State v. Betony

2021 UT App 15
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
K EVIN JOSEPH BETONY ,
Appellant.
Opinion
No. 20190357-CA
Filed February 11, 2021
Fifth District Court, St. George Department
The Honorable John J. Walton
No. 161501888
Nicolas D. Turner, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
ORME, Judge:
¶1 	Kevin Joseph Betony appeals his conviction on ten counts
of 	aggravated 	sexual 	abuse 	of 	the 	three 	children 	of 	his
then-girlfriend (Mother). Notably, Betony contends that the trial
court applied the wrong legal standard when it excluded, as
privileged, certain mental health records belonging to the eldest
of his three victims. We affirm.

State v. Betony
20190357-CA 	2 	2021 UT App 15
BACKGROUND1
Abuse
¶2 	To protect the privacy of the minor victims in this case,
we adopt the pseudonyms used by the State in briefing: Andrew,
Beth, and Cole. See Utah R. App. P. 24(d). From the time
Andrew, the eldest, was six or seven years old, he and his
siblings lived with their grandparents. At the time they first
moved in with their grandparents, Mother’s marriage to Beth’s
and 	Cole’s 	biological 	father 	and 	Andrew’s 	adoptive 	father
(Ex-husband) was coming to an end due to drinking and “lots of
fighting.” Mother abused Andrew physically and verbally for a
year or two before he and his siblings went to live with their
grandparents. 	Mother 	later 	told 	Andrew 	that 	Ex-husband,
whom Andrew did not remember well, sexually abused him
during that time, but Andrew has no independent recollection of
this.
¶3 	While the children lived with their grandparents, Mother
began a relationship and moved in with Betony. When Andrew
was approximately eleven years old, the children’s grandfather
passed away and the children went to live with Mother and
Betony. There, they lived in a three-bedroom house in which
Mother shared a bedroom with Betony, Andrew and Cole shared
a bedroom, and Beth had her own bedroom.
1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard. However, we present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” State v. Nichols, 2003 UT App 287, n.1, 76 P.3d
1173 (quotation simplified).

State v. Betony
20190357-CA 	3 	2021 UT App 15
¶4 	Mother’s relationship with Betony was likewise marred
by drinking, “a lot of arguing,” and physical altercations. Cole
described the living situation as “chaotic” because “[t]here was a
lot of abuse and there was not very much thought taken in
account to help raise” the children. Andrew testified that over
the approximately three-year period that the children lived with
Mother and Betony, “almost every day something physically
violent 	was 	happening.” 	Andrew 	worried 	for 	his 	and 	his
siblings’ safety because Betony “punched, slapped, pushed [him]
into things” and “was just very temperamental.” Beth thought
Betony was “rude” and “scary” because 	he “yelled a lot.”
Mother also physically abused the children during this time.
¶5 	Shortly after the children moved back in with her, Mother
found employment in a different city that required a round-trip
commute of nearly two hours. While she was gone, she left the
children with Betony, who was rarely employed. It was during
this time that Betony began sexually abusing the children.
¶6 	Betony routinely raped and sodomized Andrew “almost
every day”—most frequently while Mother was away at work—
in the bedroom Mother shared with Betony. Andrew, who was
“terrified” of Betony, would think, “I need to do this or I’m
going to get hurt.” Occasionally, Betony threatened to “break
[Andrew’s] arms and legs” and “kill [his] mom in front of [him]”
if Andrew told anyone about the abuse. Andrew eventually told
Mother of the abuse when he was thirteen, but she did not
believe him. Betony continued to abuse Andrew following that
disclosure.
¶7 	Betony also sexually abused Beth, who was two years
younger than Andrew, “once or twice a week” over a two- or
three-year period. Beth was afraid to tell anyone of the abuse
because Betony threatened, among other things, that he “and his
entire family would murder [her] and anyone [she] ever met” if
she told anyone about it. She finally disclosed the abuse to

State v. Betony
20190357-CA 	4 	2021 UT App 15
Mother when she was ten, but Mother accused her of lying and
“yelled at [her] for saying such things.”
¶8 	Betony sexually abused Cole, the youngest, “almost every
day.” Betony threatened Cole more than once that if he ever told
anybody about the abuse, he would hurt his siblings. Cole told
Mother once, but she did not believe him and “ignored it.” Cole
did not know that Betony was also abusing his siblings.
¶9 	When Andrew was thirteen, he attended weekly sessions
with the school psychologist. He disclosed Betony’s physical
abuse 	of 	him 	a 	couple 	of 	times 	to 	the 	psychologist 	and
eventually disclosed the sexual abuse as well. It was shortly after
this that Andrew reported the sexual abuse to Mother for the
first 	time, 	but 	she 	did 	not 	believe 	him. 	The 	psychologist
contacted the school resource officer, and Andrew disclosed the
same abuse to him. A social worker followed up with the
children, but they did not reveal their sexual abuse at that time,
and the case was closed as unsupported.
¶10 	Betony’s abuse of the children finally ended when he was
arrested on unrelated grounds shortly after the social worker
closed the case. He and Mother had gotten into a physical
altercation 	that 	prompted 	their 	neighbors 	to 	call 	law
enforcement, 	and 	responding 	officers 	subsequently 	arrested
Betony. He did not return to the house following the arrest, and
the children did not see him again until his trial in the instant
case.
¶11 	A couple days after the arrest, Mother overhead Andrew
saying that he wanted to hurt himself, and she contacted law
enforcement 	to 	have 	him 	committed 	to 	a 	hospital. 	Once
committed, Andrew told a nurse and a law enforcement officer
that Betony had sexually abused him as recently as two or three
days earlier. A physical examination was conducted, and the
examining doctor took a sample from Andrew’s anal area that

State v. Betony
20190357-CA 	5 	2021 UT App 15
later tested positive for sperm.2 Oddly, given the reliability of
such tests, the sample was not tested for DNA, but Andrew
testified that it belonged to Betony.
¶12 	A 	detective 	arrived 	at 	the 	hospital 	and 	spoke 	with
Andrew about the allegations. Following that interview, the
detective met and spoke with Mother, Beth, and Cole in their
home. The detective interviewed Beth and Cole individually, but
he did not ask Mother to leave the house, due to inclement
weather. 	Neither 	child 	disclosed 	their 	sexual 	abuse 	to 	the
detective. The detective did not speak with Betony because he
could not locate him.
¶13 	Later, a second detective was assigned to the case and
found Betony in jail. He arranged to interview him at the
sheriff’s office. During the interview, when the detective brought
up sexual abuse, Betony responded that Ex-husband, who died a
few months after the death of the children’s grandfather, had
abused the children, not Betony. Betony also stated that he
believed that the children were engaging in sexual behavior with
each other, but he ended the interview and sought counsel when
2. Specifically, the examining doctor testified that the sample
“came back 2+ spermatozoa,” indicating the presence of sperm.
She 	further 	explained 	that 	the 	“2+” 	value 	represented 	the
volume of sperm found. On cross-examination, Betony’s counsel
produced an article that does not appear in the record, but which
apparently stated that the 2+ value actually meant “that [the]
sperm is less than 24 hours old,” meaning that it could not
belong to Betony who had last seen Andrew two or three days
prior to the sample being taken. Following a review of the
article, the examining doctor stated that she and the article were
“talking about two different things” and maintained that the 2+
value indicated “quantity” or “volume,” and not the age of the
sperm.

State v. Betony
20190357-CA 	6 	2021 UT App 15
the detective asked him whether he had inappropriately touched
Andrew. 	While 	waiting 	to 	return 	to 	his 	jail 	cell, 	Betony
volunteered to the detective that on one occasion after he had
passed out from drinking, he awoke to Andrew “touching him.”
He stated that he spoke with Andrew about it and explained to
him that such behavior was a mistake.
¶14 	Following Betony’s arrest, Mother and the children were
evicted from their home and began living in motels. Mother’s
physical abuse of the children worsened at this time, and she
would also abandon them for anywhere between five hours to
three days at a time to go gambling in Nevada. Police intervened
following an incident in which Beth and Cole, while Mother was
gone, walked from their motel to a fast-food restaurant to ask for
something 	to 	eat. 	Following 	the 	intervention, 	the 	children
moved back in with their grandmother for a short while and
then 	entered 	the 	foster 	care 	system. 	Beth 	and 	Cole 	were
eventually adopted by one of their foster families, while Andrew
declined adoption and opted to return to Mother.
¶15 	After 	entering 	foster 	care, 	approximately 	one 	year
after 	the 	abuse 	had 	ended, 	Beth 	and 	Cole 	disclosed
Betony’s sexual abuse of them to authorities during an interview
at the local Children’s Justice Center (CJC). They also later
discussed the abuse with their therapist and their new adoptive
father.
Betony’s Motion to Produce Treatment Records
¶16 	In 	October 	2016, 	the 	State 	charged 	Betony 	with 	ten
first-degree-felony counts of sexual abuse of a child. Having
previously been treated by Magellan Academy, Andrew was
attending 	therapy 	sessions 	at 	Southwest 	Behavioral 	Health
Center by 2018. In November of that year, Betony moved to

State v. Betony
20190357-CA 	7 	2021 UT App 15
compel production of Andrew’s mental health records from both
Southwest and Magellan.3
¶17 	The 	State 	initially 	opposed 	Betony’s 	motion. 	But 	in
December 	2018, 	Andrew, 	then 	seventeen, 	disclosed 	to 	a
Southwest 	therapist 	that 	“he 	was 	being 	pimped 	out 	by 	a
neighbor” who was “forcing him or assisting him in having
sexual 	relations 	with 	numerous 	adults.” 	At 	a 	subsequent
interview at the CJC concerning those allegations, Andrew said
he had only once traded sexual relations with an adult for “food
or 	other 	favors.” 	This 	contradicted 	what 	Andrew 	told 	his
Southwest counselor. Based on this new information, the State
“stipulated that there is a reasonable certainty of [the Southwest]
records 	containing 	exculpatory 	evidence 	favorable 	to 	the
defense,” and the trial court ordered that those records be
produced for in camera review.4
¶18 	Betony requested that the Magellan records likewise be
produced for in camera review, arguing that Andrew’s “lying to
his current therapist creates a more likely than not situation that
other lies about being abused by adults are contained in his
other 	treatment 	records, 	including 	at 	Magellan 	Academy.”
Betony also argued that the Magellan records could provide “a
diagnosis of an underlying mental disorder,” evidencing that
3. Betony also sought to compel production of Beth’s and Cole’s
therapy records. The court denied Betony’s motion with respect
to them, and Betony does not appeal that denial.
4. With origins in Latin, where “camera” means “chamber,” in
camera review or inspection refers to “[a] trial judge’s private
consideration of evidence.” See In Camera Inspection, Black’s Law
Dictionary 878 (10th ed. 2014). See also In Camera, id. (defining “in
camera” as “[i]n the judge’s private chambers” or “[i]n the
courtroom with all spectators excluded”).

State v. Betony
20190357-CA 	8 	2021 UT App 15
Andrew “cannot tell fact from fantasy.” The State continued to
oppose the production of the Magellan records.
¶19 	At a later hearing, the court stated that the Magellan
records presented a “close[] call” as to whether they satisfied the
“reasonable certainty” test5 and that it wanted “to give it some
more thought.” The court had not yet received the records for in
camera review, but because the Southwest records, which it
intended to review, were supposed to arrive “any day now,” the
court scheduled a second hearing for the following week.
¶20 	At the second hearing, the court revealed that it had not
yet received the Southwest records but that it had received the
Magellan records, which it went ahead and reviewed. It stated:
The fact is that in this case, prior to the Court
reviewing the memoranda that the parties have
filed that essentially litigates the issue of whether
those records should be disclosed, the Court, when
it 	received 	the 	Magellan 	records, 	reviewed 	the
Magellan 	records, 	which 	is 	not 	the 	way 	it’s
5. Under the reasonable certainty test, “to access in camera
review to privileged records, Defendant must show that the
records he seeks exist and that there is reasonabl[e] certainty that
they will contain exculpatory evidence that is favorable to his
defense.” State v. Worthen, 2008 UT App 23, ¶ 28, 177 P.3d 664,
aff’d, 2009 UT 79, 222 P.3d 1144. If the test is met, the court will
conduct 	an 	in 	camera 	review 	for 	materiality 	to 	determine
whether “there is a reasonable probability that, if the evidence is
disclosed to the defense, the result of the proceeding will be
different.” State v. Blake, 2002 UT 113, ¶ 23, 63 P.3d 56. If the
court determines that the privileged records contain material
information, that information must be disclosed to the defense.
See State v. Bell, 2020 UT 38, ¶ 1 n.1, 469 P.3d 929.

State v. Betony
20190357-CA 	9 	2021 UT App 15
supposed to work . . . but the Court has reviewed
the records.
As I noted last week in not ruling on the Magellan
records . . . , I think it’s a close call as to whether
there is a reasonable certainty that they[] . . . would
contain exculpatory information, but the records
have been reviewed. I will—as a practical matter
then, . . . rul[e] that there . . . are grounds . . . to
review 	those 	records. 	The 	Court 	has 	reviewed
them and . . . has determined that there is nothing
exculpatory in those records . . . and nothing that
would appear to be helpful to Mr. Betony’s case.
Accordingly, 	the 	court 	entered 	an 	order 	denying 	Betony’s
request for disclosure of the Magellan records. When the court
eventually received the Southwest records, it determined that
they did “contain potentially exculpatory evidence” and ordered
their disclosure.
Trial
¶21 	Betony’s case was tried to the bench. As part of his
defense, Betony called a clinical psychologist (Psychologist) who
reviewed “multiple records,” including video recordings of three
CJC interviews, a report by a child forensic interview specialist,
medical reports, police reports, and the Southwest records. He
also heard trial testimony, including that of the children, and
adjusted his report accordingly.
¶22 	Based 	on 	his 	review 	of 	the 	foregoing, 	Psychologist
testified that “within a reasonable degree of professional forensic
psychological 	certainty, 	the 	children’s 	testimony 	has 	been
tainted by the effects of repeated trauma as well as multiple
suggestive influences” and that “severe trauma plus suggestive
taint equals unreliable testimony.” Specifically, he stated that

State v. Betony
20190357-CA 	10 	2021 UT App 15
“there’s a definitive link between severe psychosis . . . and
trauma,” 	with 	psychosis 	meaning 	that 	“your 	mind 	doesn’t
function and you have lost track of reality.” He testified that he
“found multiple instances throughout reading the discovery and
also while listening to the witnesses here where severe trauma
has been present within the family system,” but he stated that he
could not identify how the trauma “specifically affected each of
these kids” because he had not personally examined them.
Although he could not conclude that any of the children suffered
from psychotic disorders, he stated that “in situations of trauma
and severe trauma, it is possible that children could develop
psycho[ses].” He also testified that “suggestive influences from
the environment can taint the children’s testimonies” and that
his review of the records and trial testimony suggested that the
children’s accounts of abuse by Betony were tainted by outside
influences.
¶23 	Concerning Andrew, Psychologist testified that based on
a report made when Andrew was thirteen, Andrew was then
functioning at the level of an eight- or nine-year-old, which the
report characterized as a “mild learning disability.” Psychologist
testified that there was no evidence supporting the report’s
conclusion that Andrew’s learning disability was “mild,” and he
believed that the learning disability was “[m]ore serious than
mild.” Psychologist also testified that the report indicated that
Andrew 	was 	taking 	a 	medication 	that 	“can 	cause 	suicidal
behaviors and potentially psychotic behaviors [i]n children.”
¶24 	Based 	on 	his 	review 	of 	the 	Southwest 	records,
Psychologist 	stated 	that 	they 	indicated 	that 	Andrew 	was
receiving a form of therapy that, to his knowledge, is exclusively
used 	to 	treat 	borderline 	personality 	disorder. 	Notably,
Psychologist testified that the specific treatment “is designed to
treat impairments in self-direction, impairments in intimacy; it’s
in terms of dishonesty and deceitfulness, and also impulsivity
and risk-taking.” But Psychologist emphasized that he had not

State v. Betony
20190357-CA 	11 	2021 UT App 15
diagnosed 	Andrew 	and 	“at 	no 	time 	[was 	he] 	stating 	that
[Andrew] 	has 	borderline 	personality 	disorder 	or 	any 	other
disorder.” Psychologist also stated that the records revealed that
Andrew 	was 	being 	bullied 	at 	school, 	which 	was 	another
potential trauma he was experiencing, beyond his dysfunctional
family 	system. 	Following 	further 	testimony, 	Psychologist
concluded, 	“Within 	a 	reasonable 	degree 	of 	forensic
psychological certainty, it is my belief that the effects of trauma
and 	extensive 	trauma 	have 	made 	[Andrew’s] 	testimony
unreliable.”
¶25 	At the conclusion of a two-day bench trial, the trial court
found Betony guilty on all ten counts of aggravated sexual abuse
of a child. The court later sentenced Betony to ten consecutive
statutory terms of fifteen years to life. Betony appeals.
ISSUE AND STANDARD OF REVIEW
¶26 	Betony raises one issue that merits our full consideration.6
He argues that the trial court erred in not ordering disclosure of
6. Betony also argues that his trial counsel rendered ineffective
assistance by not calling an expert to refute the examining
doctor’s testimony that the 2+ value on the laboratory report
merely indicated volume of sperm present, not motility or age.
See supra note 2. He contends that “trial counsel exhibited
deficient performance by not calling his own expert to examine
the lab reports and discuss the motility of the sperm” because “it
could have been possible to show that the sperm did not belong
to Betony, which was the defense that trial counsel was trying to
present.” Betony further asserts that he was prejudiced by this
deficient performance because the theorized defense expert’s
testimony “is likely to have provided him a different outcome
since [the sperm] was one of only a few tangible pieces of
(continued…)

State v. Betony
20190357-CA 	12 	2021 UT App 15
the Magellan records to him following its in camera review of
them. “When the existence of a privilege (or an exception to a
privilege) turns on a question of law, we review for correctness.”
State v. Bell, 2020 UT 38, ¶ 10, 469 P.3d 929 (quotation simplified).
“If the existence of a privilege (or exception) turns on questions
of fact, we give deference to the district court’s underlying fact
finding and do not set those findings aside unless they are
clearly erroneous.” Id. (quotation simplified).
ANALYSIS
¶27 	Rule 506(b) of the Utah Rules of Evidence protects, as
privileged, confidential communications between a patient and a
physician 	or 	mental 	health 	therapist 	made 	for 	purposes of
diagnosis or treatment. There are, however, four exceptions to
this privilege. See Utah R. Evid. 506(d). One of the exceptions
outlined in subsection 506(d)(1) is relevant here. That exception
provides that confidential communications “relevant to an issue
(…continued)
evidence to support the crimes committed.” But on this record,
Betony has not established that an expert exists who would
interpret the 2+ level as indicative of sperm age, nor has he
moved to supplement the record under rule 23B of the Utah
Rules of Appellate Procedure to make that showing. See State v.
Burnside, 2016 UT App 224, ¶ 38, 387 P.3d 570; State v. Gerber,
2015 UT App 76, ¶¶ 14–15, 347 P.3d 852. Indeed, even the article
on which Betony’s counsel relied during cross-examination of
the 	examining 	doctor 	does 	not 	appear 	in 	the 	record.
Accordingly, because “proof of ineffective assistance of counsel
cannot be a speculative matter but must be a demonstrable
reality,” Burnside, 2016 UT App 224, ¶ 38 (quotation simplified),
Betony has not met his burden of establishing that he received
ineffective assistance of counsel.

State v. Betony
20190357-CA 	13 	2021 UT App 15
of the physical, mental, or emotional condition of the patient”
are not privileged “in any proceeding in which that condition is
an element of any claim or defense.” Id. R. 506(d)(1)(A).
¶28 	To establish the applicability of this exception, a party
must satisfy a series of inquiries. “[T]he threshold test of a rule
506(d)(1) exception is whether the party [asserting applicability
of the exception] has sufficiently alleged that the witness’ mental
or emotional condition itself is an element of any claim or
defense.” State v. Worthen, 2009 UT 79, ¶ 19, 222 P.3d 1144.
Betony’s satisfaction of this threshold test is not at issue here.
¶29 	Next, the inquirer must meet the reasonable certainty test
by showing, “with reasonable certainty,[7] that the sought-after
records actually contain exculpatory evidence which would be
favorable to his defense.” Id. ¶ 38 (quotation simplified). “This is
a stringent test, necessarily requiring some type of extrinsic
indication that the evidence within the record exists and will, in
fact, be exculpatory.” Id. (quotation simplified). See also State v.
Bell, 2020 UT 38, ¶ 24, 469 P.3d 929 (“Generally, this requires that
a criminal defendant identify his or her specific and narrow
defense, and then offer extrinsic evidence that ties the patient’s
condition 	to 	the 	specific 	records 	requested.”) 	(quotation
simplified). “The difficulty in meeting this test is deliberate and
prudent in light of the sensitivity of these types of records and
the worsening of under-reporting problems in the absence of a
strong privilege.” State v. Blake, 2002 UT 113, ¶ 19, 63 P.3d 56. See
also Bell, 2020 UT 38, ¶ 24 (“[T]his test seeks to narrow the scope
of 	the 	criminal 	defendant’s 	request, 	and 	thereby 	prevent
7. Our Supreme Court has “likened reasonable certainty in
sexual abuse cases to the more stringent side of more likely than
not.” State v. Worthen, 2009 UT 79, ¶ 38, 222 P.3d 1144 (quotation
simplified).

State v. Betony
20190357-CA 	14 	2021 UT App 15
criminal defendants from unnecessarily engaging in a ‘fishing
expedition’ through a patient’s mental health therapy records.”).
¶30 	Lastly, if the reasonable certainty test is met, the trial
court will then conduct an in camera review of the records for
materiality. See Worthen, 2009 UT 79, ¶ 43; Blake, 2002 UT 113,
¶ 23. See also State v. Worthen, 2008 UT App 23, ¶ 11 n.2, 177 P.3d
664 (“In the context of sexual abuse cases, in camera review is
typically required in order to serve the defendant’s interests
without destroying the State’s need to protect the confidentiality
and privacy of sexual abuse victims.”) (quotation simplified),
aff’d, 2009 UT 79, 222 P.3d 1144. Evidence is material “where
there is a reasonable probability that, if the evidence is disclosed
to the defense, the result of the proceeding will be different.”
Worthen, 	2009 	UT 	79, 	¶ 	43 	(quotation 	simplified). 	Upon
satisfaction of this final inquiry, the defendant is entitled to
access the requested records and use them in his defense.
¶31 	Betony argues that in conducting an in camera review of
the Magellan records, the trial court improperly applied the
more stringent reasonable certainty test instead of reviewing for
materiality. He bases this assertion on the court’s statements at
the second hearing that (1) “it’s a close call as to whether there is
a reasonable certainty that [the Magellan records] . . . would
contain exculpatory information” and (2) the Magellan records
contained “nothing exculpatory . . . and nothing that would
appear to be helpful to [his] case.” He argues that because the
court characterized it “a close call” as to whether the Magellan
records satisfied the higher reasonable certainty test, “it is clear
that [the records] would meet the lower standard of materiality”
and, therefore, fall within the rule 506(d)(1)(A) exception.
¶32 	Betony’s argument misunderstands the interplay between
the reasonable certainty test and the later in camera review for
materiality. The high burden of the reasonable certainty test rests
in 	the 	requirement 	that 	the 	defendant 	identifies 	a 	narrow

State v. Betony
20190357-CA 	15 	2021 UT App 15
defense and 	produces extrinsic evidence 	tying the patient’s
condition to the requested records. See Bell, 2020 UT 38, ¶ 24. See
also Worthen, 2009 UT 79, ¶ 19 (stating that under the reasonable
certainty test, the defendant must “show[] that the records
contain exculpatory evidence to a reasonable certainty”). In
other words, the defendant must show, to a reasonable certainty,
that the requested records contain information supporting his or
her narrowly identified defense. Mere speculation or general
requests for “any [exculpatory] material that might happen to be
found in the privileged records” will not satisfy the test. See
Blake, 2002 UT 113, ¶¶ 21–22. Instead, “[a]t a minimum, specific
facts must be alleged,” such as “references to records of only
certain counseling sessions, which are alleged to be relevant,
independent 	allegations 	made 	by 	others 	that 	a 	victim 	has
recanted, or extrinsic evidence of some disorder that might lead
to uncertainty regarding a victim’s trustworthiness.” Id. ¶ 22.
Thus, in this sense, the reasonable certainty test is certainly
“stringent.” Id. ¶ 19.
¶33 	The reasonable certainty test is not, however, stringent in
terms of how exculpatory or material the information within the
requested records must be. Indeed, the opposite of Betony’s
argument is true. During its in camera review of privileged
material, a trial court applies the materiality standard, which is a
higher standard of 	materiality than the one applied at the
reasonable certainty stage. “In terms of the reasonable certainty
test, 	‘material’ 	refers 	to 	evidence 	in 	the 	records 	that 	is
exculpatory, 	or 	in 	other 	words, 	favorable 	to 	the 	defense.”
Worthen, 2009 UT 79, ¶ 48. At this stage, a defendant “is not
under an obligation to show materiality apart from and in
addition 	to 	the 	requirement 	that 	he 	show 	to 	a 	reasonable
certainty that the records contain exculpatory evidence favorable
to his defense in order to obtain in camera review.” Id. It is only
after the court grants in camera review of the records that the
court is called 	upon 	to determine whether the records are

State v. Betony
20190357-CA 	16 	2021 UT App 15
material, i.e., whether “there is a reasonable probability that, if
the 	evidence 	is 	disclosed 	to 	the 	defense, 	the 	result 	of 	the
proceeding will be different.” Id. ¶ 43 (quotation simplified). See
also 	id. 	(“[A]n 	analysis 	of 	the 	materiality 	of 	the 	requested
privileged records . . . is properly made at the time of the in
camera review by the trial court, not prior.”). Additionally, the
court may determine whether the requested records amount to
cumulative 	evidence 	only 	following 	in 	camera 	review, 	not
before. Id. ¶¶ 43, 50.
¶34 	Thus, the trial court’s statement that the Magellan records
presented a “close call” relative to whether they satisfied the
reasonable certainty test does not render it “clear that [they]
would 	meet 	the 	lower 	standard 	of 	materiality,” 	as 	Betony
suggests. 	The 	court 	stated 	that 	it 	was 	“a 	close 	call 	as 	to
whether there 	is 	a 	reasonable 	certainty 	that 	[the 	Magellan
records] . . . would contain exculpatory information.” In other
words, it was a “close call” as to whether Betony had shown to a
reasonable 	certainty 	that 	the 	Magellan 	records 	contained
information favorable to his defense. But because the court had
prematurely reviewed those records, it ruled “as a practical
matter” 	that 	Betony 	had 	satisfied 	the 	stringent 	reasonable
certainty test and, at that point, evaluated the Magellan records
for materiality. In reference to that inquiry, the court stated that
it “has reviewed [the Magellan records] and . . . has determined
that there is nothing exculpatory in those records . . . and
nothing that would appear to be helpful to Mr. Betony’s case.”
¶35 	Betony 	is 	correct 	that 	the 	court 	applied 	an 	incorrect
standard for materiality. But, as discussed above, the standard of
materiality that is supposed to be applied at the reasonable
certainty stage, before an in camera review is undertaken, is
lower than the standard of materiality applied during in camera
review to determine whether the records should be turned over
to the defendant. Compare Worthen, 2009 UT 79, ¶ 48 (“In terms
of the reasonable certainty test, ‘material’ refers to evidence in

State v. Betony
20190357-CA 	17 	2021 UT App 15
the records that is exculpatory, or in other words, favorable to
the defense.”), with id. ¶ 43 (stating that following in camera
review of the records, “the trial court must deem evidence
material where there is a reasonable probability that, if the
evidence is disclosed to the defense, the result of the proceeding
will 	be 	different”) 	(quotation 	simplified). 	Thus, 	Betony’s
argument fails because it does not follow that the Magellan
records would satisfy the correct, more stringent materiality
standard given that the court concluded those records failed to
satisfy even the more lenient standard that the court incorrectly
applied.
¶36 	Nevertheless, because “the existence of a privilege or an
exception thereto is a question of law,” we must determine de
novo whether the Magellan records were material.8 State v.
Worthen, 	2008 	UT 	App 	23, 	¶ 	9, 	177 	P.3d 	664 	(quotation
simplified), aff’d, 2009 UT 79, 222 P.3d 1144. See State v. Bell, 2020
UT 38, ¶ 10, 469 P.3d 929. Betony argues that the Magellan
records were material because they “had quality and probative
value to support the [Southwest records] that were admitted, as
well as [Psychologist’s] testimony that [Andrew] could not be
considered 	to 	report 	reliably—they 	would 	serve 	as 	a
confirmation to [Andrew’s] problems.” This supposition is an
insufficient basis on which to conclude “there is a reasonable
probability that, if the evidence [had been] disclosed to the
defense, 	the 	result 	of 	the 	proceeding” 	[would 	have 	been]
8. We acknowledge that “[i]n the context of a case yet to go to
trial, the test becomes more difficult to apply because the trial
court must anticipate the efficacy of the material contained in the
records in persuading the fact-finder to discredit the victim,” see
State v. Blake, 2002 UT 113, ¶ 23, 63 P.3d 56, whereas an appellate
court has the benefit of reviewing the material in the context of a
trial that has already taken place.

State v. Betony
20190357-CA 	18 	2021 UT App 15
different.” See State v. Worthen, 2009 UT 79, ¶ 43, 222 P.3d 1144
(quotation simplified).
¶37 	Even without these records, Psychologist testified that,
“within 	a 	reasonable 	degree 	of 	professional 	forensic
psychological 	certainty, 	the 	children’s 	testimony 	has 	been
tainted by the effects of repeated trauma as well as multiple
suggestive 	influences.” 	Regarding 	Andrew 	specifically, 	he
concluded, “within a reasonable degree of forensic psychological
certainty, . . . that the effects of trauma and extensive trauma
have 	made 	[Andrew’s] 	testimony 	unreliable.” 	Psychologist
provided extensive examples of such traumas throughout his
testimony, which he gleaned from the Southwest records and
other 	sources. 	Furthermore, 	Psychologist 	attributed 	the
limitations of his testimony not to any shortcomings of the
records and documents he had reviewed but to the fact that he
had not personally examined Andrew.
¶38 	Accordingly, 	given 	Psychologist’s 	firm 	conclusions
regarding the lack of reliability of Andrew’s and his siblings’
testimony, it is unclear how, had Psychologist been given access
to the Magellan records, his conclusions could have been any
more favorable to Betony’s defense, let alone to the extent that it
would have created a reasonable probability that the trial court
would have acquitted him of some or all of the charges. Indeed,
on appeal, Betony does not provide specific examples other than
to 	generally 	state 	that 	the 	Magellan 	records 	“would 	have
supported or, at a minimum, given the defense, its witnesses and
the court the entire evidentiary picture rather than one having to
be pieced together from various sources with holes as to the
actual written history.”
¶39 	For the foregoing reasons, the Magellan records did not
satisfy the materiality standard, and therefore the exception
outlined in rule 506(d)(1)(A) did not apply to those privileged

State v. Betony
20190357-CA 	19 	2021 UT App 15
documents so as to require their disclosure to Betony and their
subsequent use at trial.
CONCLUSION
¶40 	Because 	there 	is 	no 	reasonable 	probability 	that 	the
outcome of Betony’s trial would have been different had he
obtained access to the Magellan records, those records were not
material, and the trial court did not err in denying Betony’s
request for their disclosure.
¶41 	Affirmed.