author: RUSSON, Justice:

text:
    2003 UT 24
    STATE of Utah, Plaintiff and Appellee, v. John Vincent PRITCHETT, Defendant and Appellant.
    No. 20010498.
    Supreme Court of Utah.
    May 13, 2003.

      Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., James M. Cope, J. Kevin Murphy, Salt Lake City, for plaintiff.
    Ronald J. Yengich, Vanessa Ramos-Smith, Salt Lake City, for defendant.
   RUSSON, Justice:

'I 1 John Vincent Pritchett ("Pritchett") appeals his conviction for aggravated sexual abuse of a child, a first degree felony in violation of Utah Code Ann. § 76-5-404.1(8)(j) (1999). The trial court sentenced Pritchett to the statutory term of five years to life, but stayed execution of the sentence pending disposition of this appeal.

BACKGROUND

I. FACTS

12 The facts are recited in a light most favorable to the jury verdict.

¶ 3 On September 22, 1998, Pritchett spent the day with nine-year-old B.B., her mother (.B., and B.B's younger brother and sister. Pritchett had known the family since B.B. was five months old. The group went out for pizza and played in the park and then returned to the Blazor home. The children asked Pritchett to play hide-and-seek, and B.B. was disappointed when he declined. After watching television for a while, the children asked Pritchett to spend the night at the house, and he agreed to stay until the children fell asleep.

4 The children's rooms were being renovated, so G.B. prepared the sofa bed for the children to sleep on in the living room. The mattress on the sofa bed was encased in plastic and made noise whenever anyone sat or moved on it. After the children were in bed, Pritchett sat on the edge of the sofa bed and talked with G.B. until she fell asleep on another couch a few feet away. GB. later testified that she was not expecting Pritchett to join B.B. and the other children on the sofa bed, but that she was waiting for him to leave. Sometime before 10:30 p.m., Pritchett is alleged to have awakened B.B. by repeatedly pulling her underpants down to her knees and penetrating her vagina with his index and middle fingers. GB., who was on the couch asleep about three to five feet away, did not hear anything. B.B. did not say anything during the alleged incident, but made what she later described as a "leave me alone" sound. B.B. did, however, seratch Pritchett on the back with the claws of her pet turtle because she was mad at him.

¶5 Around 10:80 p.m., G.B. awoke when she heard water running and saw the living room light on. Pritchett was in the bathroom, and G.B. saw BB. tucked into the corner of the -sofa bed holding her turtle. G.B. asked B.B. why she was awake, and B.B. replied that she wanted Pritchett to

leave and never come back. When Pritchett came out of the bathroom, he was wearing only his pants, and his shirt was on the floor by the sofa bed. G.B. told Pritchett that it was time for him to leave, and they went out to the front porch and talked for a few minutes. While they were on the porch, B.B. made a "hate and like note," listing names of people she liked on one side of a piece of paper and names of those she did not like on the other. B.B. put Pritchett's name on the "hate" side of the list. She said nothing else to her mother that night.

¶6 At school the next day, September 283, B.B. attended an assembly where she saw a video about child molestation and the differences between "good touches and bad touches." In the car on the way home from school, B.B. told G.B. that Pritchett had touched her "private areas" and that Pritch-ett's "private touched hers and that he put it inside hers." B.B. also told her mother that she wanted her to call the police, but G.B. wanted to call the family doctor first. On the doctor's instructions, G.B. took B.B. to Primary Children's Hospital where she was examined on September 24 by Dr. Kadish ("Kadish") and interviewed by a police detective. Kadish concluded that B.B.'s genital examination was normal, but he could not "rule out the possibility of sexual abuse as the tissues may heal or not be injured in many cases of inappropriate touching."

1 7 Pritchett denies touching B.B.'s vaginal area with either his hand or his penis. He says that he joined the children on the sofa bed so that they would go to sleep. He claims that B.B. kept getting up to play with her turtle and that after he told her mother as much, G.B. told B.B. to go back to sleep, even "sereaming" at her at one point to put the turtle away and go to bed. Pritchett says that the scratches were the result of B.B. putting the turtle on his back while she was playing. He denies ever removing his shirt and says that he left the house because B.B. was not going to sleep. A forensic nurse, Su Bryner-Brown ("Bryner-Brown"), testified at trial that if Pritchett had had intercourse with B.B., Kadish's examination would have shown extensive trauma. Bryner-Brown did agree, however, that it would be possible for a child who had a penis rub her labia to have a normal exam. The nurse testified, in fact, that physical findings are rare in child molestation cases.

II. PROCEDURAL HISTORY

18 At trial, the State elicited testimony from .B., over repeated defense objections, about changes in B.B's behavior, how B.B. was not the same child as before, and why the family had moved out of state. Arguing that continued questioning about B.B.'s changed behavior constituted prosecutorial misconduct, Pritchett's defense counsel made a motion for mistrial, which the trial court subsequently denied. The trial court also allowed B.B. to refresh her memory by reviewing a transcript of the preliminary hearing, which contained her testimony of Pritch-ett penetrating her vagina with his fingers and his penis. Under initial direct examination, B.B. was unable to testify to anything other than Pritchett pulling down her underpants several times. After reviewing the transcript, she testified that Pritchett touched and penetrated her vagina with his fingers, but she could not testify that he touched or penetrated her vagina with his penis.

T9 Following the State's case, the defense moved for dismissal of both charges against Pritchett, count I, rape of a child, a first degree felony in violation of Utah Code Ann. § 76-5-402.1 (1999), and count II, aggravated sexual abuse of a child, a first degree felony in violation of Utah Code Ann. § 76-5-404.1(8)(J) (1999). The motion was based upon insufficiency of the State's evidence and B.B.'s incompetency to testify because of her lack of memory. The trial court denied the motion. After presentation of Pritchett's defense, the case was submitted to the jury, which acquitted Pritchett on count I and convicted him on count II. The defense moved for arrest of judgment, again arguing insufficiency of the State's evidence, and the trial court also denied that motion. Pritchett now appeals.

ANALYSIS

I. PROSECUTORIAL MISCONDUCT

10 The first issue Pritchett raises on appeal is that the trial court erred in not granting his motion for a mistrial based on prosecutorial misconduct. In State v. Harmon, 956 P.2d 262 (Utah 1998), we set forth the standard of review for this issue:

Because a trial court is in the best position to determine an alleged error's impact on the proceedings, we will not reverse a trial court's denial of a mistrial motion based on prosecutorial misconduct absent an abuse of discretion. This standard is met only if " 'the error is substantial and prejudicial such that there is a reasonable likelihood that in its absence, there would have been a more favorable result for the defendant.' " For purposes of determining whether a mistrial should have been granted, our overriding concern is that defendant received a fair trial.

Harmon, 956 P.2d at 276 (quoting State v. Hay, 859 P.2d 1, 7 (Utah 1993) (quoting State v. Gardner, 789 P.2d 273, 287 (Utah 1989))) (further quotations omitted). Furthermore, this court has held that "[a] prosecutor's comments constitute misconduct when they call the jurors' attention to matters not proper for their consideration and when the comments have a reasonable likelihood of prejudicing the jury by significantly influencing its verdict." State v. Pearson, 943 P.2d 1347, 1352 (Utah 1997).

11 In the present case, Pritchett alleges prosecutorial misconduct because the State continued to elicit testimony at trial from G.B. concerning changes in B.B.'s behavior, how B.B. was not the same child as before, and why the family moved out of state. When the prosecutor began this line of questioning, Pritchett's defense counsel objected that the testimony was irrelevant and hearsay, aimed at improperly bolstering B.B.'s credibility. The trial court requested a bench conference with respective counsel, a record of which does not exist, and subsequently overruled the objection, stating that the question fell "within the parameters of what we discussed here at the bench." The trial court subsequently overruled three more defense objections to questions posed to G.B. about changes in B.B.'s behavior, on grounds that the questions were within the limits established in the unrecorded bench conference. However, the trial court did sustain-on grounds other than improper bolstering-three other defense objections to questions about B.B.'s changed behavior, ruling that the specific questions were irrelevant, leading, and cumulative.

T12 Pritchett contends that the State's continued line of questioning over defense objections improperly bolstered B.B.'s credibility, thus calling "the jurors' attention to matters not proper for their consideration and ... prejudicing the jury by significantly influencing its verdict." Id. Pritchett's argument to this court, however, is merely conclu-sory, failing both to identify the "matters not proper" for the jury and to explain how the jury was "significantly influenced" by what it heard. Pritchett incorrectly relies on State v. Bates, 784 P.2d 1126 (Utah 1989), as authority to prohibit questioning as to changes in B.B.'s behavior following the alleged assault. In Bates, this court held that admission of expert testimony as to the veracity of a victim of sexual assault was reversible error. See also State v. Rimmasch, 775 P.2d 388 (Utah 1989) (holding that admission of expert scientific appraisal of victim's veracity when allegations of sexual abuse were made was prejudicial error). Clearly, neither Bates nor Rimmasch applies here, where no testimony, expert or otherwise, is presented as to B.B.'s veracity. Pritchett fails to present any authority prohibiting questioning about changes in B.B.'s behavior, and we decline to find it for him. See Peterson v. Sunrider Corp., 2002 UT 43, 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 contain[ed] one or two sentences stating his argument generally ... and then broadly conclude[d] that [appellant] is entitled to relief"). Accordingly, we conclude that the State's continued line of questioning did not constitute prosecutorial misconduct.

T183 Moreover, Pritchett is fatally handicapped in asserting trial court abuse of discretion by failure of the defense to make a record of the bench conference, where the court established guidelines for the State's examination of G.B. Absent a record, this court is in no position to review the trial court's subsequent overruling of defense counsel's objections to the State's line of questioning, particularly when the grounds for overruling were that the questions were "within the parameters of what [was discussed] at the bench." Indeed, when an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below. As this court has previously stated, "When crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court." State v. Linden, 761 P.2d 1386, 1388 (Utah 1988). Such is the case here, and as a result, we make a similar presumption.

14 Pritchett has failed to adequately argue to this court how the State's questioning of G.B. rose to the level of prosecutorial misconduct. Moreover, he has failed to preserve a record on appeal that would allow this court to evaluate the actions of the trial court, and we therefore presume the regularity of the proceedings. Accordingly, we find no abuse of discretion by the trial court and affirm denial of the motion for mistrial.

II. HEARSAY TESTIMONY

{15 Pritchett's second claim is that the trial court erred in denying his motion for a new trial based on the admission of improper hearsay testimony. In establishing a standard of review for this issue, we have stated that "we will not reverse a trial court's decision [to grant or deny a new trial] absent a clear abuse of ... discretion," State v. Harmon, 956 P.2d 262, 266 (Utah 1998), but "[alny legal determinations made by the trial court as a basis for its denial of a new trial motion are reviewed for correctness," State v. Loose, 2000 UT 11, ¶ 8, 994 P.2d 1237.

At the preliminary hearing prior to trial, B.B. testified that Pritchett (1) pulled down her underpants several times, (2) penetrated her "private area" with his index and middle fingers, and (8) "sticked his privates inside her private" area. At trial, under initial direct examination, B.B. was unable to testify to anything other than Pritchett pulling her underpants down. After the prosecution gave B.B. a copy of the transcript of her preliminary hearing testimony to refresh her memory, she testified under direct examination that Pritchett used his middle and index fingers to play with her "private area." Then under cross-examination, without reference to the preliminary hearing transcript, she repeated her testimony that Pritchett "playled] with [her] private." Finally, on redirect, B.B. testified, again without relying on the preliminary hearing transcript, that Pritchett "touched [her] private part." B.B. was not able to testify, however, that Pritch-ett had either touched her or penetrated her with his penis.

17 Pritchett argues that allowing B.B. to review her preliminary hearing testimony at trial constituted improper admission of hearsay evidence. Pritchett claims that B.B. could not testify directly of any digital penetration without the preliminary hearing transcript testimony, which was given without any cross-examination of B.B. by the defense. Thus, Pritchett concludes that having B.B. review her preliminary testimony was equivalent to admitting the transcript as evidence, that such evidence was hearsay, and that its admission violated his right to confrontation of witnesses against him as guaranteed by the Utah Constitution. We disagree with Pritchett's characterization of the use of the preliminary hearing transcript and the conclusions he draws from that characterization.

We note initially that to the extent Pritchett argues that B.B.'s testimony at trial was improperly refreshed by her review of the preliminary hearing transcript, the defense failed to preserve any objection to such refreshment in the record. As a result, Pritchett's argument, raised here for the first time on appeal, that B.B.'s testimony of Pritchett playing with her "private area" with his middle and index fingers was improperly refreshed is not properly before this court. "Trial counsel must state clearly and specifically all grounds for objection. Inasmuch as [counsel failed] to assert a claim ... at the trial court, the issue is not properly preserved for appeal." State v. Larsen, 865 P.2d 1355, 1363 n. 12 (Utah 1993). In addition, Pritchett fails to state any exception to the preservation rule, and as a consequence, any argument of improper refreshment is waived. State v. Pledger, 896 P.2d 1226, 1229 n. 5 (Utah 1995).

119 Nevertheless, B.B.'s testimony at trial was correctly refreshed in accordance with Utah Rule of Evidence 612, which states in relevant part as follows:

If a witness uses a writing to refresh the witness' memory for the purpose of testify, ing, either
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

Utah R. Evid. 612; see also Edward L. Kim-ball & Ronald E. Boyce, Utah Evidence Law, 6-58 (1996) [hereinafter Utah Evidence Law ] ("Generally an examining party may refresh a witness's recollection where the witness's memory is weak. Anything that will quicken the witness's memory may be used.").

120 The transcript of B.B.'s preliminary hearing testimony was "produced at the hearing," defense counsel had opportunity "to inspect it," and B.B. was cross-examined by the defense. The transcript was not introduced into evidence only because the defense objected to its admission on grounds that B.B.'s inability to remember portions of her preliminary hearing testimony did not render her "unavailable as a witness" at trial. Thus, the transcript of B.B.'s preliminary hearing testimony was correctly introduced according to Utah Rule of Evidence 612 to refresh B.B.'s memory for "the purpose of testifying."

121 Having thus refreshed her memory, B.B. was able to testify as to Pritchett's digital penetration of her vagina under direct, cross-, and redirect examination. See supra 116. Since B.B. testified at trial, independent of the preliminary hearing transcript, and was subject to cross-examination, the transcript itself was not hearsay evi-denee, as Pritchett contends. See also Utah Evidence Law 6-58 ("If a document is used [to refresh memory], it does not matter who prepared it or when it was prepared, because the document is not evidence any more than an electric shock would be evidence just because it triggered memory." (emphasis add- - ed)). As a result, his right to confrontation was not violated. We find no error in the trial court's legal determination allowing B.B. to refresh her memory with the transcript of her preliminary hearing testimony. Consequently, the transcript was not improper hearsay testimony, and the trial court did not abuse its discretion in denying Pritchett's motion for a new trial based on his characterization of it as such. Accordingly, we affirm the trial court's denial of Pritchett's motion for a new trial.

III. INSUFFICIENCY OF EVIDENCE

122 Pritchett's third issue raised on appeal is that the trial court erred in not granting his motion for arrest of judgment, based on insufficient evidence to support the jury verdict convicting him of aggravated sexual abuse. This court has stated that in order to prevail on a sufficiency challenge to a jury verdict, "the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." State v. Hopkins, 1999 UT 98, ¶ 14, 989 P.2d 1065 (quotation omitted). We will not overturn a jury verdict unless the evidence presented at trial is "so insufficient that reasonable minds could not have reached the verdict." State v. Colwell, 2000 UT 8, ¶ 42, 994 P.2d 177.

1123 Section 76-5-404.1 of the Utah Code provides that a person commits aggravated sexual abuse of a child if that person had "intent to cause substantial emotional or bodily pain'" or "intent to arouse or gratify the sexual desire of any person," and caused "the penetration, however slight, of the genital or anal opening of the child by any part or parts of the human body other than the genitals or mouth." Utah Code Ann. § 76-5-404.1(1), (38)(j) (1999). Pritchett contends that the State's evidence at trial failed to establish the elements of the crime for which he was convicted by the jury.

124 Pritchett argues that his conviction for aggravated sexual abuse rests solely on a transcript of B.B.'s redacted preliminary hearing testimony regarding the alleged rape that was admitted as substantive evidence. For reasons set forth in part II of the analysis above, we reject Pritchett's reasoning that the redacted preliminary hearing tran-seript is the only evidence that supports his conviction, as did the jury. To the contrary, B.B.'s refreshed trial testimony independently and sufficiently established the elements of the crime to the satisfaction of the jury, which found Pritchett guilty of aggravated sexual abuse.

125 Pritchett's burden on appeal against the jury verdiet is to "first marshal all record evidence that supports the challenged finding." Utah R.App. P. 24(a)(9). Such a burden is indeed significant, and requires Pritchett to "marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." Hopkins, 1999 UT 98 at ¶ 14, 989 P.2d 1065. In his brief on appeal to this court, however, Pritchett fails entirely to address the evidence supporting aggravated sexual abuse-the crime for which he was convicted. He focuses instead on the preliminary hearing transcript evidence supporting rape-the crime of which he was acquitted.

126 As a result, Pritchett fails both to meet his marshaling burden required by our court rules and to demonstrate how the evidence against him was "so insufficient that reasonable minds could not have reached the verdict." Colwell, 2000 UT 8 at ¶ 42, 994 P.2d 177. Accordingly, we affirm the trial court's denial of Pritchett's motion for arrest of judgment.

IV. CONSTITUTIONALITY OF SECTION 76-5-406.5(1)(h) OF THE UTAH CODE

T 27 The fourth and final challenge Pritch-ett makes on appeal is to the constitutionality of section 76-5-406.5(1)(h) of the Utah Code (1999), which requires him to admit the offense for which he has been convicted in order to be considered for probation. Specifically, Pritchett claims that this requirement violates his right of due process, protection against self-incrimination, and guarantee of equal protection under the Fifth and Fourteenth Amendments to the United States Constitution.

$28 Section 76-5-406.5(1) provides that a convicted child sex offender can qualify for probation to a residential sexual abuse treatment center if the offender meets twelve statutory requirements that indicate such treatment will have a high probability of success. Among these requirements is that "the defendant admit[ ] the offense of which he has been convicted." Utah Code Ann. § 76-5-406.5(1)(b). In so challenging this statutory requirement, Pritchett's burden is heavy. " 'A constitutional challenge to a statute presents a question of law, which we review for correctness.... When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality.' " State v. Morrison, 2001 UT 73, ¶ 5, 31 P.3d 547 (quoting State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191).

$29 We note at the outset that in regard to Pritchett's equal protection claim, this court has already stated that child sex abusers do not " 'generally constitute a sus-peet class entitled to either a heightened or an intermediate level of serutiny.' " State v. Copeland, 765 P.2d 1266, 1269 (Utah 1988) (quoting State v. Bishop, 717 P.2d 261, 266 (Utah 1986). As a result, the child sex offender classification under examination here will stand if it " 'bears a reasonable and substantial relation to a legitimate state objective." " Id. (quoting State v. Amicone, 689 P.2d 1341, 1343 (Utah 1984)).

T 30 Sexual assault of a child is an especially damaging crime, and it is because of the "long-term and perhaps lifetime" effects upon the victim that "tlhe State clearly has a strong interest in protecting children from sexual abuse and exploitation." Bishop, 717 P.2d at 267. In fact, in State v. Johnson, 856 P.2d 1064, 1073 (Utah 1993), we previously observed that "[a] primary purpose of the probation statute [section 76-5-406.5] is to avoid compounding the harm already suffered while protecting the victim from further abuse." In regard to child sex crimes, the State has a clearly legitimate interest: protecting children as current or potential victims, and-to the extent that it is possible-rehabilitating convicted child sex offenders. The probation statute is very narrowly tailored toward convicted sex offenders who seek to avoid a mandatory prison sentence by qualifying for probation to a residential treatment center by meeting all the requirements. Thus, the statute is directly and substantially related to the State interest. Accordingly, we find no violation of Pritchett's Fourteenth Amendment guarantee of equal protection in his treatment as a convicted child sex offender under section 76-5-406.5(1)(h) of the Utah Code.

T31 As to Pritchett's claim that the probation statute violates his Fifth Amendment rights, the United States Supreme Court recently reaffirmed in an analogous case, McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), that the Constitution does not forbid requiring convicted criminal defendants to make hard choices between constitutional rights, and that in the criminal process "[it is well settled that the government need not make exercise of the Fifth Amendment privilege cost free." Lile, 122 S.Ct. at 2029; see McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971) ("Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose."); Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (holding that a criminal defendant's exercise of his Fifth Amendment privilege prior to arrest may be used to impeach his credibility at trial); Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (holding that a criminal defendant may be compelled to disclose the substance of an alibi defense prior to trial or be barred from asserting it).

182 At issue in Lile was a Kansas state prison program that required convicted sex offenders to participate in a sexual abuse treatment program ("SATP") as they neared the end of their sentences or else their prison privileges would be reduced. The SATP required participants to accept responsibility for all prior sex crimes, whether or not they had been charged, and the information thus disclosed was not privileged. Convicted sex offender Robert Lile refused to participate in the SATP, claiming, as does Pritchett, that admitting to his criminal sexual history in exchange for a privilege violated his Fifth Amendment protections. Lile, 122 S.Ct. at 2023.

T33 The Supreme Court held that the consequence of Lile's choice not to participate in the SATP-loss of some prison privileges-did not amount to compulsion in violation of the Fifth Amendment, stating that "[all broad range of choices that might infringe constitutional rights in free society fall within the expected conditions of confinement of those who have suffered a lawful conviction." Id. at 2026. Thus, requiring Lile to make a choice was not a punishment amounting to compulsion, but was rather part of a "legitimate penological interest" in the rehabilitation of offenders. Id. The Supreme Court also reasoned, relying on the framework previously set down in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), that the consequences Lile faced if he did not participate in the SATP did not approach "the physical torture against which the Constitution elearly protects," but were closer to the "de minimus harms against which it does not." Lile, 122 S.Ct. at 2029. The Court concluded by noting that accepting Lile's argument "would call into question the constitutionality of an accepted feature of federal criminal law: the downward adjustment [of a sentence] for acceptance of criminal responsibility." Id. at 2032; see, eg., United States v. Rogers, 921 F.2d 975 (10th Cir.), cert. denied, 498 U.S. 839, 111 S.Ct. 113, 112 L.Ed.2d 88 (1990) (holding that "the denial of a downward adjustment under [federal sentencing guidelines] does not constitute a penalty or an enhancement of sentence" under the Fifth Amendment).

T34 In his reply brief on appeal to this court, Pritchett fails to address the analysis the United States Supreme Court made in Lile, making only a single sentence reference to the decision, characterizing it as dealing with "post-sentencing prison regulations" and thus being inapplicable here. Such a characterization is inaccurate. The Supreme Court clearly based part of its rationale in Lile on the interest the government has in rehabilitating convicted sexual offenders and protecting the public from them when they are outside of prison.

¶35 "Sex offenders are a serious threat in this Nation," the Court observed, and when they "reenter society, they are much more likely than any other type of offender to be arrested for a new rape or sexual assault." Lile, 122 S.Ct. at 2024. This same rationale governs Utah's sex offender probation statute. See supra 180. The Court also observed that "(aln important component of ... rehabilitation programs [for sex offenders] requires participants to confront their past and accept responsibility for their misconduct." Id. Thus, Lile addresses a program that has the same objectives and concerns as the Utah child sex offender probation statute, and it is accordingly analogous and properly applied in this case.

T 36 The Lile rationale is, in fact, particularly applicable here, where the Utah statute grants a privilege of probation, while the policy examined in Lile reduces privileges while incarcerated. Indeed, as this court has previously stated, a "defendant has no right to be placed on probation, that being within the discretion of the trial judge." State v. Smith, 842 P.2d 908, 910 (Utah 1992). Utah's probation statute grants a privilege to which the convicted child sex offender has no automatic right-placement in a resident treatment facility-in exchange for the offender chooging to admit culpability. Otherwise, the offender can choose to serve out the mandatory term to which he has been lawfully convicted. Thus, the statute clearly falls under the "broad range of choices" that do not violate the Fifth Amendment under Lilg, which are "the expected conditions of ... those who have suffered a lawful conviction." Accordingly, we hold that the convicted child sex offender probation statute, section 76-5-406.5(1)(Lh) of the Utah Code, does not violate Pritchett's right of due process and protection against self-iincrimination under the Fifth Amendment to the United States Constitution.

CONCLUSION

137 For reasons set forth in this opinion, we affirm the decisions of the trial court and Pritchett's conviction for aggravated sexual abuse of a child. Furthermore, we do not find section 76-5-406.5(1)(h) of the Utah Code to be in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

1 88 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Judge BENCH concur in Justice RUSSON's opinion.

1 39 Justice HOWE did not participate herein; Court of Appeals Judge RUSSELL W. BENCH sat.

      . See Utah Rule of Evidence 8$04(a)(3), (b)(1) (defining respectively "unavailability as a witness" for lack of memory and the hearsay exception for the "former testimony" of an unavailable witness). Defense was proceeding on a hearsay theory, and there was no objection on the use of a writing to refresh a witness's memory under Utah Rule of Evidence 612.

      . A transcript of B.B.'s redacted preliminary hearing testimony about Pritchett touching and penetrating her vagina with his penis-elements of rape of a child-was admitted by the trial court under Utah Rule of Evidence 801(d)(1)(4) ("A statement is not hearsay if ... [the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is inconsistent with the declarant's testimony or the witness denies having made the statement or has forgotten...."). B.B. was not able to testify at trial as to any penile touching or penetration of her vagina, and the transcript was offered as substantive evidence of the crime of rape of a child. The transcript evidence was obviously rejected by the jury when it acquitted Pritchett of this charge.

      . Pritchett argues with specificity for the first time in his brief to this court that section 76-5-406.5(1)(h) also violates his state constitutional rights. Before the trial court, the defense argued only in general terms that state constitutional guarantees were interpreted similarly or offered the same protection as their federal analogues, and the trial court in its ruling did not address specific state constitutional issues. Thus, Pritch-ett's state constitutional claims were not preserved and are not properly before us. We have previously stated that "[als a general rule, we will not engage in state constitutional analysis unless an argument for different analyses under the state and federal constitutions is briefed," State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988), and as the court of appeals has correctly observed on several occasions, "the proper forum in which to commence thoughtful and probing analysis of state constitutional interpretation is before the trial court, not ... for the first time on appeal," State v. Bobo, 803 P.2d 1268, 1273 (Utah Ct.App.1990). See also State v. McGrath, 928 P.2d 1033, 1039 n. 2 (Utah Ct.App.1996); State ex rel. N.R., L.R. & C.R. v. State, 967 P.2d 951, 954 n. 3 (Utah Ct.App.1998). Accordingly, we do not reach any of Pritchett's state constitutional claims here.


source: Caselaw Access Project

author: WILKINS, Justice:

license: Public Domain

text:
    2003 UT 25
    Ted GURULE, Plaintiff and Appellant, v. SALT LAKE COUNTY, Defendant and Appellee.
    No. 20010871.
    Supreme Court of Utah.
    May 16, 2003.

      James C. Haskins, Thomas N. Thompson, Salt Lake City, for appellant.
    David E. Yocom, Jay L. Stone, Salt Lake City, for appellee.
   WILKINS, Justice:

1 1 Appellant, Ted Gurule, appeals the trial court's dismissal of his complaint for lack of subject matter jurisdiction. Gurule argues that the trial court's conclusion that Gurule failed to comply with the notice of claim provisions of the Utah Governmental Immunity Act, Utah Code Ann. section 68-80-11 (Supp.2002) (the "Act"), was in error. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

T2 Gurule was involved in a car accident on June 8, 1998 with a Salt Lake County Deputy Sheriff acting within the course of his employment. After sustaining injuries in the crash, Gurule sought to recover damages from Salt Lake County (the "County"). On October 16, 1998, Gurule filed a notice of claim with a county commissioner. That notice was addressed to the "Board of County Commissioners" and marked received by "Attorney Services" on October 19, 1998. After getting no response from the County, Gurule filed a complaint in the trial court on March 2, 1999. The County filed its answer on June 3, 1999, indicating that Gurule had failed to comply with the notice of claim provisions of the Act. Despite the County's argument, Gurule did nothing to remedy the alleged defect in the five days still remaining before the expiration of the one-year period to file a notice of claim. The County then filed a motion to dismiss for lack of subject matter jurisdiction because of Gurule's failure to comply with the Act, which the court ultimately granted.

ANALYSIS

I. STANDARD OF REVIEW

13 We review the dismissal of a case under the Act for correctness, giving no deference to the trial court's determination of law. Hall v. Utah State Dep't of Corr., 2001 UT 34, ¶ 11, 24 P.3d 958.

II. COMPLIANCE WITH THE ACT

14 On appeal Gurule asserts that he complied with the notice of claim provision because, he alleges, the County Clerk-the person to whom notice is to be directed-actually received the notice of claim after its delivery to a county commissioner. In the alternative, Gurule argues that his delivery of the notice of claim to the county commissioner should be deemed sufficient because it represents reasonably strict compliance.

15 The Act mandates that a "person having a claim for injury against a governmental entity ... shall file a written notice of claim with the entity." Utah Code Ann. § 68-30-11(2) (Supp.2002). In the case of a claim against a county, the notice must be "directed and delivered" to the county clerk, not to a county commissioner. Id. § 63-30-11(8)(b)i)(B). This court has long required strict compliance with these provisions. See e.g., Greene v. Utah Transit Auth., 2001 UT 109, ¶¶ 12-14, 37 P.3d 1156 (noting history and recognizing 1998 amendments to the Act). Indeed, even actual notice of the claim, received by the appropriate governmental official, has been deemed insufficient to give the courts jurisdiction when a claimant fails to strictly comply with the statute. Id. at ¶ 15, 17.

T6 In this case it is evident that Gurule did not deliver his notice of claim to the county clerk,. Although both parties agree that during a commission meeting the notice was discussed and referred to the District Attorney's Office over the signature of a deputy county clerk acting as the Commission's clerk, there is nothing in the record to indicate that the county clerk ever saw or was in possession of the notice. Accordingly, Gurule did not strictly comply with the Act by delivering his notice of claim to a county commissioner.

17 Likewise, Gurule's notice is not saved by reasonably strict compliance with the statute. Gurule argues that ambiguity in the statute renders his compliance reasonable. The only authority for allowing less than strict compliance is found in cases which depended upon ambiguities in the Act; ambiguities clarified by the 1998 amendments. See, e.g., Larson v. Park City Mun. Corp., 955 P.2d 343, 345-46 (Utah 1998) (allowing claim where statute was unclear as to where notice was to be filed). The 1998 amendments to the Act specifically list the county clerk as the proper official to receive the notice of claim for a county. Utah Code Ann. § 63-30-11(8)(b)@M(B) (Supp.2002). We find no ambiguity in section 63-30-11's command that notice be delivered to the county clerk, therefore, Gurule's cited authority for allowing reasonably strict compliance is inapplicable in this case.

T8 This case is also unlike Nunez v. Albo, 2002 UT App 247, 53 P.3d 2, which Gurule cites in support of his reasonably strict com- - pliance argument. In that case, a medical malpractice action, the plaintiff sued a doctor employed by the University of Utah, a state institution. In order to comply with statute-ry requirements for filing a malpractice action, Nufiez filed a notice of claim with the doctor and the Utah Attorney General. Id. at 1 8. The doctor filed a motion for summary judgment, arguing he was immune from suit as an employee of the University. Id. at 15. Nufiez moved to amend her complaint to include the University as a defendant, but the trial court held that Nufiezs failed to comply with the separate notice of claim provision of the Governmental Immunity Act. Id. at T 6. The court of appeals held that the trial court erred because the notice of claim complied with the statutory requirements, which did not require the University of Utah or its medical school to be separately named. Id. at TT238-27. The Nuwhez: case merely represents an application of the strict compliance standard and does not support the concept of reasonably strict compliance. Thus, we follow our long-held rule requiring strict compliance with the notice of claim provisions-a standard not met in this case.

CONCLUSION

T9 The trial court was. correct in dismissing the case for lack of subject matter jurisdiction. Gurule failed to strictly comply with the notice of claim provisions of the Utah Governmental Immunity Act. Furthermore, there is no authority for allowing anything less than strict compliance in the absence of ambiguity in the statute, which is not present in this case. Accordingly, we affirm.

T 10 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Judge NEHRING concur in Justice WILKINS opinion.

T11 Justice RUSSON did not participate herein; District Judge RONALD E. NEHRING sat.


author: LEHMAN, Chief Justice.

text:
    In the Matter of the Worker's Compensation Claim of Alan L. SELL, an Employee of the State of Wyoming Livestock Board. Alan L. Sell, Appellant (Petitioner), v. State of Wyoming, ex rel. Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).
    No. 98-145.
    Supreme Court of Wyoming.
    May 25, 2000.

      Representing Appellant: Keith S. Burron of Associated Legal Group, LLC, Cheyenne, WY. Argument by Mr. Burron.
    Representing Appellee: William U. Hill, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Bernard P. Haggerty, Assistant Attorney General. Argument by Mr. Haggerty.
    Before LEHMAN, C.J., and THOMAS, MACY, and GOLDEN, JJ., and TAYLOR, J., Ret.

      This case was reassigned to Justice Thomas on March 23, 1999, for the rendering of a proffered majority opinion. This case was reassigned to Chief Justice Lehman on December 16, 1999. Chief Justice Lehman distributed a proffered opinion to the court on February 15, 2000.

   LEHMAN, Chief Justice.

The issues before us are whether an appointed member of a state board is a state employee within the meaning of the Workers' Compensation Act and, if so, whether he was injured while traveling in the performance of his duties. Appellant, Alan Sell (Sell), a member of the Wyoming Livestock Board, argues he was a state employee and was traveling to a board meeting in the course of his required duties. The Wyoming Workers' Safety and Compensation Division (Division) claims the state legislature did not intend to confer employment status when it created the board positions. We hold Sell was a state employee and that he was traveling in the course of his duties when he was injured. We, therefore, reverse the hearing examiner's denial of workers' compensation benefits.

ISSUES

The issues stated in Sell's Brief of Appellant are:

1. Whether Appellant, a member of the Wyoming Livestock Board, is entitled to receive workers' compensation benefits under the Wyoming Workers' Compensation Act for injuries he sustained in an automobile accident while traveling to a regularly scheduled Livestock Board meeting.
2. Whether Appellant is entitled to workers' compensation benefits under Wyo. Stat § 27-14-108(d)(fii) as a matter of law, even where the Wyoming Livestock Board has not elected to pay premiums for Livestock Board members under Wyo. Stat § 27-14-108().

The Brief of Appellee filed by the Division includes only one issue:

Sell held a Gubernatorial appointment as a member of the State Livestock Board; he was injured in an automobile accident on his way to a Board meeting in his own vehicle.
A. Was the Hearing Examiner's conclusion that Sell was not a "state employee" in accordance with law[?]
FACTS
The material facts of this case are not in dispute. The State has two related entities with the same name but different duties: the Wyoming Livestock Board (WLB) and the Wyoming Livestock Board (Board). WLB is a state agency with more than one hundred employees. The Board consists of seven individuals appointed by the governor pursuant to Wyo. Stat. Ann. § 11-18-101(a) (Lexis 1999). Its function is to protect livestock interests in the state from disease and theft. Wyo. Stat. Ann. § 11-18-102 (Lexis 1999). Sell was a Board member representing four Wyoming counties. As such, Sell received compensation at the rate of ten dollars ($10.00) per day for time actually spent in the performance of [his] duties and traveling expenses while in attendance, and going to and from board meetings in the same manner and amount as provided for state employees by W.S. 9-3-102.

Wyo. Stat. Ann. § 11-18-106 (Lexis 1999).

On May 7, 1997, Sell was driving to a Board meeting in Cheyenne from his home in Burlington. He was involved in a single-vehicle accident in which he suffered a punctured lung and a broken leg. It was also necessary for doctors to remove Sell's spleen.

Sell filed a claim for worker's compensation benefits. In a May 29, 1997 Final Determination, the Division denied benefits stating, "[tlhe employee is not employed in an occupation requiring coverage under Wyoming Statute 27-14-108(c) and your employer has not elected coverage under Wyoming Statute 27-14-108(j)." The following month, the Division issued an Amended Final Determination stating that it denied coverage because "[ylou are not a covered employee under the Wyoming workers' compensation act."

Sell requested a hearing, which was held on November 28, 1997, before a hearing examiner from the Office of Administrative Hearings. The hearing examiner issued an Order Denying Benefits on February 11, 1998. The hearing examiner concluded Sell was neither engaged in an extrahazardous occupation nor a state employee and was, therefore, not entitled to workers' compensation benefits. Sell sought review in the district court, which certified the case to this court pursuant to W.R.A.P. 12.09.

STANDARD OF REVIEW

Our standard of review for workers' compensation cases is quite clear: The interpretation and correct application of the provisions of the Wyoming Workers' Compensation Act is a question of law over which our review authority is plenary. Tenorio v. State ex rel. Wyoming Workers' Compensation Div., 981 P.2d 284, 287 (Wyo.1997); Claim of Nielsen, 806 P.2d 297, 299 (Wyo.1991). Conclusions of law

The interpretation and correct application of the provisions of the Wyoming Workers' Compensation Act is a question of law over which our review authority is plenary. Tenorio v. State ex rel. Wyoming Workers' Compensation Div., 931 P.2d 234, 237 (Wyo.1997); Claim of Nielsen, 806 P.2d 297, 299 (Wyo.1991). Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Matter of Corman, 909 P.2d 966, 970 (Wyo.1996); Aanenson v. State ex rel. Wyoming Workers' Compensation Div., 842 P.2d 1077, 1079 (Wyo.1992). We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. Matter of Gneiting, 897 P.2d 1306, 1308 (Wyo.1995); City of Casper v. Haines, 886 P.2d 585, 587 (Wyo.1994).

Wright v. State ex rel. Workers' Safety & Compensation Division, 952 P.2d 209, 211 (Wyo.1998). Because no facts are in dispute, our review is limited to determining whether the hearing examiner correctly held that Sell was not a state employee traveling in the performance of his duties.

DISCUSSION

Two separate statutes offer Sell an opportunity to qualify for workers' compensation benefits He could qualify if he were an "employee" within the definition appearing in Wyo. Stat. Ann. § 27-14-102(a)(vii) (Michie Cum.Supp.1996), or as a state employee traveling in the performance of his duties, pursuant to Wyo. Stat. Ann. § 27-14-108(d)(ii) (Michie Cum.Supp.1996). Sell, the Division, and the hearing examiner all agree that Sell does not fit the definition of "employee" in § 27-14-102 because his functions as a Board member are not extrahazardous employment.

Sell, therefore, claims coverage under $ 27-14-108(d)(i1), which reads in pertinent part: (d) This act applies to governmental entities engaged in an industrial classification listed under subsection (a) of this section and to employees of governmental entities engaged in or employed as the following:

(d) This act applies to governmental entities engaged in an industrial classification listed under subsection (a) of this section and to employees of governmental entities engaged in or employed as the following:
(iii) State employees while traveling, but only when the travel occurs in the actual performance of their duties[.]

(Emphasis added.) The workers' compensation statute contains no definition of "state employee," and the context in which that phrase appears shows that it is not encompassed within the act's definition of "employee." Therefore, our task is to determine what the legislature intended when it used the term state employee in § 27-14-108(d)(iii).

A basic axiom of statutory interpretation is that "[wJords of a statute are to be interpreted in their ordinary, everyday sense unless a contrary interpretation is indicated in the specific statute." Adams v. State, 697 P.2d 622, 624 (Wyo.1985) (citing Wyoming State Department of Education v. Barber, 649 P.2d 681, 684 (1982)). When faced with a statute lacking a definition of an important term, this court will "furnish an ordinary and obvious meaning." Harbel v. Wintermute, 888 P.2d 359, 365 (Wyo.1994) (citing Sheridan Commercial Park, Inc. v. Briggs, 848 P.2d 811, 815 (Wyo.1993)); Parker Land & Cattle Co. v. Wyoming Game & Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993). In Harbel, we examined a portion of the Wyoming Governmental Claims Act, Wyo. Stat. Ann. § 1-89-105 et seq. (Michie 1988 & Cum. Supp.1994), dealing with the "operation" of a motor vehicle. Because the legislature did not include a definition of "operation" in the act, we incorporated the definition of "operator" found in the Motor Vehicle Safety-Responsibility Act, as codified in Wyo. Stat. Ann. § 31-9-102(a)(ix) (1994).

In the instant case, because the workers' compensation statute does not define "state employee," we elect to use the "ordinary and obvious" definition of "public employee" from the Wyoming Governmental Claims Act:

(iv) "Public employee":
(A) Means any officer, employee or servant of a governmental entity, including elected or appointed officials, peace officers and persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation[.]

Wyo. Stat, Ann. § 1-89-108(iv)(A) (Lexis 1999) (emphasis added). As in Harbel, we are incorporating a definition from a logically related statute. That is especially appropriate here. The Governmental Claims Act would have applied to Sell as an employee of the State if another party had suffered damage in the accident. It would be incongruous if we were to consider him a state employee for one aspect of an accident, and not a state employee for another. We, therefore, hold that Sell was a state employee for purposes of the workers' compensation statute.

Having held Sell to be a state employee, the next question is whether he was traveling in the performance of his duties. The Division encourages us not to answer that question. It argues that the hearing examiner did not determine the issue, so it is not properly before the court. It is true that the hearing examiner did not specifically find that Sell was, or was not, traveling in the performance of his duties, The hearing examiner did, however, find as matter of basic fact that Sell was injured while traveling to attend a regularly scheduled Board meeting. That factual determination provides us the necessary foundation to determine whether the correct rule of law has been properly applied to the facts. Basin Electric Power Co-op., Inc. v. Department of Revenue, 970 P.2d 841, 850-51 (Wyo.1998); Union Pacific Railroad Co. v. State Board of Equalization, 802 P.2d 856, 860-61 (Wyo.1990) (discussing findings of "ultimate fact"). Therefore, we will decide the issue.

The Division contends that Sell was not traveling in the performance of his duties because the statutory duties of Board members do not include driving. Although no statute enumerates driving as a duty of the Board, the legislature has provided for "traveling expenses while in attendance, and going to and from board meetings." Wyo. Stat. Ann. § 11-18-106. This Court has previously discussed the workers' compensation implications of travel provided by employers:

In Jensen v. Manning & Brown, Inc., 63 Wyo. 88, 178 P.2d 897, 907, however, it was held where the employer furnishes claimant with free transportation to and from his home as an incident of the contract of employment and for the mutual advantage of both, injuries suffered in an accident during such transportation are compensa-ble under the Workmen's Compensation Act. The court considered that the injuries, under such circumstances, are sustained during the course of the employment relationship. 178 P.2d [at] 908. That, of course, is equivalent to saying the duties of employment are assumed during such transportation.

State Treasurer ex rel. Workmen's Compensation Department v. Boston, 445 P.2d 548, 549-50 (Wyo.1968) (emphasis added). We hold that principle equally applicable to employer-subsidized travel and, therefore, determine that Sell was traveling in the performance of his duties.

For the reasons stated above, we hold that Sell was a state employee and was traveling in the performance of his duties. The decision of the hearing examiner is reversed, and this case is remanded to the Office of Administrative Hearings for proceedings consistent with this opinion.


author: MACY, Justice.

text:
    Wendy TRUSKY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 98-298.
    Supreme Court of Wyoming.
    May 26, 2000.

      Representing Appellant: Sylvia Lee Hack], State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Monique McBride, Assistant Appellate Counsel.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Barbara L. Boyer, Senior Assistant Attorney General.
    Before LEHMAN, C.J.; THOMAS, MACY, and HILL, JJ.; and JOHN D. TROUGHTON®, D.J.

      This case was originally assigned to Justice Thomas on April 26, 1999, for the rendering of a proffered majority opinion. The case was reassigned to Justice Macy on December 16, 1999. Justice Macy distributed a proffered opinion to the Court on March 27, 2000.

       Judge Troughton concurred in the result of part A and concurred in parts B, C & D.

   MACY, Justice.

The primary issue presented in this case is whether the trial court erred when it ordered the defense to produce a licensed clinical social worker's notes for the prosecution. Appellant Wendy Trusky (Wendy) hired the social worker to perform a psycho-social evaluation for use in her defense. The social worker was expected to testify as an expert, if necessary, during Wendy's homicide trial. Wendy claims the notes were encompassed within the attorney-client privilege. The introduction of evidence of Wendy's consensual sexual conduct with a male friend after the death of her husband and improper information before the trial court at the time of sentencing are additional issues we must resolve.

We affirm.

ISSUES

Wendy presents the following issues for our review:

ISSUE I
Did the trial court commit reversible error by requiring the defense to provide to the prosecution notes generated by a defense social worker in preparation for trial?
ISSUE II
Did the trial court err in permitting the prosecutor to introduce evidence of Wendy's consensual sexual conduct with a male friend which occurred after Martin Trusky's death?
ISSUE III
Did the trial court rely on improper premises when it sentenced Wendy?

FACTS

Wendy married Martin Trusky on October 16, 1976. The couple had four children, and, in 19983, the family moved from Pennsylvania to Wyoming where they purchased sixty-eight acres of land north of Clenrock. Wendy was a licensed practical nurse and began working at a nursing home in Casper. Because Martin was unable to read, he helped out with odd jobs, doing mostly mechanical work, but Wendy provided the family's main source of income.

Prior to their marriage and continuing throughout it, the couple had a history of domestic violence. Wendy testified that, on several occasions, she ended up in the hospital as a result of that violence. When she would return home late from work and shopping, Martin would throw the sacks of groceries or purchases on the ground to demonstrate his anger. He would stay in a rage for hours, break household items, and punch anyone he thought had crossed him, which included Wendy and their children. He also mentally abused Wendy and their children by killing the family pets, going so far as cooking their pet goat for dinner and informing them, after they had finished eating, that they had just eaten the goat. On one occasion, one of the children called the sheriff to stop Martin from beating Wendy. This did not stop the cycle of abuse. At times, to temper these fits of rage, Wendy put over-the-counter sleeping aids into her husband's dinner so that he would leave her and the children alone.

After leaving work on the afternoon of December 18, 1996, Wendy stopped at the grocery store and was late returning home. Martin threw the bags of groceries on the ground, and the couple "seuffled." Martin punched Wendy in the lip and grabbed her throat. On December 15, 1996, Wendy took one of the children to work with her, and, after she finished working, they stopped at Wal-Mart on the way out of town, arriving home in Glenrock about five o'clock in the afternoon. Wendy and Martin had another scuffle, and Martin struck Wendy. Wendy proceeded to make dinner, putting a sleeping aid in Martin's food. While Martin was in the bathroom, Wendy asked one of the children to bring her one bullet. She loaded the rifle and placed it beside the couch. After dinner, the family watched movies. The children went to bed when the movies were over, and Martin and Wendy discussed their failed marriage and his plans to return to Pennsylvania.

Wendy shot Martin sometime during the morning of December 16, 1996, after the children had gone to school. Wendy and the prosecution presented differing versions of how the shooting took place. According to Wendy, she shot Martin during an altercation. The prosecution maintained that she shot him while he was sleeping. Regardless of this discrepancy, the parties do not dispute that Wendy shot a bullet straight into the back of Martin's head. Thereafter, Wendy wrapped the body in a quilt, dragged it outside, and buried it under a pile of tires and car parts.

Wendy began to manufacture different stories regarding Martin's whereabouts. She told the children he had returned to Pennsylvania but told Martin's niece he had run off with another woman. Wendy told a law enforcement officer who was investigating a missing person's report for Martin that she did not know where he was but she suspected he had broken into her apartment. She even filed a police report regarding the alleged break-in. There were other versions regarding his absence that circulated, which included that she had taken Martin to the bus station so he could return to Pennsylvania and that he was working on a ranch.

After receiving no contact from or information about Martin, his family hired a private investigator. Law enforcement officers entered the Glenrock property with a search warrant to search the premises for any sign of Martin. They ultimately found his body wrapped in a quilt and buried under a pile of tires behind the house.

On October 1, 1997, the county attorney filed an information charging Wendy with first-degree murder of Martin. Wendy was arrested on October 4, 1997. She pleaded not guilty, using battered woman syndrome as an element of her self-defense claim. The jury returned a guilty verdict on the lesser-included offense of second-degree murder. The trial court sentenced Wendy to a prison term of not less than twenty-five years nor more than forty years. Wendy received credit for the 321 days she served in jail prior to sentencing. The notice of appeal was timely filed.

DISCUSSION

A. Social Worker's Notes

Wendy claims that the trial court improperly invaded the attorney-client privilege and violated her constitutional right to counsel when it required her to produce notes for the prosecution that had been taken by a licensed clinical social worker during a psycho-social evaluation of her,. She also maintains that the trial court improperly expanded the discovery rules set out in W.R.Or.P. 16(b)(1)(B) and W.R.Cr.P. 26.2(a) when it required her to give the notes to the prosecution. We are not persuaded by Wendy's arguments.

The defense hired the social worker to perform a psycho-social evaluation of Wendy. The prosecution filed a motion to compel discovery in March of 1998. Included in the motion was a request for "test questionnaires, notes of interviews, notes and reports of statements made, and other materials made or generated by [the social worker] or Psychotherapy Services" during Wendy's examination or evaluation for battered woman syndrome. Pursuant to W.R.Cr.P. 26.2, the prosecutor also requested "all notes and ree-ords to be referred to by any psychological, psychiatric, or other such person{s] who participated in the examination process of Wendy Trusky."

Wendy claims that the social worker was acting as an agent for the defense and the social worker's communications with her were, therefore, protected by the attorney-client privilege. She also maintains that the Wyoming Rules of Evidence and Rules of Professional Conduct for Attorneys at Law mandate that individuals retained by counsel must keep information, which the client discloses to them, confidential. Wendy claims that, by requiring the social worker to disclose the notes of their discussions, the trial court intruded so substantially into the province of the attorney-client privilege that it violated both the Sixth Amendment to the United States Constitution and Article 1, Sections 6 and 10 of the Wyoming Constitution.

The essence of the sixth amendment right to effective assistance of counsel is, indeed, privacy of communication with counsel. Glasser v. United States, 315 U.S. 60, 62, 62 S.Ct. 457, 461, 86 L.Ed. 680 (1942). However,

mere government intrusion into the attorney-client relationship, although not condoned by the court, is not of itself violative of the Sixth Amendment right to counsel. Rather, the right is only violated when the intrusion substantially prejudices the defendant. Prejudice can manifest itself in several ways. It results when evidence gained through the interference is used against the defendant at trial. It also can result from the prosecution's use of confidential information pertaining to the defense plans and strategy, from government influence which destroys the defendant's confidence in his attorney, and from other actions designed to give the prosecution an unfair advantage at trial.

United States v. Irwin, 612 F.2d 1182, 1186-87 (9th Cir.1980).

We have not previously addressed whether the attorney-client privilege protects conversations between a defendant and a mental health professional hired by the defense when a defendant places her mental capacity at issue. We, therefore, turn to other jurisdictions for guidance on this issue. The Washington Supreme Court summarized the holdings of courts from several jurisdictions in State v. Pawlyk, 115 Wash.2d 457, 800 P.2d 338, 342 (1990) (en bane). Some courts hold that, when a defendant asserts an insanity defense, the privilege applies. 800 P.2d at 342. Others hold that the privilege is waived or does not apply. Id. We believe the cases which allow production of the information for the prosecution are better reasoned.

In State v. Hamlet, 133 Wash.2d 314, 944 P.2d 1026, 1030 (1997) (en bane), the Washington Supreme Court opined that, in cases involving claims of diminished capacity or insanity, the defense's evidence concerning the defendant's mental state may be more accurate than the prosecution's evidence. The court ruled, therefore, that, by asserting a defense of diminished capacity or insanity, the defendant waived the attorney-client privilege as to evidence concerning his mental state and the defense was obligated to disclose the evidence to the prosecution. 944 P.2d at 1080.

In Gray v. District Court of Eleventh Judicial District, 884 P.2d 286 (Colo.1994) (en bane), cert denied, 514 U.S. 1084, 115 S.Ct. 1797, 131 L.Ed.2d 725 (1995), the Colorado Supreme Court considered a Colorado statute pertaining to discovery and ruled that, when the defendant tenders a plea of not guilty by reason of insanity or asserts the affirmative defense of impaired mental condition, the attorney-client privilege is waived between the defendant and agents, including psychiatrists or psychologists, of the attorney. In People v. Ullery, 964 P.2d 539, 541 (Colo.Ct.App.1997), aff'd in part & rev'd in part, 984 P.2d 586 (Colo.1999) (en banc), a Colorado court of appeals held that a defendant who asserts the defense of impaired mental condition must produce all communications for the prosecution which occurred between the defendant and any mental health professional employed on his behalf. 964 P.2d at 541-42. The court specifically excluded disclosure of the defense attorney's work product, including his legal research, theories, opinions, or conclusions. 964 P.2d at 542. The state appealed to the Colorado Supreme Court, contesting the court of appeals' decision that the attorney's work product was not subject to disclosure under the applicable statute. People v. Ullery, 984 P.2d 586, 589 (Colo.1999) (en banc) That court determined that the privilege applicable to the attorney's work product was not waived and information which truly fell within the category of attorney work product was not subject to disclosure to the prosecution. Id.

In Clifford v. United States, 532 A.2d 628, 636 (D.C.App.1987), a District of Columbia court of appeals stated: "(Unless the defendant has waived the fifth amendment right against self-incrimination and the sixth amendment right to counsel, the government cannot attempt to prove guilt or determine punishment with expert testimony based on statements of the accused made during a compelled psychiatric examination." The privileges against self-incrimination and right to counsel, however, apply to only interrogation by government agents. 532 A.2d at 636. The court of appeals ruled, therefore, that, when the defendant voluntarily undergoes a mental examination, the trial court may order the defendant to provide the information gathered during the examination to the government without violating the defendant's Fifth or Sixth Amendment rights. Id.

Wendy may not argue a deficient mental condition and, at the same time, claim protection by privilege. She voluntarily hired the licensed social worker to evaluate her. The trial court's order requiring production of the social worker's notes did not intrude on Wendy's attorney-client privilege, and her constitutional right to assistance of counsel was not violated. Wendy argues that she was prejudiced by the prosecution's receipt of the social worker's notes because the prosecution used the information to prepare more thoroughly for its cross-examination of her. She overlooks the fact that, when she asserted an affirmative defense on the basis of diminished capacity and battered woman syndrome, the need for accurate evidence on her mental state became especially critical.

The social worker was one of the first people to examine Wendy. The social worker's results may be considered more reliable than Wendy's own statements as to her mental state. Basic fairness and integrity demand that we allow the prosecution access to any reports bearing on Wendy's mental state in order to avoid giving her an unfair advantage. See Pawlyk, 800 P.2d at 347-48.

B. W.R.Cr.P. 16(b)(1)(B) and W.R.Cr.P. 26.2(a)

Wendy contends that W.R.Cr.P. 16(b){(1)(B) and W.R.Cr.P. 26.2(a) did not mandate disclosure of the social worker's notes and interviews. The trial court has broad discretion in controlling discovery. Nowotny v. L & B Contract Industries, Inc., 933 P.2d 452, 461 (Wyo.1997). In Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)), we said: "'Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireum-stances and without doing so arbitrarily or capriciously. "

W.R.Cr.P. 16(b)(1)(B) states:

(B) Reports of examinations and tests.-If the defendant demands disclosure under subdivision (a)(1)(C) or (a)(1)(D), upon compliance with such demand by the state, the defendant, on demand of the state, shall permit the state to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to that witness's testimony.

W.R.Cr.P. 26.2(a) states:

(a) Order for production. -Upon order of the court, the attorney for the state or the defendant and the defendant's attorney shall produce for the examination and use of the other party, any written or recorded statement of a witness other than the defendant in their possession or which they may reasonably obtain and which relates to the subject matter about which the witness has testified or will testify and:
(1) Upon demand of the other party, the court shall order the statement to be produced after a witness has testified; and
(2) Upon motion of a party or upon its own motion, the court may require the statement to be produced at any time before trial.

Wendy concedes that, onee the social worker was designated as an expert, her results or reports were discoverable under W.R.Cr.P. 16(b)(1)(B) and W.R.Cz.P. 26.2(a). She argues, however, that the prosecution's right to discovery did not extend to the social worker's notes from interviews or conversations with her. The state maintains that the trial judge properly gave it access to the social worker's notes, especially in light of Wendy's failure to produce a report of any substance.

We do not need to address whether the notes fall under the rubric of W.R.Cr.P. 16(b)(1)(B) and W.R.Cr.P. 26.2(a) because the record does not include a copy of the report or the notes. Without copies of the report or the notes in question, we are unable to determine whether the trial court abused its discretion in Wendy's case. The appellant has the burden to prove abuse of discretion and the burden to provide an adequate record on appeal. Clark v. Alexander, 953 P.2d 145, 150 (Wyo.1998); Stadtfeld v. Stadtfeld, 920 P.2d 662, 664 (Wyo.1996). Given Wendy's failure to provide us with a copy of the social worker's notes or the report, we have no choice but to affirm the trial court's decision to allow discovery of the notes pursuant to the relevant rules of criminal procedure.

C. Impeachment Testimony

The next issue we must address is whether the trial court abused its discretion in admitting Wendy's boyfriend's testimony concerning their sexual relationship. Decisions regarding the admission or exclusion of evidence are within the sound discretion of the trial court, and we give considerable deference to those determinations. Sturgis v. State, 932 P.2d 199, 201 (Wyo.1997). As long as there is a "consistent and legitimate basis for the trial court's ruling," we will not find an abuse of discretion. Id.

Wendy claims that the trial court erred when it allowed the prosecution to introduce evidence of her sexual relationship with a man whom she met several months after her husband's death. During direct examination, Wendy testified that her husband sexually abused her and frequently forced her to do things against her will such as watching pornographic movies and replicating acts seen in those movies, performing oral and anal sex, and engaging in sexual behavior with him and another man. According to Wendy's expert, such sexual abuse is one of the factors involved in battered woman syndrome. Her expert testified: "Sex pressure rape, for those of you who aren't aware of the term, when you have sex with someone probably willingly then they force you to do things during the sexual act you are ashamed of. You feel guilty or makes you feel dirty or against your morals or value system."

The prosecutor cross-examined Wendy about her testimony that she would not have engaged in these sexual acts if her husband had not forced her to do so. Wendy objected to the line of questioning, but the trial court allowed it. Given the nature of Wendy's direct examination, the trial court allowed the prosecutor some latitude, limiting the nature of questions to those related specifically to Wendy's direct testimony.

The prosecutor also questioned Wendy's boyfriend about their sexual relationship. In contrast to Wendy's testimony, he testified that she willingly and, at her own instigation, performed oral sex on him; that the two of them had briefly watched a pornographic movie together; and that Wendy owned that movie.

Wendy maintains that the evidence of her sexual relationship with her new boyfriend was irrelevant and, therefore, inadmissible because it did not prove or disprove an element of the crime charged. W.R.E. 402. The trial court concluded that evidence contradicting Wendy's testimony that she abhorred these sexual practices and activities was relevant and, therefore, admissible. We agree. The evidence was relevant to the issue of Wendy's veracity. When a defendant "takes the witness stand in [her] own defense, [her] credibility becomes an issue and [she] may be cross-examined" regarding that testimony. Montez v. State, 670 P.2d 694, 696 (Wyo.1983).

Wendy further claims that the prosecutor used the evidence to convey to the jury that, by voluntarily engaging in such conduct with someone else, Wendy lied about her husband's sexual abuse of her. She contends, therefore, that the prosecution used the evidence to show that she could not have been afraid of her husband. She equates this evidence with other bad acts evidence and maintains it was inadmissible under W.R.E. 404(b). This evidence clearly does not fall within the rubric of W.R.E. 404(b). The prosecution used the evidence of Wendy's sexual activity with her boyfriend to demonstrate she lied about her distaste for such sexual activities, thus questioning her credibility and veracity.

[A] defendant who has voluntarily testified may be cross-examined the same as any other witness and the latitude of cross-examination is largely within the discretion of the court. ...
. [Tlhe prosecution may impeach a witness' credibility by presenting competent evidence of an attempt to fabricate evidence.

Roby v. State, 587 P.2d 641, 644 (Wyo.1978). The trial court did not abuse its discretion in allowing the prosecutor to introduce this evidence.

Wendy also claims that the "rape shield" statute, Wyo. Stat. Ann. § 6-2-8312 (LEXIS 1999), prohibited admitting evidence of her sexual conduct. The rape shield statute applies to "prosecution[s] under W.S. 6-2-302 through 6-2-805 [6-2-3804] or for any lesser included offense, if evidence of the prior sexual conduct of the victim, reputation evidence or opinion evidence as to the character of the victim is to be offered." Section 6-2-812(a). In Heinrich v. State, 638 P.2d 641 (Wyo.1981), we addressed the purpose of rape shield statutes. They "were designed to protect the victim from embarrassment and abuse at trial and also to encourage the reporting of sexual assaults to the authorities. They are not enacted for the protection of the accused." 638 P.2d at 646. The rape shield statute is inapplicable to Wendy's situation because first-degree murder is not one of the crimes enumerated in § 6-2-312(2) and she was the perpetrator, rather than the victim, of the offense at issue.

D. Sentencing

Wendy maintains that the trial court erred when it sentenced her, The state argues that the trial court's sentencing decisions were appropriate and any errors were harmless. We agree with the state.

Sentencing decisions are normally within the discretion of the trial court. Hamill v. State, 948 P.2d 1856, 1858 (Wyo. 1997). "A sentence will not be disturbed because of sentencing procedures unless the defendant can show an abuse of discretion, procedural conduct prejudicial to him, and cireumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." Smuth v. State, 941 P.2d 749; 750 (Wyo.1997). "An error warrants reversal only when it is prejudicial and it affects an appellant's substantial rights. The party who is appealing bears the burden to establish that an error was prejudicial." Candelaria v. State, 895 P.2d 494, 489-40 (Wyo.1995) (citations omitted); see also Robinson v. Hamblin, 914 P.2d 152, 155 (Wyo.19986).

The jury determined that Wendy was not guilty of first-degree murder but was guilty of second-degree murder. It did not, therefore, find that the state had proven the element of premeditation. Wendy argues that the trial court improperly considered premeditation in its sentencing decision and ultimately sentenced her as if she had been convicted of first-degree murder. She cites to these remarks to support her proposition:

But I also, as I said, heard the evidence in this case at the trial, and there was considerable evidence of premeditation in this case. The jury maybe did not find that. There was considerable evidence, at least inferences to be made from that evidence, that the defendant was somewhat less than fully truthful in her account of the events. The bullets were purchased long before the event. The gun was loaded and hidden the night before. I-I've never been one to really believe much in coincidences. And I think it's an extreme coincidence that Martin Trusky's last abusive act happened to land you right next to the gun that you had hidden.

This Court has not addressed whether, in its sentencing determination, the sentencing judge may consider elements that the jury did not find when it determined guilt. The North Carolina Supreme Court, however, addressed that very issue in State v. Marley, 321 N.C. 415, 864 S.E.2d 138 (1988). Marley was tried for first-degree murder, but the jury found insufficient evidence to conclude beyond a reasonable doubt that Marley premeditated and deliberated the killing. 364 §$.E.2d at 138. The Marley court held: "To allow the trial court to use at sentencing an essential element of a greater offense as an aggravating factor, when the presumption of innocence was not, at trial, overcome as to this element, is fundamentally inconsistent with the presumption of innocence itself." 364 S.E.2d at 189. It concluded that, because premeditation and deliberation are the factors distinguishing first-degree murder from second-degree murder, due process and fundamental fairness precluded the trial court from using premeditation and deliberation as aggravating factors when sentencing Marley for second-degree murder. Id.

We agree with the North Carolina Supreme Court and conclude that, in making their sentencing decisions, trial courts are precluded from considering evidence or elements that the jury did not find had been proven by the prosecution. Factors the trial court may consider in its sentencing decision include age, health, children, employment record, intelligence, family history, and education. Wright v. State, 670 P.2d 1090, 1098 (Wyo.1988).

The trial court's discussion of premeditation in this case was, therefore, inappropriate. Nevertheless, we do not believe that the evidence of premeditation and deliberation materially affected the trial court's decision. A person who is found guilty of second-degree murder may be sentenced to life in prison. Accordingly, if the evidence of premeditation had weighed heavily in its sentencing decision, the trial court presumably would have sentenced Wendy to a life sentence rather than to a twenty-five- to forty-year sentence. Viewing the comments about premeditation in relation to the other factors the trial court considered in its decision, including Wendy's age, children, and education, we conclude that the court's comments were harmless error. Wendy's sentence fell within the statutorily prescribed range for second-degree murder and outside the range for first-degree murder. Therefore, her claim that she was sentenced as if she had been convicted of first-degree murder is without merit and must fail.

Wendy also asserts that the trial court acted improperly when it considered "good time" in determining her sentence. She cites to these remarks:

Most significantly to me is the fact that there are two types of what is known as "good time" authorized by statute. They are called "statutory good time" and "social good time." Now, those may act,. to reduce both the minimum and the maximum sentence that is imposed. A lot of people don't know that. They think good time only goes against the maximum, but it also applies against the minimum sentence. As a generalization, it can be said that statutory good time applies against the maximum sentence and special good time applies against the minimum sentence. As an example only, I will tell you a defendant who is sentenced to 15 to 20 years will serve 10 years and two months if all good time is applied to that sentence.

See Wyo. Stat. Ann. § 7-18-420 (LEXIS 1999). We do not believe that the trial court considered good time as a factor in Wendy's sentencing. Instead, the judge referred to the possibility of a "good time" reduction to provide Wendy with an incentive to behave appropriately while she was incarcerated.

Finally, we address the victim impact testimony. Wyoming law permits the trial court to consider victim impact statements prior to imposing a sentence. Wyo. Stat. Ann. § 7-21-108 (LEXIS 1999). The purpose of "§ 7-21-108 is to permit the sentencing court to consider information about the harm caused by the defendant during the commission of the particular crime for which sentence is about to be imposed." Mehring v. State, 860 P.2d 1101, 1116 (Wyo.1993).

During Wendy's sentencing, Martin's sister read a letter into evidence from a next-door neighbor. Wendy contends that the neighbor did not fit the definition of victim and, therefore, Martin's sister should not have been allowed to read the neighbor's letter at the sentencing hearing. Wyo. Stat. Ann. § 7-21~-101(a)(ifi) (LEXIS 1999) defines victim as "an individual who has suffered direct or threatened physical, emotional or financial harm as the result of the commission of a crime or a family member of a minor, incompetent person or a homicide vie-tim."

We conclude that the neighbor was a vice-tim. In his letter to the court, the neighbor wrote that Martin frequently helped him fix things, cared for his animals, and checked on his property when he was away, all without being paid. The neighbor also explained his friendship with Martin and indicated that he socialized with both of the Truskys two or three times a week. Certainly, he suffered emotional, if not financial, harm as the result of Martin's death. The neighbor, therefore, qualified as a victim, and his statement was properly admitted to the trial court.

In Wright, 670 P.2d at 1093, we addressed the pressures the sentencing judge is under:

The judge must isolate himself from (1) the "sob-sister" type who pressures for leniency on the basis of the convicted person's humanity without consideration of the injured victims and other pertinent factors, and (2) the vengeful "blood-at-any-cost" type who pressures for "hanging" without consideration of the human nature of the convicted one and the cireumstances, surrounding him and the crime itself.

Similarly, the trial court stated in the situation before us:

People think they are helping by sending all of those letters and saying things on one side or the other. But when you get a certain number on each side, I have to conclude that Marty Trusky was either a demon or a saint, and Wendy Trusky is either a demon or a saint. And it depends on which side you're looking from. And that cannot be the totally controlling factor in this case. I had to discount much of this material as the extreme view of family members who see what they want to see and hear what they want to hear, although I have to say that I do not doubt that Wendy Trusky was the victim of domestic abuse.

It is clear from this discussion that Wendy was not materially prejudiced by the reading of the neighbor's letter. The letter was merely one factor the trial court took into consideration when it sentenced her. As stated above, the law allows sentences for second-degree murder to range from twenty years to life imprisonment. Wyo. Stat. Ann. § 6-2-104 (LEXIS 1999). The trial court did not abuse its discretion in sentencing Wendy to a term of twenty-five to forty years.

Affirmed.

      . In Witt v. State, 892 P.2d 132 (Wyo.1995), we recognized that battered woman syndrome was not a separate defense but was an element of self-defense.

      . Wyo. Stat. Aun. § 6-2-104 (LEXIS 1999) states:
      Whoever purposely and maliciously, but . without premeditation, kills any human being is guilty of murder in the second degree, and shall be imprisoned in the penitentiary for any term not less than twenty (20) years, or during life.