertain the intention of the Legislature ..., and this should ordinarily be done by a consideration of the language of the statute, _” Seventeen Hundred Peoria, Inc., v. City of Tulsa, 1966 OK 155, ¶ 12, 422 P.2d 840, 843; City of Bristow ex rel. Hedges v. Groom, 1944 OK 223, ¶ 11, 151 P.2d 936, 940.

¶ 20 While we find no precedential guidance in the construction of § 152(8)(d), the plain language of the statute convinces us that the Legislature intended to divest a public trust hospital of the Act’s “political subdivision” protection only when the public trust hospital steps outside its public service role as a health care provider and directly into the political arena. That is, we construe § 152(8)(d) to evince our Legislature’s intent that so long as a public trust hospital conducts itself only as a hospital and health care provider, its status as a protected “political subdivision” under the Act remains unchanged. However, it is equally clear to us from the plain language of the statute that where a public trust hospital purposefully abandons its role as a health care provider to join in a political debate by the purchase of politically-motivated advertising, either directly or through an agent employed for that reason, the Legislature intended that a public trust hospital should no longer enjoy its status as a protected “political subdivision” under the Act.

¶ 21 Having so construed § 152(8) (d), we have reviewed the evidence offered in support of and opposition to summary judgment, and we concede that the evidentiary materials adduced arguably support a conclusion that part of PVH’s membership dues to the AHA and OHA may have been used for political purposes. However, we find no evidence supporting an inference that PVH, by its dues-paying membership in AHA or OHA, purposefully embarked on some politically-motivated agenda to actively affect legislation or the election of public officers sympathetic to the health-care industry by the purchase, directly or through its hospital association memberships, of advertising in any media. Absent evidence supporting a conclusion of such direct participation in the political process, we hold the trial court did not err in granting summary judgment to PVH as a protected “political subdivision” under the Act.

¶ 22 In the final substantive proposition of error, Plaintiff asserts a claim based on Defendants’ alleged violation of EMTALA falls outside the protections of the Act. On this issue below, Plaintiff argued that the Act protects political subdivisions only from tort liability, not against the strict liability provisions of EMTALA. See, e.g., Griffith v. Mt. Carmel Medical Center, 842 F.Supp. 1359 (D.Kan.1994).

¶ 23 We disagree. Recovery under EM-TALA is specifically limited by state law. 42 U.S.C. § 1395dd(d)(2)(A). A failure to give a notice of claim as required by state law bars a claim under EMTALA. Draper v. Chiapuzio, 755 F.Supp. 331 (D.Or.1991), aff'd., 9 F.3d 1391 (9th Cir.1993). Inasmuch as the evidentiary materials uncontro-vertedly reveal Plaintiffs failure to timely comply with the Act’s notice provisions, we conclude the trial court did not err in holding Plaintiffs EMTALA claim likewise barred.

¶ 24 The order of the trial court granting the motion for summary judgment of Defendants should be and is therefore AFFIRMED.

JONES, J. and BUETTNER, J., concur.

      . See, Rule 13(h), Rules for District Courts, 12 O.S. Supp.1993, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp. 1997, Ch. 15, App.

      . " 'Political subdivision’ means: ... a public trust where a city, town, school district or county is a beneficiary; and all their institutions, instru-mentalities or agencies.”

      . " 'Political subdivision’ means: ... a public trust where a city, town, school district or county is a beneficiary, provided, that for the purposes of this act, a public trust shall not include a hospital operating under a trust authority.”

      . Opinion issued, July 22, 1986, rehearing denied Sept. 29, 1987.

      . " 'Political subdivision’ means: ... a public trust where the sole beneficiary or beneficiaries are a city, town, school district or county. For purposes of the Governmental Tort Claims Act, a public trust shall include a municipal hospital created pursuant to Section 30-101 et seq. of Title 11 of the Oklahoma Statutes, a county hospital created pursuant to Section 781 et seq. of Title 19 of the Oklahoma Statutes, or is created pursuant to a joint agreement between such governing authorities, that is operated for the public benefit by a public trust created pursuant to Section 176 et seq. of Title 60 of the Oklahoma Statutes and managed by a governing board appointed or elected by the municipality, county, or both, who exercises control of the hospital, subject to the approval of the governing body of the municipality, county, or both, provided, this sub-paragraph shall not apply to hospitals or trusts which purchase advertising or which belong to organizations which purchase advertising, in which public funds have been used, in any media the purpose of which is to influence legislation on the civil justice system or to advocate support for or opposition to a candidate for public office." (Effective, November 1, 1987.)

      . “[Wjhere a former statute is clear or its meaning has been judicially determined, legislative amendment may reasonably indicate a legislative intent to alter the law. Special Indemnity Fund v. Figgins, [1992 OK 59, ¶ 8,] 831 P.2d 1379, 1382 (Okla.1992); Irwin v. Irwin, [1965 OK 145, ¶ 11,] 433 P.2d 931, 934 (Okkla.1965)."

      . "[Wjhen amending a statute the legislature is presumed to be familiar with the then extant judicial construction that is in force."

      . " ‘[A] change of phraseology from that of the original act ... raise[s] the presumption that a change of meaning was also intended.’ ”

      . "Where a statute is amended the Legislature may have intended either, (1) to effect a change in the existing law, or (2) to clarify that which was previously doubtful. Which purpose was intended by a particular amendment is to be determined to some extent from the circumstances surrounding its enactment. Where the former statute was clear, or where its meaning had been judicially determined, the amendment may reasonably indicate that the intention of the legislature was to alter the law....” (Citations omitted.)

      . "Where the language of a statute or ordinance is plain and unambiguous and its meaning clear and no occasion exists for the application of rules of construction, the statute will be accorded the meaning as expressed by the language therein employed.”

      . Held: hospital's liability under EMTALA not grounded upon tort concepts, rather, on hospital’s violation of federal statute making hospital strictly liable for any personal harm that directly results from that violation.

      . “Any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.”

      . For failure to give notice of claim as required by state tort-claims act, held, plaintiffs’ “claims under the laws of the State of Oregon and [EM-TALA] are time-barred.” 755 F.Supp. at 333.

      . “[A] plaintiff who waits more than one year to give the required notice under the state statute can no longer comply with both state [tort claim] and federal [EMTALA] law.” 9 F.3d at 1393.


source: Caselaw Access Project

license: Public Domain

text:
    2002 OK CIV APP 100
    OKLAHOMA TRANSPORTATION AUTHORITY, Plaintiff/Appellee, v. TULSA KAMPGROUND, INC., Defendant/Appellee, Eller Media Company, a Delaware corporation, successor in interest to Donrey Outdoor Advertising Company, Defendant/Appellant, George Lieberman, Trustee of the MJ & M Wilson Grandchildren’s Trust; Carol Schusterman Wilson, Trustee of the Carol Schusterman Wilson Trust No. 1; Dale Schusterman, Trustee of the Dale Schusterman Trust No. 1; Dale Schusterman, Trustee of the Jeffrey Ryan Wilson # 1 Trust U/A Dated December 31, 1985; Dale Schusterman, Trustee of the Melanie Rachel Wilson # 1 Trust U/A Dated December 31, 1985; Dale Schusterman, Trustee of the Mark Ross Wilson # 1 Trust U/A Dated December 29, 1988; Cathy Baker, Rogers County Treasurer; and the Board of County Commissioners of Rogers County, Oklahoma, Defendants.
    No. 96,664.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Sept. 6, 2002.
    Roger K. Eldredge, Norman, Wohlgemuth, Chandler & Dowdell, Tulsa, for Appellant.
    Lynn A. Mundell, Tulsa, for Appellee Oklahoma Transportation Authority.
    Kelly F. Monaghan, Lori Gilliard, Holloway <⅞ Monaghan, Tulsa, for Appellee Tulsa Kampground, Inc.
   LARRY JOPLIN, Vice-Chief J.

¶ 1 Defendant/Appellant Ellér Media Company (Eller), a Delaware corporation, successor in interest to Donrey Outdoor Advertising Company (Donrey), seeks review of the trial court’s order denying it compensation in the condemnation action against Defendant/Appellee Tulsa Kampground, Inc. (Owner), Eller and the other Defendants by PlaintiffAppellee Oklahoma Transportation Authority (OTA). In this proceeding, Eller complains the trial court erred as a matter of both fact and law in denying it compensation for the taking of its valuable, leasehold property rights to erect and maintain advertising billboards on Owners’ property. Having reviewed the record, however, we find no errors as alleged, and hold the order of the trial court should be affirmed.

¶ 2 In early 1999, Owner leased a portion of its property to Donrey for the erection of advertising billboards. The printed lease agreements — apparently prepared by Don-rey — contained “condemnation clauses” which provided in pertinent part:

In the event that the Lease Site is condemned by an condemning authority, or sold under threat of condemnation by any condemning authority, this Lease shall terminate as of the date that such condemning authority takes actual possession of the Lease Site.

Stricken from the quoted part of the “condemnation clauses,” however, followed this language:

and Owner shall refund to Donrey all prepaid rental as of such date. Donrey shall be entitled to recover from such condemning authority payment for the loss of its leasehold interest, loss of its outdoor structure(s) and for all other losses to which Donrey shall be entitled under applicable law.

Eller subsequently obtained Donre/s rights under the leases.

¶ 3 In 2001, OTA sought a part of Owner’s property on which two billboards had been erected for construction of a highway project, and commenced the instant condemnation action. At a hearing for the appointment and instruction of commissioners, OTA and the other Defendants challenged Eller’s right to compensation for the “taking” of its leasehold interest.

¶ 4 Upon consideration of the parties’ arguments, the trial court directed the parties to brief the issue, and concluded “the language set forth in the relevant billboard lease agreements with [Owner] precludes [Eller] from recovering any compensation from [OTA] or sharing in any commissioners’ award.” By journal entry in substantial compliance with 12 O.S. § 994(A), the trial court consequently held Eller “does not have any legal right to compensation” in the condemnation action.

¶ 5 Eller now appeals, asserting an inviolate right to compensation for the taking of its valuable leasehold estate under the Oklahoma Constitution, Art. II, § 7. See also, Okl. Const., Art. II, § 24; Bozarth, McCord, and McCrary v. Oklahoma Dept. of Transp., 1991 OK CIV APP 30, ¶ 10, 812 P.2d 815, 817. To hold otherwise, says Eller, works a disfavored-in-law forfeiture. See, e.g., 2 Nichols, Eminent Domain, § 5.02[6][b].

¶ 6 On the one hand, a tenant at will, occupying the property with the consent of the land owner, but without a lease, ordinarily has no right to a share of the owner’s condemnation award. State ex rel. Dept. of Transp. v. S & S Prop., 1999 OK CIV APP 130, ¶¶ 18-19, 994 P.2d 75, 80. On the other hand, “ ‘[a] tenant for years under a written lease is an “owner” of property within the meaning of ... [the] condemnation statutes and is entitled to compensation if his leasehold estate is damaged by the exercise of eminent domain.’ ” Phillips Petroleum Company v. Bradley, 205 Kan. 242, 245, 468 P.2d 95, 98 (1970). Accord, Perkins Whistlestop, Inc. v. State of Oklahoma, ex rel. Department of Transportation, 1998 OK CIV APP 7, ¶ 10, 954 P.2d 1251, 1254. However, “[t]he right of the lessee to compensation, as any other right, may be waived or contracted away by the terms of the lease.” Phillips Petroleum Company, 468 P.2d at 98. Accord, Garibaldi v. Oklahoma Indus. Finance Corp., 1975 OK 108, ¶ 13, 543 P.2d 555, 558.

¶ 7 In the present case, it cannot reasonably be disputed that, by the terms of its lease with Owner, Donrey waived any right to compensation upon condemnation of the leased premises. It likewise .cannot reasonably be disputed that as successor in interest to Donrey, Eller’s claim succeeds or fails based solely on the rights granted in Owner’s lease to Donrey. Inasmuch as Don-rey clearly waived any right to compensation upon condemnation of the leased premises, Eller, as Donrey’s successor in interest under the lease, has no valid claim to a share of the condemnation award.

¶ 8 The order of the trial court is therefore AFFIRMED,

JONES, J., and BUETTNER, J., concur.

      .The "condemnation clause” appears thus:
      In the event that the Lease Site is condemned by an condemning authority, or sold under threat of condemnation by any condemning authority, this Lease shall terminate as of the date that such condemning authority takes actual possession of the Lease Site and. Owner shall refund to Donrey all prepaid rental as of such date. — Donrey' shall be entitled to recover -from-such condemning authority payment for the loss of its leasehold interest, loss of its outdeor structure(s) and for all -oth«r-losses to -which Donrey-sfaall be entitled under applicable law.
      (Overstrike original.)

      . "No person shall be deprived of life, liberty, or property, without due process of law."

      . "Private property shall not be taken or damaged for public use without just compensation.”


author: DURHAM, Chief Justice:

text:
    2002 UT 87
    STATE of Utah, Plaintiff and Appellant, v. Jordan CALLIHAM, Defendant and Appellee.
    No. 20000209.
    Supreme Court of Utah.
    Aug. 16, 2002.

      Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen., Salt Lake City, Craig C. Halls, San Juan County, for plaintiff.
    Happy Morgan, Moab, for defendant.
   DURHAM, Chief Justice:

¶ 1 Two brothers, Jordan and Terril Calli-ham (collectively, “the Calliham brothers”), were convicted of murder for the killing of their friend and classmate James Eaton (“Eaton”). Jordan Calliham (“Jordan”) appeals, claiming that the trial court erred in denying his request for a psychological evaluation of the State’s primary witness and in refusing to sever his trial from that of his brother. Jordan also claims the trial court abused its discretion by admitting into evidence photographs of the crime scene. We affirm Jordan’s conviction.

BACKGROUND

¶ 2 The background of the crime and procedural history are described in detail in our ruling concerning the appeal of Jordan’s brother, Terril Calliham (“Terril”). State v. Calliham, 2002 UT 86, ¶¶2-18, 454 Utah Adv. Rep. 25, 55 P.3d 573. We therefore give only an abbreviated description here.

I. BACKGROUND OF THE CRIME

¶ 3 On April 9, 1999, the body of Eaton was found just off of Ucolo Road, approximately a mile inside the Utah border. Eaton had been shot at least 19 times. Following a criminal investigation, the Calliham brothers were arrested and charged with murder.

¶4 At trial, the State offered evidence suggesting the following fact scenario. Eaton and Jordan were best friends; however, Jordan suspected that Eaton had stolen some drugs from him. On the evening of April 3, 1999, Eaton joined Misty Ernst (“Ernst”), who was Jordan’s girlfriend, and the Calli-ham brothel’s on a drive to a nearby town where they planned to purchase illegal drugs. While driving, Eaton suggested they smoke a joint of marijuana. Jordan whispered to Ernst to not let them smoke in the car. Ernst complied, and Eaton suggested they turn onto Ueolo Road. After parking, Ernst stayed at the car, while the three men went beyond a grove of trees to smoke the joint. Ernst at first heard them laughing; then she heard a gun shot, followed by a volley of fifteen or more shots. During the shots, Ernst heard Eaton crying and asking, “Why did you kill me?” After a brief pause, Ernst heard a final shot. When the Calliham brothers came running back to the car, Ernst asked if Eaton was dead. Jordan stated he had “finished James off in the head” and that he had fired the final shot after clearing a gun jam. He also explained how Eaton had tried to shield himself from the bullets with his hands. Terril stated that Eaton did not immediately fall when he shot him and that he had thought he may have to kick Eaton over.

¶ 5 After the murder, the Calliham brothers split up, apparently in an effort to establish an alibi for each of them. Terril was dropped off in Dove Creek, while Jordan and Ernst drove to Cortez. Just after dropping off Terril, Jordan called Terril on his cell phone to make it look as though Jordan was already in Cortez. After arriving in Cortez, Jordan spoke with a friend, Michael Gentry (“Gentry”), while Ernst waited in the car. Asked how things were going, Jordan told Gentry he had “solved his problems” and gestured as though he was pulling the trigger of a gun. Jordan asked Gentry to tell anyone who asked that Jordan had been there that night. When he returned to the car, Jordan told Ernst that he had told Gentry “what him [i.e., Jordan] and Terril had done.”

¶ 6 That evening, Jordan showed Ernst the blood-spattered guns he and Terril had used in the shooting. Later, while in jail awaiting trial, Jordan admitted to other prisoners that he had been involved in the killing, showed them how he had held his gun, and imitated the way Eaton’s body vibrated as it was impacted by bullets.

¶ 7 At trial, Jordan and Terril offered evidence to suggest that Ernst, the State’s primary witness, had made inconsistent statements about the killing and had a reputation in the community for being dishonest. In addition, they.offered evidence to suggest that someone other than the Calliham brothers had a motive to kill Eaton and had threatened to kill Eaton.

¶ 8 At the close of a three-day trial, the jury found both Jordan and Terril guilty of criminal homicide.

II. PROCEDURAL HISTORY

¶ 9 The Calliham brothers were charged with criminal homicide, a first-degree felony, under Utah Code Ann. § 76-5-203 (2001). After a preliminary hearing, they were bound over for trial.

¶ 10 Before trial, Jordan moved to require Ernst to submit to a psychological evaluation, and Terril joined in the motion. They argued that Ernst’s testimony at the preliminary hearing suggested that she experienced hallucinations, had difficulty distinguishing dreams from reality, and manifested a propensity to lie. Ernst opposed the motion, stating that she had no history of mental illness and that any incongruities in her testimony at the hearing were due to normal emotional turmoil. The court denied the motion for an evaluation. It held that there was no evidence that Ernst had suffered from mental illness in the past and that the hearing transcript gave no indication that she was unable to differentiate dreams from reality or to testify truthfully. The court stated that “absent evidence of actual mental illness, the court will not order an examination to fish for it.”

¶ 11 Jordan also moved to exclude from evidence crime scene and autopsy photographs of the victim. He argued that the photos were gruesome, would unfairly prejudice the jury, and were of no probative value because the manner in which the victim died was not disputed. The State argued that the photographs were essential to bolster its witnesses’ testimony about how the crime occurred. The court denied the motion with regard to the crime scene photographs but granted it with respect to all but two autopsy photos. It held that the crime scene photographs were not gruesome and that the two autopsy photographs were relevant to showing that the final wound was inflicted at close range.

¶ 12 Prior to trial, the Calliham brothers anticipated that the State planned to introduce the testimony of persons who had been in jail with Jordan. These informants were expected to testify of inculpatory statements made by Jordan while in jail. Upon finding that the State planned to use this testimony, Terril made a renewed motion for severance, claiming that admission of Jordan’s statements would prejudice Terril.

¶ 13 In an off-the-record conference before trial, the parties discussed the admission of this testimony. The court determined that because Jordan was not going to testify, use of Jordan’s statements against Terril would violate Terril’s constitutional right to confront the witnesses against him. The court ruled that the witnesses could testify of the statements made by Jordan, but that the testimony must be limited so that it would not implicate Terril. The witnesses would be instructed that, when relating Jordan’s admissions, the witnesses must replace the pronoun “we” with “I.” Also, to ensure that the witnesses did not inadvertently implicate Terril, the court instructed counsel to lead the witnesses. Further, the court instructed Jordan’s counsel that she could not cross-examine in a way that might elicit from the witnesses that Jordan had said there was another person with him at the time of the killing.

¶ 14 The court later reiterated its ruling on the record. Jordan objected to the redaction of the admissions, arguing that the redaction prevented him from arguing that he was merely a passive observer when the killing took place. Jordan also objected to the court’s decision to allow the State to use leading questions and to the limits the court imposed on the scope of cross examination. The court overruled the objections, holding that the redaction was in no way prejudicial since the statements in their original form did not suggest that Jordan had merely been an observer.

¶ 15 Later in the trial, the State called a number of witnesses who had been in jail with Jordan. These informants testified of statements made by Jordan wherein he admitted to being involved in the killing. The State was allowed to lead each witness so that Terril would not be implicated by the admissions. The jury was instructed that the testimony of the informants could only be considered in assessing Jordan’s guilt or innocence and could not be used against Terril.

¶ 16 After twelve hours of deliberations, the jury found Jordan guilty of the charged offense. Jordan timely appealed, claiming the trial court erred in denying his motion for a psychological evaluation of Ernst, in failing to sever the trials, and in admitting into evidence crime scene photographs.

ANALYSIS

I. MOTION FOR A PSYCHOLOGICAL EVALUATION

¶ 17 Before trial, Jordan moved for a psychological evaluation of the State’s primary witness, Ernst. The State took no position on the motion; and Ernst submitted a memorandum in opposition to the motion. In his motion for the evaluation, Jordan claimed that there was “great doubt” about Ernst’s ability to perceive, remember, and communicate facts accurately. He stated that at the preliminary hearing Ernst “admitted to having difficulty distinguishing between what was real and what was a dream,” that she “stated that she hallucinates,” that she “went from uncontrollably crying to giggling and joking in a few short minutes,” that she “admitted to using illegal drags” including “marijuana, a known hallucinogen,” and that she admitted to “being untruthful to her parents.”

¶ 18 After reviewing the preliminary hearing transcript, the trial court denied the motion. The trial court found the following:

[T]he only hint of mental illness is the adoption by the witness of defense counsel’s characterization of her dreams as “hallucinations.” There is no evidence of mental illness preceding the crime. The transcript does not suggest to the court that [Ernst] suffers from mental illness. To the contrary, [Ernst] appears capable of distinguishing between what happened, what she dreamed, what she worried about, what she told officers on different occasions, what she wanted to say, what she heard from others, and what Jordan and his brother might want her to say. If the comí; were to order a psychiatric examination based on [Ernst’s] preliminary hearing testimony, an examination would be required in virtually all cases.

A. Standard of Review

¶ 19 We have long held that the determination whether to order a psychological examination rests largely within the discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion. See State v. Lairby, 699 P.2d 1187, 1197 (Utah 1984), State v. Hubbard, 601 P.2d 929, 930 (Utah 1979); Stone v. Stone, 19 Utah 2d 378, 431 P.2d 802, 803 (1967); State v. Braun, 787 P.2d 1336, 1343 (Utah Ct.App.1990); see also State v. Scott, 22 Utah 2d 27, 30, 447 P.2d 908, 911 (1968) (trial court’s determination of competency reviewed for abuse of discretion); State v. Snowden, 23 Utah 318, 327, 65 P. 479, 481 (1901) (same). Notwithstanding this precedent, Jordan argues that this court should review this issue for correctness. He says that in this ease there is no cause to give deference to the trial court because the trial judge based his ruling on the preliminary trial transcript, which is readily available to this court. The trial court, he argues, was in no more an advantaged position to determine the need for an evaluation than we are.

¶ 20 We review most evidentiary rulings and questions of fact with deference to the trial court based on the presumption that the trial judge, having personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties, is in a better position to perceive the subtleties at issue than we can looking only at the cold record. See State v. Pena, 869 P.2d 932, 935-36 (Utah 1994). We decline to depart from this tradition in this case. While it is true that the trial court based its ruling primarily upon the preliminary trial transcript, it was not bound to the transcript as we are. Had the court found the transcript inconclusive, it could have held an evidentia-ry hearing to gather more information on the mental state of the witness. Further, the trial court had the benefit of viewing the parties and the witnesses throughout the course of the trial. If during the trial the court had seen evidence of the witness’s incompetence, it could have responded to a renewed motion for an evaluation. The fact that this did not happen does not mean the trial court’s perspective was of no enhanced value; it merely means the court saw no cause to formally expand the inquiry into Ernst’s mental state.

¶ 21 We therefore review the trial court’s ruling for an abuse of discretion. We will reverse only if we find, based on the preliminary trial transcript, that the court’s factual findings were against the great weight of the evidence. Id. We review for correctness whether the trial court applied the appropriate rale of law. Id. at 936.

B. Application

¶ 22 A trial court’s power to order an individual to submit to a psychological evaluation derives from its discretion to qualify a witness as competent. See State v. R.W., 104 N.J. 14, 514 A.2d 1287, 1290 (N.J.1986). Utah law imposes a very low bar for establishing the competency of a witness. Under section 78-24-1 of the Utah Code, “[a]ll persons, without exception, otherwise than as specified in this chapter, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses.” Utah Code Ann. § 78-24-1 (2001). Similarly, rule 601 of the Utah Rules of Evidence provides that “[e]very person is competent to be a witness except as otherwise provided in these rules.” Utah R. Evid. 601. The language of this rule “was meant to abolish age, mental capacity, and other grounds which used to render a person incompetent as a witness.” State v. Fulton, 742 P.2d 1208, 1217 (Utah 1987); see also State v. Eldredge, 773 P.2d 29, 33 (Utah 1989) (holding that rule 602 “merely requires that the witness have the opportunity and the capacity to perceive the events in question”).

¶ 23 Once a witness is deemed competent, matters of credibility are best left to the jury. “[I]n our judicial system it is the role of juries to decide how much weight to give the testimony of particular witnesses, not the role of independent experts.” State v. Hubbard, 2002 UT 45, ¶ 15, 46 Utah Adv. Rep. 33, 48 P.3d 953, ¶ 15 (2002).

¶24 Given the low threshold for competency and the preference for leaving matters of credibility to the judgment of the jury, we have articulated a standard that will require a witness to submit to a psychological evaluation only when there are legitimate doubts about the witness’s ability to testify accurately and truthfully and those doubts cannot adequately be investigated through cross examination. See, e.g., Lairby, 699 P.2d at 1197; see also United States v. Brown, 770 F.2d 768, 770 (9th Cir.1985) (holding that trial court did not abuse discretion in denying motion for psychological examination where witnesses were extensively cross-examined concerning their drug use and mental problems). Thus, the court may order a witness to submit to a psychological examination if “there is substantial doubt that a witness is capable of understanding and appreciating the duty to tell the truth, or that he is able to perceive, remember, and communicate facts with reasonable accuracy.” State v. Hubbard, 601 P.2d 929, 930 (Utah 1979). In order to show substantial doubt, “the party requesting the testing must present evidence reasonably indicating something peculiar, unique, or abnormal about the ... witness that would influence the witness’s competence or the court’s ability to assess that competence, or raise unusual difficulties in assessing the witness’s credibility.” R.W., 514 A.2d at 1291. Because mandating a psychological evaluation can potentially invade the privacy of the witness and discourage other witnesses from coming forward, such a motion should not be granted lightly. See Stone v. Stone, 19 Utah 2d 378, 431 P.2d 802, 804 (1967) (“The question of a person’s sanity nearly always involves considerable delicacy_ [T]he court would always be well advised in exercising caution and restraint in regard to such a request. ...”); R.W., 514 A.2d at 1294 (“[T]he possible evidentiary benefits to a defendant flowing from such a court-ordered examination of the witness are outweighed by the resulting invasion of the witness’s right to privacy and the danger to the public interest from discouraging victims of crime to report and assist in the prosecution of such offenses.”).

¶ 25 Jordan claims that the trial judge inappropriately considered only whether Ernst had a past history of psychological problems. The standard set forth above requires the court to consider both the past and present mental state of the witness, insofar as these are relevant to the witness’s ability to perceive and relate the events accurately. See, e.g., State v. Stewart, 925 P.2d 598, 600 (Utah Ct.App.1996). We find it evident from the trial court’s order denying the motion that it considered both Ernst’s past and present mental state. In addition to finding no mental illness preceding the crime, the trial court specifically addressed Ernst’s current ability to testify:

The transcript does not suggest to the court that [Ernst] suffers from mental illness. To the contrary, [Ernst] appears capable of distinguishing between what happened, what she dreamed, what she worried about, what she told officers on different occasions, what she wanted to say, what she heard from others, and what Jordan and his brother might want her to say.

Clearly, the court was concerned with more than Ernst’s past mental history.

¶ 26 Jordan also claims that the trial court’s finding that Ernst was capable of testifying truthfully and accurately was against the great weight of the evidence. First, he claims the trial court erred in failing to find that Ernst had “questionable mental health” prior to the crime. Based on Ernst’s statements at the preliminary hearing, Jordan concludes that before the crime Ernst had a sexual relationship with a minor, used illegal drugs, and didn’t take proper care of her child. He asserts that this gives ample cause to question her mental stability. However, Jordan fails to explain how these conclusions manifest a psychological disorder that places in substantial doubt Ernst’s ability to accurately perceive the crime. “[P]oor judgement alone does not prove a mental disorder,” State v. Billingsley, 85 Or.App. 387, 736 P.2d 611, 613 (1987), nor does past drug use establish incompetency, see State v. Eaton, 569 P.2d 1114, 1116-17 (Utah 1977); State v. Jiron, 26 Utah 2d 311, 489 P.2d 109, 110 (1971); State v. Thomas, 554 P.2d 225, 227 (Utah 1976); see also Carter v. State, 2000-KA-00758-5CT ¶ 43, 799 So.2d 40 (Miss.2001) (collecting cases). Without more, the trial court had no cause to assume that Ernst’s perceptive abilities were in serious doubt.

¶ 27 Second, Jordan claims that the preliminary hearing transcript revealed that Ernst was unable to distinguish dreams and hallucinations from reality. Jordan points specifically to a brief portion of the transcript where Ernst makes vague reference to “hallucinations.” After admitting that some of what she told police was based on rumors, rather than what she perceived herself, Ernst stated that “a lot of it too was just what was in my head.” She then stated that she had “seen” Eaton after the murder:

Q: What kind of stuff did you see, Misty?
A: I saw James. I mean, I saw James every night.
Q: What do you mean when you say you saw him? You dreamt about it—
A: Yeah.
Q: —or he came back to see you?
A: He came back to see me and was telling me—
Q: Do you recognize now that these things were hallucinations?
A: Yeah.
Q: When you had these hallucinations, you thought they were true?
A: Yes.
Q: And when you talked to the police officers, did you tell them things that were part of your hallucinations?
A: Well, I was telling them my halluc— whatever—
Q: Hallucinations?
A: Yeah.

Ernst’s testimony could be construed to suggest that she suffered from hallucinations. It seems more likely, however, given the context of the testimony, the fact that there are no other references to hallucinations in the transcript, and the way in which defense counsel led Ernst to adopt the term “hallucinations,” that Ernst was merely referring to traumatic nightmares she had following the murder and, lacking a clear understanding of defense counsel’s terminology, she conformed to the characterization of her dreams as hallucinations. Further, even if Ernst did at some point experience hallucinations, there was ample evidence in the remainder of the transcript for the trial court to conclude that she was competent. Ernst’s testimony clearly indicates that at the time of the preliminary hearing she was capable of distinguishing what had actually happened from her dreams, from what others had told her, and from what she had said to- police officers in the past. Given the clarity Ernst manifests in the preliminary hearing transcript and the scant evidence drawing into question her mental state, we find that the trial court did not abuse its discretion in denying the motion for a psychological evaluation.

II. MOTION TO SEVER THE TRIALS

¶ 28 Jordan claims the trial court erred in failing to sever his trial from that of his brother. Specifically, Jordan asserts that the limiting methods imposed by the trial court prevented witnesses from testifying freely and accurately and thereby undermined the integrity of the trial. Further, Jordan claims that the limitations the trial court imposed upon his cross-examination of these witnesses violated his rights under the confrontation clause of the Sixth Amendment.

¶ 29 The State argues that Jordan waived these claims by failing to join in Terril’s motions for severance. Under Utah Code section 77-8a-l(4)(b), a defendant waives his right to severance if the motion is not made at least five days before trial. Utah Code Ann. § 77-8a-l(4)(b) (2001). In waiving severance, however, Jordan certainly did not waive all rights to object to the manner in which evidence was presented. Though not joining in Terril’s motions, Jordan did timely object on the record to the limiting methods imposed by the trial court. We therefore address Jordan’s claims only as objections to the redaction of Jordan’s statements and the limits the trial court placed on the direct and cross-examination of the witnesses.

A. Trial Integrity

¶ 30 In claiming that the limiting methods imposed by the trial court undermined the integrity of the trial, Jordan cites the same cases Terril cited in his appeal and gives an identical rationale. Having found Terril’s claim without merit, State v. Calliham, 2002 UT 86, ¶ 38-39, 454 Utah Adv. Rep. 25, 55 P.3d 573 we need not repeat our analysis here. Even under a higher standard of scrutiny, we see no cause to assume that redaction of Jordan’s admissions and the use of leading questions prevented the witnesses from testifying freely and accurately or resulted in the knowing admission of false testimony. Jordan has not identified any “false testimony” offered at trial, see State v. Hewitt, 689 P.2d 22, 24 (Utah 1984), nor has he identified any exculpatory evidence that was withheld from the jury, see Walker v. State, 624 P.2d 687, 688-91 (Utah 1981). We therefore find no merit to Jordan’s claim that the limiting methods undermined the integrity of the trial.

B. Confrontation Clause

¶ 31 Jordan next claims that the limits the court imposed upon cross-examination violated his rights under the Confrontation Clause of the United States Constitution. Whether testimony was admitted in violation of defendant’s right to confrontation is a question of law. We review such questions for correctness. See State v. Heaps, 2000 UT 5, ¶ 12, 999 P.2d 565. “The right of cross-examination is ‘one of the safeguards essential to a fair trial’ ” Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (quoting Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 75 L.Ed. 624 (1931)). “Although we have repeatedly emphasized the importance of allowing a cross-examiner wide latitude in exposing a witness’ potential bias, the right of cross-examination is not without limitation.” State v. Hackford, 737 P.2d 200, 203 (Utah 1987) (citations omitted). “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.... ‘[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)).

¶ 32 In this case, the trial court prohibited Jordan’s counsel from cross-examining in such a way that would suggest that Jordan’s admissions also implicated Terril. The trial court did not prohibit Jordan’s counsel from cross-examining the witnesses altogether, nor did it apply these limits to any witnesses other than those who recounted admissions Jordan made while in jail. Jordan’s counsel was still free to — and, in fact, did' — attack the credibility of these witnesses by inquiring into their criminal histories, their potential biases, and their motives and opportunities to fabricate. The only way in which Jordan might have been benefitted by a more extensive cross-examination is if the witnesses could have stated on cross that the confessions implicated Terril rather than Jordan. Indeed, Jordan’s objection to the limits on cross was that it prevented him from claiming that he was a passive observer when Terril did the killing. The statements, however, even before redaction, did not indicate that Jordan was merely present when another did the killing. Thus, there is nothing more that could have been evoked on cross to exculpate Jordan. See State v. Telford, 940 P.2d 522, 525-26 (Utah Ct.App.1997) (finding failure to sever and limits on cross-examination harmless where both the redacted and unredacted forms of the admitted testimony portrayed the defendant as an active participant in murder). Had the admissions been offered without redaction, the testimony would have been just as damaging to Jordan and his cross-examination could have been no more fruitful. We therefore find no prejudice to Jordan in the limits the trial court placed on cross-examination.

III. PHOTOGRAPHS OF THE CRIME SCENE

¶ 33 Jordan claims the trial court erred in admitting the State’s exhibits # 4 and # 5, which contained photograph's of Eaton’s body at the crime scene. Jordan asserts that the photographs were gruesome and had little or no probative value and should therefore have been excluded.

¶ 34 We have held that some categories of evidence, including gruesome photographs, are inherently prejudicial and should not be admitted absent a showing of “unusual probative value.” State v. Kell, 2002 UT 19, ¶¶ 25-26, 440 Utah Adv. Rep. 20; State v. Vargas, 2001 UT 5, ¶¶ 50-56, 20 P.3d 271; State v. DeCorso, 1999 UT 57, ¶ 53, 993 P.2d 837; State v. Dunn, 850 P.2d 1201, 1221-23 (Utah 1993); State v. Bishop, 753 P.2d 439, 493 (Utah 1988) (Zimmerman, J., concurring); State v. Dibello, 780 P.2d 1221, 1229 (Utah 1989); State v. Lafferty, 749 P.2d 1239, 1256 (Utah 1988); see also State v. Cloud, 722 P.2d 750, 752-54 (Utah 1986); State v. Garcia, 663 P.2d 60, 63-65 (Utah 1983). The State urges this court to overrule this precedent and consider all evidence, whether gruesome or not, under the same standard of rule 403. Having recently rejected this argument and clarified the purpose of the presumption, see State v. Bluff, 2002 UT 66, ¶¶ 40-47, 452 Utah Adv Rep. 13, 52 P.3d 1210 we decline to repeat our reasoning here.

¶ 35 As we stated in Bluff, a court should undertake a three-step analysis when considering whether to admit crime scene photographs:

First, we look to whether the photograph is relevant. Second, we consider whether the photograph is gruesome. Finally, we apply the appropriate balancing test. If the photograph is gruesome, it should not be admitted unless the State can show that the probative value of the photograph outweighs the risk of unfair prejudice. If the photograph is not gruesome, it should be admitted unless the defendant can show that the risk of unfair prejudice outweighs the probative value of the photograph.

Id. at ¶ 46;

¶ 36 In considering the trial court’s admission of exhibits # 4 and # 5, we review the trial court’s determination of whether the photographs were relevant for abuse of discretion. See Bambrough v. Bethers, 552 P.2d 1286, 1290 (Utah 1976). The determination of whether a photograph is gruesome is a question of law, which we review for correctness. Dunn, 850 P.2d at 1222 n. 22. A trial court’s ruling under rule 403 is reviewed for abuse of discretion. Kell, 2002 UT 19 at ¶ 24. “Even if the evidence was erroneously admitted, that fact alone is insufficient to set aside a verdict unless it has ‘had a substantial influence in bringing about the verdict.’ ” Bambrough, 552 P.2d at 1290 (quoting Utah R. Evid. 4(b) (1971)); see also Utah R. Evid. 103(a) (erroneous ruling requires reversal only if “a substantial right of the party is affected”).

¶ 37 When the State moved to admit the photos, Jordan objected, arguing that the photos were not relevant because the manner, place, and conditions of Eaton’s death were not disputed. The court nonetheless admitted the photos, finding that they were “relevant in showing what it looked like, at least soon after the person died, ah, where it was and what position he was [in].” Further, the court found that while the photos were “certainly not pleasant to look at,” they did not meet the legal definition of gruesomeness.

¶ 38 We first consider relevance. Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Utah R. Evid. 401. Because there was no dispute regarding how or where the victim was killed, the only question at issue was who committed the murder. Jordan argued and brought evidence to suggest that Ernst’s testimony and the testimony of persons who had been in jail with Jordan were unreliable. Whether or not these witnesses were credible was a fact of consequence in considering whether Jordan was guilty, and the photographs had some tendency to make their testimony more likely true. The photographs show the landscape where Eaton was found and show that he had been shot several times. This corresponds with the area described by Ernst and her testimony that she heard numerous shots fired. The photos also show bullet wounds in Eaton’s arms. This corresponds with the statements by some witnesses that Jordan had told them Eaton had tried to shield himself from the bullets with his hands. Given the photographs’ connection with the testimony of witnesses whose credibility was in question, we hold that the trial court did not abuse its discretion in finding the photographs relevant.

¶ 39 We next consider whether the photographs are gruesome. The purpose of this inquiry is to determine whether the photographs have a tendency to “unfairly prejudice, inflame, or mislead the jury.” LaffeHy, 749 P.2d at 1256. The exhibits include six color photographs of the victim lying on the ground and covered with a light dusting of snow. The victim’s face is visible in three of the photographs, one of which is a slightly closer view than the others. Bullet wounds are visible as dark dots in the body, and there is a small amount of dark, dried blood near some of the wounds. While disturbing, the photographs do not rise to the level that we have found gruesome in other cases. The photos do not show a great deal of blood, compare DeCorso, 1999 UT 57 at ¶ 52, 993 P.2d 837 with Bishop, 753 P.2d at 476, Dibello, 780 P.2d at 1230, Lafferty, 749 P.2d at 1257, and Cloud, 722 P.2d 750, 753 (Utah 1986), nor has the body been manipulated in any way to emphasize the wounds, cf. Bishop, 753 P.2d at 476; Lafferty, 749 P.2d at 1257. The surrounding landscape carries no strong connotations that would make the images more inflammatory. Cf. Lafferty, 749 P.2d at 1257. The single close-up is taken from relatively far away and gives little detail about the wound in the victim’s face. Cf. Bishop, 753 P.2d at 476. Based on considering each image as a whole, we find that the photographs are not inherently prejudicial.

¶40 Having found the photographs not gruesome, we consider whether the trial court abused its discretion in admitting the photographs under rule 403. Under that rule, the court must admit relevant evidence unless the risk of unfair prejudice substantially outweighs the probative value of the evidence. Utah R. Evid. 403. As discussed above, the photos were of limited probative value, serving only to corroborate uncontested facts in Ernst’s and other witnesses’ testimony. While not gruesome, the photos are disturbing enough that they posed a risk of unfairly prejudicing the jury. However, given that the credibility of Ernst was of great importance in the case and hotly contested by the parties, and given that the photographs corroborated other witnesses’ testimony, we cannot say that the trial court abused its discretion in finding that the risk of prejudice did not outweigh the probative value of the photos. See DeCorso, 1999 UT 57 at ¶ 54, 993 P.2d 837 (“[PJhotographs of the victim are not excluded by rule 403 simply because the State could have established the same facts through other evidence.”). We therefore find no error in the trial court’s admission of the crime scene photographs.

CONCLUSION

¶ 41 We hold the claims raised by Jordan on appeal are without merit. The trial court did not abuse its discretion in denying the motion for a psychological examination of the State’s primary witness. The trial court did not err in redacting Jordan’s statements, allowing counsel to lead the witnesses, and limiting the scope of cross-examination. And the photographs of the crime scene objected to by Jordan do not rise to the level of gruesomeness that would require reversal. We therefore affirm the conviction.

¶ 42 Associate Chief Justice DURRANT, Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Chief Justice DURHAM’S opinion.

      . Terril Calliham also appeals his conviction, which we address in a separate opinion. See State v. Calliham, 2002 UT 86, 454 Utah Adv. Rep. 25, 55 P.3d 573.

      . Ernst testified that she found this request unusual since they usually smoked in the car. She stated that, at the time, the request made her suspect that Jordan planned to beat up Eaton when they pulled over.

      . Earlier in the proceedings, Terril had moved to sever and the court had denied the motion, stating that its ruling could be reconsidered if the prosecution decided to use a statement of either defendant at trial. Jordan did not join in Terril’s original motion to sever and there is no record of him joining in the renewed motion.

      . This standard does not apply where a psychological evaluation of a witness has already been performed and the prosecutor seeks to avoid turning the evaluation over to the defense. A prosecutor must turn over evidence if it is constitutionally material, that is, if the evaluation "may reasonably cast doubt on the ability or willingness of a witness to tell the truth.” State v. Bakalov, 1999 UT 45, ¶¶ 31-32, 979 P.2d 799 (quoting United States v. Smith, 77 F.3d 511, 516 (D.C.Cir.1996)).

      . Jordan elaborates upon several possible diagnoses for Ernst’s alleged psychological problems. We find this approach unpersuasive. Merely because one has symptoms of a psychological disorder does not necessarily mean one cannot testify truthfully and accurately. Stewart, 925 P.2d at 600. It is not the place of the court to attempt to psychoanalyze witnesses. See Stone v. Stone, 19 Utah 2d 378, 431 P.2d 802, 807 (1967) (Ellett, J„ dissenting) (stating that court should not grant or deny motion for evaluation based merely upon what it presumes the outcome of the evaluation will be). Rather, the court must consider only whether the witness’s functioning is so in doubt that a psychological evaluation is necessary to evaluate her competency or to protect the jury from testimony that is wholly unreliable.

      . Jordan also points to Ernst’s statement that she is good at deceiving people and various inconsistencies in Ernst’s testimony. Viewing the record as a whole, however, we do not find that these create a substantial doubt as to Ernst’s capacity. The fact that one considers oneself good at deceiving people does not make one incapable of understanding the duty to tell the truth. Further, while Ernst's inconsistent statements may "show[] the witness either became confused or lied while on the witness stand, [they] certainly [do] not clearly prove that the witness’s testimony was affected by a mental disorder.” Stewart, 925 P.2d at 601. Ernst was interviewed on several occasions and, through the course of the investigation, suffered mixed emotions about testifying against her former boyfriend Jordan. The incongruities in her testimony reflect her emotional turmoil and vacillating loyalty to the Calli-ham brothers; but they do not raise a substantial doubt about her ability to understand her oath or relate her perceptions accurately.

      . Jordan also claims that his rights under the confrontation clause of the Utah Constitution were violated. We do not address Jordan’s state claim, however, since he has failed to separately brief it. See. State v. Ellis, 748 P.2d 188, 190 (Utah 1987).

      . Since the statements did not imply that Jordan merely watched while another did the killing, admission of the redacted portions would not have benefitted Jordan. See note 9, infra.

      . The State offered evidence that Jordan made the following admissions implicating Terril: Jordan admitted that "he, his brother, and his girlfriend took the victim to a country road”; that "he, his brother, and his girlfriend were present when the victim was killed”; that "he, his brother, and his girlfriend took the victim on a road between Monticello and the Colorado state line and shot him 19 times”; that "he and his brother took the victim while the girl stayed at the car”; that "after the shooting him and his brother split up”; that “they went into the woods and shot him up”; that "they tortured him [and] they shot him up.” The statements were redacted to remove reference to Terril, i.e., "his brother” (referring to Terril) was omitted, and "they” (referring to both brothers) was replaced with "he” (referring to Jordan). The State also offered evidence of a number of admissions that implicated Jordan alone.

      .We have stated that “ 'we will not set aside a verdict because of the erroneous exclusion of evidence unless a proffer of evidence appears of record.’ ” State v. Telford, 940 P.2d 522, 526 (Utah Ct.App.1997) (quoting State v. Rammel, 721 P.2d 498, 499 (Utah 1986)). Jordan has made no claim that something beyond the redacted portion of his admissions could have been produced on cross. We therefore decline to speculate upon whether other evidence might have come forward in an unlimited cross.


author: GREENWOOD, Judge.

text:
    2002 UT App 232
    Jason Miles WILLIAMS and John Does 1-5, Plaintiffs and Appellants, v. Rulon JEFFS, et al., Defendants and Appellees.
    No. 20010078-CA.
    Court of Appeals of Utah.
    July 5, 2002.

      Christopher W. Edwards, Edwards & Associates, Hurricane, for Appellants.
    Raymond Scott Berry and Rodney R. Parker, Snow Christensen & Martineau, Salt Lake City, for Appellees.
    Before Judges JACKSON, BENCH, and GREENWOOD.
   OPINION

GREENWOOD, Judge.

¶ 1 Jason Miles Williams (Jason) appeals from the trial court’s order granting Defendants’, Rulon Jeffs (Rulon), President of the Fundamentalist Church of Jesus Christ of Latter Day Saints (the Church), Warren Jeffs (Warren), First Counselor in the Church, and the United Effort Plan Trust (the Trust), a charitable trust operated for and on behalf of the Church, motion for summary judgment. Jason argues that the trial court erred in granting summary judgment because genuine issues of material fact exist regarding his claims for alienation of affection and intentional infliction of emotional distress. We affirm.

BACKGROUND

¶ 2 Jason and Suzanne Williams (Suzanne) were married on October 14, 1994 in Toquer-ville, Utah. When they married, Jason was 18 years old and Suzanne was 16 years old. The Williamses describe their decision to marry as “spur of the moment” with the actual decision being made just days before the wedding.

¶ 3 Initially, the Williamses lived in a trailer with Suzanne’s sister in Centennial Park, Arizona. After a couple of months, the Williamses moved into their own apartment in Centennial Park. Six months later, they moved to an apartment in Hurricane, Utah, which they shared with Jason’s brother and cousin. During this time, Suzanne was expecting their first child and was displeased with the living arrangement. Suzanne claims that while living in Centennial Park, she had “lots of fights” with Jason because she wanted to move back to Colorado City, Arizona to be near her family and friends.

¶ 4 In February 1996, the Williamses went back to Colorado City where they were “sealed” to each other in a religious ceremony performed by Rulon. However, Suzanne claimed that Jason’s long absences from home while he worked in Las Vegas, Nevada along with other factors, created problems in the marriage. In July 1998, Suzanne raised the possibility of divorce to Jason because “she was tired of trying to make it work” and believed Jason did not live up to her family’s expectations. Jason acknowledged he was aware that Suzanne was having an internal conflict about whether to stay married to him given his “apostate” status in the eyes of the Church.

¶ 5 In December 1998, Jason told Suzanne that he was moving to Virgin, Utah. Suzanne told Jason that she wanted to stay in Colorado City. After Suzanne made her final decision to divorce Jason, she met with her religious leaders for counsel. Jason admitted that Suzanne sought counsel from her religious leaders of her own accord, and that her visit was unsolicited.

¶ 6 Suzanne filed for divorce in Arizona in December 1998. On March 27, 1999, while still legally married to Jason, Suzanne was “sealed” in a religious ceremony to another man. Jason believed his marriage to Suzanne was nearly perfect before the interference by Defendants.

¶ 7 Jason filed suit against Defendants seeking compensatory and punitive damages for alienation of affections and intentional infliction of emotional distress. Defendants filed a motion to dismiss the complaint under Rule 12(b)(6) of the Utah Rules of Civil Procedure, which the trial court granted as to Frank Jessop (Suzanne’s father), but denied as to the other Defendants. Defendants filed a petition for interlocutory appeal with the Utah Supreme Court, which was denied. Defendants filed a motion for summary judgment, arguing that Arizona law applied to Jason’s alienation of affections claim, that Jason failed to meet the clear and convincing standard necessary to sustain his claim in Utah, and that Jason’s intentional infliction of emotional distress claim should also be analyzed under a clear and convincing standard.

¶ 8 On December 12, 2000, after a healing on the motion, the trial court granted Defendants’ motion for summary judgment. However, the trial court failed to specify its ruling on the various grounds claimed for summary judgment as required under rule 52 of the Utah Rules of Civil Procedure. This appeal followed.

ISSUES AND STANDARD OF REVIEW

¶ 9 Jason raises the following issues on appeal: (1) Does Utah or Arizona law apply; (2) if Utah law applies, was summary judgment on the alienation of affections claim proper; and (3) was summary judgment on the intentional infliction of emotional distress claim proper.

¶ 10 Summary judgment is appropriate only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(e). “ ‘Because summary judgment by definition does not resolve factual issues, a challenge to summary judgment presents for review only questions of law. We review those conclusions for correctness, according no particular deference to the trial court.’ ” Dikeou v. Osborn, 881 P.2d 943, 945 (Utah Ct.App.1994) (citations omitted). Therefore, “we view the facts and all the inferences reasonably drawn from those facts in a light most favorable to the nonmoving party....” Hodges v. Howell, 2000 UT App 171, ¶ 2, 4 P.3d 803.

ANALYSIS

I. Choice of Law

¶ 11 Jason argues that under Utah’s conflict of law rules, Utah law is the proper choice of law in deciding his claim for alienation of affections. Defendants argue that the Williamses’ marriage was domiciled in Arizona; therefore, Arizona law applies. Moreover, because Arizona law does not recognize a claim for alienation of affections, Defendants contend the trial court properly granted summary judgment. We agree.

¶ 12 Because Utah is the forum state, Utah’s conflict of laws rules apply to determine which state’s law are applicable. See Shaw v. Layton Constr. Co., 872 P.2d 1059, 1063 (Utah Ct.App.1994). In tort actions, Utah applies the “most significant relationship” test as stated in Restatement (Second) of Conflict of Laws § 145. See, e.g., Foreman v. Foreman, 779 P.2d 218, 219-20 (Utah 1989) (applying the “most significant relationship” test to the doctrine of inter-spousal immunity). Utah has not addressed choice of law rules applicable to claims of alienation of affections. However, Utah courts have relied on the Restatement (Second) of Conflict of Laws when determining which state’s laws should apply to other tort claims. See id. at 219 (recognizing the application in tort claims of the “most significant relationship” analysis articulated in the Restatement (Second) of Conflict of Laws); In re Estate of Waters, 2001 UT App 164, ¶ 19, 29 P.3d 2 (same).

¶ 13 Section 145 of the Restatement (Second) of Conflicts of Laws states,

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the [choice of law principles stated in § 6]. '
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
Comment:
c. Purpose of tort rule. The purpose sought to be achieved by the relevant tort rules of the interested states, and the relation of these states to the occurrence and the parties, are important factors to be considered in determining the state of most significant relationship.

See also Forsman, 779 P.2d at 219.

¶ 14 The purpose of the alienation of affections tort in Utah is to protect the sanctity of the marriage relationship. See Norton v. Macfarlane, 818 P.2d 8, 12 (Utah 1991) (stating that “[t]he gist of the tort is the protection of the love, society, companionship, and comfort that form the foundation of a marriage and give rise to the unique bonding that occurs in a successful marriage”). Defendants correctly argue that one of the interests the tort seeks to protect is a spouse’s consortium interest. See Hodges v. Howell, 2000 UT App 171, ¶ 11, 4 P.3d 803 (stating that the “violation of the spouse’s consortium interest is the main interest protected” in a claim of alienation of affections); see also Wilson v. Oldroyd, 1 Utah 2d 362, 267 P.2d 759, 763 (1954) (listing one of the elements for alienation of affections as “the loss of ... consortium of the wife”).

¶ 15 Given Utah’s recognition of this tort’s purpose to protect a spouse’s consortium interest, Defendants cite Doe v. Nevada Crossing, Inc., 920 F.Supp. 164 (D.Utah 1996), to urge this court to analyze Jason’s alienation of affections claim the same way the Doe court analyzed a loss of consortium claim.

¶ 16 In Doe, the court had to determine which state’s law should apply to a loss of consortium claim arising out of an assault on Utah residents in a hotel room in Nevada. The court noted that “[t]he substance of a claim for loss of consortium is the injury or breach of the spousal relationship.” Id. at 165 (citations omitted). The court applied the most significant relationship test and determined that Utah had the most significant relationship to the parties because the “injury” to the consortium interest occurred in Utah since that was the situs of the marriage relationship. See id. at 167.

¶ 17 Because this court recognizes that the main interest protected in a claim for alienation of affections is a spouse’s consortium interest, we find the analysis in Doe persuasive, and adopt it. We therefore apply the most significant relationship test, keeping in mind that the tort of alienation of affections seeks to protect the sanctity of the marriage relationship.

¶ 18 First, we must determine the place where the injury occurred. Jason argues that the injury occurred in Utah because all meetings with the Church authorities took place in Utah, the parties resided in Utah during part of their marriage, and the marriage ceremony took place in Utah. While it is true that the Williamses married and resided in Utah for short periods of time during, their marriage, the couple made their home in Arizona. Arizona continued to be the matrimonial domicile and residence until the couple separated in December 1998. Arizona was also the state which assumed jurisdiction over the Williamses’ divorce proceedings. Thus, under the first factor, we determine that the injury occurred in Arizona because Arizona was the situs of the marriage and where Jason would have experienced the alienation of his wife’s affections.

¶ 19 Second, we must determine where the conduct causing the injury occurred. After Suzanne asked Jason for a divorce, she sought counsel from her religious leaders in Utah. It is this counsel that Jason complains alienated the affections of his wife. Therefore, the conduct complained of occurred in Utah where Suzanne received religious counsel.

¶ 20 Third, we consider the domicile, residence, place of incorporation, and place of business of the parties. Plaintiff and his wife resided and were domiciled in Colorado City, Arizona. However, Defendants’ place of residence and incorporation is Utah. As the Doe court noted, the residence and domicile of the couple is “the more relevant situs since it is the place of the consortium of [the couple].” Doe, 920 F.Supp. at 167. Utah’s interests “are non-existent in the personal relationship between two [Arizona] residents, who are husband and wife living in [Arizona] and where [Arizona] is the most significant place of their interpersonal relationship.” Id.

¶21 Fourth, we look to where the relationship between the parties was centered. Similar to the Doe court’s determination regarding the center of the relationship for loss of consortium, the relationship for alienation of affections is centered where the marriage relationship was domiciled. We have already determined that this marriage relationship is domiciled in Arizona. Therefore, “defendants have no real interest in the plaintiffs consortium nor does the State of [Utah].” Id

¶ 22 Weighing all the factors, we determine that Arizona law applies because an “injury to the interspousal relationship is most significant where that [injury] occurs” and in a claim for alienation of affections the injury occurs where the matrimonial domicile and residence is located. Id. at 168 n. 2. Having determined that Arizona law applies, Plaintiffs alienation of affections claim fails because it is not a cause of action recognized in Arizona. See Ariz.Rev.Stat. § 25-341 (2001).

II. Emotional Distress Claim

¶23 Defendants argue that Jason’s intentional infliction of emotional distress claim was properly dismissed because the damages Jason suffered do not support a claim for emotional distress. In addition,- Defendants argue that the emotional distress claim should be analyzed using the same clear and convincing standard of proof as Jason’s alienation of affections claim, because alienation of affections is based on the same factual allegations and involves an alleged injury to the same protected interest. Jason asserts that Utah recognizes emotional distress as a separate and independent cause of action.

¶ 24 To be entitled to damages for intentional infliction of emotional distress, Jason must establish that

“the defendant intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.”

Schuurman v. Shingleton, 2001 UT 52, ¶ 23, 26 P.3d 227 (quoting Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344, 347 (1961)). The supreme court noted that “ ‘[i]t is for the ’[trial] court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.’ ” Id. (citation and alteration omitted). “[A]n act is not necessarily outrageous merely because it is tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal.” Franco v. The Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 28, 21 P.3d 198 (citation, alteration, and quotations omitted).

¶ 25 In Schuurman, the plaintiff alleged that the defendant, a psychotherapist, was guilty of intentional infliction of emotional distress because “during the course of their relationship defendant made promises of marriage and financial security to plaintiff to manipulate and control her. Plaintiff also allege[d] that defendant made these promises with no intention of keeping them and with the knowledge that breaking such promises would cause plaintiff emotional distress.” Schuurman, 2001 UT 52 at ¶ 4, 26 P.3d 227.

¶ 26 The supreme court upheld the summary judgment because “[h]owever unpleasant, the emotional distress that plaintiff alleges she suffered is indistinguishable from that commonly suffered by others when an intimate personal relationship fails. As such, it is not the type of emotional distress on which a claim for intentional infliction of emotional distress may be based.” Id. at ¶ 25. Citing Schuurman, Defendants argue that Jason’s claims in this case are indistinguishable from the emotional distress claims the Schuurman court found inadequate as a matter of law to support a claim for intentional infliction of emotional distress. We agree.

¶ 27 The emotional distress that Jason claims to have suffered is the loss of his wife, “the love and affection that he shared with her, as well as the future of his family.” In addition, Jason claims that he was so distressed by Defendants’ actions that he could not work for days. In Schuurman, the supreme court cited Restatement (Second) of Torts § 46, cmt. j, for the proposition that “[t]he law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it.” Id. at ¶ 23 (alterations in original). Jason’s injuries do not rise to this level. As in Schuurman, Jason’s alleged injuries are no different than the type normally suffered when a relationship fails. In addition, Jason concedes that Suzanne’s decision to divorce him was made independently of advice from Defendants, albeit motivated to some extent by her religious views. Therefore, summary judgment was proper.

CONCLUSION

¶ 28 Because Jason’s matrimonial domicile and residence was Arizona, Arizona law applies to his tort claim of alienation of affections. However, Arizona does not recognize a claim for alienation of affections; therefore, Jason’s claim fails. In addition, Jason failed to demonstrate how the injuries he claims to have suffered rise to the level of being so “extreme and outrageous as to permit recovery” for intentional infliction of emotional distress. Therefore, we affirm.

¶ 29 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and RUSSELL W. BENCH, Judge.

      . Frank Jessop was named as a defendant in Plaintiff's original complaint.

      . Under rule 52 of the Utah Rules of Civil Procedure, the trial court is required to "issue a brief written statement of the ground for its decision on all motions granted under ... [rule] 56 ... when the motion is based on more than one ground.” Utah R. Civ. P. 52(a).

      . Plaintiff also argues that the trial court condoned Defendants’ advocacy of illegal polygamous practices. However, because this issue was not raised in the trial court, we do not address it. See Ringwood v. Foreign Auto Works, Inc., 786 P.2d 1350, 1358-59 (Utah Ct.App.1990) (holding issue not raised in the trial court “cannot be considered for the first time on appeal”).

      . None of the parties to this appeal argue that Arizona law should apply to the claim for intentional infliction of emotional distress. We therefore analyze this issue under Utah case law.

      . Because we find that the trial court's grant of summary judgment was correct, we do not review Defendants’ claim that the emotional distress claim should be analyzed using the clear and convincing standard of proof.

      . Because of the resolution on this issue, it is unnecessary for this court to address whether clergy privilege provides immunity for Defendants under a freedom of religion theory as claimed by Defendants. See Franco v. The Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 30, 21 P.3d 198 (citing Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980) (“[I]t is a 'fundamental rule' that constitutional questions should not be reached if the merits of the case can be determined on other than constitutional grounds.”)).


author: JACKSON, Presiding Judge:

text:
    2002 UT App 305
    STATE of Utah, Plaintiff and Appellee, v. Richard F. NORRIS, Defendant and Appellant.
    No. 20000202-CA.
    Court of Appeals of Utah.
    Sept. 26, 2002.

      Sharon L. Preston, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Kris C. Leonard, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before JACKSON, P.J., DAVIS, and ORME, JJ.
   OPINION

JACKSON, Presiding Judge:

¶ 1 Richard Norris appeals his sentence entered pursuant to conditional pleas of guilty to two counts of communications fraud, a third degree felony, in violation of Utah Code Ann. § 76-10-1801(1) (1995).

BACKGROUND

¶2 Norris advertised employment positions, promising salaries and benefits for “diet counselors.” Norris required the prospective “employees” to sign what they believed to be agreements regarding the custody of the diet product. Those agreements were in fact sales agreements wherein the “employees” turned out to be purchasers of the product, rather than employees entrusted with distributing the product. When the “employees” refused to pay, Norris then sued on those contracts. He was eventually charged with thirteen counts of communications fraud.

¶ 3 Norris’s trial counsel assured him that the trial date would be continued. However, on the date set for trial, the trial court denied Norris’s motion to continue. Norris’s counsel then urged him to plead guilty to two of the charges, rather than face conviction for all thirteen charges, pursuant to a plea bargain agreement offered by the prosecution before trial. Norris followed his attorney’s advice, and pleaded guilty pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988) (allowing entry of guilty plea conditioned upon Defendant’s preservation of right to appeal trial court’s denial of suppression motion). He conditioned his pleas upon assurances by the court and the prosecution that certain issues would be preserved for appeal. The court specifically enumerated the issues that Norris would have the right to appeal once his guilty pleas were accepted and entered. That enumerated list included his claim of vindictive prosecution. The record indicates that Norris raised this issue several times through the course of the proceedings. Although the court had not ruled on Norris’s vindictive prosecution claim, it promised him that he had a right to appeal it. In fact, the court stated “I would like to make a list of those motions that you intend to reserve. You don’t have to argue them. Just state your list of motions.” It is axiomatic that a party has no right to appeal an issue unless the trial court has entered a final appealable order disposing of it. The trial court failed to rule on the vindictive prosecution issue, and all parties agree that it cannot be raised on appeal. See Utah R.App. P. 3(a) (requiring that judgment be final in order to appeal).

¶ 4 Norris timely moved to withdraw his guilty pleas, alleging coercive circumstances in the inducement of those pleas. Primarily, he alleged that his counsel was unprepared for trial on the scheduled date. That lack of preparation, Norris alleged, pressured him into pleading guilty unexpectedly when he had expected the court to grant his motion to continue. He further alleged that the trial court’s assurances led him to plead guilty in exchange for “non-existent benefits,” rendering his pleas involuntary. The trial court orally denied Norris’s motion to withdraw his guilty pleas, but never entered a written order to that effect. Moreover, no signed minute entries appear in the record evidencing the trial court’s disposal of the motion.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Although the court orally denied Norris’s motion to withdraw his guilty pleas, the State asserts that this court lacks jurisdiction to hear Norris’s claims because it never entered a final order on the record. An appellate court’s “determination of whether it has jurisdiction to hear an appeal is a question of law. Specifically, the jurisdictional question in this case is predicated upon whether an order is final and appealable, which is a question of law.” Miller v. USAA Cas. Ins. Co., 2002 UT 6,¶ 18, 44 P.3d 663.

¶ 6 Norris challenges the trial court’s oral denial of his motion to withdraw his guilty pleas. “We review a trial court’s denial of a motion to withdraw a guilty plea under an abuse of discretion standard, incorporating the clearly erroneous standard for the trial court’s findings of fact made in conjunction with that decision.” State v. Benvenuto, 1999 UT 60,¶ 10, 983 P.2d 556 (quotations and citations omitted).

ANALYSIS

I. Jurisdiction

¶ 7 “We first address the State’s claim that this court lacks jurisdiction. The State argues defendant [cannot] appeal[] from unsigned minute entries” and that no written orders appear in the record. State v. Smith, 776 P.2d 929, 931 (Utah Ct.App.1989). The State asserts that the trial court’s oral rulings do not constitute final orders for purposes of appeal. See State v. Gerrard, 584 P.2d 885, 887 (Utah 1978) (“[T]he law is well settled in the state that the statements made by a trial judge are not the judgment of the case and it is only the signed judgment that prevails.”). The State also correctly asserts that without a final order on the record, the court has no jurisdiction to hear an appeal. See Utah R.App. P. 3(a); see also Anderson v. Schwendiman, 764 P.2d 999, 1000 (Utah Ct.App.1988) (holding notice of appeal filed after ruling has been announced, but before entry of order disposing of motion, is premature and does not confer jurisdiction on appellate courts).

¶ 8 “However, defendant actually appeals from the trial court’s order of judgment and sentence which is a final appeal-able order, and not the unsigned minute entries.” Smith, 776 P.2d at 931 (emphasis added); see also Gerard, 584 P.2d at 887 (holding sentence constitutes a final judgment from which defendant has right to appeal). Where there is no final written order disposing of a motion, and no appeal could otherwise ensue, a judgment inconsistent with the motion can dispose of the motion by necessary implication for purposes of granting this court jurisdiction. See, e.g., Kurth v. Wiarda, 1999 Utah App 153,¶ 8, 981 P.2d 417 (“[T]he entry of the judgment on the verdict in light of the surrounding circumstances operates to effectively deny [the defendant’s] motions by necessary implication.”). Here, the trial court orally denied Norris’s motion to withdraw his guilty pleas, but did not formally enter a written signed order. However, the court did nothing to alter its acceptance of Norris’s guilty pleas and ultimately sentenced him. Thus, his sentence constitutes a final order from which he may appeal, and that sentence “effectively denfies Norris’s] motions by necessary implication.” Id. Accordingly, the matter is properly before us.

II. Norris’s Motion to Withdraw Guilty Pleas

¶ 9 The question before us is whether the trial court abused its discretion in refusing to grant Norris’s motion to withdraw his guilty pleas after Norris presented an affidavit describing the alleged coercive circumstances surrounding his guilty pleas and waiver of rights. Norris argues that the court’s erroneous assurances that he could appeal his vindictive prosecution claim rendered his conditional guilty pleas involuntary because they were given in exchange for “non-existent benefits.”

¶ 10 State v. Copeland, 765 P.2d 1266 (Utah 1988), controls our decision. In Copeland, the prosecution made promises in the plea agreement that Defendant could receive immediate sex-offender treatment at an inpatient program at a hospital, rather than waiting for prison treatment three years before release from prison. See id. at 1267. The court ratified this suggestion without indicating to Defendant that by statute the court had no discretion in the choice of whether to place Defendant in hospital treatment or prison with later treatment. See id. at 1268. The Utah Supreme Court held that such promises could easily induce someone to plead guilty, and that such inducements may render the plea involuntary if they mislead the defendant as to “the nature and value of any promises made to him.” Id. at 1274. If a defendant pleads guilty “with an exaggerated belief in the benefits of his plea ... he should be allowed to withdraw his plea.” Id. at 1275 (quotations and citations omitted). Further, the “defendant must be allowed to withdraw his plea if the State made a promise it did not or could not fulfill.” Id. at 1276.

¶ 11 Both the trial court and the State clearly promised Norris that he could pursue a claim for vindictive prosecution on appeal, but neither the court nor the State could fulfill that promise. The court’s legal error exaggerated the benefits Norris would receive from pleading guilty. Thus it misled Norris as to “the nature and value of [the] promise[ ] made to him.” Id. at 1274.

¶ 12 We conclude “it is possible that defendant was genuinely and legitimately confused about” the value of these assurances compared with the seriousness of pleading guilty. Id. Accordingly, the court erred as a matter of law by promising Norris that he could appeal a vindictive prosecution claim. A discretionary ruling that compounds a previous harmful error of law constitutes an abuse of discretion. See Doty v. Cedar Hills, 656 P.2d 993, 997 (Utah 1982).

¶ 13 Thus, Norris’s pleas were not made voluntarily with full knowledge of the consequences of pleading guilty. Accordingly, Norris “must be allowed to withdraw his [guilty] plea[s].” Copeland, 765 P.2d at 1276. We vacate the sentence and the guilty pleas and remand for proceedings consistent with this decision.

¶ 14 WE CONCUR: JAMES Z. DAVIS and GREGORY K. ORME, Judges.

      . The court itemized the following issues as preserved for appeal: (1) the court's denial of Norris’s motion to dismiss based on the statute of limitations; (2) the court's denial of Norris's motion to dismiss based on the expungement of the arrest records made in conjunction with the charges; (3) the court's denial of Norris's motion to remove his counsel for incompetency and conflict of interest; (4) the effective denial of Norris’s speedy trial rights; (5) Norris's vindictive prosecution claim; (6) the State’s failure to comply with discovery requests; (7) the constitutionality of Utah’s communications fraud statute; and (8) inadequacy of the information.

      . After the court enumerated the appealable issues, Norris struggled to identify more issues he hoped to preserve. The court apparently satisfied Norris’s trepidation by promising Norris that "you’re reserving the right to appeal any issue that the Court has heard and ruled on, but ruled adversely to you ... you'd have a right to appeal that issue." The parties agreed in oral arguments that this was the most sweeping Sery plea they had seen. Although the breadth of the court’s promises is not an issue before us, we note our concern that blanket preservation of issues for appeal may very well overflow the banks of what is allowable under Sery and its progeny. See State v. Sery, 758 P.2d 935 (Utah Ct.App.1988). In Sery, we adopted the practice of accepting conditional guilty pleas because "forcing the parties to go through an entire trial merely to preserve the suppression issue is a pointless and wasteful exercise." Sery, 758 P.2d at 939. Thus, conditional pleas serve the purpose of promoting judicial economy. The broad conditional pleas involved here, however, do not serve the ends of judicial economy.

      . In light of this decision, we do not address Norris's remaining challenges.