author: CAROL M. HANSEN, Presiding Judge:

text:
    2002 OK CIV APP 118
    Ricardo WIDMANN and Jan Widmann, husband and wife, Plaintiffs/Appellants, v. ACCEPTANCE INSURANCE COMPANY, a Nebraska corporation; Acceptance Indemnity Insurance Company, a Nebraska corporation; and Redland Insurance Company, a Nebraska corporation, Defendants/Appellees.
    No. 97,655.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 12, 2002.
    Rehearing Denied and Opinion Modified Aug. 16, 2002.
    Certiorari Denied Nov. 19, 2002.

      Victor L. Hodge, Victor L. Hodge & Associates, Edmond, OK, for Plaintiffs/Appellants.
    Michael J. Masterson, Wilburn & Master-son, Tulsa, OK, for Defendants/Appellees.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

¶ 1 Plaintiff, Ricardo Widmann (Plaintiff), owned and operated a 1999 Dodge van that was covered under a fleet policy issued by Defendants to “named insureds,” Airport Express, Inc. and Express Shuttle, its wholly owned subsidiary, (hereinafter Airport Express). Plaintiff worked under a contract allowing him to carry passengers for Airport Express. He in return paid a weekly tariff to Airport Express.

¶2 Plaintiff was involved in an accident with an alleged underinsured motorist. Plaintiff suffered serious injury. His medical bills were around $200,000.00 and required him to miss ten months of work. Plaintiffs signed a release of liability to Defendant Acceptance Insurance Company, (Acceptance), in exchange for $45,000.00 in uninsured/underinsured motorist benefits, (UM/UIM), based on a $50,000.00 limit on uninsured motorist coverage on each vehicle covered by the policy.

¶ 3 Plaintiffs filed this lawsuit against all Defendants alleging they signed the release based on representations by Acceptance that $45,000.00 was all the UM/UIM coverage available to him. This representation, they claimed, was false and Defendants knew it was false. Because of the fraud and deceit of all Defendants, Plaintiffs suffered damages including loss of consortium. In a second cause of action, Plaintiffs asked the court to give judgment including punitive damages against Defendants claiming their acts were willful, wanton and in total disregard of the rights of Plaintiffs and not done in good faith.

V 4 After all defendants had, answered, Plaintiffs filed a motion for partial summary judgment against Acceptance, asking the court to find it was an uncontroverted fact Plaintiffs signed the release in favor of Defendants based on representations of Acceptance that only $50,000.00 in UM/UIM coverage was available to him.

¶ 5 All Defendants responded and filed their own motion for summary judgment. The trial court overruled Plaintiffs’ motion and granted Defendants’ motion and entered judgment in favor of Defendants on all claims. Plaintiffs filed this appeal without appellate briefs in conformance with the procedures for the appellate accelerated docket, Rule 1.203, Rules of Civil Appellate Procedure, 12 O.S.1991 Ch.15, App.2.

¶ 6 The issue before this Court is whether Plaintiff is entitled to stack or aggregate UM/UIM proceeds with respect to the 24 other vehicles listed in Defendants’ fleet policy which includes vehicles Plaintiff did not own and for which he did not pay a premium for UM/UIM coverage. Airport Express, Inc. and Express Shuttle were the only “named insureds” on the face of the policy. Plaintiff was included as an additional insured.

¶ 7 The Declarations portion of the contract of insurance provides:

Who is An Insured
1) You
2) If you are an individual, any “family member.”
3) Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto.” The covered “auto” must be out of service because of its breakdown, repair, servicing, loss, or destruction.
4) Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured.”

¶ 8 Plaintiff is an additional insured under section 3 above. Nothing in the policy puts him in the position of “named” insured.

¶ 9 The policy also states the Limit of Insurance to be:

1.a. The most we will pay for all damages sustained in such accident by an insured other than you or any family member is that insured’s pro rata share of the limits shown in the schedule or declarations applicable to the vehicle that insured was occupying at the time of the accident.
2. If the bodily injury is sustained by any insured other than you or any family member, in an accident in which neither you nor any family member sustained bodily injury, the limit of liability shown in the schedule or declaration for this coverage is our maximum limit of liability for all damages resulting from any such accident.

¶ 10 Plaintiffs point to the portion of the policy allowing stacking of coverage on all the policies. That portion states:

D. Limit of Insurance
1. Regardless of the number of insureds, or claims made, the most we will pay for all damages resulting from any one accident is the limit of Uninsured Motorists Insurance shown in the Schedule or Declarations. If there is more than one covered “auto,” our limit of insurance for any one “accident,” if the “bodily injury” is sustained by your or any “family member” is the sum of the limits applicable to each covered auto. Subject to this maximum limit of liability for all damages. (Emphasis supplied)

¶ 11 Plaintiffs argue this language clearly covers Plaintiff as the insured owner and driver. Thus, he is entitled to stack the coverage on all the fleet vehicles. We disagree. Plaintiff is not the named insured or a family member. The policy covering Plaintiffs vehicle provided for $50,000.00 in UM/ UIM. Section l.a. above clearly limits the amount Defendants will pay someone in Plaintiffs position who is not a named insured.

¶ 12 In Babcock v. Adkins, 1984 OK 84, 695 P.2d 1340, the Oklahoma Supreme Court held a passenger in an insured vehicle who is entitled to uninsured motorist coverage, solely because of his status as a passenger, may not stack uninsured motorist coverage under separate policies purchased by the owner of the involved vehicle. The Court cited Keel v. MFA Insurance Co., 1976 OK 86, 553 P.2d 153 and its progeny clearly limiting stacking to a named insured as determined by each policy’s provisions. The “purchaser of a policy would not have any legitimate contractual expectation that one insured solely by reason of his presence in a vehicle would be entitled to a recovery under other policies belonging to the named insured covering vehicles which were not involved in the accident.”

¶ 13 The decision in Babcock pointed out the public policy behind this viewpoint is clear: “The purpose for allowing a named insured the benefit of all policies for which he has paid premiums is to provide a fulfillment of the contractual expectations that the party had when purchasing those policies.” Plaintiff, however, did not have a contractual relationship with Defendants. The named insureds, Airport Express and Express Shuttle, had the contractual relationship with Defendants and paid the premiums to Defendants.

¶ 14 But, Plaintiff argues, “I am a named insured and even though I did not make payments directly to Defendants, I paid a premium to them through payment of the tariff to Airport Express.” Therefore, he argues, he should be considered a Class I insured (named insured and relative in the household). However, Plaintiffs evidentiary material does not indicate he was paying premiums on all 25 vehicles. Plaintiffs further rely on the fact Plaintiff owned the vehicle, which should make him a named insured. This strained view would in effect rewrite the policy to include him as a named insured. Courts will not rewrite an insurance policy. The Oklahoma Supreme Court remains “committed to the practice that courts cannot substitute the name of each of the many employees of a given company in place of the employer as the named insured and thus stretch the coverage of the policy to include each employee and all of the members of his household. To do so would rewrite the contract of the parties and distort the public policy as set out in our cases.” Aetna Casualty and Surety Company v. Craig, 1989 OK 43, 771P, 771 P.2d 212.2d 212.

¶ 15 Under the policy, Plaintiff was an additional insured only with regard to his own van.

¶ 16 In Stanton v. American Mutual Liability Insurance Co., 1987 OK 118, 747 P.2d 945, an employee of H.B. Fuller was injured in an vehicle accident while driving one of Fuller’s vehicles. Fuller was insured under a fleet policy issued by the defendant insurance company. The Court addressed the issue of stacking of the fleet policy coverage of 379 vehicles owned by a plaintiffs employer. The Court held the plaintiff was not entitled to more than the coverage on the vehicle he was operating. It held any other result would be “clearly an absurdity” yielding a benefit to the plaintiff of over 7⅜ million dollars. It was clear that at the time they entered into their contract, Fuller and the insurance company contemplated the fleet coverage would extend UM7UIM benefits only to an occupant or permissive user employee of a single vehicle.

¶ 17 Although none of the above decisions deals with the same facts as in this case, the statements reflecting public policy behind stacking of coverage in these decisions certainly controls. In the present case the policy indicates this also was the contemplation of Arport Express and Defendants. Plaintiff did not contract with Defendants. He did not pay premiums on the entire fleet. He is not a named insured under the contract. Accordingly, he is not entitled to the stacking provisions in the contract of insurance.

¶ 18 Plaintiffs spent a great deal of argument claiming Defendants did not deal with Plaintiff in good faith. He seeks reversal of the trial court’s decision on this basis. However, because we hold Plaintiffs accepted a settlement from Defendants for the maximum amount to which he was entitled under the UM/UIM provisions of the policy, we need not address this argument.

¶ 19 The trial court’s judgment is AFFIRMED.

ADAMS, J., and MITCHELL, J., concur.

      . Defendant paid the additional $5,000.00 to the passenger in Plaintiffs vehicle.

      . Plaintiff’s wife is an additional party plaintiff.

      .The endorsement to the policy adding Plaintiffs vehicle limited coverage for UM/UIM to $50,000.00 per occurrence.

      . The policy provides that the words "you” and "your” refer to the Named Insured in the Declarations.


source: Caselaw Access Project

author: WILKINS, Justice:

license: Public Domain

text:
    2002 UT 113
    STATE of Utah, Plaintiff and Appellee, v. Damond BLAKE, Defendant and Appellant.
    No. 20000967.
    Supreme Court of Utah.
    Nov. 26, 2002.

      Mark L. Shurtleff, Att’y Gen., Marian Decker, Asst. Att’y Gen., and Michaela An-druzzi, Salt Lake City, for plaintiff.
    Susanne Gustin-Furgis, Salt Lake City, for defendant.
    Kara L. Barton, Salt Lake City, Douglas E. Beloof, Gina S. McClard, Portland, Oregon, Wendy Murphy, Boston, Massachusetts, for amicus Rape Recovery Center.
   WILKINS, Justice:

¶ 1 Defendant, Damond Blake (“Blake”), brings this interlocutory appeal from the denial of his request for discovery of the victim’s mental health and juvenile court records for use in defending himself against charges of sexual abuse of a child, S.D. He further challenges the denial of a motion for a hearing, pursuant to rule 412 of the Utah Rules of Evidence (“412 hearing”), to explore S.D.’s sexual past and whether there have been any prior accusations of crimes similar to that alleged here. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Blake is charged with sexual abuse of a child for alleged sexual misconduct with his then girlfriend’s twelve-year-old daughter, S.D. At a preliminary hearing, after which Blake was bound over for trial, S.D. was asked by Blake’s counsel if she had ever accused anyone else of similar incidents. After an initially vague answer, she denied that she had ever done so. Upon conclusion of this line of questioning, Blake requested that the court allow him to conduct a 412 hearing to inquire about S.D.’s sexual history, particularly any past allegations of sexual abuse made by S.D. against others, and any drug and alcohol use by S.D. The trial court denied this request. In other questioning, S.D. admitted to a stay in juvenile detention and a juvenile record for theft. Further, Blake uncovered the fact that S.D. had received counseling in connection with the assault he allegedly committed.

¶3 After the preliminary hearing, Blake attempted to discover sensitive information relating to S.D.’s answers at the preliminary hearing, including school grade reports, DCFS reports, juvenile detention and arrest records, and mental health records. Because Blake has obtained the DCFS reports and school grade reports, they are not a part of this appeal. The other records sought were in the custody of the various agencies and entities with which they originated. Though the custodians of the records were subpoenaed, Blake never brought the custodians of those records before the court.

¶ 4 In conjunction with Blake’s requests for discovery and a 412 hearing, which were denied, the trial court determined that the sought-after records were not in possession of the prosecution and that the mental health records were privileged material, not subject to discovery. The court also found that there was no evidence that S.D.’s preliminary hearing testimony was unreliable or that she had made prior accusations of sexual assault.

¶ 5 The court denied the request for a 412 hearing on the ground that the defendant failed to meet the requirement of rule 412(c) of the Utah Rules of Evidence that a party file a motion “stat[ing] with specificity the evidence ... sought to [be] admitted and the purpose for its admission.” Blake’s request for S.D.’s juvenile records was denied by the court because the records were not in possession of the State; the court further held that such records were closed. Applying the privilege of rule 506 of the Utah Rules of Evidence, the court also denied the request for S.D.’s counseling records. The court determined that rule 506 did not allow discovery of material intended only for impeachment, that Blake merely made a general request for information, and that there was no evidence of prior accusations of another or unreliable testimony by S.D. Further, the court noted the State’s substantial interest in protecting counseling relationships and the chilling effect of piercing that relationship.

ANALYSIS

I.STANDARD OF REVIEW

¶ 6 As to Blake’s request for a 412 hearing, we review the question of law for correctness while deferring to the lower court’s “subsidiary factual determinations.” State v. Quinonez-Gaiton, 2002 UT App 273, ¶ 9, 54 P.3d 139 (internal quotations and citations omitted). Decisions regarding the release of juvenile court records are governed by statute and reviewed for correctness. See State v. Casey, 2002 UT 29, ¶ 19, 44 P.3d 756. A court’s decision regarding “the existence of a privilege is a question of law for the court,” and is reviewed for correctness. Riddle v. Perry, 2002 UT 10, ¶ 6, 40 P.3d 1128 (citations omitted).

II.412 HEARING

¶ 7 Blake’s stated purpose in requesting a 412 hearing is to “question [the] alleged victim about prior false allegations and prior sexual abuse.” However, Blake ignores the plain language of rule 412, which provides for a hearing “only if the court sees the applicability of one of the limited exceptions and intends to admit such evidence.” Quinonez-Gaiton, 2002 UT App 273 at ¶ 12, 54 P.3d 139. In this case, Blake failed to identify any evidence he wished to have admitted and his request for a hearing to attempt discovery of evidence was properly denied.

III.JUVENILE COURT RECORDS

¶ 8 The records of the juvenile court and its probation department are governed by Utah Code Ann. section 78-3a-206 (Supp. 2002). That section prescribes the method by which such records may be released or opened for inspection. Blake has cited no provision, other than rule 16 of the Utah Rules of Criminal Procedure, that purports to give him the right to review S.D.’s juvenile records. Rule 16 is inapplicable where, as here, the prosecution does not have access to the requested records. Rule 16 applies only to information available to the prosecution. Utah R.Crim. P. 16 (“the prosecutor shall disclose ... ”). Thus, where the prosecution has no access to the records a motion under rule 16 is ineffective to compel the records’ release.

¶ 9 Blake also refers this court to Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) for support of his argument for access to S.D.’s juvenile records. However, as the State has correctly noted, Davis dealt with the question of admissibility of such records on cross-examination, not discovery. See generally Davis, 415 U.S. at 315-16, 94 S.Ct. 1105 (noting Sixth Amendment right to confront witnesses through impeachment on cross-examination). Accordingly, Davis avails Blake nothing. The trial court’s ruling is affirmed.

IV.COUNSELING RECORDS

¶ 10 Women and children represent a disproportionate number of the rape and assault victims in our society. Historically, the law has failed to adequately protect these victims; however, recent efforts have been made to correct this injustice. It has been suggested that there is an imaginary pendulum swinging from one end — poor treatment of victims — to the other — unjust treatment of defendants — in the desire to protect victims. The premise of Blake’s argument is that the pendulum has swung too far from the historically poor treatment of victims and reached the other end, treating defendants unjustly. We agree that in the event the protection of victims prevents a fair trial of those accused of rape or sexual assault, the right to a fair trial must be preserved. We have not yet reached that point.

A. Historical Treatment of Rape and Sexual Assault Victims

¶ 11 The revelation that women victims of rape have long been mistreated by the law is a relatively recent development. Courts have long held institution-wide distrust of rape victims in cases where they were acquainted with their assailants. See Susan Estrich, Real Rape 28-29 (1987) (discussing suspicion of women victims and legal presumptions against women in “simple,” as opposed to “stranger” rapes). As recently as the mid-twentieth century, articles in the nation’s most prestigious legal journals openly suggested that the testimony of female rape victims was not to be trusted. Note the language of one such journal: “a woman’s need for sexual satisfaction may lead to the unconscious desire for forceful penetration, the coercion serving neatly to avoid the guilt feeling which might arise after willing participation.” Note, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 Yale L.J. 55, 67 (1952). Yet another: “a woman may note a man’s brutal nature and be attracted to him rather than repulsed. Masochistic tendencies seem to lead many women to seek men who will ill-treat them sexually.” Note, The Resistance Standard in Rape Legislation, 18 Stan. L.Rev. 680, 682 (1966). The tone of the literature had begun to change by the 1980s when Professor Susan Estrich of the University of Southern California authored an extensive law review article, entitled Rape, and her related book, Real Rape. These works present a thorough survey of the historical treatment of women rape victims and are useful for understanding the issue now before this court.

¶ 12 Estrich notes that the law has been accommodating of victims of rape where a stranger forcibly attacks the victim while it has been leery of victims raped by acquaintances. Real Rape, supra, at 28-29. The vehicles for institutionalized suspicion of rape complainants have typically been non-consent, corroboration, and other related requirements, where the focus is shifted to the victim’s acts, rather than the defendant’s. Id. at 29 (noting that rape victims are required to show non-consent by physical resistance). While the non-consent standard and its related requirements may initially seem benign and similar to requirements in other criminal matters, such as theft and trespassing, Professor Estrich suggests that they have been applied very differently in rape cases than in the others. See, e.g., Susan Estrich, Rape, 95 Yale L.J. 1087, 1094 (1986) (stating, “The definition of rape stands in striking contrast to this tradition, because courts, in defining the crime, have focused almost incidentally on the defendant — -and almost entirely on the victim.”).

¶ 13 Illustrative of the difference between rape and other crimes is the non-consent requirement. The non-consent requirement for a rape conviction has been expressed not as non-consent is in trespass but in terms of the victim’s resistance. In the words of one court, “[n]ot only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person, and this must be shown to persist until the offense is consummated.” Brown v. State, 127 Wis. 193, 106 N.W. 536, 538 (1906). This degree of non-consent is not paralleled by tests for non-consent in cases other than rape. Real Rape, supra, at 40-41 (noting that non-consent in trespass cases requires only verbal or posted warnings).

¶ 14 In addition to the resistance requirement, the law of many states has further failed victims by requiring evidentiary corroboration of a victim’s testimony, allowing evidence of a victim’s sexual past, and mandating jury instructions cautioning juries against giving too much weight to victims’ testimony. Id. at 42 (corroboration), 47 (sexual past), 54-55 (cautionary instruction). By the 1980s these requirements had “enshrined distrust of women in the law ... and ensured that rape trials would indeed be real nightmares — for the women victims.” Id. at 56. One unfortunate result of the law’s mistreatment and distrust has been that women raped by acquaintances, as opposed to strangers, are much less likely to report those rapes to police. See id. at 10-12 (noting widely divergent reporting statistics in stranger and acquaintance rapes and citing various surveys to that effect); Wendy J. Murphy, Minimizing the Likelihood of Discovery of Victims’ Counseling Records and Other Personal Information in Criminal Cases: Massachusetts Gives a Nod to a Constitutional Right to Confidentiality, 32 New Eng. L.Rev. 983, 1016-17 (1998) (noting judicial recognition of decline in reporting when records not protected).

¶ 15 In an effort to remedy many of the past failings of the law in relation to victims of rape and similar sexual crimes, many jurisdictions have reformed rape laws. E.g., Real Rape, supra, at 57 (noting that corroboration requirements have been discarded and rape shield statutes often protect information about victims’ sexual pasts). Utah has enacted both statutes and rules of evidence designed specifically to protect the victims of sexual assaults. Utah Code Ann. §§ 78-3c-l to -A (1996) (invoking privilege in rape crisis counseling); Utah R. Evid. 412 (preventing most uses of evidence of victim’s sexual behavior). While these provisions apply specifically to victims of sexual assaults, the more general movement toward recognizing the rights of all crime victims has given birth to other provisions in Utah law that extend to victims of sexual assault.

B. The Victims’ Rights Amendment

¶ 16 We discuss the victims’ rights amendment to Utah’s Constitution (“the amendment”) to provide useful context for our review of past and current treatment of rape and sexual assault victims. However, because “[rjules, like statutes, are to be construed to avoid constitutional interpretation where possible,” we do not decide this case by resorting to Utah’s victims’ rights amendment. Preuss v. Wilkerson, 858 P.2d 1362, 1362-63 (Utah 1993). The amendment recognizes specific rights of crime victims. Among those rights is the right “[t]o be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process.” Utah Const, art. I, § 28(l)(a). This provision was enacted in response to an increasing recognition that:

Victims who do survive their attack, and are brave enough to come forward, turn to their government expecting it to ... protect the innocent.... Without the cooperation of victims and witnesses in reporting and testifying about crime, it is impossible in a free society to hold criminals accountable. When victims come forward to perform this vital service, however, they find little protection. They discover instead that they will be treated as appendages of a system appallingly out of balance. They learn that somewhere along the way the system has lost track of the simple truth that it is supposed to be fair and to protect those who obey the law while punishing those who break it. Somewhere along the way, the system began to serve lawyers and defendants, treating victims with institutionalized disinterest.

President’s Task Force on Victims of Crime, Final Report, iv (1982) (quoted in Paul Cas-sell, Balancing the Scales of Justice: The Case for and the Effects of Utah’s Victims’ Rights Amendment, 1994 Utah L.Rev. 1373, 1379). Utah law now recognizes that victims have fared poorly in the criminal justice system and that they are to be more involved in the process of punishing the acts of which they became unwilling participants.

C. Rule 506 Privilege

¶ 17 Rule 506 of the Utah Rules of Evidence controls our decision today. Utah law provides for a statutory privilege for certain sexual assault counseling. However, as the State has noted, that privilege does not apply in this case. The counseling S.D. received does not meet the definition provided in section 78-3e-3 of the Utah Code, accordingly, we agree that any privilege in this case must be supported by other authority. See Utah Code Ann. § 78-3c-3 (1996) (defining “rape crisis center” and “sexual assault counselor” to exclude the counseling received by S.D.). We thus resort to rule 506 of the Utah Rules of Evidence for analysis of the applicability of the therapist-patient privilege to S.D.’s counseling records.

¶ 18 Rule 506 cloaks in privilege confidential communications between a patient and her therapist in matters regarding treatment. Utah R. Evid. 506(b). The very nature of all privileges means that they will sometimes “interfere with establishment of the whole truth.” Utah R. Evid. 501 advisory committee notes. Nevertheless, the various rules of privilege are recognized as “reflect[ing] good policy choices, fostering candor in important relationships by promising protection of confidential disclosures.” Id. Although this privilege is an important one, the rule provides exceptions in certain circumstances, one of which Blake suggests is applicable here. Utah R. Evid. 506(d) (listing exceptions). Specifically, it provides that no privilege will exist if an otherwise covered communication is “relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which that condition is an element of any claim or defense.” Id. at (d)(1). We have had occasion to consider the boundaries of this exception in previous cases, particularly State v. Cardall, 1999 UT 51, 982 P.2d 79. We take this opportunity to clarify the standard and test laid out in Cardall.

1. In Camera Review .

¶ 19 We have previously recognized that there are situations in which otherwise privileged communications between a crime victim and her therapist might be subject to in camera review and disclosure. Cardall, 1999 UT 51, at ¶¶ 29-35, 982 P.2d 79. We noted in Cardall that the disclosure of such material was limited and required a showing “with reasonable certainty that exculpatory evidence exists which would be favorable to [the] defense.” Id. at ¶ 30. In the context of this case it is not enough to show that the counseling records exist. Blake must show, with reasonable certainty, that the sought-after records actually contain “exculpatory evidence ... which would be favorable to his defense.” Cardall, 1999 UT 51 at ¶ 30, 982 P.2d 79. This is a stringent test, necessarily requiring some type of extrinsic indication that the evidence within the records exists and will, in fact, be exculpatory. The difficulty in meeting this test is deliberate and prudent in light of the sensitivity of these types of records and the worsening of under-reporting problems in the absence of a strong privilege. See supra Part IV., A. (noting problems of under-reporting); see also, Murphy, supra, at 1016-17 (noting judicial recognition of decline in reporting when records not protected). Exactly how much is required to satisfy the “reasonable certainty” test of Cardall varies with each ease, nevertheless, we will attempt to give some guidance.

¶ 20 Standards such as “reasonable certainty” or “reasonable probability” elude quantification. See State v. Knight, 734 P.2d 913, 919-20 (Utah 1987) (noting an imaginary spectrum and recognizing inability to “assign a definite spot on the spectrum” to the reasonable probability standard). While we cannot define the precise limits of such standards, we can determine their place relative to one another. Discussing a variety of these elusive tests in another context, we explained that the reasonable probability standard lies somewhere between “mere possibility” and “more likely than not.” Id. at 920. On a similar spectrum, “reasonable certainty,” within the meaning of Cardall, lies on the more stringent side of “more likely than not.”

¶ 21 Accordingly, the mere speculation offered by Blake that S.D.’s counseling records might contain exculpatory evidence useful to his case is clearly not enough to warrant in camera review. The following represents a summary of Blake’s stated basis for review of S.D.’s counseling records: “[t]he mental health records ... are important because it [sic] may have information about medication she’s taking that effect her credibility; about whether she has recanted or not ... [a]lso, she may have a mental illness where part of the diagnosis is chronic lying.” This situation differs markedly from cases where a criminal defendant can point to information from outside sources suggesting that a victim has recanted or accused another of the crime alleged or has a history of mental illness relevant to the victim’s ability to accurately report on the assault.

¶ 22 One difference between Blake’s request and a request likely to be successful was hinted at in Cardall. 1999 UT 51 at ¶¶ 32-33, 982 P.2d 79 (discussing specific requests versus general requests). Where a defendant’s request for in camera review is accompanied by specific facts justifying the review, a court will be much more likely to find “with reasonable certainty that exculpatory evidence exists which would be favorable to his defense.” Id. at ¶ 30. However, when the request is a general one, such as the request in this ease for any impeachment material that might happen to be found in the privileged records, a court ought not to grant in camera review. At a minimum, specific facts must be alleged. These might include references to records of only certain counseling sessions, which are alleged to be relevant, independent allegations made by others that a victim has recanted, or extrinsic evidence of some disorder that might lead to uncertainty regarding a victim’s trustworthiness. This listing is not intended to be exclusive, but is only an example of the type and quality of proof needed to overcome the high Cardall hurdle.

2. Materiality and Disclosure

¶ 23 Upon satisfying the “reasonable certainty” test, the court would then conduct an in camera review for materiality. This review is conducted using a “reasonable probability” standard. Under this standard, evidence is deemed material where there is a reasonable probability that, if the evidence is disclosed to the defense, the result of the proceeding will be different. Cardall, 1999 UT 51 at ¶ 30, 982 P.2d 79. In the context of a case yet to go to trial, the test becomes more difficult to apply because the trial court must anticipate the efficacy of the material contained in the records in persuading the fact-finder to discredit the victim. See, e.g., Chauncey B. Wood, Note, Rape Prosecutions and Privileged Psychological Counselling Records: How much does a Defendant have a Right to Know about his Accuser?, 3 B.U. Pub. Int. L.J. 351, 374 (1993) (noting necessity and difficulty of anticipating defendant’s case and evaluating information reviewed in camera). Despite the problems inherent in in camera review without the presence of counsel, such review represents a satisfactory method of balancing the interests of privacy and full reporting of crime with defendants’ ability to present the best case at trial. Accordingly, it is the method of review we adopt.

¶ 24 In this instance, Blake has failed to meet the necessary minimum showing, that of a reasonable certainty that exculpatory evidence exists which would be favorable to his defense. As such, his challenge fails and we affirm the decision of the trial court.

CONCLUSION

¶ 25 Rule 412 provides for a hearing only when the trial court intends to admit evidence. Blake has proffered no evidence for admission. We therefore affirm the trial court’s denial of that request. Furthermore, no authority exists for the release of S.D.’s juvenile records and we affirm the denial of that request. Blake has likewise not met the minimum showing required to trigger in camera review of S.D.’s counseling records and we affirm that denial. We remand to the trial court for further proceedings consistent with this opinion.

¶ 26 Chief Justice DURHAM and Associate Chief Justice DURRANT concur in Justice WILKINS’ opinion.

¶ 27 Justice HOWE and Justice RUSSON concur in the result.

      . Because the DCFS and school records have already been provided, we express no opinion as to whether defendant was entitled to their production, or could have compelled discovery.

      . Blake seeks disclosure of the counseling records for use in impeaching the victim's testimony. It is unlikely that impeachment evidence qualifies as an element of a claim or defense. However, we need not reach the question of whether an element of a claim or defense is implicated since Blake has not shown with reasonable certainty that the records he seeks contain exculpatory evidence.


author: DURHAM, Chief Justice:

text:
    2002 UT 116
    STATE of Utah, Plaintiff and Respondent, v. Larry G. BOHNE, Defendant and Petitioner.
    No. 20010116.
    Supreme Court of Utah.
    Nov. 26, 2002.
    Mark L. Shurtleff, Att’y Gen., Jeanne B. Inouye, Asst. Att’y Gen., Salt Lake City, Scott M. Burns, Cedar City, for plaintiff.
    J. Bryan Jackson, Cedar City, for defendant.
    Weston J. White, St. George, for amicus curiae.
   DURHAM, Chief Justice:

INTRODUCTION

¶ 1 Defendant, Larry Bohne, was convicted of the misdemeanor of contracting without a license in violation of Utah Code Ann. section 58-55-301 (1998). The court of appeals affirmed his conviction. State v. Bohne, 2001 UT App 11, 18 P.3d 514. We accepted defendant’s petition for a writ of certiorari. We now affirm.

BACKGROUND

¶ 2 Defendant constructs and sells modular homes to prospective homeowners without a license. He has been engaged in the business of building and selling modular homes since 1973. He assembles the homes on his property and then transports them to the purchaser’s property. He does not perform any excavation, foundation, or utilities work, nor does he bear any responsibility for the installation of the homes. Defendant is not a licensed contractor, nor does he utilize the work of licensed subcontractors in his construction business.

¶ 3 Defendant was charged with four counts of violating Utah Code Ann. section 58-55-301 for sales occurring during 1996 and 1998. He contends that the statute does not require that he be licensed to engage in his business. He notes that all of his modular homes must meet the requirements of the general uniform building codes of construction before they can be transported to the purchasers, thereby ensuring their quality. Also, since construction takes place on his property and the homes are later transported to another locale, defendant argues that the homes should not be considered “buildings,” but rather, his personal property. Thus, defendant contends, section 58-55-301 does not apply to him and he is relieved of the requirement of obtaining a license in order to conduct his business of constructing and selling modular homes.

STANDARD OF REVIEW

¶ 4 We review the appellate court’s statutory interpretation for correctness. Hous. Auth. of County of Salt Lake v. Snyder, 2002 UT 28, ¶ 10, 44 P.3d 724.

ANALYSIS

¶ 5 To determine whether the Construction Trade Licensing Act (the “Act”) requires defendant to obtain a license to construct and sell modular homes, we must analyze the definition of the term “construction trade” and the exemption provided in the Act, as well as the language of the Uniform Commercial Code (“UCC”).

¶ 6 The crux of this case is whether the modular homes at issue are “buildings” or “personal property.” The Act requires:

Any person engaged in the construction trades licensed under this chapter, or as a contractor regulated under this chapter, shall become licensed under this chapter before engaging in that trade or contracting activity in this state unless specifically exempted from licensure under Section 58-55-305.

Utah Code Ann. § 58-55-301(l)(a) (1998).

¶ 7 We must ascertain what is meant by “construction trade” to determine if defendant is engaged in a construction trade relevant to this statute. The Act defines the term as:

any trade or occupation involving construction, alteration, remodeling, repairing, wrecking or demolition, addition to, or improvement of any building ... other than personal property.

Utah Code Ann. § 58-55-102(8) (Supp.2001).

¶ 8 The Act does, however, provide certain exemptions. The construction trade licensing requirements do not apply to:

a person engaged in the sale or merchandising of personal property that by its design or manufacture may be attached, installed, or otherwise affixed to real property who has contracted with a person, firm, or corporation licensed under this chapter to install, affix, or attach that property[.]

Utah Code Ann. § 58-55-305(6) (Supp.2001).

¶ 9 The defendant, in constructing these modular homes, clearly engages in “construction” as it is traditionally understood. The issue is whether defendant was engaged in the construction of buildings, in which case he would need to be licensed, or in the construction of “personal property” only. If the modular homes are indeed “personal property,” and not “buildings,” then he has not violated the Act in failing to obtain a license.

¶ 10 Defendant relies on the UCC in asserting that constructing modular homes does not fall within the construction trade, since the UCC treats modular homes as “goods.” The UCC states that “ ‘Goods’ means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale_” U.C.C. § 2-105(1) (1998); see also Utah Code Ann. § 70A-2-105(l)(2001). Defendant argues that because the modular homes were transferable at the time of sale, being constructed off-site and later transported to the sale site, the modular homes are “goods.”

¶ 11 The majority of the court of appeals rejected defendant’s argument and held that the modular homes are not “personal property,” but “buildings.” It did so without resolving the conflict posed by the UCC definition. We agree, but add the following clarification.

¶ 12 The majority opinion issued by the court of appeals is correct in asserting that the modular homes at issue come within the plain meaning of the term “building.” The homes fit a common-sense definition of “building.” The units are completed homes and are meant for human occupancy. They include assembled floor decking, exterior and interior walls, trusses, roof decking, rough electrical wiring, rough plumbing, rough mechanical systems, shingles, insulation, sheet rock, cabinets, interior and exterior painting, interior doors, finishing electrical, finishing plumbing, finishing mechanical equipment, and finishing exterior siding. The only thing left to do with the homes is to install them. The fact that the homes were not installed at the time of sale does not mean they were not “buildings” under the licensing Act. We recognize the general principle that modular homes are “goods” under the UCC until affixed to real property, because the UCC defines goods to include all things which are “movable at the time of identification to the contract for sale....” U.C.C. § 2-105(1); see also Utah Code Ann. § 70A-2-105(l). Indeed, many courts have traditionally held modular homes to be “goods” under the UCC. See Cates v. Morgan Portable Bldg. Corp., 591 F.2d 17, 20 (7th Cir.1979); Stephenson v. Frazier, 399 N.E.2d 794, 797 (Ind.Ct.App.1980); Joswick v. Chesapeake Mobile Homes, Inc., 362 Md. 261, 765 A.2d 90, 92 (2001).

¶ 13 Nevertheless, we decline to apply the UCC definition of modular homes as “goods” for purposes of this statute. The UCC governs contracts and contractual transactions. The Act at issue here is not a contract and does not concern a contract. Rather, it is a licensing requirement, the purpose of which is to ensure the safe construction of buildings for the benefit of the consumer. The UCC approach has little relevance and, we determine, no applicability to its interpretation.

¶ 14 Our holding is consistent with Utah precedent. In John Wagner Assoc, v. Hercules, Inc., 797 P.2d 1123 (Utah Ct.App. 1990), the court held that “for purposes of the Payment Bond Statute, the modular buildings are to be regarded as realty as a matter of law” despite the UCC definition including modular homes as goods. Id. at 1126. The court so held in that case in order to “give full effect to the purpose of the Payment Bond Statute,” and thus the legislature’s intent in passing that statute. Id. at 1130. We join other courts in acknowledging that “pre-built [buildings], mobile or otherwise, ... are a part of our changing society, and give recognition to the fact that the law must be responsive to the best interests of those whom it is designed to serve.” Yeager v. Cassidy, 20 Ohio Misc. 251, 256, 253 N.E.2d 320, 323 (1969). Consequently, we extend the definition of “buildings” to include modular homes for purposes of this Act.

¶ 15 We do so to give full force to the legislature’s intent in drafting the Act: public safety. We ascertain the legislature’s intent by looking to the statute’s plain meaning, and to its various provisions viewed as a whole. A reading of other provisions within the Act demonstrates the legislature’s intent. Section 58-55-102(7)© includes a provision requiring licensing for “a person who builds any structure on his own property for the purpose of sale or who builds any structure intended for public use on his own property.” See Utah Code Ann. § 58-55-102(7)© (1998). Thus, an unlicensed person may not build a structure upon his own property that will either be used or sold to others. Defendant qualifies as such an individual since the structures are intended for human occupancy and he sells them to individual consumers as part of a commercial enterprise.

¶ 16 Additionally, the exemptions built into the statute are narrowly tailored to ensure that any individuals constructing buildings that members of the public will enter must be licensed in order to engage in their construction trade. For example, the exemption excludes from licensing requirements sole owners of property only if they are “engaged in building no more than two residential structures per year on their property for their own noncommercial, nonpublic use.... ” Utah Code Ann. § 58-55-305(4)(1998). If private individuals cannot construct multiple buildings on then* own property for their own use without obtaining a license, then contractors engaged in the commercial construction of buildings designed for the sale and the human habitation of others certainly are within the reach of the licensing Act.

¶ 17 That the legislature intended to exempt those engaged in construction in only the most narrow of circumstances reinforces the principle that public safety is the primary objective of the licensing statute. Exempting a modular home builder engaged in commercial enterprise from such licensing under section 58-55-305(6) would contravene the legislature’s intent.

¶ 18 The plain meaning of the language of the statute is clear. The UCC does not govern the definition of “building” in this regulatory context. The public policy reasons behind the licensing requirements are compelling. The only way to give full force to the legislature’s intent is to include modular homes in the definition of the term “building” found in the Act. We therefore hold that modular homes constructed off-site that are sold commercially fall within the reach of the Act. Thus, individuals engaged in such construction must obtain a license. Defendant is required by law to obtain a license, which he failed to do.

CONCLUSION

¶ 19 We affirm defendant’s conviction.

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

      . Defendant additionally challenges his conviction based on the ground that the trial court erred in placing upon him the burden of proof regarding his qualification for the statutory exemption. Since we have affirmed defendant's conviction based upon our holding that modular homes are not "personal property,” whether or not defendant sold “personal property” to a licensed contractor for installation is inapplicable, since he sold "buildings.” Thus, we need not reach the issue of who bears the burden of proving qualification for the exemption.


author: HOWE, Justice:

text:
    2002 UT 117
    STATE of Utah, Plaintiff and Appellee, v. Daniel Lamont HODGES, Defendant and Appellant.
    No. 20010668.
    Supreme Court of Utah.
    Dec. 3, 2002.

      Mark L. Shurtleff, Att’y Gen., Kris C. Leonard, Asst. Att’y Gen., Matthew G. Nielsen, Salt Lake City, for plaintiff.
    Joan C. Watt, Robin K. Ljungberg, Salt Lake City, for defendant.
   HOWE, Justice:

¶ 1 This is an interlocutory appeal from the district court’s order that it has jurisdiction over the criminal prosecution of defendant, who had reached his twenty-first birthday when the proceedings were commenced, but who was under age eighteen at the time of his alleged crimes.

BACKGROUND

¶ 2 The State charges that defendant Daniel Lamont Hodges committed six first degree felony crimes involving sexual abuse of a child when Hodges was younger than eighteen years old. The alleged victim reported the crimes about three months prior to defendant’s twenty-first birthday. The State filed the charges in district court shortly over a month after defendant turned twenty-one.

¶ 3 Defendant moved to dismiss the charges, contending that the district court lacked jurisdiction to try him for crimes he allegedly committed as a juvenile. The district court denied defendant’s motion, and we granted his petition for interlocutory review.

ISSUES AND STANDARD OF REVIEW

¶ 4 Defendant contends that the district court erred by concluding it had jurisdiction over the criminal prosecution of a person who is twenty-one years old or older but who is charged with crimes allegedly committed as a juvenile. District court and juvenile court jurisdiction are defined by statute. See Utah Code Ann. §§ 78-3-4, 78-3a-104, -105, -121, -501, -601 to -603, -801 (1996 & Supp.2002). “This court reviews a district court’s statutory interpretation for correctness, affording no deference to the district court.” State v. McGee, 2001 UT 69, ¶ 6, 31 P.3d 531.

¶ 5 Defendant further contends that if we conclude that our statutes grant the district court jurisdiction in this case, then the statutory scheme is unconstitutional under article I, section 24 of the Utah Constitution as well as article I, section 9 and the Due Process provisions of the United States Constitution. However, he raises his constitutional arguments for the first time on appeal. “The general rule is that issues not raised [in the district court] cannot be argued for the first time on appeal, and this rule applies to constitutional questions.” State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994); see also Utah R.App. P. 5(c)(1)(B) (stating that a petition for interlocutory review must contain “a demonstration that the issue was preserved in the trial court”). Because defendant has not asserted either of the exceptions to the general rule — plain error or exceptional circumstances — we decline to address defendant’s constitutional issues. See Lopez, 886 P.2d at 1113.

ANALYSIS

¶ 6 “[0]ur primary goal in interpreting statutes is to give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve.” State v. Burns, 2000 UT 56, ¶ 25, 4 P.3d 795. “We need look beyond the plain language only if we find some ambiguity.” Id.

¶ 7 Utah Code Ann. section 78-3-4(1) states: “The district court has original jurisdiction in all matters civil and criminal, not excepted in the Utah Constitution and not prohibited by, law.” The import of this language on the instant appeal is clear; specifically, the district court has jurisdiction over proceedings against a person twenty-one years of age or older who has been charged with crimes he allegedly committed when he was under eighteen years of age, unless some other provision prohibits such jurisdiction.

¶ 8 Defendant directs us to section 78-3a-104(l)(a). He argues that the “plain language” of that section vests the juvenile court with “exclusive, original jurisdiction over [all] offenses committed by minors, except in limited circumstances” that are not applicable here. He is mistaken.

¶ 9 Section 78-3a~104(l)(a) reads:

(1) Except as otherwise provided by law, the juvenile court has exclusive original jurisdiction in proceedings concerning:
(a) a minor who has violated any federal, state, or local law or municipal ordinance or a person younger than 21 years of age who has violated any law or ordinance before becoming 18 years of age, regardless of where the violation occurred, excluding traffic laws and boating and ordinances[.]

This section does not grant the juvenile court jurisdiction over all offenses committed by minors. Id. Rather, it grants the juvenile court jurisdiction in proceedings against two classes of persons: (1) persons who are minors and who have violated any law, and (2) persons who are younger than twenty-one years of age and who violated any law before becoming eighteen years of age. Id. This section plainly categorizes juvenile court proceedings against persons accused of violating the law according to the age of those persons at the time proceedings are commenced. Thus, to adopt defendant’s suggestion that this section gives the juvenile court exclusive jurisdiction over all offenses committed by minors, regardless of the age of the person when the proceedings are commenced, would render the language concerning proceedings against persons younger than twenty-one years of age superfluous. “ ‘In analyzing a statute’s plain language, we must attempt to give each part of the provision a relevant and independent meaning so as to give effect to all of its terms.’ ” Burns, 2000 UT 56 at ¶ 25, 4 P.3d 795 (quoting V-1 Oil Co. v. State Tax Comm’n, 942 P.2d 906, 917 (Utah 1996)). We therefore conclude that section 78-3a-104(l)(a) does not limit the general grant of jurisdiction made to the district court in section 78-3-4 so as to preclude its jurisdiction over proceedings against persons twenty-one years of age or older at the commencement of the proceedings who have violated any law at any age. See id.

¶ 10 Utah law would not always have yielded this result. From 1931 through 1965, the juvenile court was given jurisdiction over all misdemeanors if the offender was “under the age of eighteen years at the time of committing the alleged offense.” Utah Code Ann. § 55-10-7 (1963) (emphasis added); see also id. § 55-10-7 (1963 & Supp.1967) (historical notes); State v. Musser, 110 Utah 534, 565-66, 175 P.2d 724, 740-41 (1946) (vacating two defendants’ district court misdemeanor convictions because those defendants were un-

der age eighteen at time of alleged crimes), vacated by 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562 (1948) (vacating, on other grounds, additional defendants’ convictions); Sanders v. Metro. Life Ins. Co., 104 Utah 75, 85, 138 P.2d 239, 244-45 (1943) (Larson, J., concurring). As for felonies, from 1907 to 1911, juveniles charged with felonies were tried in district court, see 1911 Utah Laws ch. 58, § 2; Compiled Laws of Utah § 720x11 (1907); and from 1931 to 1964, the district and juvenile courts had concurrent jurisdiction over felony violations by juveniles committed between their fourteenth and eighteenth birthdays. See Utah Code Ann. § 55-10-5(2) (1963 & Supp.1967) (historical notes).

¶ 11 In 1965, the legislature changed the statute defining juvenile court jurisdiction over violations of law to read:

If during the pendency of a criminal or quasi-criminal proceeding in another court, including a preliminary hearing, it shall be ascertained that the person charged is under twenty-one years of age and was less than eighteen years of age at the time of committing the alleged offense, that court shall transfer the case to the juvenile court, together with all the papers, documents, and transcripts of any testimony connected therewith.

Utah Code Ann. § 78-3a-18 (1977) (historical notes). In 1996, the legislature changed the statutory language defining juvenile court jurisdiction over violations of law to its current form. Utah Code Ann. § 78-3a-104(l)(a) (Supp.2002) (historical notes).

¶ 12 Because current sections 78-3-4 and 78-3a-104(l)(a) are unambiguous, the statutory history just reviewed, while instructive in some respects, offers neither persuasive nor mandatory authority in our interpretation of current district and juvenile court jurisdiction. Section 78-3-4 plainly grants district courts jurisdiction over criminal matters generally, and section 78-3a-104(l)(a) clearly does nothing to prohibit the exercise of district court jurisdiction in proceedings involving persons twenty-one years of age and older who have committed crimes at any age.

¶ 13 Defendant in the instant case had passed his twenty-first birthday at the time criminal proceedings against him were commenced. Therefore, the district court did not err in concluding that it had jurisdiction over those proceedings.

¶ 14 Despite his purported reliance on the “plain language” of section 78-3a-104(l)(a), much of defendant’s argument actually attempts to distill from the whole of the current statutory scheme a legislative intent that is at odds with the plain language of sections 78-3^1 and 78-3a-104(l)(a). He asserts, for example, “a legislative intent that persons will no longer be subject to prosecution for offenses committed as minors after they turn twenty-one.” Where there is ambiguity, we may look to the statutory scheme to divine legislative intent. Bums, 2000 UT 56 at ¶ 25, 4 P.3d 795. However, “a statute’s unambiguous language ‘may not be interpreted to contradict its plain meaning.’ ” Id. (quoting Zoll & Branch, P.C. v. Asay, 932 P.2d 592, 594 (Utah 1997)). Here the relevant statutory language is unambiguous.

1115 Defendant also cites State v. Walker, 743 P.2d 191 (Utah 1987), and cases from several other jurisdictions in support of his contentions. Walker involved the prosecution in district court of a defendant who was between his eighteenth and twenty-first birthdays at the time of his prosecution. Id. at 191-94. This court held that in such a criminal proceeding the State must prove beyond a reasonable doubt that the defendant was over the age of eighteen when he committed the charged crime; otherwise, jurisdiction must be transferred to the juvenile court. Id. at 198-99. That holding is plainly consistent with section 78-3a-104(l)(a). However, because defendant in this case had passed his twenty-first birthday when the proceedings were commenced against him, Walker ⅛ holding does not apply here. Finally, we cannot rely on cases defendant cites from other jurisdictions to reach a conclusion contrary to the plain language of our own statutes. Under our current statutory scheme, it is left to the wisdom of the prosecutor and the trial judge to make allowance, in possible plea negotiations and at sentencing, for the fact that defendant was under the age of eighteen when he allegedly committed the crimes for which he is charged.

CONCLUSION

¶ 16 Section 78-3-4 grants the district court jurisdiction “in all matters civil and criminal, not excepted in the Utah Constitution and not prohibited by law.” The plain language of section 78-3a-104(l)(a) does not prohibit district court jurisdiction in criminal proceedings against a person twenty-one years of age and older, regardless of when it is alleged he committed his crimes. Defendant does not direct us to any other provision that would prohibit district court jurisdiction over criminal proceedings against persons twenty-one years of age and older, and we are likewise aware of none. The proceedings in this case were commenced after defendant’s twenty-first birthday. We therefore affirm the district court’s order that it has jurisdiction over those proceedings.

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

      . Because no relevant substantive changes have been made to the applicable statutory sections over the time relevant to this case, we cite the current code sections unless otherwise indicated.

      . Then-current section 78-3A-18, rather than section 78-3a-104(l)(A), was in effect at the time of the crimes in Walker. See Utah Code Ann. § 78-3a-18 (1977). However, the substance of those sections, relative to the decision in Walker, is the same.


text:
    2002 UT 119
    STATE of Utah, Plaintiff and Petitioner, v. Joseph P. TUNZI, Defendant and Respondent.
    No. 20010676.
    Supreme Court of Utah.
    Dec. 10, 2002.

      Mark L. Shurtleff, Att’y Gen., J. Frederic Voros, Jr., Asst. Att’y Gen., Bryon F. Bur-mester, Salt Lake City, for petitioner.
    Joan C. Watt, John O’Connell, Salt Lake City, for respondent.
   WILKINS, Justice:

¶ 1 We granted the State’s petition for certiorari to review the court of appeals’ decision in State v. Tunzi, 2001 UT App 224, 31 P.3d 588, which interpreted Utah Code Ann. section 78-3a-602 (1996) and vacated the district court’s sentence, remanding Tun-zi’s case to juvenile court for further proceedings. We reverse.

BACKGROUND

¶ 2 Tunzi was bound over to district court by the juvenile court under the then-current version of section 78-3a-602 to stand trial as an adult for the charge of attempted murder. Tunzi was acquitted of the charge of attempted murder, but was found guilty of aggravated assault. He argued before the district court that it was required to remand his case to the juvenile court because he was acquitted of the charge for which he was bound over. The court refused to remand and Tun-zi appealed. Because of problems with the record, Tunzi’s conviction was reversed and the ease remanded for new a trial.

¶3 After remand, Tunzi agreed to plead guilty to aggravated assault and was sentenced. Tunzi appealed the sentence to the court of appeals, arguing again that the district court was bound to remand his case to juvenile court for any proceedings necessary after the finding of guilt for aggravated assault. The court of appeals reversed, holding that section 78-3a-602(10) requires remand to the juvenile court when a youthful offender is acquitted of the specific charge for which he was bound over, even when he is convicted of another charge arising from the same criminal episode.

ANALYSIS

¶ 4 The controlling issue in this case is whether, under the then-existing version of section 78-3a-602, the district court loses jurisdiction over a minor who is acquitted of the charge for which he was bound over by the juvenile court but is convicted of a different offense arising from the same criminal episode. Our analysis applies only to the 1996 statute, not to subsequent amendments, and is controlled by the ease of State v. Houskeeper, 2002 UT 118, 62 P.3d 444. As is fully explained in Houskeeper, we have held that the plain language of section 78-3a-602(10) allows the district court to retain jurisdiction over minors such as Tunzi who are found guilty of charges arising from the same criminal episode as that for which they are bound over. Id. at ¶ 22, 62 P.3d at 450. Such is the case here. Accordingly, we reverse the court of appeals and affirm the sentence imposed by the district court.

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


author: RUSSON, Justice:

text:
    2002 UT 120
    STATE of Utah, Plaintiff and Appellee, v. Francisco GOMEZ, Defendant and Appellant.
    No. 20001091.
    Supreme Court of Utah.
    Dec. 10, 2002.

      Mark L. Shurtleff, Att’y Gen., Christopher D. Ballard, Asst. Att’y Gen., Salt Lake City, for plaintiff.
    Edward R. Montgomery, Salt Lake City, for defendant Kara L. Barton, Salt Lake City, for amicus Rape Crisis Center.
    Douglas E. Beloof, Gina McClard, Portland, Oregon, for amicus National Alliance to End Sexual Violence.
   RUSSON, Justice:

¶ 1 Francisco Gomez (“Gomez”) was charged with rape, a first degree felony. A jury found him guilty as charged, and the trial court sentenced him to a prison term of five years to life at the Utah State Prison. He now appeals his conviction.

BACKGROUND

¶ 2 On the evening of July 4, 1999, Gomez and his long-time girlfriend Michelle Segura (“Michelle”) were throwing a holiday party at their home in Salt Lake City. Michelle’s brother Mike Segura (“Mike”) attended the party with his then girlfriend and future wife Rachelle Gallegos (“Gallegos”). Gallegos was drinking at the party, becoming intoxicated to the point of vomiting and eventually passing out. Mike moved Gallegos to Michelle’s bed and left the party.

113 Gallegos does not remember anything from the time she passed out to the time she awoke. She remembers regaining consciousness on the couch in the living room. Gomez was on top of and engaged in sexual intercourse with her. Initially, Gallegos thought it was Mike that was on top of her, but she then realized that it was in fact Gomez. Gallegos pushed Gomez off and ran to the bathroom. Later that morning, Mike returned to pick up Gallegos. Gallegos left with Mike, and she told him that Gomez had raped her. Mike took Gallegos to the hospital.

¶ 4 Detective Heather Stringfellow (“Detective Stringfellow”) interviewed Gomez regarding Gallegos’ allegations that Gomez had raped her. Gomez admitted having sex with Gallegos but insisted that it was consensual. According to Gomez, he had awakened during the night to make sure that the front door was locked, and as he returned to his bedroom, he tripped over Gallegos and fell on top of her. Gomez claimed that Gallegos started hugging and kissing him, that she lowered' her shorts while he lowered his pants, and that they had sexual intercourse.

¶ 5 Gomez also provided a written statement to Detective Stringfellow describing the events of that night. In his written statement, Gomez claimed that after he checked the front door, Gallegos touched him on his backside, which led to touching and kissing. Gomez explained that when they heard a noise in the bathroom they stopped what they were doing and put their clothes back on because Gallegos had expressed a fear that they might get caught.

PROCEDURAL HISTORY

¶ 6 The State charged Gomez with one count of rape, a first degree felony, in violation of Utah Code Ann. § 76-5-402 (1999). On November 23, 1999, prior to trial, Gomez subpoenaed the Rape Crisis Center (“Center”), requesting “copies of all reports, documents, and interview summaries (including the report of Monica Maio) regarding Rachelle L. Gallegos.” On December 10, 1999, the Center moved to quash the subpoena, arguing that the records sought by Gomez were subject to an absolute statutory privilege under the Confidential Communications for Sexual Assault Act (“Act”), Utah Code Ann. § 78-3c-4 (1996). On December 20, 1999, Gomez moved to compel discovery of the Center’s records pursuant to the subpoena. The State joined the Center in opposition to the subpoena. The trial court held a hearing on the issue on March 22, 2000. In a memorandum decision on April 5, 2000, the trial court granted the Center’s motion to quash the subpoena and denied Gomez’s motion to compel. The trial court held that the rape crisis counselor privilege created by section 78-3c-4 of the Utah Code did not contain any exceptions that would allow or compel the trial court to conduct an in camera review of the Center’s records and that even if it did, Gomez’s request for documents was nothing more than a generalized fishing expedition. The trial court also held that the records were protected by Utah Rule of Evidence 506. Finally, the trial court concluded that the denial of access to the Center’s records would not deprive Gomez of his constitutional right of due process of law or to confront witnesses.

¶ 7 At trial, Gomez sought to cross-examine Gallegos about her alleged use of a false identification card to gain entry into bars for the purpose of underage consumption of alcohol. The State opposed this line of questioning. The trial court, after hearing both parties’ respective positions on the issue, prohibited Gomez from pursuing this line of questioning. The trial court held that Gallegos’ alleged use of a false identification card was only slightly probative of her truthfulness and that the evidence would tend to inflame the jury against Gallegos because of the great concern in Utah over underage drinking. Therefore, the trial court concluded that “the probative value of [the] evidence [was] substantially outweighed by unfair prejudice” and prevented Gomez from cross-examining Gallegos about the alleged use of a false identification card.

¶ 8 The trial then proceeded and resulted in a jury verdict finding Gomez guilty of rape for which he was sentenced to a prison term of five years to life.

¶ 9 On appeal, Gomez argues that the trial court erred by refusing to conduct an in camera review of the Center’s records regarding Gallegos and thereby deprived Gomez of his “Constitutional right to a fair trial.” Furthermore, Gomez argues that the trial court committed reversible error by refusing to allow him to cross-examine Gallegos regarding her alleged use of a false identification card.

¶ 10 The State maintains that (1) the Center’s records are absolutely privileged under the Act, (2) the trial court’s interpretation and application of the Act as creating an absolute privilege was correct, and (8) the trial court’s refusal to conduct an in camera review of the Center’s records and the trial court’s denial of access by Gomez to the Center’s records was correct and did not deprive him of his right to a fair trial. The State also argues in the alternative that even if Gomez were entitled to an in camera review of the Center’s records, he was not entitled to automatic and unfettered access but first had to have made a specific request for exculpatory evidence that he knew with reasonable certainty to exist in the Center’s files, a threshold burden he failed to meet. The State also contends that the trial court did not abuse its discretion in prohibiting Gomez from cross-examining Gallegos on her alleged use of a false identification card.

STANDARD OF REVIEW

¶ 11 “ ‘Generally, we review a trial court’s legal conclusions for correctness, according the trial court no particular deference.’ ” Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94, ¶ 11, 54 P.3d 1177 (quoting Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998)). Specifically, whether the trial court properly interpreted and applied the Confidential Communications for Sexual Assault Act in this case is a question of law that we review for correctness. See id.; State Dep’t of Natural Res. v. Huntingtom-Cleveland Irrigation Co., 2002 UT 75, ¶ 12, 52 P.3d 1257. Furthermore, “the issue of ‘[wjhether a statute is constitutional is a question of law, which we review for correctness, giving no deference to the trial court.’ ” Grand County v. Emery County, 2002 UT 57, ¶ 6, 52 P.3d 1148 (quoting State v. Daniels, 2002 UT 2, ¶ 30, 40 P.3d 611).

¶ 12 Finally, the trial court “has broad discretion in restricting the scope of cross-examination,” and on appeal the trial court’s “ruling [regarding the scope of cross-examination] is reviewed under an abuse of discretion standard.” United States v. Rocha, 916 F.2d 219, 242 (5th Cir.1990); see also United States v. Williamson, 202 F.3d 974, 978-79 (7th Cir.2000); United States v. James, 139 F.3d 709, 713 (9th Cir.1998); Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 339 (2d Cir.1993). Likewise, “[t]rial courts have wide discretion in determining relevance, probative value, and prejudice.” State v. Kell, 2002 UT 106, ¶ 27, 61 P.3d 1019. Therefore, to the extent the trial court excluded certain cross-examination testimony sought by Gomez in this case on the grounds that it lacked probative value or that the testimony’s probative value would be outweighed by unfair prejudice, “we review [the trial court’s] admissibility determination! ] for abuse of discretion.” Id. “In general, this [c]ourt will not reverse the trial court’s ruling on evidentiary issues unless it is manifest that the trial court so abused its discretion that there is a likelihood that injustice resulted.” State v. Gentry, 747 P.2d 1032,1035 (Utah 1987).

ANALYSIS

I. CONSTITUTIONALITY OF RAPE CRISIS COUNSELOR PRIVILEGE

¶ 13 On appeal, Gomez first argues that the trial court erred as a matter of law in concluding that it did not have the authority to conduct an in camera review of the Center’s records because the Act rendered those records privileged. According to Gomez, the trial court’s conclusion and refusal to review the Center’s records in camera infringed his constitutional right to a fair trial. In making his constitutional argument, Gomez asserts, “Under Utah R. Evid. 506(d)(1), the Fourteenth Amendment, Ritchie, and Cardall> trial courts are obligated to review in camera, and if material, disclose to the defendant, the information that is germane to the defense.”

¶ 14 The statutory privilege at issue here was created by the Confidential Communications for Sexual Assault Act, Utah Code Ann. § 78-3c-4 (1996), and is an absolute privilege under the circumstances of this case. The Act provides:

The confidential communications between a victim and a sexual assault counselor [are] available to a third person only when:
(1) the victim is a minor and the counselor believes it is in the best interests of the victim to disclose the confidential communication to the victim’s parents;
(2) the victim is a minor and the minor’s parents or guardian [has] consented to disclosure of the confidential communication to a third party based upon representations made by the counselor that it is in the best interests of the minor victim to make such disclosure;
(3) the victim is not a minor, has given consent, and the counselor believes the disclosure is necessary to accomplish the desired result of counseling; or
(4) the counselor has an obligation under Title 62A, Chapter 4, to report information transmitted in the confidential communication.

Id. § 78-3c-4.

¶ 15 In the instant case, Gallegos was not a minor when the confidential communications were made to the sexual assault counselor at the Center and the counselor was not obligated to report any of the information in the confidential communications under Title 62A, Chapter 4. Moreover, Gallegos did not consent to the disclosure of the confidential communications. Therefore, because none of the exceptions to the privilege apply in this case and Gallegos did not consent to disclosure of the confidential communications, the privilege afforded the confidential communications between Gallegos and the sexual assault counselor at the Center is absolute. Under the statute, the trial court has no authority to compel either Gallegos or the Center to produce the Center’s records for an in camera review.

¶ 16 It is precisely the absolute nature of the privilege provided in this particular statute that distinguishes this case from Ritchie and Cardall. Because the statutory privilege here is absolute, Ritchie and Cardall do not control this case as Gomez suggests.

¶ 17 In Ritchie, the defendant was charged with rape, involuntary deviate sexual intercourse, incest, and corruption of his minor daughter. 480 U.S. at 43, 107 S.Ct. 989. The defendant’s daughter reported the incidents of sexual abuse to the police, who referred the matter to the Pennsylvania Child and Youth Services agency (“PCYS”), a protective service agency charged with investigating cases of alleged mistreatment and neglect. Id. During pretrial discovery, Rit-chie subpoenaed PCYS, seeking that agency’s records concerning the daughter. Id. PCYS refused to comply with Ritchie’s request for records, claiming that the records were privileged under Pennsylvania law. Id. The statute relied upon by PCYS required that all reports and other information gathered in the course of a PCYS investigation be kept confidential. Id. The requirement of confidentiality was subject to eleven exceptions, one of which provided that the agency could disclose reports and information to a court of competent jurisdiction pursuant to a court order. Id. at 44,107 S.Ct. 989.

¶ 18 In Ritchie, the United States Supreme Court held that if a defendant demonstrates that records protected by a qualified or conditional privilege contain evidence that is material to the defendant’s defense, due process requires a trial court to review the privileged records in camera to determine whether they do, in fact, contain material evidence. The distinction between a qualified or conditional privilege and an absolute one was central to the Court’s decision in that case. In holding that the defendant had a due process right to an in camera review of the privileged records in the case of the qualified privilege at issue in Ritchie, the Court explained:

Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants [P] CYS the absolute authority to shield its files from all eyes. Cf. 42 Pa. Cons.Stat. § 5945.1(b) (1982) (unqualified statutory privilege for communications between sexual assault counselors and victims).

480 U.S. at 57,107 S.Ct. 989.

¶ 19 Immediately following this explanation that the qualified nature of the privilege at issue in Ritchie was key to its opinion in that case, the Court reiterated in a footnote, “We express no opinion on whether the result in this case would have been different if the statute had protected the [P] CYS files from disclosure to anyone, including law-enforcement and judicial personnel.” Id. at n. 14. The Court clearly limited its holding in Ritchie to the due process implications of a qualified or conditional privilege and left for another day the question of the effect and operation of an absolute privilege in this context. Id.

¶ 20 On appeal, Gomez merely relies on Ritchie and asserts that that decision controls in this case. It does not, and we do not rely on or apply Ritchie here. Gomez offers no legal analysis or argumentation that the Ritchie holding should be extended to encompass an absolute sexual assault counselor privilege. Gomez has failed to provide us with any argumentation or authority that would warrant stretching Ritchie beyond its current bounds. We will not make or develop Gomez’s arguments for him. As we have all too often had to reiterate, “ ‘a reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research.’ ” State v. Bishop, 753 P.2d 439, 450 (Utah 1988) (quoting Williamson v. Opsahl, 92 Ill.App.3d 1087, 48 Ill.Dee. 510, 416 N.E.2d 783, 784 (1981)); see also, e.g., Peterson v. Sunrider Corp., 2002 UT 43, n. 9, 48 P.3d 918; Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 37 & n. 8, 38 P.3d 291 (citing myriad examples of inadequately briefed cases).

¶ 21 Gomez similarly relies on this court’s decision in State v. Cardall, 1999 UT 51, 982 P.2d 79, to support his argument that he is entitled to have the trial court conduct an in camera review of Gallegos’ privileged sexual assault counseling records. Again, his reliance is misplaced.

¶ 22 In Cardall, the defendant was charged with rape of a child. Id. at ¶ 1. Prior to trial, Cardall moved the court to conduct an in camera review of his victim accuser’s school psychological records. Id. at ¶ 10. The trial court denied the motion. Id.

¶ 23 After his conviction by a jury, Cardall appealed, claiming that the trial court had erred in refusing to conduct the in camera review and that as a result he had been denied due process. In making his constitutional due process argument, Cardall relied on Ritchie. Id. at ¶ 27.

¶ 24 The privilege at issue in Cardall is found in rule 506 of the Utah Rules of Evidence. Rule 506 states in relevant part that “a patient has a privilege, during the patient’s life, to refuse to disclose and to prevent any other person from disclosing (1) diagnosis made, treatment provided, or advice given, by a physician or mental health therapist, (2) information obtained by examination of the patient.” Utah R. Evid. 506(b); see also Utah Code Ann. § 58-60-113 (1998) (“Evidentiary privilege for mental health therapists regarding admissibility of any confidential communication in administrative, civil, or criminal proceedings is in accordance with Rule 506 of the Utah Rules of Evidence.”).

¶ 25 We specifically recognized in Cardall that the privilege in rule 506 “is not absolute,” id. at ¶ 29, and noted the significant qualification to the rule where the rule provides that “no privilege exists [as to] ‘a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which that condition is an element of any claim or defense.’ ” Id. (quoting Utah R. Evid. 506(d)(1)).

¶ 26 In deciding Cardall, this court simply applied Ritchie to the qualified privilege found in rule 506. Id. at ¶¶ 27-32. The Cardall decision follows the United States Supreme Court’s reasoning in recognizing the qualified nature of .the privilege in rule 506. Id. at ¶¶ 30-31. The Cardall decision does not provide any new or different constitutional analysis beyond that established in Ritchie.

¶ 27 On appeal, Gomez again merely asserts that Cardall, like Ritchie, states the legal rule governing this case, and his analysis and argument go no further than to urge us to apply those two cases. However, because Ritchie and Cardall, in adopting and applying Ritchie, hinge upon the distinction between qualified and absolute privileges and present a different case than the one at hand, those cases do not govern our decision here. Even if our decision in Cardall could be stretched to encompass an absolute privilege, Gomez has not offered any analysis, argumentation, or authority to support such an extension. Again, this court will not make Gomez’s case on appeal for him. See Bishop, 753 P.2d at 450.

¶ 28 Besides simply relying on Ritchie and Cardall, Gomez asserts in two bald statements that the trial court’s failure to conduct an in camera review infringed his constitutional rights. Gomez argues that “under Utah R. Evid. 506(d)(1), the Fourteenth Amendment, Ritchie, and Cardall, trial courts are obligated to review in camera, and if material, disclose to the defendant, the information that is germane to the defense.” Gomez then concludes, “The trial court incorrectly held that it did not have the authority to review the Rape Counseling Center documents and in doing so deprived [him] of his Constitutional right to a fair trial.”

¶ 29 Other than his assertion that Ritchie and Cardall govern this case, Gomez offers no other independent constitutional analysis or authority supporting his two otherwise conclusory statements referencing the Fourteenth Amendment and his constitutional right to a fair trial. In this respect, Gomez has failed to adequately brief the constitutional issues in this case, and we therefore will not address them. See Peterson, 2002 UT 43 at n. 9, 48 P.3d 918 (declining to address inadequately briefed claim on appeal where claim was supported by “[a] single, vague sentence without citation to the record or legal authority”); State v. Gamblin, 2000 UT 44, ¶ 7, 1 P.3d 1108 (noting inadequacy of appellant’s brief where brief failed to provide “meaningful legal analysis” and “merely contained] one or two sentences stating his argument generally ... and then broadly conclude[d] that [appellant] is entitled to relief’); State v. Jaeger, 1999 UT 1, ¶ 31, 973 P.2d 404 (noting that adequate briefing “ ‘requires not just bald citation to authority but development of that authority and reasoned analysis based upon that authority’ ” and refusing to consider constitutional arguments for inadequate briefing where appellant merely cited relevant constitutional provisions and four cases but without any meaningful analysis of that authority (citation omitted)); MacKay v. Hardy, 973 P.2d 941, 948 n. 9 (Utah 1998) (noting numerous examples of refusal to consider inadequately briefed issues).

¶ 30 Therefore, the trial court did not err as a matter of law in interpreting or applying the statutory privilege set forth in the Confidential Communications for Sexual Assault Act and when it concluded that none of the exceptions in the statute applied in the present case, thus rendering the privilege absolute. Moreover, the trial court did not err in concluding that it had no authority under the statute or relevant case law to conduct an in camera review of the Center’s records concerning Gallegos. We do not reach Gomez’s argument that the trial court denied him his right to due process or a fair trial because those constitutional claims were not adequately briefed.

II. EXCLUSION OF TESTIMONY REGARDING USE OF FALSE IDENTIFICATION CARD

¶ 31 Gomez next argues that the trial court abused its discretion when it prohibited him from cross-examining Gallegos regarding her alleged use of a false identification card in an attempt to impeach Gallegos’ credibility.

¶32 Rule 608(b) of the Utah Rules of Evidence provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness....

Utah R. Evid. 608(b) (emphasis added).

¶ 33 A line of questioning on cross-examination regarding a witness’s specific instances of past conduct that is probative of the witness’s character for truthfulness or untruthfulness, and therefore admissible under rule 608(b), may still be limited or prohibited by the trial court in its sound discretion under rule 403. See State v. Rammel, 721 P.2d 498, 501 (Utah 1986) (excluding impeachment testimony where potential for prejudice substantially outweighed its probative value under substantially similar predecessor rule to modern rule 403); see also United States v. Leake, 642 F.2d 716, 718 (4th Cir.1981) (“[Rule 608(b)] recognizes that the trial court must have discretion to apply the overriding safeguards of rule 403.... ”); State v. Hall, 946 P.2d 712, 722-23 (Utah Ct.App.1997); 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6118, at 94 (1993) (“[T]he courts recognize that Rule[ ] 403 ... identifies] the principles controlling the exercise of discretion under Rule 608(b).”) [hereinafter Wright & Gold]. Rule 403 of the Utah Rules of Evidence provides in relevant part that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_” Utah R. Evid. 403.

¶ 34 Therefore, in the interplay of rules 608(b) and 403, “the court’s job is to balance the probative value of specific-instances evidence against the potential dangers and costs of that evidence.” Wright & Gold, § 6118, at 94. The trial court must (1) evaluate and consider the probative value of the proffered testimony, that is, the extent to which the proposed testimony is probative of truthfulness or untruthfulness, (2) determine the degree to which the proffered testimony may tend to inflame or prejudice the jury, and (3) balance the first two concerns to determine whether the danger of unfair prejudice substantially outweighs the testimony’s probative value.

¶ 35 The degree of probative value can be a function of several factors, including the relative importance of the credibility of the witness, the extent to which the evidence is probative of other relevant matters, the extent to which the circumstances surrounding the specific instances of conduct are similar to the circumstances surrounding the giving of the witness’s testimony, the remoteness in time of the specific instances to trial, and the likelihood that the alleged specific instances of conduct in fact occurred. See id. at 94-96; see also Hall, 946 P.2d at 722.

¶ 36 In the case at hand, the record reflects that the trial court, in rendering its decision to preclude the cross-examination of Gallegos concerning her alleged use of a false identification card, considered the relevant factors in determining the probative value of the proffered testimony. Having determined that the relative probative value of the testimony was fairly low, the trial court then balanced that low value against the potential of the testimony to inflame the jury and distract them from the real issue in the case, that is, the rape charge against Gomez, and the credibility of Gallegos for truthfulness or untruthfulness. In exercising its discretion in this manner, the trial court did not abuse its discretion such that “it is manifest that the trial court so abused its discretion that there is a likelihood that injustice resulted,” Gentry, 747 P.2d at 1035, and therefore, we will not reweigh and reevaluate the relevant factors and balance for ourselves the probative value of the testimony versus its potential prejudice in this case.

CONCLUSION

¶ 37 In sum, the trial court did not err in its interpretation and application of the privilege set forth in the Confidential Communications for Sexual Assault Act when it refused to conduct an in camera review of the Center’s records, thereby denying Gomez access to the information allegedly contained therein. Because Gomez failed to adequately brief his constitutional issues on appeal, we decline to address them. Furthermore, the trial court did not abuse its discretion in prohibiting Gomez from cross-examining Gallegos about her alleged possession and use of a false identification card. Therefore, Gomez’s conviction of rape is affirmed.

¶ 38 Chief Justice Durham, Associate Chief Justice Durrant, Justice Howe, and Justice Wilkins concur in Justice Russon’s opinion.

      . Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).

      . State V. Cardall, 1999 UT 51, 982 P.2d 79.

      .The reporting obligations under Title 62A, Chapter 4 referenced in section 78-3c-4 apply where the sexual assault can be characterized as child abuse or neglect.

      . The privilege at issue in this case is not the qualified therapist-patient privilege found in rule 506, but rather the absolute sexual assault counselor-victim privilege found in the Confidential Communications for Sexual Assault Act, Utah Code Ann. § 78-3c-4 (1996). The rule 506 privilege is not applicable because the volunteer counselors at the Center are neither physicians nor mental health therapists, rendering rule 506 inapplicable in that rule 506 protects statements made only to physicians and mental health therapists.

      . "Although the Federal Rules of Evidence are a separate body of law from the Utah Rules of Evidence, if the reasoning of a federal case interpreting or applying a federal evidentiary rule is cogent and logical, we may freely look to that case, absent a Utah case directly on point, when we interpret or apply an analogous Utah eviden-tiary rule.” State v. Fedorowicz, 2002 UT 67, n. 1, 52 P.3d 1194. Utah Rules of Evidence 608(b) and 403 are the federal rules verbatim.