96-463

No. 96-463

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1998 MT 78

 STATE OF MONTANA,

 Plaintiff and Respondent, 

 

 vs.

 ALEXANDER FREDRICK MacKINNON, 

 

 Defendant and Appellant.

 APPEAL FROM: District Court of the Fourth Judicial District,

 In and for the County of Missoula,

 The Honorable John W. Larson, Judge presiding.

 COUNSEL OF RECORD:

 For Appellant:

 Margaret L. Borg, Marcia M. Jacobson, Public Defender

 Office, Missoula, Montana

 For Respondent:

 Joseph P. Mazurek, Attorney General, John Paulson, Assistant

 Attorney General, Helena, Montana; Robert L. "Dusty"

 Deschamps III, Missoula County Attorney, Karen Townsend,

 Deputy Missoula County Attorney, Missoula, Montana

 Submitted on Briefs: July 2, 1997

 Decided: April 9, 1998

 Filed:

 __________________________________________

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 Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 This is an appeal from the Fourth Judicial District Court, Missoula

County. On October 17, 1995, a jury found Defendant Alexander MacKinnon

(MacKinnon) guilty of felony sexual assault of his step-daughter, M.G. On

March 29, 1996, the District Court entered judgment against MacKinnon. 

From this judgment and certain evidentiary rulings, MacKinnon appeals. We

affirm. 

¶2 We restate the following issues raised on appeal:

¶3 1. Did the District Court abuse its discretion by allowing the State

to present testimony concerning MacKinnon's statements which he made on

July 16, 1995, in the presence of the victim, M.G., M.G.'s mother and 

his ex-wife, Monica, as well as two church members, John and Coleen Contos?

¶4 2. Did the District Court abuse its discretion by ruling that

MacKinnon's ex-wife, Monica, could not be cross-examined about prior sexual

abuse of herself and her daughter, M.G.?

 FACTUAL AND PROCEDURAL BACKGROUND

¶5 On May 1, 1995, an Information was filed with the Fourth Judicial

District Court, Missoula County, charging MacKinnon with committing the

offense of felony sexual assault, in violation of § 45-5-502, MCA (1993). The

Information alleged that, in a continuing course of conduct over the previous

four years, MacKinnon had knowingly subjected his nine-year-old step-daughter, 

M.G., to sexual contact without consent by rubbing her breasts and

vaginal area. On May 10, 1995, MacKinnon pleaded not guilty to the charge,

thereafter, a trial date was set to begin October 13, 1995. On May 22, 1995,

M.G.'s mother, Monica, and MacKinnon were divorced.

¶6 In April 1995, Monica became active in the Missoula Christian Church

(the Church) and became a member in June 1995. Thereafter, MacKinnon

also became active in the Church, but he did not become a member until

October 1995. The Church was formed in August 1994 in Missoula,

Montana, as a branch of the same church located in Denver, Colorado. John

Contos, Coleen Contos and Ken Edwards, witnesses in this action, moved to

Missoula from Denver to help form the church and all have responsibilities

within the church as group leaders. However, the Church is headed by an

ordained minster who conducts church services and is licensed to perform

marriages. As a part of its Bible-based teachings, the Church allows its

members to confess their sins to one another, but no church member has the

authority to formally forgive sins. Rather, the Church believes forgiveness

only comes from God.

¶7 On July 16, 1995, after an evening church service conducted in a

Missoula restaurant, which both Monica and MacKinnon had attended,

Monica and M.G. encountered MacKinnon in the parking lot. An argument

ensued concerning visitation of Monica's and MacKinnon's two boys. 

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Thereafter, MacKinnon began talking to M.G. and apologizing to her,

apparently to set things right with her so she would not have to testify at court

proceedings. Concerned with the nature of this conversation, Monica

suggested that they continue the conversation inside the restaurant in the

presence of John and Coleen Contos. As a result of Monica's suggestion, the

conversation continued in the back of the lobby area of the restaurant with

everyone sitting on chairs. Subsequently, on August 21, 1995, a second

conversation took place at the home of John Contos involving MacKinnon,

Monica, John Contos and Ken Edwards.

¶8 On October 12, 1995, the State filed a memorandum in support of the

use of statements made by MacKinnon in both the July 16, 1995 and the

August 21, 1995 conversations. In response, MacKinnon filed a motion in

limine and a motion to suppress concerning these statements and a related

document. On October 13, 1995, prior to commencing jury selection, the

District Court heard testimony and argument concerning these motions, and,

thereafter, granted MacKinnon's motion to suppress the document and his

August 21, 1995 statements, but allowed testimony concerning his July 16,

1995 statements.

¶9 On October 16, 1995, a jury trial was held. During a break in the trial

and outside the presence of the jury, the State moved the District Court to

prevent MacKinnon from cross-examining Monica or M.G. concerning two

prior incidents of sexual abuse, one involving sexual abuse of Monica by a

family member when she was a child and the other involving sexual abuse of

M.G. by her natural father when she was an infant. The State argued that

testimony as to these two matters should not be allowed because this evidence

would not be probative of Monica's truthfulness and would be prejudicial and

confusing to the jury. MacKinnon pointed out that, as agreed, he did not

question M.G. as to these matters. However, MacKinnon argued that he was

entitled to cross-examine Monica as to these matters under the confrontation

clause of the federal and Montana constitutions to prove her lack of credibility

by revealing any possible motive, prejudice or bias that Monica might have.

¶10 The District Court ruled that under Rules 403 and 608, M.R.Evid.,

MacKinnon could not cross-examine Monica as to these two matters to

establish her motivation because there was no contradictory statement to tie

into and because even if this evidence had some probative value it was greatly

outweighed by its prejudicial effect. However, the court ruled that

MacKinnon could present expert testimony concerning matters of child sexual

abuse to assist the jury in evaluating M.G.'s testimony. Furthermore, the court

agreed that MacKinnon could argue in closing as to Monica's motive, bias, and

prejudice based on other facts in evidence, such as M.G.'s reluctance to testify

and Monica's desire to divorce MacKinnon. MacKinnon chose not to present

expert testimony and called no witnesses before resting his case. However, in

closing argument, MacKinnon did point out the family's troubled situation,

Monica's haste to report M.G.'s disclosures to the police as well as her haste

to divorce MacKinnon.

¶11 On October 17, 1995, the jury returned a verdict of guilty to the charge

of felony sexual assault against MacKinnon. Thereafter, the District Court

conducted a sentencing hearing on March 6, 1996, and deferred MacKinnon's

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imposition of sentence for six years, placing MacKinnon on probation subject

to certain conditions. The District Court entered its written judgment on

March 29, 1996. From this judgment and certain evidentiary rulings,

MacKinnon appeals.

 STANDARD OF REVIEW

¶12 Both issues MacKinnon raises on appeal concern the District Court's

evidentiary rulings made during his trial. We review a district court's

evidentiary rulings to determine whether the district court abused its

discretion. State v. Anderson (1996), 275 Mont. 344, 347, 912 P.2d 801, 803

(citing State v. Pace (1995), 272 Mont. 464, 466, 901 P.2d 557, 559). A

district court has broad discretion to determine whether evidence is relevant

and admissible. Anderson, 275 Mont. at 347, 912 P.2d at 803. Therefore,

absent a showing of abuse of discretion, we will not overturn a court's

evidentiary determination. Anderson, 275 Mont. at 347, 912 P.2d at 803.

 DISCUSSION

¶13 At the outset, we note that MacKinnon's appellate brief contains

numerous assertions and exhibits which are not supported by or contained in

the District Court record on appeal. Specifically, MacKinnon includes in his

appendix to his appellate brief: Exhibit A (a motion and proposed order to

dismiss this action prepared by the State but which was never filed); Exhibit

B (a letter written by the State to Monica explaining the reason for dismissal);

Exhibit D (a transcript of a taped interview with M.G. conducted by the

Missoula County Sheriff's Department); and Exhibit E (a photocopy of the

cover of the book titled "Gilly's Secret" along with a letter from Rashel Jeffrey,

M.S.W., A.C.S.W., stating she loaned this book to M.G.). However, these

documents (B, D and E) were not introduced as exhibits during trial and are

not a part of the District Court record. Furthermore, although Exhibit F (a

sexual offender evaluation) is referenced in the District Court's minute entries

of February 14, 1996, and March 6, 1996, it is not included in the District

Court record and the transcript of the sentencing hearing conducted on March

6, 1996, was not included with the trial transcript on appeal either.

¶14 Additionally, in his appellate brief, MacKinnon makes assertions

concerning the book, "Gilly's Secret," which M.G. may have read, the results

of two polygraph examinations, the sexual offender evaluation, Monica's

motives at the time of the July conversation, MacKinnon's motivations and

state of mind, and contacts between MacKinnon and Monica. None of these

assertions are supported by the record. As the State points out, MacKinnon

did not testify at the trial or sentencing hearing, and evidence concerning these

assertions was not offered or received.

¶15 We continue to condemn this practice and again "remind counsel that

parties on appeal are bound by the record and may not add additional matters

in briefs or appendices." State v. Hatfield (1993), 256 Mont. 340, 344, 846

P.2d 1025, 1028 (citing State v. Puzio (1979), 182 Mont. 163, 164, 595 P.2d

1163, 1164). We will not tolerate an attempt to introduce extraneous

information into the proceedings. State v. Hall (1983), 203 Mont. 528, 540,

662 P.2d 1306, 1312 (citing Farmers State Bank of Conrad v. Iverson and

Bouma (1973), 162 Mont. 130, 509 P.2d 839). Consequently, we review the

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following two issues concerning the District Court's evidentiary rulings based

only upon the evidence contained in the District Court record.

¶16 1. Did the District Court abuse its discretion by allowing the

State to present testimony concerning MacKinnon's statements which he

made on July 16, 1995, in the presence of the victim, M.G., M.G.'s mother

and his ex-wife, Monica, as well as two church members, John and Coleen

Contos?

¶17 During pretrial proceedings on October 12, 1995, the State filed a

memorandum in support of the use of certain statements made by MacKinnon

in a July 16, 1995 conversation involving himself, Monica, M.G., and John

and Coleen Contos and statements made by MacKinnon in an August 21, 1995

conversation involving himself, Monica, John Contos and Ken Edwards. In

turn, MacKinnon filed a motion in limine and a motion to suppress regarding

these same statements as well as a related document. On October 13, 1995,

prior to jury selection, the District Court heard testimony and argument

concerning the admissibility of the July and August statements under

Montana's clergy-penitent privilege, § 26-1-804, MCA.

¶18 Specifically, the District Court heard testimony concerning the status

of John Contos, Coleen Contos and Ken Edwards within the Missoula

Christian Church, the structure and discipline of the Church, as well as the

circumstances surrounding the July and August conversations. Thereafter, the

District Court granted MacKinnon's motion to suppress the document. 

However, while the District Court also denied admission of statements made

by MacKinnon during the August conversation, the court ruled that Monica,

M.G., John Contos and Coleen Contos could testify as to statements made by

MacKinnon during the July conversation.

¶19 On appeal, MacKinnon argues that the District Court abused its

discretion when it allowed Monica, M.G., John Contos and Coleen Contos to

testify about statements he made during the July conversation. He asserts that

testimony given by John and Coleen Contos was inadmissible under § 26-1-804,

MCA, because the Contoses, in their professional character as clergy

persons, and in the course of discipline enjoined by the Church, heard him

confess the crime with which he had been charged two months previously. 

Additionally, MacKinnon asserts that Monica and M.G. should not have been

allowed to testify about his statements because the July conversation was

analogous to compromise negotiations and conciliation counseling. 

Furthermore, MacKinnon contends that because of the religious setting, he

trusted that his statements would be kept confidential. Ultimately, MacKinnon

claims that Monica coerced and tricked him into confessing.

¶20 Section 26-1-804, MCA, provides:

 Confessions made to member of clergy. A clergyman or priest

 cannot, without the consent of the person making the

 confession, be examined as to any confession made to him in his

 professional character in the course of discipline enjoined by the

 church to which he belongs.

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¶21 Enacted in 1867, § 26-1-804, MCA, was left unchanged by the

adoption of the Montana Rules of Evidence. See Commission Comments to

Article V: Privileges, M.R.Evid. Despite this statute's long history, we are

presented for the first time with an issue involving its application. In

considering the application of this statute, we note that the United States

Supreme Court has explained:

 Testimonial exclusionary rules and privileges contravene

 the fundamental principle that " 'the public . . . has a right to

 every man's evidence.' " As such, they must be strictly

 construed and accepted "only to the very limited extent that

 permitting a refusal to testify or excluding relevant evidence has

 a public good transcending the normally predominant principle

 of utilizing all rational means for ascertaining truth." 

Trammel v. United States (1980), 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63

L.Ed.2d 186, 195 (citations omitted). Additionally, we note that

interpretations in other jurisdictions of clergy-penitent statutes similar to

§ 26-1-804, MCA, have varied. See e.g. State v. Buss (Wash.App. Div. 1 1995),

887 P.2d 920, and Scott v. Hammock (Utah 1994), 870 P.2d 947. 

¶22 The Washington Court of Appeals, in Buss, addressed the issue of

whether a defendant's incriminating statements made to a non-ordained

Catholic church counselor during a counseling session were privileged under

Washington's statutory clergy-penitent privilege. Narrowly interpreting their

clergy-penitent statute, the court explained that non-ordained church

counselors are not "clergy" within the statute. The court further explained that

the terms "confession" or "course of discipline" only include the sacrament of

confession authorized by a particular church discipline. Because the church

counselor was not a clergy member and the counseling session did not amount

to a confession, the court held that the privilege did not apply. Buss, 887 P.2d

at 923-24.

¶23 In contrast, the Utah Supreme Court, in Scott, broadly interpreted their

statutory clergy-penitent privilege holding that the privilege applied to 

non-penitential communications between lay persons and clergy if the

communications were "made in confidence and for the purpose of seeking or

receiving religious guidance, admonishment, or advice and that the cleric was

acting in his or her religious role pursuant to the practice and discipline of the

church." Scott, 870 P.2d at 956. In Scott, the court held that the privilege did

apply because the communications between the defendant and his bishop

pertained to the defendant's moral conduct, were intended to be confidential,

and the bishop was acting in his role as cleric. Scott, 870 P.2d at 956.

¶24 Notwithstanding that testimonial exclusionary rules and privileges are

strictly construed and accepted, Trammel, 445 U.S. at 50, 100 S.Ct. at 912, 63

L.Ed.2d at 195, under the federal First Amendment and under Article II,

Section 5 of the Montana Constitution, all persons are guaranteed the free

exercise of their religious beliefs and all religions are guaranteed governmental

neutrality. See, for example, Torasco v. Watkins (1961), 367 U.S. 488, 495,

81 S.Ct. 1680, 1683-84, 6 L.Ed.2d 982, 987; and Rasmussen v. Bennett

(1987), 228 Mont. 106, 111-12, 741 P.2d 755, 758-59. Thus, in order to

minimize the risk that § 26-1-804, MCA, might be discriminatorily applied

because of differing judicial perceptions of a given church's practices or

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religious doctrine, and in order to least interfere with the federal and Montana

constitutional protections of religious freedom referred to above, we conclude

that Utah's broader interpretation of the clergy-penitent privilege as set forth

in Scott, 870 P.2d 947, is the better view, and we adopt that approach.

¶25 Notwithstanding, even under this broad interpretation of the statute, we

conclude that, because the clergy-penitent privilege was not implicated, the

District Court did not abuse its discretion when it required John and Coleen

Contos to testify about statements MacKinnon made during the July

conversation. First of all, it appears that the District Court assumed that John

and Coleen Contos were "clergy persons" for the purposes of MacKinnon's

claim of privilege. Secondly, however, accepting that premise as true, the

other facts surrounding the July conversation indicate that any statements

MacKinnon made were not directed at John and Coleen Contos in their

"professional character," that is, in their capacities as clerics or in their

religious roles and "in the course of discipline enjoined," that is, pursuant to

the practice and discipline of the Church. To the contrary, the evidence

demonstrates that MacKinnon was not making a confession to the Cantoses for

the purpose of receiving forgiveness or for spiritual or religious counseling,

guidance, admonishment or advice. Therefore, § 26-1-804, MCA, did not

preclude testimony concerning the July conversation because the statute was

never implicated.

¶26 The July conversation, which took place over two months after

MacKinnon was charged with felony sexual assault and six weeks after he and

Monica divorced, was only a continuation of MacKinnon's conversation with

Monica and M.G. which began after evening church services outside the

presence of John and Coleen Contos in the parking lot of a Missoula

restaurant. Because Monica felt uncomfortable facing MacKinnon by herself

as he attempted to set things right with M.G., she asked MacKinnon to

continue their conversation inside the restaurant and she also asked John and

Coleen Contos, without explaining the subject of their conversation, to serve

as facilitators while she, MacKinnon and M.G. talked. At Monica's request,

their conversation continued in the back of the lobby area of the restaurant, a

public place, with everyone sitting on chairs. No representations of

confidentiality were made during their conversation.

¶27 Even assuming that John and Coleen Contos were clergy persons in the

church, nothing in the record suggests that they were acting as ministers or

counselors at the time they facilitated the July conversation. MacKinnon, not

yet a church member at the time of the July conversation, had not previously

sought spiritual advice or counseling from either John or Coleen Contos. 

Further, MacKinnon did not ask to meet with John and Coleen Contos for the

purpose of confession or for religious guidance, counseling, admonishment or

advice. Rather, Monica requested that John and Coleen Contos be present

during the July conversation, but only to serve as facilitators. Moreover,

during the July conversation, MacKinnon did not ask for, and the Contoses did

not give, any spiritual advice or forgiveness. No prayers were given and

nothing was said about forgiveness. Rather, MacKinnon volunteered his

statements without apparent encouragement in order to set things right with his

step-daughter, M.G., so that she would not have to testify at court proceedings. 

In this regard, MacKinnon's statements were directed at Monica and M.G., not

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the Contoses. Finally, MacKinnon had no reasonable expectation that his

statements would be held in confidence. MacKinnon did not seek and the

Contoses did not make any representations of confidentiality. Instead,

MacKinnon made his statements in a public place to his ex-wife

and step-daughter in the presence of the Contoses.

¶28 Furthermore, we agree with the State that the District Court did not

abuse its discretion when it allowed Monica and M.G. to testify about

statements MacKinnon made during the July conversation. Contrary to

MacKinnon's arguments, this conversation was not analogous to compromise

negotiations or conciliation counseling, and, therefore, was not confidential. 

First, MacKinnon made his statements to his former wife and step-daughter in

the back of the restaurant lobby, a public place, and no representations of

confidentiality were made. Additionally, John and Coleen Contos testified

that when the July conversation took place they both knew that Monica and

MacKinnon were divorced and that they did not advise Monica or MacKinnon

about the resumption of their marriage; they did not offer any spiritual advice

or counseling; and they did not suggest any further course of action. As such,

MacKinnon's analogies to compromise negotiations and conciliation do not

accurately reflect the substance and tenor of the July conversation. Because

MacKinnon did not testify, there is no evidence as to his motives for engaging

in the conversation nor any evidence as to his state of mind or his expectations

of confidentiality. In short, no evidence suggests that MacKinnon had any

reasonable expectation that his statements would be held in confidence. 

Finally, contrary to MacKinnon's assertions, no evidence presented shows that

Monica in any way coerced or tricked MacKinnon into confessing for the

purpose of gaining evidence for the State.

¶29 Having carefully considered the evidence in the record, we conclude

that § 26-1-804, MCA, is not implicated in this case. Furthermore, we

conclude that the July conversation was not confidential in nature. 

Accordingly, we hold that the District Court did not abuse its discretion when

it allowed testimony concerning statements MacKinnon made during the July

16, 1995 conversation.

¶30 2. Did the District Court abuse its discretion by ruling that

MacKinnon's ex-wife, Monica, could not be cross-examined about prior

sexual abuse of herself and her daughter, M.G.?

¶31 MacKinnon argues that the District Court abused its discretion when

it ruled that MacKinnon could not cross-examine his ex-wife, Monica, about

two prior incidents of sexual abuse, one involving sexual abuse of Monica by

a family member when she was a child and the other involving sexual abuse

of M.G. by her natural father when she was an infant. MacKinnon does not

contend that Monica lied; rather, he simply contends that Monica's personal

problems may have affected her perception of M.G.'s initial statements that

MacKinnon had touched her in inappropriate places and caused Monica to

overreact. As such, MacKinnon argues this evidence of Monica's personal

problems would show her bias, prejudice and motive to testify. Furthermore,

MacKinnon maintains that he was entitled to this testimony under the

compulsory process and confrontation clauses of the federal and Montana

constitutions.

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¶32 The State argues that the District Court properly limited the cross-examination 

of Monica by prohibiting inquiry into these two prior unrelated

incidents of sexual abuse involving Monica and M.G. Specifically, the State

asserts that the court properly prohibited inquiry into the prior unrelated

incident of sexual abuse against M.G. when she was an infant pursuant to

Montana's rape shield statute, § 45-5-511(2), MCA. Furthermore, the State

contends that on the basis of Rules 401, 403 and 608(b), M.R.Evid., the court

properly prohibited inquiry into the prior unrelated incident of sexual abuse

against Monica when she was a child. We agree.

¶33 We have previously explained:

 The defendant's right to confront and cross-examine an

 adverse witness is grounded in the Sixth Amendment to the

 United States Constitution, and Article II, Section 24, of the

 Montana Constitution. However, limiting the scope of cross-examination does 

not necessarily violate a defendant's right to

 confront an adverse witness. A trial court has broad discretion

 to limit the scope of cross-examination to those issues it

 determines are relevant to the trial. 

State v. Sullivan (1994), 266 Mont. 313, 323, 880 P.2d 829, 836 (citing Sloan

v. State (1989), 236 Mont. 100, 104-05, 768 P.2d 1365, 1368, and United

States v. Kennedy (9th Cir. 1983), 714 F.2d 968, 973, cert. denied, 465 U.S.

1034 (1984)).

¶34 Montana's rape shield statute, § 45-5-511(2), MCA, prohibits

introduction of evidence concerning the victim's prior sexual conduct, with

certain exceptions:

 No evidence concerning the sexual conduct of the victim is

 admissible in prosecutions under this part except evidence of the

 victim's past sexual conduct with the offender or evidence of

 specific instances of the victim's sexual activity to show the

 origin of semen, pregnancy, or disease which is at issue in the

 prosecution.

¶35 Inadmissible evidence concerning the past sexual conduct of a victim

includes prior sexual abuse. State v. Weeks (1995), 270 Mont. 63, 89, 891

P.2d 477, 493. "The purpose of the rape shield statute is to prevent the trial

from becoming a trial of the victim." Weeks, 270 Mont. at 89, 891 P.2d at

493. Yet, we must balance the victim's protection under the rape shield

statute against the defendant's right to confront witnesses. Weeks, 270 Mont.

at 89, 891 P.2d at 493. We have held that a defendant's right of confrontation

is not violated by the exclusion of evidence concerning the victim's prior

sexual abuse committed by other individuals unless the victim's accusations of

prior abuse are proven to be false. Weeks, 270 Mont. at 89, 891 P.2d at 493;

State v. Van Pelt (1991), 247 Mont. 99, 805 P.2d 549. 

 "If the charges are true or reasonably true, then evidence

 of the charges is inadmissible, mainly because of its prejudicial

 effect, . . . but certainly because of its irrelevance to the instant

 proceeding. . . . Furthermore, evidence of prior charges which

 have not been adjudicated to be true or false; i.e., which may be

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 true or false is also inadmissible, primarily because its

 introduction circumvents the interest in preserving the integrity

 of the trial and preventing it from becoming a trial of the victim

 . . . (reception of evidence which may be true or false allows

 circumvention of laws designed to protect legitimate interests of

 [the] victim). These limitations do not infringe upon a

 defendant's right to confrontation. (Citations omitted; emphasis

 in original.)"

Van Pelt, 247 Mont. at 104, 805 P.2d at 552-53 (quoting State v. Anderson

(1984), 211 Mont. 272, 284-85, 686 P.2d 193, 200).

¶36 Here, the District Court properly concluded that evidence of M.G.'s

prior unrelated incident of sexual abuse was inadmissible. Neither of the two

statutory exceptions applies in this case. Furthermore, it was not shown that

M.G. made any false accusations concerning her prior unrelated incident of

sexual abuse. Nor could M.G. have testified about this incident of sexual

abuse because at the time it occurred she was only an infant. Accordingly, we

hold that the District Court correctly ruled that MacKinnon could not

cross-examine Monica concerning M.G.'s prior unrelated incident of sexual abuse.

¶37 Montana's rape shield statute does not apply to other witnesses, and,

therefore, would not prohibit MacKinnon from cross-examining Monica about

the prior incident of sexual abuse when she was a child. We have stated that

"[a] witness's credibility may be attacked through cross-examination to reveal

possible biases, prejudices, or ulterior motives if they relate directly to issues

or personalities in the case at hand." State v. Short (1985), 217 Mont. 62, 67,

702 P.2d 979, 982. In this regard, Rule 401, M.R.Evid., provides that relevant

evidence may include evidence of a witness's credibility. However, Rule 401,

M.R.Evid., also states that relevant evidence is any evidence which tends to

make the existence of any fact of consequence to the determination of the

action more or less probable than without the evidence. 

¶38 Here, MacKinnon argues that Monica would have reacted differently

to M.G.'s disclosures if the two prior incidents of sexual abuse had not

occurred. Specifically, MacKinnon contends that Monica might have made

more detailed inquires into what happened and might have taken M.G. to an

expert before she rushed to call the authorities within minutes of talking with

M.G. However, we conclude that the causes of Monica's reaction to M.G.'s

disclosures are not facts of consequence in determining MacKinnon's guilt. 

See State v. Rendon (1995), 273 Mont. 303, 307-08, 903 P.2d 183, 185-86

(district court did not abuse its discretion in excluding testimony concerning

the antagonistic relationship between a testifying witness, the assault victim's

mother, and the defendant, which was designed to attack the witness's

credibility, as irrelevant to the issue of defendant's guilt). As such these

incidents are irrelevant and the District Court properly excluded them. 

Furthermore, we find no fault with Monica's initial reporting of M.G.'s

disclosures to the police who conducted an investigation and determined that

the child's statements were credible.

¶39 Additionally, Rule 608, M.R.Evid., prohibits attacks on a witness's

general character and credibility through specific instances of conduct, and

Rule 403, M.R.Evid., allows a court to exclude relevant evidence if its

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probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury. Here, MacKinnon wanted to

cross-examine Monica about prior unrelated incidents of sexual abuse--one

involving herself when she was a child and the other involving M.G. when she

was an infant. We agree with the State that, on the basis of Rules 608 and

403, M.R.Evid., testimony concerning these prior incidents of sexual abuse

would not be probative of Monica's truthfulness, but rather would constitute

an attack on her general character and credibility; would create unfair

prejudice against Monica; and would confuse the issues for the jury. See State

v. Passama (1993), 261 Mont. 338, 341-42, 863 P.2d 378, 379-80 (district

court did not abuse its discretion in prohibiting the defendant from cross-examining 

the victim's brother about prior instances of sexual misconduct

because its prejudicial value outweighed its probative value). Accordingly, we

hold that the District Court did not abuse its discretion when it prohibited

MacKinnon from cross-examining Monica about these two prior unrelated

incidents of sexual assault.

¶40 Finally, the District Court's ruling did not violate MacKinnon's rights

under the compulsory process and confrontation clauses of the Montana and

federal constitutions. The District Court's ruling was narrow in scope and

effect. The court simply restricted MacKinnon from cross-examining Monica

about two specific instances of prior unrelated sexual abuse--one involving

M.G. when she was an infant and another involving Monica when she was a

child. Otherwise, the court did not restrict MacKinnon's cross-examination of

Monica concerning the marital strife within Monica and MacKinnon's

marriage or her desire to end their marriage, and the court did not impose any

other limitation upon cross-examination. Furthermore, the court allowed

MacKinnon to present closing arguments concerning Monica's motive, bias or

prejudice based on evidence in the record. Under Rule 611, M.R.Evid., the

District Court is given considerable discretion in exercising control over

interrogation of witnesses. Accordingly, we hold that the District Court

properly exercised its discretion when it limited MacKinnon's cross-examination of 

Monica.

¶41 Affirmed.

 /S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

Justice Terry N. Trieweiler specially concurring.

¶42 I concur with the majority's discussion and conclusion related to Issue

1. 

¶43 I specially concur with the majority's conclusion related to Issue 2. 

Although I agree that the district court has broad discretion to limit the scope

of cross-examination and that, based on the specific facts in this case, that

discretion was not abused, I do not agree with all that is said in the majority's

discussion pertaining to Issue 2. In particular, I do not want to infer that, as

applied to other circumstances, Montana's rape shield statute, found at

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§ 45-5-511(2), MCA, might not violate state and federal constitutional rights

to cross-examine adverse witnesses. Furthermore, while I agree that the

District Court had the discretion to admit or exclude cross-examination of

Monica, I do not agree with the inference in the majority opinion that it would

have been error for the District Court to allow such examination. I conclude

that Monica's past experiences which may have affected her perception of

events were relevant to her credibility and could properly have been admitted. 

However, I also conclude that the District Court could properly have

determined that the probative value of that line of questioning was outweighed

by the prejudicial effect and, therefore, had a proper basis for exercising its

discretion to exclude the evidence.

¶44 For these reasons, I specially concur with the majority opinion.

 /S/ TERRY N. TRIEWEILER

Justice William E. Hunt, Sr., joins in the foregoing concurring opinion.

 /S/ WILLIAM E. HUNT, SR.

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