NO. 93-107

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

THE STATE OF MONTANA,

Plaintiff

V .

SCOTT MUIR,

Defendant

and Respondent,

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus,

The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Craig Buehler, Attorney at Law,

Lewistown, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Barbara C. Harris, Assistant Attorney

General, Helena, Montana

Thomas P. Meissner,

Lewistown, Montana

Fergus County Attorney,

Filed:

Submitted on Briefs: September 30, 1993

Decided: January 25, 1994

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Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant Scott Muir appeals from a jury verdict in the Tenth

Judicial District Court, Fergus County, finding him guilty of

sexual intercourse without consent.

We affirm.

The sole issue is whether the District Court erred when it

denied appellant access to the victim's treatment counselor and the

counselor's records.

On July 6, 1992, appellant was charged by information with

sexual intercourse without consent, in violation of § 45-5-503(l),

MCA. The State further based the charges on fi 45-5-501(a)(iii),

MCA, that the victim could not consent to the act because she was

14 years of age when the offense occurred. Appellant was 19 years

of age.

One evening in September or October 1990, the victim and a

16-year-old friend, B.L., were drinking alcohol and cruising the

streets of Lewistown. At midnight, they picked up another friend,

N.R., from her job at the Dairy Queen, and then stopped at the

Circle K store where they saw appellant with a friend.

Appellant and his friend were on their way to the friend's

home in Forest Grove, a community approximately 25 miles from

Lewistown. B.L. and N.R. both knew appellant and his friend and

talked to them. The victim had never met either appellant or his

friend. B.L. testified that the victim was intoxicated when they

were all at the Circle K store. The victim approached appellant

and his friend and was touching and flirting with them. Appellant

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and his friend agreed to follow the girls to the Dairy Queen where

they would drop off N.R. Appellant, his friend, B.L., and the

victim then rode in the friend's pickup to the friend's house.

The victim sat next to appellant as he drove the pickup and

continued to be sexually aggressive toward him. B.L. commented to

appellant that the victim was not usually that aggressive, but that

she was just drunk. Appellant testified that sometime during the

drive, the victim told him she was 17. Upon arriving in Forest

Grove, appellant and the victim started walking down the road.

B.L. testified that as they were leaving, she told appellant "not

to do anything," and that the victim was only 14 years old.

Appellant and the victim walked behind a large round hay bale

in a nearby field and had sexual intercourse. They returned to the

pickup and the four of them drove back to Lewistown, where the

victim spent the night at B.L.'s home.

In March 1991, the victim was admitted to the Yellowstone

Youth Treatment Center for an alcohol abuse problem. While in

treatment, she spoke with her treatment counselor about the

incident, who subsequently informed the victim's mother. O n

April 22, 1991, the victim's mother filed a complaint with the

Fergus County Sheriff's Department, but because of the victim's

emotional state, an investigation was delayed. In April 1992,

Deputy Rolf Danzer investigated the complaint by speaking with the

victim, her mother, and her counselor. Deputy Danzer then

questioned appellant, and appellant gave him a written statement

which documented that he did have sexual intercourse with the

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victim, and that he knew she was 14 years old when the act

occurred.

On July 6, 1992, the appellant was charged with sexual

intercourse without consent. Appellant pled not guilty, and at

trial presented tlestimony that he reasonably believed the victim

was 17 years old when the act occurred.

Appellant was found guilty by a jury on September 1, 1992, and

was sentenced to a term of 10 years at the Montana State Prison.

He was also required to successfully complete the sex offender

program at the prison prior to his release.

Did the District Court err when it denied appellant access to

the victim's treatment counselor and the counselor's records?

Appellant contends that the State deliberately withheld

information from him which it had access to and used in its

investigation of the case. Prior to trial, appellant requested by

motion the right to interview the counselor at the Yellowstone

Youth Treatment Center and gain access to her written records

because she was listed on the information as a potential witness.

The State contends that appellant received the same investigative

records that it used to prepare its case in chief, and that the

treatment records were privileged as communications between a

psychologist and a client.

The court denied appellant's motion pending its review, and

directed the State provide the court with the records. Later, the

State informed the court of its attempts to secure the records from

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the Yellowstone Youth Treatment Center, but reported that it was

able to obtain only one report which it submitted to the court.

The court viewed the report in camera and denied appellant

access to the report stating that it found no exculpatory evidence

that was relevant to the issues. The court further denied

appellant the right to interview the counselor because the

counselor was not called as a witness at the trial. The court

directed the State to continue its efforts to determine if there

were more records from the treatment center that may contain

exculpatory evidence.

While 5 46-15-322, MCA, requires the State to provide all

pertinent information within its possession or control, "the

statutes have no effect until the State actually develops the

knowledge of a specific act, fact or information that exculpates

the defendant." State v. Shaver (1988), 233 Mont. 438, 447, 760

P.2d 1230, 1235.

This Court r'ecently upheld a trial court's decision to deny a

defendant access .to a victim’s counselor's information because the

State did not possess the information, nor did the State use the

information to prepare its case. State v. Little (Mont. 1993), 861

P.2d 154, 50 St. Rep. 86. In Little, a defendant charged with

sexual intercourse without consent, requested the victim's

counselor's notes asserting that they might contain exculpatory

information. The District Court found that the defendant was not

entitled to discovery of the notes because the State did not

possess the notes, did not use the counselor's notes or opinions to

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prepare its case, and did not intend to call the counselor as a

witness. Little, 861 P.2d at 159. Seealso, State v. Rhyne (1992),

253 Mont. 513, 833 P.2d 1112.

In the present case, the State reported to the District Court

that no written reports were submitted by the counselor to the

sheriff's investigator. The sheriff's investigator interviewed the

victim's counselor, the victim, and her mother. The details of

these interviews were in the investigator's report, which was

provided to both the State and appellant. The State informed the

District court that it gave appellant all the information it had

received from the investigative officer. The State did not view

the counselor's records, use them to prepare its case, or call the

counselor as a witness. We hold that appellant failed to show that

the State deliberately withheld information from him which it had

access to and used in its investigation of the case.

Next, appellant contends that the District Court erred by

denying him access to the victim's counselor and her treatment

records, thereby denying his right to confront witnesses and compel

testimony.

The Montana Rules of Evidence allow the trial court to refuse

evidence by first testing the relevance of the evidence, and then

determining whether the evidence should be excluded by a provision

of law. Rule 402, M.R.Evid. Rulings on the admissibility of

evidence are left to the sound discretion of the trial court.

State v. Mayes (1992), 251Mont. 358, 373, 825 P.2d 1196, 1205. On

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appeal, this Court will not disturb such a ruling absent abuse of

discretion. Maves, 825 P.2d at 1205.

Appellant requested access to the counselor's records several

times throughout the proceedings and for several purposes.

Appellant requested the right to review the counselor's records for

information with which to impeach the victim's mother concerning

the victim's alcohol abuse, and to scan for potential witnesses for

the defense. At the sentencing hearing, appellant again requested

access to the victim's treatment records to rebut the State's

assertion that all. of the victim's emotional problems resulted from

appellant's actions.

The District Court denied appellant's requests, stating that

the sexual intercourse without consent charge was grounded upon

§ 45-5-501(a)(iii), MCA, that the victim was under the age of 16

when the alleged offense occurred and she could not give her

consent. The court reasoned that no connection had been

established between the incident and the victim's alcohol abuse and

emotional problems, and therefore, found the issue of the victim's

character and alcohol abuse irrelevant to these charges. Further,

the court reasoned that its sentence and judgment were not based on

the contents of the treatment records, but instead upon evidence

submitted at trial, and that witnesses' testimony concerning the

victim's emotional history and alcohol abuse contained the same

information as did the counselor's treatment records.

Montana protects confidential information between a

psychologist and a client from disclosure. Section 26-l-807, MCA.

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In State v. Reynolds (1990), 243 Mont. 1, 8, 792 P.2d 1111, 1115,

this Court held that the district court properly denied the

defendant's motion to obtain all medical and psychiatric records of

a sexual assault victim. There, we cited the privilege stated in

5 26-l-807, MCA, and our holding in State v. Thiel (1989), 236

Mont. 63, 66, 768 P.2d 343, 345.

In Revnolds,, 792 P.2d at 1115, this Court reasoned that a

defendant's right to confront his accusers in pretrial discovery is

not equivalent to the constitutional right of confrontation.

Rather, confrontation is a trial right that guarantees an

opportunity for effective cross-examination. A right to question

adverse witnesses does not include the power to require the

pretrial disclosure of any and all information that might be useful

in contradicting unfavorable testimony. Revnolds, 792 P.2d at 1115

(citing Pennsylvania v. Ritchie (1987), 480 U.S. 39, 53, 107 S. Ct.

989, 999, 94 L. Ed. 2d 40, 54). This Court has held that an in

camera inspection by the trial court pursuant to § 41-3-205(2),

MCA, suffices to protect the confrontation rights of a defendant,

and to protect the privacy rights of a victim. State v. Donnelly

(1990) I 244 Mont.. 371, 376, 798 P.2d 89, 92 (overruled on other

grounds in State v. Imlay (1991), 249 Mont. 82, 813 P.2d 979).

In the present case, the District Court properly examined the

report in camera to determine whether exculpatory evidence was

present. The court found the counselor's report involved

privileged information involving the victim's psychological history

and treatment. At trial, the appellant had opportunity to

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cross-examine alll adverse witnesses, including his accuser, the

victim. Throughout the entire trial and sentencing, appellant

attempted to gain access to information concerning the victim's

alcohol and emotional problems after the incident. The court

denied access, reasoning that no correlation to the information was

provided at trial. The court seemingly addressed the correlation

between the victim's past emotional problems and alcohol abuse, and

her consent at the time of the incident. The court also considered

that the State did not establish a correlation at trial between the

trauma of the incident and the victim's current emotional problems.

We agree with the court when it found that the victim's historic

emotional problems and current emotional state were irrelevant to

the issue of whether appellant was guilty of sexual intercourse

without consent. We hold that the District Court did not abuse its

discretion when it denied appellant access to the victim's

counselor or the treatment records.

Appellant also contends that without the requested treatment

records he was denied access to potential information to build the

defense that he reasonably believed the victim was 17 years old.

Section 45-5-511(l), MCA, provides that:

When criminality depends on the victim being less than 16

years old, it is a defense for the offender to prove that

he reasonably believed the child to be above that age.

Such belief shall not be deemed reasonable if the child

is less than 14 years old.

At trial, appellant offered evidence that he reasonably believed

the victim was 17 years old. The State submitted evidence that

appellant was aware the victim was 14 years old. The court

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instructed the jury on § 45-5-511(l), MCA, and the jury was not

persuaded by appellant's evidence.

Further, the jury was instructed that the State must prove

that appellant had sexual intercourse with the victim, and that the

victim was 14 years old at the time of the offense. The State

proved its case.

We hold that the District Court did not err in denying the

appellant access to the victim's counselor or the counselor's

treatment records.

We affirm.

Justice

We concur:

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