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"any communication made by a recipient or other person to a therapist or to or in the presence of other persons duringor in connection with providing mental health or developmental disability services to a recipient. Communicationincludes information which indicates that a person is a recipient." 740 ILCS 110/2 (West 1998).

There is no dispute that, when defendant left the messages on Kelly's phone mail, defendant was a "recipient" of mentalhealth services and Kelly was his "therapist." However, the State maintains that the messages are not privileged becausethey have nothing to do with the actual therapist-client relationship. For two reasons, we do not think that the State'sargument withstands scrutiny.

First, giving the words used to define "communication" their plain and ordinary meanings, we think that the messages,whatever their precise content, were made "in connection with providing mental health *** services" (740 ILCS 110/2(West 1998)). There is no dispute that defendant called Kelly in order to set up mental health counseling sessions. Theprovision of mental health services was the reason for the calls, regardless of how defendant extemporized in seeking to getKelly to honor his request. Nothing in the definition of "communication" limits that term to statements made during anactual treatment session. Indeed, in defining "communication" to include information indicating that a person is a recipient,the legislature showed its willingness to protect statements made outside the formal treatment process itself. As themessages indicate that defendant is a recipient of mental health services, they are within the plain meaning of both the firstand second sentences of the Confidentiality Act's definition of "communications."

Second, we think that the objectives of the Confidentiality Act are better served by recognizing that a client's phonemessages to his therapist are "communications" under the statute. The statutory privilege exists to encourage completecandor between patient and therapist and to provide motivation for persons who need treatment to seek it. Novak v.Rathnam, 106 Ill. 2d 478, 483 (1985); Laurent v. Brelji, 74 Ill. App. 3d 214, 217 (1979). Given these objectives, it isperilous at best to try to exclude any private communications between a client and his therapist from the protection of theConfidentiality Act. The professional relationship cannot be neatly confined to what happens in formal treatment sessions;almost anything a client tells his therapist in confidence has the potential to affect the therapeutic process and its results.Moreover, the danger that such communications could be disclosed later in court could discourage those needing help fromseeking it in the first place.

We conclude that the messages at issue are "communications" that are protected by the general privilege the ConfidentialityAct creates. Therefore, we must decide whether any exemption to the statute allowed the State to introduce them. Section10(a) of the Confidentiality Act states that privileged communications are exempt from disclosure except as the statuteprovides otherwise. 740 ILCS 110/10(a) (West 1998). However, in D.C. v. S.A., 178 Ill. 2d 551 (1997), our supreme courtdeparted from the literal import of this language and carved out a narrow nonstatutory exemption where disclosure isrequired by fundamental fairness.

In admitting the taped messages, the trial court here did not rely on a specific exemption or on D.C.'s fundamental fairnessdoctrine. On appeal, the State relies on D.C. and several exemptions the statute specifically provides. We consider eachclaimed basis for admitting the tape.

The trial court held that the messages from defendant to his therapist were unprivileged because defendant had been orderedto obtain his therapy as part of his sentence in case No. 97--DV--1803. The court reasoned that defendant could not claiman expectation of privacy because the trial court in the criminal case would be able to compel the disclosure of whathappened in defendant's treatment. We cannot accept this reasoning. Whether the Confidentiality Act protects particularclient-therapist communications does not depend on a judicial evaluation of an expectation of privacy, but on whether thecommunications are exempt under the specific terms of the statute (740 ILCS 110/10(a) (West 1998)) or under the narrowjudicially created exemption of D.C. Whatever the intuitive appeal of the trial court's logic, it does not establish that themessages fit within one of these exemptions. Furthermore, we do not find the trial court's logic compelling on its ownterms. The court was correct that some of defendant's mental health records or communications would be subject todisclosure for limited purposes in the sentencing phase of the domestic violence case. It does not follow, however, that theywould or should be subject to involuntary disclosure for different reasons in a separate case.

Indeed, the Confidentiality Act establishes a policy that records or communications may be subject to disclosure in onesetting yet protected from disclosure in another setting. Section 10(a)(6) of the statute allows the disclosure of records madeduring treatment the recipient is ordered to undergo to render him fit to stand trial on a criminal charge, yet that section alsolimits that disclosure to the issue of fitness to stand trial. 740 ILCS 110/10(a)(6) (West 1998). This legislative care inlimiting permissible disclosure strongly suggests that we may not assume that eliminating confidentiality in one judicialsetting means eliminating it in all settings. Also, as defendant did not originally consent to the treatment in the earliercriminal case, it cannot be claimed that his conduct in the earlier case amounted to a waiver of the privilege in later cases.See Novak, 106 Ill. 2d at 482-85 (where client elected to use insanity defense at criminal trial, thus allowing admission ofmental health records there, he waived the statutory privilege at that trial and at later proceedings).

We now consider the exemptions on which the State relies. The first of these is section 11(ii) of the Confidentiality Act,which as pertinent here states that records and communications may be disclosed "when, and to the extent, a therapist, in hisor her sole discretion, determines that disclosure is necessary to *** protect the recipient or other person against a clear,imminent risk of serious physical or mental injury or disease *** being inflicted upon the recipient or by the recipient onhimself or another." 740 ILCS 110/11(ii) (West 1998). The State claims that this section applies because the disclosure ofthe messages was necessary to protect Kelly against the threat defendant made against him.

The State's argument is meritless. Section 11(ii) makes any disclosure up to the sole discretion of the therapist, not theState's Attorney.

This section clearly contemplates that when a therapist feels there is a threat of imminent risk to anyone, including thetherapist, the therapist may disclose for the purpose of preventing or avoiding the injury. This exception to theConfidentiality Act provides the therapist with the opportunity to prevent future harm or injury without legally violating thepatient's rights.

The State did not present evidence that Kelly exercised discretion under section 11(ii) to disclose the taped messagesbecause Kelly determined it was necessary to protect someone from imminent injury. Furthermore, the State did not seekthe disclosure of the taped messages to protect Kelly against an imminent threat of harm, but to prosecute and punishdefendant for a threat he made long before the State sought the disclosure. By its plain language, section 11(ii) does notapply here.

The State next invokes section 10(a)(1) of the statute, which allows disclosure "in a civil, criminal or administrativeproceeding in which the recipient introduces his mental condition or any aspect of his services received for such conditionas an element of his claim or defense." 740 ILCS 110/10(a)(1) (West 1998). The State claims that in this case defendantintroduced his mental state as an element of his defense by producing evidence and argument that the State failed to provethat he had the requisite mental state to commit the offense.

The State's argument is refuted by case law establishing that this exemption applies only when a party affirmatively placeshis own mental condition in issue. Mandziara v. Canulli, 299 Ill. App. 3d 593, 599-600 (1998); Sassali, 296 Ill. App. 3d at83; Pritchard v. SwedishAmerican Hospital, 191 Ill. App. 3d 388, 403 (1989). Thus, in Sassali, we held that the respondentin a proceeding for involuntary commitment did not waive her Confidentiality Act privileges merely because, in opposingthe petition, she sought to refute the petition's allegations that she was mentally unstable. We explained that, by filing thepetition, the State had placed her mental condition in issue. Sassali, 296 Ill. App. 3d at 83-84. Similarly, in this case, insofaras defendant's mental condition or any aspect of his services was placed in issue, it was the State that did so. Defendant didnot waive his confidentiality rights by defending against the charges.

The State next asserts that, under D.C., the statutory privilege must yield to considerations of fundamental fairness.However, the State's argument is simply that, by invoking the privilege, defendant would make it more difficult for theprosecution to prove his mental state and thus "might be able to defeat the charge against himself." Thus, the only"unfairness" is that present any time a criminal defendant seeks to bar potentially damaging evidence on the basis of adiscovery privilege or other exclusionary rule. Any such privilege is bound to interfere with the truth-seeking processbecause privileges are not designed to further that end, but to protect some outside interest other than the ascertainment oftruth at trial. D.C., 178 Ill. 2d at 561-62. The State would have us recognize an exemption with the potential to swallow thegeneral rule of confidentiality.

D.C. does not support such a result. Rather, in D.C., the court held that, under the narrow circumstances of that case, theinvocation of the privilege would be substantially unjust. In D.C., the plaintiff sued the defendants for negligence after oneof the defendants drove into him as he crossed the street. The defendants sought to compel the disclosure of some of theplaintiff's mental health records in order to prove that, at the time of the accident, plaintiff might have been attemptingsuicide; proof of that fact might absolve them from liability by showing that the plaintiff was not exercising due care for hisown safety.

The supreme court ruled that the privilege had to yield even though no statutory exception applied. Crucial to the court'snarrow ruling was that the party claiming the privilege was the one who had brought the suit. He was not merely defendinghimself against an action to which he had been subjected. The plaintiff could not rightly use the protections of theConfidentiality Act "as a sword rather than a shield" to prevent the disclosure of otherwise admissible evidence that mightfully negate the claim he had asserted against the defendants. D.C., 178 Ill. 2d at 570; see also Mandziara, 299 Ill. App. 3dat 600.

Here, defendant seeks to use the Confidentiality Act only as a shield against the prosecution that the State initiated.Fundamental fairness to the State does not require that defendant surrender his statutory privilege.

The State next calls our attention to section 10(a)(6) of the Confidentiality Act, which allows the disclosure of records thatare "made during treatment which the recipient is ordered to undergo to render him fit to stand trial on a criminal charge,provided that the disclosure is made only with respect to the issue of fitness to stand trial." 740 ILCS 110/10(a)(6) (West1998). The State argues that defendant's court-ordered treatment is "analogous" to the type of examination covered bysection 10(a)(6). We do not see the relevance of this observation even if it is true. The plain language of section 10(a)(6)shows it has no application here, and the Confidentiality Act does not allow us to carve out nonstatutory exemptions merelybecause they would resemble those the legislature has seen fit to create.

Finally, the State asks us to remand the cause for a hearing on whether defendant consented to the disclosure of the tapedmessages by signing a consent form as a prerequisite to treatment. The State recognizes that, in granting a defense motionin limine, the trial court ruled out consent or waiver of the statutory privilege as a basis for admitting the messages intoevidence. However, the State asserts that this ruling was erroneous because the defense motion applied only to "statements"and defendant's signature on the consent form was not a "statement."

The State's assertion comes too late. At trial, the State did not raise this argument in opposition to defendant's motion inlimine. Issues not raised at the trial level are waived on appeal. Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486,500 (1985). We decline to remand the cause to allow the State to reargue the consent issue.

We hold that the phone messages are communications protected by the Confidentiality Act and that the State has failed toprove that they are exempt from the statute's protections. Therefore, the trial court erred in admitting the tape. Given theimportance the trial judge attached to the tape as evidence of defendant's guilt, we cannot say that the error was harmless.Therefore, defendant's conviction cannot stand.

We must still decide whether defendant may be retried. Defendant argues that the evidence, including the taped messages,is insufficient to prove him guilty beyond a reasonable doubt. As we have ruled that the taped messages are inadmissible,we need only consider whether the remaining evidence is sufficient. We conclude that it is and that defendant may beretried.

In reviewing the sufficiency of the evidence, we ask only whether all the evidence, when considered in the light mostfavorable to the State, is sufficient to allow any rational fact finder to conclude that the elements of the offense have beenproven beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). We defer to the fact finder'sdeterminations of the witnesses' credibility, the weight to be given their testimony, and the reasonable inferences to bedrawn from their testimony. People v. Steidl, 142 Ill. 2d 204, 226 (1991).

As pertinent here, a person commits unlawful communication with a witness when, with the intent to deter the witness fromtestifying freely, fully, and truthfully to any matter pending in any court, he communicates directly or indirectly to thewitness a threat of injury or damage to the property or person of any individual. 720 ILCS 5/32--4(b) (West 1998).Defendant argues that his words to Kelly were too vague to amount to an imminent threat to Kelly's person or property andthat there is no evidence that defendant intended to deter Kelly from testifying fully, freely, or truthfully in the probationrevocation proceeding.

We believe that the evidence is sufficient to support a conviction of unlawful communication with a witness. The State hadto prove that defendant communicated a threat of injury; the statute does not require an "imminent threat." We think that arational fact finder could construe defendant's words, "you're going to get it, buddy," or "you're going to get it now, buddy,"as a threat of injury to Kelly.

We agree with defendant that the words must be taken in their context. Defendant spoke his words shortly before Kelly wasto testify for the State in a proceeding to revoke defendant's probation; this was obviously a serious matter that couldmotivate defendant to threaten Kelly in order to influence his testimony. According to David Smith's testimony, defendantconfronted Kelly at close range, pointed his finger only a few inches from Kelly's face, and spoke to him in a "threatening"way. While defendant may be correct that the words "You're going to get it now, buddy" are not per se threatening andmight have an innocent meaning in some situations, a reasonable fact finder could conclude that, under the facts of thiscase, they were indeed a threat of injury. Therefore, we believe the evidence is sufficient to convict defendant of unlawfullycommunicating with a witness.

Finally, defendant makes several cursory arguments that are supported by no pertinent authority. These arguments arewaived and we need not consider them. See 177 Ill. 2d R. 341(e)(7); People v. Nakajima, 294 Ill. App. 3d 809, 817-18(1998).

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded.

Reversed and remanded.

BOWMAN, P.J., and COLWELL, J., concur.