author: DURRANT, Justice.

text:
    2002 UT 9
    STATE of Utah, Plaintiff and Appellee, v. Albert J. CRAMER, Defendant and Appellant.
    No. 991065.
    Supreme Court of Utah.
    Jan. 25, 2002.

      Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., Susan Hunt, Salt Lake City, for plaintiff.
    Gregory G. Skordas, Stephanie Ames, Salt Lake City, for defendant.
   DURRANT, Justice.

1 1 Albert J. Cramer appeals his conviction on two counts of aggravated sexual abuse of a child, raising two independent claims. The first raises the question of whether the Utah Constitution entitles an accused to full disclosure of the privileged medical records of a victim who testifies against the accused. In a pretrial ruling, the trial court denied Cram-er's request that his attorney be permitted to evaluate the child victim's medical records to determine whether any of them were material to his defense. Instead, the court sereened the records in camera. Based on its in camera review, the court did not disclose any of the records to Cramer, having determined that none of them was material to his defense. We hold that this in camera review did not violate Cramer's rights under the Utah Constitution.

12 Cramer's second claim on appeal concerns a spectator's statements to the child victim while the child waited to testify against Cramer. The statements occurred outside the court's presence, the court having excluded the child and other witnesses from the courtroom pursuant to Cramer's request. Upon learning of the spectator's statements, Cramer moved for a new trial, alleging that the spectator told the child victim about (1) other witnesses' testimony and (2) Cramer's abuse of the spectator's children in an unrelated matter. The court rejected Cramer's motion, determining that the evidence Cram-er presented in support of his motion did not prove prejudice sufficient to warrant a new trial. We conclude that the trial court did not exceed its discretion in denying Cramer's motion for a new trial.

T3 Accordingly, we affirm the trial court's rulings and Cramer's convictions.

BACKGROUND

T4 On October 21, 1996, Cramer was designated a Court Appointed Special Advocate ("CASA") for M.L. At the time of Cramer's appointment, M.L. was approximately seven years, three months old, and was housed at the University of Utah Neuropsychiatric Institute ("UNI"). In his role as M.L 's CASA, Cramer often took ML. on outings.

T5 After M.L.'s adoption, M.L.'s adoptive mother, sensing "something wasn't right" with him, took ML. for an interview with Detective Alex Huggard of the Murray Police Department on August 8, 1997. During this initial interview, M.L. denied that Cram-er had inappropriately touched him.

T6 In March 1998, the Division of Family Services called Detective Huggard and suggested he interview ML. a second time. During this second interview, conducted on March 6, 1998, M.L. claimed that Cramer had inappropriately touched him. Cramer was subsequently arrested and charged with two counts of aggravated sexual abuse of a child. On August 13, 1998, ML. testified at a preliminary hearing that Cramer had touched M.L.'s "front private part"-the part "use[d] to go to the bathroom"-"more than one time." ML. also testified that Cramer touched his "back private part." According to ML., Cramer touched ML 's "private parts" sometimes over M.L.'s clothes and sometimes under them.

I. MOTION TO COMPEL DISCLOSURE OF MLS UNI RECORDS

T7 Before trial, Cramer filed a motion to compel disclosure of M.L.'s records maintained by UNI. Cramer argued that this information was critical to his defense since the case depended on M.L 's credibility. In his memorandum in support of this motion, Cramer requested full disclosure of M.L.'s records, but at a hearing on this motion, Cramer's attorney stated that, at a minimum, the court should conduct an in camera review of the records. At this hearing, M.L's guardian ad litem argued against disclosure on the ground that the records were privileged medical records. See Utah R. Evid. 506(c) (allowing guardian to claim privilege on behalf of protected person). The court ruled that it would conduct an in camera review of the records pursuant to Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), in which the U.S. Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not entitle an accused to "conduct his own search of the State's files," whether or not the files contain privileged information. Id. at 56 & n. 15, 57-60, 107 S.Ct. 989 (ruling that, when an accused establishes a sufficient basis to justify an in camera review, a court must conduct the review and disclose material information to the accused). Upon conducting an in camera review, the trial court ruled that none of the records was "material" to the defense within the meaning of Ritchie, and thus did not disclose any of the records to Cramer.

II. MOTION FOR A NEW TRIAL BASED ON SPECTATORS STATE MENTS TO M.L. AT CRAMERS TRIAL

T8 At the beginning of Cramer's trial, the court granted Cramer's request under Utah Rule of Evidence 615, which provides, subject to exceptions, that "[alt the request of a partyl,] the court shall order witnesses ex-eluded so that they cannot hear the testimony of other witnesses...." Pursuant to this ruling, the court also instructed the prospective witnesses, including ML., not to speak to anyone or let anyone approach them about the case. Accordingly, ML. waited to testify outside the courtroom.

T9 Susan Mineer, who was not a witness, attended the trial. In an unrelated case, Cramer pleaded guilty to two misdemeanor charges involving two of Mineer's sons. During breaks in Cramer's trial, Mineer spoke to M.L. outside the court's presence while he waited to testify against Cramer.

110 ML. testified at trial that Cramer touched his front and back "private parts," both over and under his clothing. When asked to describe how Cramer would touch ML .'s "front private part," ML. testified that Cramer "would grab it hard and ask me if it'd felt good [and] rub on it." When asked why he had not told Detective Huggard about Cramer's abuse in the first interview, M.L. explained that he had been "scared" he would get in trouble and that he revealed the abuse when his adoptive parents reassured him "everything would be fine."

111 Cramer's attorney then cross-examined ML. about the differences among his statements. ML. admitted that when he testified in the preliminary hearing about Cramer touching M.L.'s "back private part" he did not mention that Cramer had "pinched" it. However, M.L. claimed that he had mentioned in the preliminary hearing that Cramer, when grabbing M.L.'s "front private part," grabbed it "hard" and asked if it "felt good."

12 The jury convicted Cramer on the two counts of aggravated sexual abuse. Thereafter, Cramer moved for a new trial, claiming that Mineer's statements to the child violated the court's exclusion order under rule 615 and that this violation prejudiced him by causing the child to substantially change his earlier statements regarding the crime. In support of this motion, Cramer submitted affidavits from two witnesses who attended the trial: his wife, Diane Cramer, and Jennifer Durham, who had known Cramer since the time he worked with her father "years ago."

1 13 In response to Cramer's motion for a new trial, the court conducted a hearing. At this hearing, Cramer called Diane Cramer and Durham to testify. Diane Cramer testified that on the first day of trial Mineer came into the courtroom and "stated she was talking to [M.L.], and she said [Cramer] had done this to her two boys and one of them was dead." Jennifer Durham testified that during breaks in Cramer's trial, Mineer rushed out of the courtroom to give M.L. and his family, who were waiting in another room, a "word-for-word account" of the other witnesses' testimony. Durham characterized Mineer's accounts as being "accurate." On cross-examination, however, Durham conceded that she heard only "bits and pieces" of what Mincer said to M.L. and his family, and further conceded she could not recall "specifically" what was said. When questioned as to the number of times she saw Mineer conversing with M.L. and his family, Durham initially stated "[mJore than one time," then, when questioned further, stated, "three, four [times], maybe," then, when pressed, stated, "[plrobably at least once."

T 14 Following this testimony, Cramer argued that Mineer's contact with M.L violated rule 615 and prejudicially affected M.L.'s subsequent testimony, thus entitling him to a new trial. To this end, Cramer compared M.L's trial testimony with his statements at the two earlier interviews and at the preliminary hearing. Specifically, Cramer argued that M.L.'s statements became progressively more damaging to Cramer as follows: (1) in the first interview, conducted August 8, 1997, ML. denied that Cramer had inappropriately touched him; (2) in the second interview, conducted on March 6, 1998, M.L. claimed that Cramer had inappropriately touched him; (3) at the preliminary hearing, conducted on August 13, 1998, M.L. testified that Cramer would "rub" and "feel" M.L.'s "private parts;" and (4) following the exchange with Mineer, ML. testified for the first time at trial that Cramer had "pinched" his "back private part" and asked ML. whether the touching "felt good." Cramer characterized M.L.'s testimony at trial as "completely and drastically different" from M.L's earlier accounts and argued that Mineer's contact with ML. was the source of the difference. Attempting to establish this causal link, Cramer argued that because Mineer did not explain to M.L. how her son died, "it left [sic] the inference that Mr. Cramer['s earlier abuse] had something to do with [the death]," and "someone as young as [M.L.]" would, as a result, have "the impression ... [that] if he doesn't do something about it Mr. Cramer will do the same to him." Cramer then suggested that what M.L. did "about it" was to give "completely more inflammatory testimony" at trial to help ensure a conviction.

115 After hearing arguments from the parties, the court rejected as speculative Cramer's contention that he was prejudiced by the effect of Mincer's statements on ML .'s trial testimony:

[The only evidence I heard today with regard to [Mineer's] statements from both Ms. Cramer and Ms. Durham involves Ms. Mineer's discussion with [M.L.] about her boys, and Ms. Durham's belief that there was word-for-word parts of the trial, none of which she was able to identify. Those are the only things I can see that have any potential for impropriety.... [Mineer is] not barred from expressing her opinions, and I don't have any reason to believe that would have affected the outcome of the trial. With regard to anything [Mineer] said to [M.L.], what was heard was so incomplete that I can view it only as speculation, ... or that her speaking would have any effect on [ML.]. [Durham] heard so little about what she might have said and it's so incomplete that I cannot make the nexus necessary under State v. McGrath, [749 P.2d 631, 634 (Utah 1988),] which requires that the defendant bear the burden to demonstrate that he has been prejudiced to the extent that a mistrial is warranted. I simply cannot make that connection. It's simply not nearly close enough....

The court further noted that defense counsel had an opportunity to cross-examine ML. about the alleged discrepancies in his testimony, and did so "in great length" and "vigorously." - Accordingly, the court rejected Cramer's motion for a new trial.

16 Cramer appeals both the trial court's pretrial ruling denying him access to M.L.'s privileged medical records and its posttrial denial of his motion for a new trial.

ANALYSIS

I. DISCLOSURE OF THE CHILD VICTIM'S PRIVILEGED MEDICAL RECORDS

T17 Cramer contends that the trial court erred in conducting an in camera review of M.L.'s medical records rather than allowing him direct access to the records. Specifically, Cramer argues that (1) the Utah Constitution entitled him to direct access, and (2) alternatively, the court erred in ruling, based on its in camera review, that none of the records was material. The medical records were not included as part of the appellate record.

A. Cramer's Claim That the Utah Constitution Affords an Accused The Right to Full Disclosure of Privileged Medical Records

118 Cramer contends that the trial court's in camera review of M.L.'s medical records denied him the ability to scrutinize the records with an "advocate's eye" for material information. Since the federal constitution does not provide Cramer this right, see Pennsylvania v. Ritchie, 480 U.S. 39, 60-61, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); State v. Cardall, 1999 UT 51, ¶ 30, 982 P.2d 79 (applying Ritchie), he relies on the Utah Constitution in claiming entitlement to full disclosure of the medical records.

119 Article I, Section 7 of the Utah Constitution guarantees an accused the right to due process of law. Due process includes, among other things, the "opportunity to submit evidence, examine and cross-examine witnesses." Christiansen v. Harris, 109 Utah 1, 8, 168 P.2d 314, 317 (Utah 1945). In addition, Cramer notes that Article I, Section 12 of the Utah Constitution guarantees an accused the right to confrontation and compulsory process.

120 Because Utah appellate courts have not directly addressed the issue of whether the Utah Constitution requires full disclosure of records under the cireumstances of his case, Cramer relies on authority from other states. Specifically, he cites as persuasive authority state constitutional holdings in cases from Massachusetts, Rhode Island, and Connecticut.

1 21 Cases decided by courts in these jurisdictions do not support his interpretation of the Utah Constitution, however. Although Cramer accurately notes that Massachusetts initially rejected in camera review in favor of direct access by the accused's attorney, Commonwealth v. Stockhammer, 409 Mass. 867, 570 N.E.2d 992, 1002 (1991), he overlooks the fact that -in later cases Massachusetts reinstated in camera review procedures. Seq, eg., Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990, 996-99 (1993) (devising in camera procedures to avoid overly inclusive disclosures of privileged information to accused). Prompting this return to in camera review procedures was the Massachusetts Supreme Court's informed judgment that its earlier "direct access" procedures required disclosure of privileged records that "may contain nothing that would aid the de-fensel.]" Id. at 996. In short, Massachusetts's return to in camera review procedures in light of its experience with permitting defense counsel controlled access to privileged records militates against Cramer's argument in favor of full disclosure.

122 Cramer also cites State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987), as lending persuasive authority to his interpretation of the Utah Constitution. However, onee again, current authority in the cited jurisdiction contradiets Cramer's position. Indeed, applying its substantial experience in balane-ing the constitutional rights of an accused with a victim's privacy interests in privileged mental health records, the Connecticut Supreme Court recently stated as follows:

We reaffirm that the in camera approach represents the most effective and sensitive balance between the interests of the criminal defendant and private citizens who expect and rely on the confidentiality of their psychiatric - records and - communications.... As we stated in State v. Pratt, 235 Conn. 595, 611, 669 A.2d 562 (1995), "in camera judicial review of a victim's privileged records currently represents the most common method of balancing statutory privileges against the defendant's trial rights. See, eg., Jordan v. State, 607 So.2d 333, 385 (Ala.Crim.App.1992); Gunter v. State, 313 Ark. 504, 512-18, 857 S.W.2d 156 (1993); People v. District Court, 743 P.2d 432, 436 (Colo.1987); People v. Foggy, 121 Ill.2d 337, 349-50, 521 N.E.2d 86, 118 Ill.Dec. 18 (1988); Goldsmith v. State, 337 Md. 112, 133-35, 651 A.2d 866 (1995); Commonwealth v. Bishop, 416 Mass. 169, 179-80, 617 N.E.2d 990 (1993); People v. Stanaway, 446 Mich. 648, 678-79, 521 N.W.2d 557 (1994); State v. Cressey, 137 N.H. 402, 413, 628 A.2d 696 (1993); State v. Kalakosky, 121 Wash.2d 525, 550, 852 P.2d 1064 (1993)."

State v. Slimskey, 257 Conn. 842, 779 A.2d 723, 732 n. 9 (2001).

T23 Finally, although Cramer contends that the Rhode Island Supreme Court has construed that state's confrontation clause as affording an accused broader rights than required in Ritchie, the case on which Cramer relies indicates that an accused's rights under that state's confrontation clause are not violated by an in camera review of privileged records. See State v. Kelly, 554 A.2d 632, 636-38 (R.I.1989) (noting that, had the accused not been granted a new trial on other grounds, the case would have been remanded for the trial court to conduct an in camera review of a witness's juvenile records).

{24 In short, the jurisdictions cited by Cramer do not lend persuasive authority to Cramer's interpretation of the Utah Constitution. Indeed, the case law in these jurisdictions contradicts Cramer's interpretation. Thus, Cramer has cited no persuasive authority for his view of due process under our constitution, nor has he made any persuasive arguments. Accordingly, we conclude that the trial court's order denying Cramer's request for "full disclosure" of M.L.'s privileged medical records did not violate Cram-er's rights under the Utah Constitution. .

B. Cramer's Claim That the Court Erred in Not Disclosing Amy of the Records Pursuant to its In Camera Review

125 Cramer next contends that, given the centrality of M.L.'s credibility to the case, the trial court erred in not disclosing any records. In essence, Cramer argues that some of the records must have been material and that the trial court, in conducting its in camera review, erred in concluding that none of the records was material within the meaning of Ritchie. In other words, Cramer contends that the trial court did not correctly apply the law (Ritchie's materiality standard) to the facts (the medical records). We are unable to review this ruling regarding materiality, however, because the medical records were not included in the appellate record.

26 Under rule 11(e)(2) of the Utah Rules of Appellate Procedure, an appellant has the duty to ensure the record is complete with respect to disputed findings or conclusions:

If the appellant intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a tran-seript of all evidence relevant to such finding or conclusion. Neither the court nor the appellee is obligated to correct appellant's deficiencies in providing the relevant portions of the transeript.

Utah R.App. P. ll(e)(2); see also State v. Nine Thousand One Hundred Ninety-Nine Dollars, 791 P.2d 218, 217 (Utah Ct.App.1990) ("Since counsel failed to provide this court with all relevant evidence bearing on the issues raised on appeal, as required by Utah R.App. P. ll(e)(2), we can only presume that the judgment was supported by sufficient evidence." (internal citations omitted); Sampson v. Richins, 770 P.2d 998, 1002-03 (Utah Ct.App.1989) ("In essence, Rule 11 directs counsel to provide this court with all evidence relevant to the issues raised on appeal.").

127 Although the trial court denied Cram-er direct access to M.L.'s records, Cramer should have requested that the court seal and retain the records as part of the record as per rule 4-205(4)(A) of the Utah Code of Judicial Administration, or if the court rejected that request, Cramer should have made a record of his objection and his efforts to include the sealed documents in the ree-ord. In addition, after transmission of the record to this Court, Cramer could have attempted to rectify the omission by moving to supplement the record:

If anything material to either party is omitted from the record by error or accident or is misstated, the parties by stipulation ... either before or after the record is transmitted, may direct that the omission or misstatement be corrected and if necessary that a supplemental record be certified and transmitted.

Utah R.App. P. 11(h). However, Cramer did not move to supplement the record even after this Court pointed out the omission to his attorney during oral argument. Although we have the discretion to supplement an inadequate record, Utah R.App. P. 11(h), we decline to exercise this discretion given that Cramer had an adequate opportunity to ensure a complete record himself.

$28 Because M.L's medical records are not included in the appellate record, we presume that the trial court correctly determined that none of the records was material to Cramer's defense. See State v. Robertson, 932 P.2d 1219, 1226 (Utah 1997) (applying precedent under which "[ilf an appellant fails to provide an adequate record on appeal, this Court must assume the regularity of the proceedings below." (internal quotations omitted)).

II. DENIAL OF NEW TRIAL FOR SPECTATORS CONTACT WITH VICTIM

129 In claiming that Mineer's statements to M.L. entitled him to a new trial, Cramer argues that these statements (1) violated the court's exelusion order under rule 615 and (2) were "new evidence" that made a different result probable on retrial. We address each argument in turn.

A. Alleged Violation of Exclusion Order

130 Cramer argues that Mincer's statements to M.L. violated the court's exelusion order under rule 615 and prejudiced him to the extent that the trial court should have granted his motion for a new trial. When an exclusion order has been violated, we review a trial court's denial of a motion for a new trial for abuse of discretion. See State v. McGrath, 749 P.2d 631, 634 (Utah 1988). In performing this review, we consider first Mi-neer's alleged statements to M.L. regarding the abuse of her sons, then her alleged statements to M.L. about other witnesses' testimony.

1. Alleged Statements about Cramer's Abuse of Mineer's Children in an Unrelated Case

131 Turning first to Mineer's statements regarding the abuse of her sons, we note that Cramer does not claim that Mineer or any other witness presented testimony about the abuse of Mineer's sons. Because rule 615 is directed toward preventing witnesses from changing their testimony based on other evidence adduced at trial (e.g., other witnesses' testimony), Mineer's statements to M.L. about her sons' abuse did not violate rule 615. See Utah R. Evid. 615 (stating that, upon request, "court shall order witnesses excluded so that they cannot hear the testimony of other witnesses" (emphasis added)); McGrath, 749 P.2d at 634. We therefore affirm the trial court's conclusion that communication of this information to ML. did not justify a new trial under rule 615.

2. Alleged Statements Concerning Other Witnesses' Testimony

%32 Turning next to Mineer's alleged statements about other witnesses' testimony, we conclude that the trial court did not abuse its discretion in concluding that Cramer failed to meet his burden under McGrath. As the trial court correctly recognized, under McGrath, a defendant must show that a violation of the exclusion order "prejudiced [him] to the extent that a new trial should be granted." McGrath, 749 P.2d at 634 (deelin-ing to adopt defendant's argument "that prejudice is inherent in [a] violation of an order of exclusion").

€33 The record supports the trial court's conclusion that Cramer did not show sufficient prejudice to justify a new trial. As the trial court noted, Jennifer Durham testified that she heard only small portions of Mineer's statements to ML., and could not recall specifically what was said about the testimony in court. Even assuming that Mi-neer told M.L. about other witnesses' testimony, Cramer does not claim that any other witness testified, for example, that Cramer asked ML. whether the touching "felt good." Thus, Cramer made no showing that ML. changed his testimony as a result of Mineer's statements about other witnesses' testimony. Moreover, in contrast to his argument concerning Mineer's statements about Cramer's abuse of her sons, Cramer does not even argue that the communication of other witnesses' testimony engendered fear in ML. and, as a result, caused him to change his testimony. Because Cramer did not provide the trial court with evidence that ML. "changed his testimony because of the conversations" concerning other witnesses' testimony, id., the trial court did not abuse its discretion in concluding that Cramer had not demonstrated that these communications "prejudiced [him] to the extent that a mistrial should be granted," id., even assuming these communications violated the exclusion order. - Accordingly, we affirm the trial court's conclusion that Mineer's alleged communications to M.L. about other witnesses' testimony did not warrant a new trial under rule 615.

B. New Evidence

{34 Alternatively, Cramer contends that evidence of Mineer's contact with M.L. is "new evidence" entitling him to a new trial under State v. James, 819 P.2d 781, 793 (Utah 1991) (setting forth test for new trial based on newly discovered evidence). In this regard, Cramer argues that he could have used Mineer's conversations with ML. to impeach or explain M.L.'s testimony at trial, which Cramer characterizes as being substantially more inculpatory and inflammatory than his previous statements.

135 Cramer did not, however, preserve this issue for appellate review. In his arguments to the lower court in support of his motion for a new trial, he did not cite James or argue that Mineer's statements satisfied the James test. In addition, Cramer does not contend that plain error or exceptional cireumstances justify addressing this issue for the first time on appeal. See State v. Mead, 2001 UT 58, 185 n. 5, 27 P.3d 1115. Thus, we decline to address this issue. See id. (declining to address eriminal defendant's argument that was raised for the first time on appeal).

136 Accordingly, we conclude the trial court did not exceed its discretion in denying Cramer a new trial as a result of Mineer's statements to M.L.

CONCLUSION

T37 The trial court's reliance on an in camera review in determining what records were material to Cramer's defense did not violate Cramer's rights under the Utah Constitution. Furthermore, by failing to ensure the medical records were included in the appellate record, Cramer waived his right to appellate review of the trial court's application of the Ritchie materiality standard. Fi-

nally, the trial court did not exceed its discretion in denying Cramer's motion for a new trial based on a spectator's statements to ML. Accordingly, we affirm the trial court's rulings and Cramer's convictions.

38 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Justice WILKINS concur in Justice DURRANT's opinion.

      . We note that rule 615 "does not authorize exclusion of a victim in a criminal ... proceeding where the prosecutor agrees with the victim's presence[.]" Utah R. Evid. 615(1)(d). As the State does not claim it "agree[d] with" M.L.'s presence, we assume the trial court properly excluded ML. from the courtroom during the other witnesses' testimony.

      . In his appellate brief, Cramer also argues in favor of disclosure on the ground that the records were not privileged under rule 506(d), which exempts from the privilege "communication{s] 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...." At oral argument, Cramer's counsel waived this argument when she did not dispute that the records were all privileged:
      COURT: As I understand it, ... the court [in conducting its in camera review] was required to make a determination of whether the documents were privileged at all. Do you contend that the court erred in that respect?
      CRAMER'S COUNSEL: No. And I believe there is no dispute that all the documents the defense counsel is looking for would have that claim of privilege..
      : Moreover, even if Cramer had not waived this argument his failure to ensure that the medical records were included in the appellate record prevents us from reviewing whether the requested records were subject to rule 506(d)'s exceptions to the privilege.

      . Cramer further contends that because his requests were sufficiently "specific," he was entitled to direct access to M.L.'s medical records under Ritchie. Cramer misinterprets Ritchie. Although "a defendant ... aware of specific information contained in [a] file [containing privileged records] ... is free to request it directly from the court, and argue in favor of its materiality," Ritchie, 480 U.S. at 60, 107 S.Ct. 989 (emphasis added), this does not automatically entitle the defendant to receive the requested records: the court must still assess whether the records are indeed material. See Ritchie, 480 U.S. at 58 n. 15, 59-60, 107 S.Ct. 989; State v. Cardall, 1999 UT 51, ¶¶ 33-35, 982 P.2d 79 (noting that defendant "specifically requested that the trial court review'" certain records)}.

      . Cramer also makes a cursory argument under the state due process clause in which he simply paraphrases his arguments under rule 615. This argument is not only inadequately briefed, but fails for the reasons set forth in support of our affirmance of the trial court's rulings under rule 615. We therefore do not address this claim. See, eg., Assoc. Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 37 & n. 8, 38 P.3d 291; supra ¶¶ 29-33.


source: Caselaw Access Project

author: RUSSON, Associate Chief Justice.

license: Public Domain

text:
    2002 UT 18
    APPLIED MEDICAL TECHNOLOGIES, INC., Plaintiff, v. Amorie EAMES, in her capacity as trustee of Heritage Management Trust, K.L. Hall, in his capacity as trustee of Heritage Management Trust, Ronald E. Eames, in his capacity as trust protector of Heritage Management Trust, Heritage Management Trust, and John Does 1-10, beneficiaries - and/or unknown trustees of Heritage Management Trust, Defendants. Heritage Management Trust, K.L. Hall, trustee, and Ronald E. Eames, Consolidated Counterclaim Plaintiffs and Appellants, v. Applied Medical Technologies, Inc., Wade Lee Hill, in his capacity as officer, director, and controlling person of Applied Medical Technologies, Inc., and John Does 1-10, as officers, directors, and accessories, Counterclaim Defendants and Appellees.
    No. 991007.
    Supreme Court of Utah.
    Feb. 5, 2002.

      Christopher W. Edwards, Hurricane, for appellants.
    Michael N. Zundel, Roger J. McConkie, Salt Lake City, and Frank A. Allen, Jeffrey C. Wilcox, St. George, for appellees.
   RUSSON, Associate Chief Justice.

{1 Defendant Heritage Management Trust ("Heritage Trust"), appeals the trial court's dismissal of its claims against Applied Medical Technologies, Inc., and Dr. Wade Lee Hill, We affirm.

BACKGROUND

2 In November 1998, Ronald Eames and Dr. Hill agreed to form a Nevada corporation known as AMT, Inc., which subsequently became known as Applied Medical Technologies, Inc. ("Applied Medical"). In connection therewith, Mr. Eames, Dr. Hill, and others received equitable shares in Applied Medical. Mr. Eames elected to have his shares held by his family's trust, Heritage Trust, with Amo-rie Eames, Mr. Eames's wife, as trustee.

T3 In October 1996, Dr. Hill initiated an action against Heritage Trust to foreclose on a trust deed in Mrs. Eames's name as trustee ("the foreclosure action"). The foreclosure action was tried, resulting in a deficiency judgment in Dr. Hill's favor against Heritage Trust in the amount of $62,070.48. Neither party appealed this judgment.

T4 On May 1, 1998, Applied Medical sued Heritage Trust, seeking declaratory relief regarding dissenter's rights claims, valuation of the Applied Medical stock, and the effect of Mr. Eames's bankruptey. Subsequently, on July 6, 1998, Heritage Trust and KL. Hall, as trustee of Heritage Trust, filed a separate suit against Applied Medical and Dr. Hill, alleging various claims regarding the Applied Medical stock. Finally, on or about February 9, 1999, Heritage Trust, Mr. Hall, and Mr. Eames sued Dan Page and Jeff Zander, alleging gross negligence, wilful misconduct, fraud, and breach of loyalty and fiduciary duty. Subsequently, the trial court consolidated these three cases.

15 On January 28, 1999, the foreclosure action court issued a writ of execution requiring Heritage Trust to deliver nonexempt property to satisfy the deficiency judgment. A Washington County constable served and executed the writ according to rule 69(F) of the Utah Rules of Civil Procedure. Pursuant to the writ, the constable levied upon Heritage Trust's nonexempt property, including Heritage Trust's pending claims in the consolidated case.

. T6 The constable's sale was held on March 31, 1999, in St. George, Utah. The constable presented for sale "all claims, counterclaims, causes of action, choses in action, rights to payment, and rights to compensation of every kind and nature, which [Heritage Trust] may have against Hill or Applied Medical Technologies ..., including, but not limited to, all such claims and causes of action asserted in complaints filed" in the consolidated case. Both the Heritage Trust trustee and the trust's attorney, Christopher Edwards, attended the sale, but neither bid on the consolidated case claims. Dr. Hill, however, bid upon and purchased those claims.

17 After the sale, Dr. Hill, having purchased all of Heritage Trust's claims against himself and others, moved to dismiss those claims. Dr. Hill argued that the trial court should dismiss because Utah appellate courts "have made clear that a judgment ereditor may execute on a judgment debtor's cause of action against the judgment ereditor and then dismiss the causes of action." Accordingly, the trial court dismissed Heritage Trust's claims in the consolidated case on September 20, 1999. The court reasoned:

It appears to the Court that Dr. Hill has legally and lawfully acquired all of the claims and causes of action of Heritage Management Trust, KL. Hall, Trustee, Amorie Eames, Trustee, and any successor trustee pursuant to a constable's sale held on March 31, 1999, and that the Certificate of Sale of Personal Property Per Legal Writ issued by the constable describes all of Heritage[ Trust's] claims, counterclaims, causes of action, choses in action, rights to payment, and rights to compensation of every kind and nature including Heritage[ Trust's] claims described in the Complaints commencing [the consolidated action].

T8 Heritage Trust appeals, contending that the trial court erred by dismissing its claims because Dr. Hill unlawfully obtained Heritage Trust's causes of action at the constable's sale. Conversely, Dr. Hill and Applied Medical contend that the trial court properly dismissed those claims because Dr. Hill legally purchased Heritage Trust's causes of action at the sale pursuant to Utah Rule of Civil Procedure 69(F).

9 The issue on appeal is whether the trial court properly dismissed Heritage Trust's causes of action against Dr. Hill, which he purchased at the constable's sale. Specifically, we must determine whether Dr. Hill, as a judgment creditor, may purchase claims pending against himself at a constable's sale to satisfy a deficiency judgment that he has against Heritage Trust and then move to dismiss those claims.

STANDARD OF REVIEW

{10 Whether a judgment creditor may levy upon choses in action, ie., causes of action, is a question of law, which we review for correctness. Snow, Nuffer, Engstrom & Drake v. Tanasse, 1999 UT 49, ¶ 7, 980 P.2d 208. Likewise, whether public policy precludes a civil defendant from purchasing causes of action against itself is a question of law, which we review for correctness. Id.

ANALYSIS

[11 Rule 69(b) of the Utah Rules of Civil Procedure provides, "A writ of execution may be used to levy upon all of [a] judgment debtor's personal property and real property which is not exempt from execution under state or federal law." Utah R. Civ. P. 69(b). Accordingly, under rule 69) of the Utah Rules of Civil Procedure, a sheriff or constable, pursuant to a writ of execution, may levy upon the nonexempt property and sell it at a sheriff's sale. That rule states in pertinent part:

(£) Service of the writ. Unless the execution otherwise directs, the officer must execute the writ against the non-exempt property of the judgment debtor by levying on a sufficient amount of property, if there is sufficient property; collecting or selling the choses in action and selling the other property in the manner set forth herein.

Utah R. Civ. P. 69(F) (emphasis added).

112 According to the plain language of the rule, all choses in action "may ordinarily be acquired by a creditor through attachment and execution." Tanasse, 1999 UT 49 at ¶ 9. In Tanasse, we defined chose in action "as 'a claim or debt upon which a recovery may be made in a lawsuit. It is not a present possession, but merely a right to sue; it becomes a "possessory thing" only upon successful completion of a lawsuit!" " Id. (quoting Barron's Law Dictionary 71 (3d ed.1991)).

113 Given that choses in action are amenable to execution under rule 69), it follows that a defendant can purchase claims, ie., choses in action, pending against itself and then move to dismiss those claims. Generally, judgment ereditors can purchase any nonexempt property at a sheriff's sale to satisfy the judgment that it has against the judgment debtor. See Garland v. Fleischmann, 831 P.2d 107, 108, 112 (Utah 1992); Free v. Farnworth, 112 Utah 410, 414, 188 P.2d 731, 738 (1948); see also Kelly v. Barnet, 24 Cal.App. 119, 140 P. 605, 606 (1914); Aymond v. Rabalais, 657 So.2d 165, 167 (La.Ct.App.1995); 83 C.J.S. Executions § 222(c) (1998).

14 However, in Tanasse, we recognized an exception to the general rule and held that a law firm's "actions-in forcing an execution sale of defendant's assets to satisfy a default judgment, purchasing [the plaintiffs] pending legal malpractice claims against it, and extinguishing that claim through a motion to dismiss-violate[ ] public policy." 1999 UT 49 at 112. Heritage Trust contends that we should extend this exception to preclude any judgment creditor from purchasing causes of action against itself at a sheriffs sale. Specifically, Heritage Trust asserts that we should extend this exeeption to preclude all judgment creditors from purchasing claims against themselves under rule 69) because (1) rule 69(f) is unconstitutional as applied to judgment debtors such as Heritage Trust, and (2) the public policy considerations upon which we relied in Tanasse are applicable to all judgment creditors that purchase claims against themselves at sheriff's sales, not just to lawyers as judgment eredi-tors.

I. CONSTITUTIONALITY OF RULE 69(F)

115 Heritage Trust contends that Dr. Hill unlawfully purchased its claims filed against Dr. Hill and others in the consolidated case. Specifically, Heritage Trust argues that rule 69(f) is unconstitutional as applied to Heritage Trust because it was denied the opportunity to have its day in court under the open courts provision of the Utah Constitution. That provision states:

All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.

Utah Const. art I, § 11.

116 At the very least, the open courts provision guarantees litigants access to the courts, ie., a day in court, affording them the opportunity to litigate any justicia-ble controversy. Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶¶ 38, 41-42, 44 P.3d 663. However, that right is limited to those individuals who actually have a viable claim, because the right is inextricably connected with that claim. Thus, when a litigant's claims are transferred to another, the constitutional right to access the courts to litigate those claims is transferred with the claims. Nelson v. Smith, 107 Utah 382, 388-89, 154 P.2d 634, 637-38 (1944). Therefore, the open courts provision does not preclude the alienation or sale of a litigant's claims.

€ 17 Indeed, causes of action are regularly sold. See, eg., Warner v. DMG Color, Inc., 2000 UT 102, ¶¶ 3-4, 9, 11, 17, 20 P.3d 868. For example, in Tanasse, we held that pending claims could be acquired through attachment and execution, and then sold pursuant to a sheriffs sale. 1999 UT 49 at ¶ 9. After claims have been sold, a new party steps into the shoes of the former plaintiff, and the claims remain cognizable, see Olsen v. Chappell, 20 Utah 2d 115, 118, 433 P.2d 1011, 1014 (1967), but the sale cuts off the former plaintiff's right to pursue those claims. Warner, 2000 UT 102 at ¶ 18; see also Bauer v. Sweeny, 964 F.2d 305, 308 (dth Cir.1992). Once acquired by another, the new litigant has the right to determine the course and seope of the litigation of the claims purchased, including the right to move to dismiss the pending claims. Under the open courts provision, there is no appreciable difference between a defendant purchasing claims against itself and another purchasing those claims. In either case, the original plaintiff is precluded from pursuing those claims. Hence, a defendant who has acquired claims pending against itself may move to dismiss those claims without abrogating the right of access to the courts.

1118 Moreover, the last clause of the open courts provision guarantees that an individual may "prosecut[e] or defend[ any civil action] before any tribunal in this State," so long as the individual is a party to the suit. Utah Const. art. I, § 11. When a defendant purchases claims pending against itself, becoming both plaintiff and defendant, and then moves to dismiss those elaims, the former plaintiff is not denied the opportunity to prosecute or defend a civil action in court because the former plaintiff is no longer a party to the suit. See Nelson, 107 Utah at 388-89, 154 P.2d at 637-88. Therefore, we conclude that Dr. Hill's actions-in compelling execution of the claims pending against himself to satisfy a default judgment, purchasing those claims at the sheriff's sale, and moving to dismiss those claims-do not contravene the open courts provision of the Utah Constitution.

II. PUBLIC POLICY EXCEPTION

119 Heritage Trust also contends that Dr. Hill improperly purchased Heritage Trust's claims filed against Dr. Hill and others in the consolidated case because "[plublic [plolicy dictates that a person [should] not be able to acquire a chose in action against itself by means of writ of execution or other forced sale." In making this argument, Heritage Trust relies upon Tanasse, in which, indeed, this court held as a matter of public policy that a law firm could not purchase a legal malpractice claim pending against the law firm at a sheriff's sale. See 1999 UT 49 -at ¶¶ 12-13, 980 P.2d 208. However, while we stated in Tanasse that public policy concerns included both the effect of denying the plaintiff the right to a trial on his claims and the preclusion of a fair valuation of those claims, we clearly stated that additional public policy concerns were present when dealing with lawyers. We explained:

We recognize that both of the above-de-problems are present in every situation in which a judgment ereditor seeks to execute on an action pending against it. However, in situations like the present, in which the attorney-client relationship is at issue, these problems take on special significance. Allowing lawyers and law firms to execute on legal malpractice actions pending against them may significantly undermine the public trust in the legal profession and process and compromise the relationship.

Id. at " 15.

20 Lawyers, as attorneys and counselors at law, are officers of the courts of this state and take a special oath subjecting them to the Rules of Professional Conduct promulgated by the Utah Supreme Court. See Utah R. Prof'l Conduct preamble; see also Featherstone v. Schaerrer, 2001 UT 86, ¶ 34, 34 P.3d 194. Because of their legal training and experience, lawyers. are in an advantageous position that enables them to appraise the merits of a claim, the amount of damages that they could incur, and the duration of potential litigation. Lawyers often know confidential information regarding former clients, such as their former clients' weaknesses and financial conditions. All of the foregoing places a lawyer in a position to take advantage of a. client if the lawyer were allowed to purchase that client's malpractice claim against the lawyer and then move for dismissal of the claim. See Smoot v. Lund, 13 Utah 2d 168, 172, 369 P.2d 933, 936 (1962) (stating that attorneys are "not permitted to take advantage of [their] position[s] or superior knowledge"); see also In re Evans, 42 Utah 282, 342, 130 P. 217, 240-41 (1913) (recognizing that attorneys have legal technical knowledge that general public lacks). Thus, we concluded in Tanasse that "public confidence in both the legal profession and the legal process as a whole would be damaged if lawyers were allowed to execute on legal malpractice claims brought against them." 1999 UT 49 at 116. Therefore, in that case, pursuant to our constitutional duty to regulate and supervise the actions of attorneys in the practice of law, see Utah Const. art. VIII, § 4, we determined that such public policy considerations were suffi-client bases to hold that attorneys and law firms could not purchase legal malpractice claims against themselves with the intention of extinguishing those claims. Tanasse, 1999 UT 49 at ¶¶ 12, 18.

121 Heritage Trust now urges us to extend the Tanasse exception to bar Dr. Hill from purchasing claims against himself. The claims that Dr. Hill purchased were stock claims. Neither party has alleged that the agreement between Dr. Hill and Mr. Eames regarding the formation of Applied Medical and the disbursement and allocation of shares in Applied Medical was anything but an arm's-length business transaction. This is simply a case of a nonlawyer, Dr. Hill, purchasing claims against himself at a sheriffs sale. Unlike our holding in Tanasse, which we based on the public policy of protecting the integrity of the legal process, 1999 UT 49 at ¶¶ 15-16, here, where neither the attorney-client relationship nor the legal process is sullied or damaged and there are no other policy reasons to extend the exception to the general rule we articulated in Tanasse, we are reluctant to hold that nonlawyers may not purchase claims against them solely on the basis of public policy not derived from constitutional or statutory law. Therefore, we decline to enlarge the exception recognized in Tanasse.

CONCLUSION

122 We hold that Dr. Hill legally purchased claims pending against himself and then moved to dismiss those claims. We therefore affirm the trial court's dismissal of Heritage Trust's claims purchased by Dr. Hill at the sheriff's sale.

11 23 Chief Justice HOWE, Justice DURHAM, Justice DURRANT, and Justice WILKINS coneur in Associate Chief Justice RUSSON's opinion.

      . We are unable to ascertain the facts underlying the foreclosure action from the briefs or the record before us. Nevertheless, those facts are irrelevant to the issue on appeal. The only fact relevant to this appeal is that the judgment resulted in a deficiency judgment and, subsequently, a writ of execution.

      . Both Mrs. Eames and Mr. Hall have served or are serving as trustee of Heritage Trust. However, their current relationship and their respective roles as trustee are unclear from the facts presented.

      . We are unable to ascertain whether this was Mrs. Eames or Mr. Hall from the briefs or the record on appeal.

      . Heritage Trust, as far as we can ascertain from its briefs, appears to also argue that rule 69(F) is unconstitutional as applied to it under article I, section 1 of the Utah Constitution. Specifically, Heritage Trust seems to intimate that because rule 69(f) permitted Dr. Hill to purchase the claims against himself and others so that he could move to dismiss those claims, Heritage Trust has been denied a right to "redress of grievances." However, Heritage Trust's briefing on the issue fails to comply with rule 24(a)(8) of the Utah Rules of Appellate Procedure, see Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 37 & n. 8, 38 P.3d 291, and we refuse to address issues inadequately briefed, researched, and presented. State v. Lusk, 2001 UT 102, ¶ 34, 37 P.3d 1103.


author: HOWE, Chief Justice. WILKINS, Justice,

text:
    2002 UT 21
    Betty GOODNOW, Plaintiff and Appellee, v. Marie SULLIVAN, Defendant and Appellant.
    No. 990805.
    Supreme Court of Utah.
    Feb. 26, 2002.

      L. Edward Robbins, Knab, for plaintiff.
    Frank A. Allen, Barry E. Clarkson, St. George, for defendant.
   HOWE, Chief Justice.

INTRODUCTION

1 1 Defendant Marie Sullivan appeals from a summary judgment entered against her in this action brought by plaintiff Betty Good-now to declare the removal of defendant as a successor trustee under the Fern Hansen Morrison Jensen Inter Vivos Trust.

BACKGROUND

T2 On November 1, 1977, the mother of plaintiff and defendant, Fern Hansen Morrison Jensen (hereinafter Mrs. Morrison) executed as settlor the Fern Hansen Morrison Jensen Inter Vivos Trust Agreement. She named herself as trustee and plaintiff and defendant as successor trustees. She reserved the right as settlor in paragraph 4.2 to "amend this trust in any manner whatsoever by delivering to the Trustee then serving a signed and acknowledged statement, such amendment not being effective until such conditions are fulfilled."

13 Mrs. Morrison died on December 4, 1998. Subsequently, plaintiff brought this action against defendant to declare that Mrs. Morrison in the months prior to her death had removed defendant as a successor trustee by virtue of a series of letters that she signed and delivered to herself as trustee. Those letters are as follows:

1. On August 6, 1998, Mrs. Morrison wrote a letter addressed "To Whom It May Concern" which read in part:
I Fern Morrison am writing this letter to clarify my desire as to the disposition of my estate known as the Thunderbird Resort and all other properties and assets included therein. This letter is to assure that my daughter, Marie Sullivan, does not have control of my property after my death.
My reward for my generosity is that Marie has been plotting for many years unbeknownst to me to have the Thunderbird properties entirely to herself upon my death. This was never my intention. I have worked all my life to have something left for my family when I die, and I never intended that Marie should have the full benefit.
The letter was subscribed by Mrs. Morrison and sworn to before a notary public.
2. On September 1, 1998, Mrs. Morrison went to her bank and in a letter instructed the bank to remove defendant as a signatory on her bank accounts.
3. On September 18, 1998, plaintiff spoke with one Neil Winterton who had been assisting Mrs. Morrison in the management of her affairs. Winterton dictated to plaintiff a letter of instructions which plaintiff typed and Mrs. Morrison then signed. The letter stated:
Dear Mr. Winterton:
Cireumstances have arisen beyond my control.
My desire is to change Marie M. Sullivan as Trustee to Betty Goodnow. Also change the Right of First Refusal from Marie M. Sullivan to Betty Goodnow. Please do this as soon as possible to protect our livelihood. Thanks.
[Signed] Fern M. Morrison

T4 Thereafter, Winterton prepared and presented to Mrs. Morrison for her signature (1) a document entitled Full Power of Attorney, giving plaintiff general power of attorney for Mrs. Morrison and superseding a prior power of attorney in favor of defendant; (2) an amendment to the trust reversing a prior amendment that gave defendant the first right of refusal on the Thunderbird Resort and now giving that right to plaintiff; (3) a codicil to the will of Mrs. Morrison changing the personal representative from plaintiff and defendant jointly to plaintiff alone. Mrs. Morrison executed all three documents on September 22, 1998.

15 The parties filed eross-motions for summary judgment. Plaintiffs motion was supported by her affidavits that at her mother's direction, she had typed the letters previously mentioned dated August 6, 1998, September 1, 1998, and September 18, 1998, that her mother signed them in plaintiff's presence, and that it was her mother's intention in signing the letters to remove defendant as a successor trustee No counter affidavit was filed by defendant, and none was filed in support of her motion for summary judgment.

T6 At the hearing on the eross-motions, defendant objected to the admission of the letters into evidence on the grounds that they were not authentic and that they constituted hearsay. After hearing the arguments of counsel, the trial court indicated its inclination to deny both motions for summary judgment and set the case for an evidentiary trial. At that point, counsel for defendant waived his objections to the admission of the letters and requested that the court "accept" the letters and determine "do they or do they not qualify as an amendment? and that's a matter of law." In response, the trial court ruled that taken together, the letter dated August 6, 1998, addressed "To Whom It May Concern," the letter to Mrs. Morrison's bank dated September 1, 1998, and the letter of instructions to Neil Winterton dated September 18, 1998, as a matter of law amended the trust to remove defendant as a successor trustee. Consequently, the court granted plaintiff's motion and denied defendant's motion for summary judgment. Defendant appeals.

STANDARD OF REVIEW

T7 Summary judgment is granted only when "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(c). In reviewing a grant of summary judgment, this court views "the facts in a light most favorable to the losing party below" and gives "no deference to the trial court's conclusions of law: those conclusions are reviewed for correctness." Blue Cross & Blue Shield v. State of Utah, 779 P.2d 634, 636-37 (Utah 1989).

ANALYSIS

T8 The sole issue for our determination is whether as a matter of law the letter dated August 6, 1998, was intended by Mrs. Morrison to be an amendment to her trust removing defendant as a successor trustee. See Leggroan v. Zion's Savs. Bank & Trust Co., 120 Utah 93, 98, 232 P.2d 746, 749 (1951) (stating that in interpreting terms of trust, inquiry is as to intent of trustor). Because defendant waived her objections to the admission of the letters into evidence, they were properly before the trial court and now before us.

T9 In support of the trial court's judgment, plaintiff argues that the August 6 letter standing alone is sufficiently clear to constitute an amendment to the trust agreement. She asserts that the language of that document is reasonably susceptible of only one meaning-that defendant not act as a successor trustee. She emphasizes that Mrs. Morrison was attempting to "assure" that defendant have no control over her property after she died. Finally, she argues that if the August 6 letter is not sufficiently clear as to Mrs. Morrison's intent, the letter to her bank and the letter to Mr. Winterton wherein she directs him to "change Marie M. Sullivan as trustee to Betty Goodnow" provide supporting evidence of her intent.

10 Notably, the August 6 document upon which plaintiff primarily relies is not denominated or entitled an amendment to the trust agreement. In fact, no specific reference is made to the trust agreement at all. Reference is made to the Thunderbird Resort property that is held in the trust. However, the document is clear that Mrs. Morrison intended that defendant not have "control of my property after my death." The letter written to her bank to remove defendant as a signatory on her bank accounts again does not mention the trust agreement nor refer to defendant as a successor trustee. The letter dated September 18, 1998, to Mr. Winterton clearly directs him to "change Marie M. Sullivan as trustee to Betty Goodnow" and to "[clhange the Right of First Refusal from Marie M. Sullivan to Betty Goodnow." Significantly, however, the amendment to the Fern Hansen Morrison Inter Vivos Trust signed by Mrs. Morrison on September 22, 1998, gives the right of first refusal to plaintiff but does not mention removing defendant as a successor trustee.

T11 Different inferences can be drawn from these facts. The lack of specific reference to her trust agreement in the August 6 document, and the fact that the next month she requested Mr. Winterton to prepare an amendment to remove defendant as a successor trustee raises factual questions as to whether she intended the August 6 document to be an amendment to her trust. Arguably, however, she may have intended the August 6 document to be an amendment to her trust, but later decided to have it put in a more formal writing, and thus requested Mr. Win-terton to have a formal amendment prepared. Additionally, as pointed out by defendant, in the August 6 letter Mrs. Morrison states that Marie has plotted to have the Thunderbird properties entirely to herself and that Mrs. Morrison "never intended that Marie should have the full benefit." Arguably, these concerns of Mrs. Morrison do not relate to whether Marie should serve as a co-trustee, but are directed to the fact that it is Mrs. Morrison's intention that her two daughters share equally in her trust estate. That, in fact, is what the trust provides.

1 12 In the August 6 letter, Mrs. Morrison states that she does not want defendant to "have control over my property after my death." As a successor trustee, defendant would not have full control over her mother's property. The "control" would be shared with plaintiff. The question then arises regarding what Mrs. Morrison meant by "control." Was it full control or only partial control? Again, actual questions of fact are presented.

113 Various conflicting inferences material to the outcome of the case can be drawn from the facts. The judge "may not on a motion of summary judgment, draw fact inferences as to [the moving party's] purpose or intention.... [Sluch inferences may only be drawn at trial." See Gray Tool Co. v. Humble Oil & Ref. Co., 186 F.2d 365, 367 (5th Cir.1951). Accordingly, we reverse and remand this case to allow the finder of the facts, after hearing all relevant evidence, to draw those inferences which seem most reasonable.

' 14 Reversed and remanded.

15 Justice DURHAM concurs in Chief Justice HOWE'S opinion.

WILKINS, Justice,

concurring in the result:

{[ 16 I concur in the result reached by the lead opinion. However, I do not subscribe to the reasoning of Gray Tool Co. v. Humble Oil & Refining Co., 186 F.2d 365 (5th Cir. 1951), relied upon for the proposition that a judge may not, as a matter of law, draw fact inferences relating to a party's "purpose or intentions" from facts presented in support of a motion for summary judgment. That would be an unnecessarily limiting rule of law in my opinion. Moreover, such a new rule is not required to resolve the case before us.

117 Rule 56 of the Utah Rules of Civil Procedure binds trial courts in considering a motion for summary judgment. The court must consider all facts, and all inferences from those facts, in the light most favorable to the nonmoving party. It is sufficient to review this case under our ordinary standard * of review, granting to defendant in this case the benefit of the most advantageous inferences to be drawn from the disputed doeu-ments and actions of the late Mrs. Morrison.

"[ 18 Where, as here, equally plausible contrary inferences may be drawn, neither party should have been granted summary judgment. Under the cireumstances of this case, as presented to the trial court, the inferences drawn and relied upon by the trial court were those most adverse to the nonmoving party, namely, that Mrs. Morrison intended to change the identity of her trustee. The inference most favorable to Ms. Sullivan would have been that Mrs. Morrison did not intend such a change. Summary judgment should not have been granted under these cireumstances for that reason alone.

1 19 This matter should proceed to a stage where a trier of fact may reach supportable findings as to Mrs. Morrison's intent. I therefore concur in the result reached by the lead opinion, but not the reasoning.

[20 Associate Chief Justice RUSSON and Justice DURRANT concur in Justice WILKINS concurring in the result opinion.


text:
    2002 UT 22
    STATE of Utah in the interest of A.C.C., a person under eighteen years of age.
    No. 20000596.
    Supreme Court of Utah.
    March 5, 2002.

      Mark L. Shurtleff, Att'y Gen., Christine F. Soltis, Asst. Att'y Gen., Byron F. Burmester, Salt Lake City, for the State of Utah.
    Robert L. Donohoe, Salt Lake City, for A.C.C.
   DURRANT, Justice.

{1 Acting pursuant to a probation order that subjected A.C.C., a minor, to random searches, a probation officer searched A.C.C.'s backpack and seized a device used to inhale marijuana. Based on this seizure, the officer filed a delinquency charge against A.C.C. in juvenile court; A.C.C. then filed a motion to suppress the drug paraphernalia, arguing that the officer's search and seizure violated the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Utah Constitution. The juvenile court denied this motion, reasoning that A.C.C. lacked a reasonable expectation of privacy in his backpack because of the terms of his probation. The Utah Court of Appeals reversed and held that the Fourth Amendment required a "reasonable suspicion" on the part of the probation officer before conducting a warrantless search of A.C.C.'s belongings.

T2 On certiorari, the State initially contends that the appellate court erred in applying the exclusionary rule developed with respect to the Fourth Amendment to A.C.C.s juvenile court delinquency proceeding. It further contends that, even if the ex-elusionary rule applies to A.C.C.'s delinquen-ey proceeding, the court of appeals erred in concluding that A.C.C. had a reasonable expectation of privacy regarding the contraband in his backpack. We conclude that in light of the express terms of his probation, A.C.C. had no reasonable expectation of privacy in the seized contraband and could not suppress it. We therefore reverse the court of appeals.

BACKGROUND

[ 3 On November 10, 1997, a juvenile court placed A.C.C. on probation for unlawfully possessing marijuana. The court's probation order subjected A.C.C. to two special conditions. - First, the court ordered "[that [A.C.C.] submit to search and seizure from law enforcement for detection of drugs, weapons or other illegally possessed items." Second, the court ordered "[that [A.C.C.] submit to chemical testing for controlled substances...."

T4 In a chemical test administered on August 24, 1998, A.C.C. tested positive for marijuana. Approximately three weeks later, he submitted to a another drug test. This second test rendered inconclusive results, but the law enforcement officer administering it, Probation Officer Stanworth, concluded that A.C.C. had tested clean because traces of marijuana might have lingered in his system from his prior drug use.

11 5 On September 17, 1998, A.C.C.'s mother called Stanworth and asked him to conduct a search of A.C.C.'s car. She made this request because she suspected A.C.C. had been using marijuana and believed he was concealing it in his vehicle. On September 21, 1998, Stanworth arrived at A.C0.C.'s residence and spotted A.C.C.'s car sitting in the driveway. After exiting his own vehicle, Stanworth noticed a black backpack inside A.C.Cs ear. - Stanworth recognized this backpack as belonging to A.C.C. because he had searched it on an earlier occasion.

T6 Thereafter, Stanworth entered A.C.C.'s residence and visited with A.C.C. and his mother. Near the end of this conversation, Stanworth informed A.C.C. that he wanted to search A.C.C.'s room and car. Upon learning the reason for Stanworth's visit, A.0.C. claimed that he felt ill but nonetheless accompanied his mother and Stanworth outside to his vehicle.

T7 Opening the door of A.C.C.'s car, Stan-worth immediately detected a strong odor of marijuana. He then asked A.C.C. what he had been smoking; A.C.C. replied that he had been using cigarettes to stay off marijuana. Unpersuaded by this response, Stan-worth conducted a brief search of A.C.C.!s car, which revealed that the pungent odor was emanating from A.C.C.'s backpack. Stanworth subsequently seized this backpack and transported it inside.

T8 Once inside A.C.C.'s mother's home, Stanworth asked A.C.C. whether he would find any illegal substances in the backpack. AC.C. answered "no." Despite receiving this assurance, Stanworth unzipped the backpack and discovered an eight-inch bong that showed signs of recent use.

19 Based on this discovery, Stanworth filed both delinquency and probation violation charges against A.C.C. On December 2, 1998, A.C.C. filed a motion to suppress, asserting that the drug paraphernalia seized by Stanworth could not be introduced in the delinquency proceeding because it had been seized in violation of the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Utah Constitution. The juvenile court denied this motion, reasoning that A.C.C. did not have a reasonable expectation of privacy because of the terms of his probation. The court then found A.C.C. guilty of unlawfully possessing drug paraphernalia pursuant to subsection 58-87a-5(1) of the Utah Code and committed him to a secure facility within the Division of Youth Corrections for ten days.

10 A.C.C. subsequently appealed the juvenile court's ruling, and the Utah Court of Appeals reversed. In so doing, the court of appeals held that the exclusionary rule of the Fourth Amendment applied to juvenile court delinquency proceedings and that A.C.C. had a reasonable expectation of privacy, which required Probation Officer Stanworth to have a "reasonable suspicion" that A.C.C. had committed a probation violation or a crime before searching his property without a warrant. The court of appeals further held that additional factual findings were necessary to determine whether Stanworth possessed such a "reasonable suspicion" before searching A.C.C.'s backpack and remanded the case to the juvenile court to make that determination.

€ 11 We granted the State's certiorari petition. Before us, the State contends that the exclusionary rule of the Fourth Amendment does not apply to juvenile court delinquency proceedings. Alternatively, the State claims that, even if the exclusionary rule applies to delinquency proceedings, A.C.C., as a juvenile probationer, lacked a reasonable expectation of privacy. A.C.C. counters that the exclusionary rules. of both the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Utah Constitution apply to juvenile court delinquency proceedings. A.C.C. further asserts that he possessed a reasonable expectation of privacy in the seized property that required Probation Officer Stanworth to have a "reasonable suspicion" that he committed a probation violation or a crime before searching his belongings.

ANALYSIS

I. STANDARD OF REVIEW

12 Whether a juvenile probationer's expectation of privacy is reasonable notwithstanding a probation condition authorizing random searches is the only issue we resolve. Because this is a legal issue, we review it for correctness. See State v. Holden, 964 P.2d 318, 321 (Utah Ct.App.1998). - Further, where that review requires us to examine statutory language, we look first to the plain meaning of the statute. See State v. Ostler, 2001 UT 68, ¶ 7, 31 P.3d 528.

II. A.C.C. LACKED A REASONABLE EXPECTATION OF PRIVACY

{13 On certiorari, the State proffers two arguments. First, the State asserts that the exclusionary rule of the Fourth Amendment does not apply to juvenile court delinquency hearings. Second, the State contends that A.C.C. had no reasonable expectation of privacy in his property due to the terms of his probation. We do not reach the question of whether the exclusionary rule applies to juvenile court delinquency proceedings, however, because we conclude that, even assuming it does, the evidence at issue was properly admitted. As discussed below, the evidence was admissible because A.C.C. had no reasonable expectation of privacy relative to it.

114 Operating under our assumption that the exclusionary rule applies, we assess whether A.C.C. had a reasonable expectation of privacy regarding the contraband hidden in his backpack. A.C.C. had the burden of establishing such an expectation and must prove that "his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 132 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In other words, A.C.C., as the proponent of a motion to suppress, must prove that he possessed a "legitimate expectation of privacy" in the property seized by the government. Id. at 143, 99 S.Ct. 421.

A. Subjective intent

115 The test for determining whether A.C.C. had a reasonable expectation of privacy requires two inquiries on our part. Id. at 143 n. 12, 99 S.Ct. 421. First, we must ascertain whether A.C.C. manifested a subjective expectation of privacy. Id. In answering this question, the juvenile court found that A.C.C. harbored a subjective expectation of privacy, noting that "he hid the contraband in his backpack ... and not in his room [where] his mother ... frequently [conducted] searches." The juvenile court added that it was A.C.C.'s "last wish ... to have the contraband discovered by his probation officer or his parent." The court of appeals noted this finding in affirming the juvenile court's conclusion. We also agree with the juvenile court, concluding that A.C.C. manifested a subjective expectation of privacy because he hid the contraband in a private location. Cf. In re Tyrell, 8 Cal.4th 68, 83, 32 Cal.Rptr.2d 33, 876 P.2d 519 (Cal.1994) (holding that a juvenile's attempt to hide illegal contraband demonstrated a subjective intent to maintain his privacy as to the object).

B. Reasonableness

116 Although we agree that A.C0.C. manifested a subjective expectation of priva-ey, "the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise illegitimate." New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (citation and internal quotation omitted). Rather, to invoke the protective features of the Fourth Amendment's exclusionary rule, A.C.C.'s subjective expectation of privacy "must be one that society is prepared to recognize." Id. Hence, the second question we must resolve is whether A.C.C. manifested a subjective expectation of privacy that was reasonable. Hudson v. Palmer, 468 U.S. 517, 525, 104 S.Ct. 3194, 82 L.Ed.2d 398 (1984) (announce ing "that the applicability of the Fourth Amendment turns on whether the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action." (citation and internal quotations omitted)).

117 To ascertain the reasonableness of A.C.C.s subjective expectation of privacy under the Fourth Amendment, we initially seek guidance from the United States Supreme Court. The Supreme Court has declared that "although some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizurel,] ... the Fourth Amendment imposes no irreducible requirement of such suspicion." T.L.O., 469 U.S. at 342, n. 8, 105 S.Ct. 733 (internal quotations and alterations omitted). As a result, suspicionless searches have been permitted in some circumstances. Seq, eg,, Hudson, 468 U.S. at 526, 104 S.Ct. 3194.

{18 In determining whether a suspicion-less search is justified, the Court has balanced two factors against each other: (1) the individual's privacy interest and (2) the government's interest in effectively operating its institutions. Id. For example, in Hudson, the Supreme Court held that "society [wals not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell...." Id. The Court reached this conclusion after weighing the privacy interests of the prisoner against the legitimate interests of the government. Id. at 527, 104 S.Ct. 8194. After balancing these interests, the Court reasoned that "privacy rights for prisoners ... simply [could not] be reconciled with the concept of incarceration and the needs and objectives of the penal institution[ ]." Id. at 526, 104 S.Ct. 3194.

[ 19 Recently, in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Supreme Court reaffirmed the viability of this balancing test. In that case, the Court implicitly examined the privacy rights retained by an adult probationer who was required to "[slubmit his ... person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." Id. at 589. Upholding this condition, the Court stated that "(all-though the Fourth Amendment ordinarily requires the degree of probability embodied in the term 'probable cause, a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable." Id. at 592. The Court then explained that California's legitimate interests in its adult probation system (ie., rehabilitation of the probationer and protection of other citizens) outweighed Knights's individual privacy interest and permitted a reduction in his right to privacy. Id. at 591-92.

{20 Our own case law provides further support for engaging in a balancing test to determine the reasonableness of an individual's expectation of privacy. For instance, in State v. Velasquez, 672 P.2d 1254 (Utah 1983), we concluded that the reasonableness of an adult parolee's expectation of privacy could not be determined without considering "both ... the government function involved" and "the private interest ... affected." Id. at 1259 (internal quotations omitted). We then "balancled] the interests of both the state and the individual" and held that it was "not unreasonable for a conditionally released convict to be accorded a more narrowly protected privacy interest in order to facilitate" the operation of the adult parole system. Id. at 1259-60. Thus, like the United States Supreme Court, we too have stated that whether an individual convicted of a crime has any reasonable expectation of privacy requires a balancing of the government's interest in operating its institutions and the individual's privacy interest.

121 Applying this balancing test to the instant case, we conclude that a juvenile probationer who is subjected to a probation condition authorizing random searches has no reasonable expectation of privacy because such an expectation is inconsistent with the fundamental objective of Utah's juvenile probation system. Consequently, we hold that A.C.C. lacked any reasonable expectation of privacy as to the contraband seized by Probation Officer Stanworth and that the search at issue was permissible regardless of the existing level of suspicion. C.J. In re Tyrell, 8 Cal.4th at 86, 32 Cal.Rptr.2d 33, 876 P.2d 519 (concluding that a juvenile probationer subject to a valid search condition had no reasonable expectation of privacy).

122 In reaching this conclusion, we first note that A.C.C.'s privacy interest pales in comparison to the privacy interest retained by citizens not on probation. His privacy right was limited because he knew, or should have known, that his activities were being routinely and closely monitored by his probation officer. CJ. People v. Reyes, 19 Cal.4th 748, 753, 80 Cal.Rptr.2d 734, 968 P.2d 445 (Cal,1998). In fact, given the conditions of his probation, A.C.C. was on notice that he had to "submit to search and seizure from law enforcement for detection of drugs, weapons or other illegally possessed items." He knew, or should have known, of this condition because he signed the probation order imposing it. For that same reason, A.C.C. was aware that he had to "submit to chemical testing for controlled substances." His privacy interest was therefore minimal when compared to citizens not on probation.

123 Further, Utah's interest in effectively operating its juvenile probation system would be hindered by a rule mandating that probation officers possess a certain level of suspicion before searching a juvenile probationer. The primary goal of the juvenile system established in Utah is to act in the child's best interest and that goal would be undermined if courts were precluded from subjecting juvenile probationers to random searches where appropriate. See generally, Utah Code Ann. §§ 78-3a-102 to -914 (Supp. 2001). Accordingly, a juvenile probationer subject to a probation condition that authorizes random searches has no reasonable expectation of privacy because such an expectation is inconsistent with the predominant goal of Utah's juvenile probation system.

24 Even if the effective operation of the juvenile court system did not require such an outcome, however, we conclude that there is an alternative reason for finding AC.C. lacked a reasonable expectation of privacy. "Probation is one point on a continuum of possible punishments ranging from solitary confinement ... to a few hours of mandatory community service." Knights, 122 S.Ct. at 591 (internal quotations, citations, and ellipsis omitted). In addition,

[inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled. Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.

Id. (citation and internal quotations omitted).

125 Here, the juvenile court judge, who sentenced A.C.C. to probation, determined that, among other things, it was necessary to subject him to a probation condition that authorized random searches. Significantly, the court was not obligated to impose probation as punishment. See Utah Code Aun. § 78-3a-118 (Supp.2001). Instead, it could have imposed some other punitive measure such as placing A.C.C. in "secure confinement" within the Division of Youth Corree-tions. Id. § 78-3a-118@)(d)(@®). Had the juvenile court taken this latter course and placed A.C.C. in secure confinement, his freedoms and civil liberties would have been severely restricted. Cf. Hudson, 468 U.S. at 524, 104 S.Ct. 3194. Indeed, while in this confined state, A.C.C. would not have possessed any reasonable expectation of privacy. CL. id. at 526, 104 S.Ct. 3194.

126 By choosing to impose a lesser punishment, however, we cannot see how the court lost its ability to restrict A.C.C.'s expectation of privacy to be free from random searches. In our view, if the court could completely restrict A.0.C.'s privacy rights by placing him in secure confinement, logic demands that the court should also be permitted to impose that same restriction while ordering a lesser punishment. Put another way, since the juvenile court was authorized to completely restrict A.C.C.s right to privacy and such a decision would have been deemed constitutional, its decision to place him on probation subject to a condition that his belongings could be searched randomly should also be permitted.

127 Accordingly, we hold that, due to the express terms of his probation as well as the sentencing discretion - afforded - juvenile courts, A.C.C. lacked any reasonable expectation of privacy under the Fourth Amendment.

CONCLUSION

[28 We conclude that A.C.C. had no reasonable expectation of privacy regarding the drug paraphernalia seized by Probation Officer Stanworth. A.C0.C. lacked such an expectation of privacy because the express terms of his probation permitted random searches and invalidating such terms would be inconsistent with the fundamental objective of Utah's juvenile probation system. Additionally, the juvenile court's greater power to place A.C.C. in secure confinement and negate his right to privacy included the lesser power to release him into society subject to a probation condition authorizing his belongings to be searched randomly. We therefore reverse the court of appeals' decision.

29 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Justice WILKINS concur in Justice DURRANT's opinion.

      . Where the requisite mental state exists, possession of a bong, which is a device used to smoke marijuana, is prohibited by the Utah Drug Paraphernalia Act. See Utah Code Ann. §§ 58-37a-3(12)(7), -5(1) (1998). Specifically, that act provides that "[ilt is unlawful for any person to use [or] possess with intent to use [a bong for illegal purposes]." Id. § 58-37a-5(1).

      . We note that there are persuasive arguments both in favor and against applying the exclusionary rule to juvenile court delinquency proceedings. Similar to the United States Supreme Court in New Jersey v. T.L.O., however, we find it unnecessary to decide this issue today. 469 U.S. 325, 327-328, 331-332, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).

      . In Knights, the Supreme Court did not reach the question of whether the search at issue was justified even absent a "reasonable suspicion." Knights, 122 S.Ct. at 592 n. 6 (stating that "Iwle do not decide whether the probation condition so diminished, or completely eliminated, Knights's reasonable expectation of privacy ... that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment."). Instead, the Court held that (1) the Fourth Amendment's reasonableness requirement mandated "no more than a reasonable suspicion to conduct a search of [the probationer's] house" and (2) that the officer who conducted the search had such a suspicion,. Id. at 592-93.

      . The juvenile court's probation order mandated that A.C.C. "submit to search and seizure from law enforcement for detection of drugs, weapons or other illegally possessed items." It imposed no warrant requirement for such searches nor did it impose a requirement of "probable cause" or "reasonable suspicion." Accordingly, the order allowed random searches unsupported by a warrant or "reasonable suspicion," and A.C.C. does not argue otherwise. Rather, he contests the constitutionality of the order.

      , We limit our holding to the facts of this case and make no pronouncement regarding whether a police officer could have relied upon the terms of A.C.C.'s probation to conduct a warrantless search in the absence of a "reasonable suspicion."

      . - Juvenile courts are obligated by statute "to act in the best interests of the minor [ ] in all cases." Utah Code Ann. § 78-3a-102(5)(g) (Supp.2001) {emphasis added). No similar requirement exists, however, with respect to adults placed on parole. Thus, although we previously held in Velasquez that parole officers must have a "reasonable suspicion" before searching adult parolees, 672 P.2d at 1260, the statutory mandate imposed upon juvenile courts distinguishes Utah's juvenile probation system from its adult counterpart.
      Moreover, unlike the adult parole system, the juvenile probation system established in Utah is monitored directly by the court that imposed the probation sentence on the juvenile. See Utah Code Ann. § 78-3a-121(1) (Supp.2001). In fact, in contrast to the adult parole scheme, which is administered by a separate entity, a juvenile court stands in loco parentis to a minor on probation, continues to have jurisdiction over a juvenile adjudicated a delinquent, see id., and designates its "probation department" to supervise the minor. See Utah R. Jud. Admin. 7-304(1)-(2) (2001). Accordingly, Utah's juvenile probation system varies in several respects from its adult counterpart and need not be treated identically.

      . In addition to his Fourth Amendment argument, A.C.C. contends that we can affirm the court of appeals' ruling on the ground that the search conducted by Probation Officer Stan-worth violated Article I, Section 14 of the Utah Constitution. A.C.C. cites no legal authority explaining why we should construe our state constitution in a manner distinct from the Fourth Amendment. As we have repeatedly noted, we are "not a depository in which [a] party may dump the burden of argument and research." State v. Norris, 2001 UT 104, 128, -- P.3d -- (internal quotations and citations omitted). Accordingly, we decline to address this claim. I4.