NO. 91-230 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Benjamin R. Anciaux, Attorney at Law, Polson, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Cregg W. 

Coughlin, Assistant Attorney General, Helena, 

Montana 

Larry Nistler, County Attorney, Kathleen O'RourkeMullins, Deputy County Attorney, Polson, Montana 

Filed: 

Submitted on Briefs: March 5, 1992 

Decided: July 2, 1992 
Justice Karla M. Gray delivered the Opinion of the Court. 

The defendant, Robert Michael Rhyne, appeals his convictions 

on five counts of incest following a jury trial in the District 

Court of the Twentieth Judicial District, Lake County. We affirm. 

We address the following issues on appeal: 

1. Did the District Court err in ruling that the defendant 

could not introduce into evidence the victim's medical records 

obtained by the defendant or testimony based on the records? 

2. Did the District Court err in granting the State's motion 

in limine to exclude evidence relating to the victim's claimed 

abortion? 

3. Did the District Court err in denying the defendant's 

discovery request to obtain the victim's records from her current 

psychological counselor? 

4. Was the defendant denied a fair trial as a result of 

prosecutorial misconduct? 

Vicki L. became engaged to Rhyne in 1986. In April 1986, she 

and her four children from a previous marriage, including K.L., 

began residing with Rhyne in Polson, Montana. Vicki L. and Rhyne 

were married in August 1986. 

K.L. testified that she was sexually assaulted by Rhyne on 

several occasions between October 1986 and September 1988. 

Throughout this period of time K.L. was under eighteen years of 

age. K.L. testified that she was first assaulted by Rhyne after 

she accidently discovered him in his bedroom having extramarital 

sexual relations. She claimed that, upon her discovery, Rhyne 

2 
became physically abusive, threw her to the floor and had sexual 

intercourse with her while the other person held her down. 

K.L. testified that she was next assaulted after she had 

become angry with her mother and hit her. K.L.'s mother asked 

Rhyne to discipline her. In response to the request, Rhyne threw 

K.L. into her bedroom and, in the course of striking her, fondled 

her breasts and pubic area. 

According to K.L., another assault occurred when Rhyne chased 

her into her bedroom to discipline her. She testified that Rhyne 

had sexual intercourse with her, after which he forced her to 

perform oral sex. K.L. stated that a fourth assault occurred when 

Rhyne had sexual intercourse with her after she and Rhyne argued 

over which television program to watch. K.L. further testified 

that Rhyne had sexual intercourse with her on another occasion 

after he returned home from work and found her still asleep in bed. 

Rhyne was charged by an information filed on August 11, 1989 

with five counts of incest. Following a period of discovery, the 

State filed a motion in limine on October 15, 1990, seeking to 

exclude evidence of K.L. 's prior sexual conduct pursuant to 5 45-5- 

511(4), MCA (1989). K.L. told her counselors that she previously 

had been sexually assaulted by an uncle and her natural father and 

had sexual contact with another youth. These revelations were 

contained within medical records released to Rhyne in response to 

his pretrial discovery requests. 

Rhyne filed a motion in limine on October 18, 1990, seeking 

approval of the admission of evidence regarding K.L. 's prior sexual 

3 
abuse. He argued that such evidence was admissible to rebut the 

State's offered expert testimony that K.L. suffered from borderline 

personality disorder, depression and post-traumatic stress 

disorder. The parties' motions in limine were orally argued to the 

court that afternoon: the court did not make a ruling at that time. 

That same day, the State filed an objection to the disclosure 

of K.L.'s records from her current psychological counselor, Dr. 

Joan Hess-Homeier, which Rhyne had requested. The State opposed 

the disclosure on the grounds that nothing within Dr. HessHomeier's records pertaining to K.L. was relevant or exculpatory, 

K.L.'s right to confidentiality outweighed Rhyne's right to 

discovery and disclosure would jeopardize the doctor-client 

relationship between Dr. Hess-Homeier and K.L. The State requested 

the court to deny Rhyne access to Dr. Hess-Homeier's records 

outright or, in the alternative, inspect the records camera to 

determine their relevancy. The State's objection was orally argued 

to the court that afternoon. After being informed that the State 

did not intend to call Dr. Hess-Homeier as a witness at trial or 

rely on her records and that Rhyne had not made a request for a 

current psychological evaluation of K.L. by a psychologist of his 

choice, the court ruled that Rhyne could not obtain Dr. HessHomeier's records pertaining to K.L. 

The next day, on October 19, 1990, the District Court granted 

the State's motion in limine to exclude evidence of K.L.'s prior 

sexual conduct pursuant to 5 45-5-511(4), MCA (1989). The court's 

order prohibited "reference to or offering evidence concerning the 

4 
alleged victim's past sexual conduct with anyone other than the 

Defendant." The court also denied Rhyne's motion in limine to 

introduce evidence of K.L.'s prior sexual abuse. 

Several pleadings then followed. Rhyne filed an amended 

notice of witnesses on October 22, 1990, in which he stated that he 

intended to call Dr. James Wemple as an expert to testify regarding 

the effect of prior sexual assaults upon K.L. The State requested 

a clarification of the court's October 19, 1990 order to determine 

what evidence would open the door to Rhyne's introduction of K.L. 's 

prior sexual abuse. The State also filed a motion in limine to 

exclude evidence relating to K.L. 's claim that she had undergone an 

abortion as a result of becoming pregnant by Rhyne. Rhyne sought 

reconsideration of the court's ruling that K.L.'s prior sexual 

abuse was not admissible. 

A hearing regarding the various pleadings filed by Rhyne and 

the State was held on October 24, 1990. The District Court ruled 

that Rhyne could not introduce evidence relating to K.L.'s alleged 

abortion unless the State first opened the door to such evidence. 

The court also ruled that evidence of K.L. Is prior sexual abuse 

could not be introduced by Rhyne unless the State opened the door 

regarding K.L.'s prior sexual abuse or her mental condition. On 

the basis of this latter ruling, the State informed the court and 

Rhyne that it would not call an expert to testify. Additionally, 

in light of its ruling regarding the State's opening the door to 

K.L.'s prior sexual abuse, the court deferred, until trial, ruling 

on the admissibility of K.L.'s medical records which were obtained 

5 
by Rhyne and served as the basis of his expert's opinion concerning 

K.L. 

A jury trial was held on October 25, 26 and 29, 1990. During 

voir dire, the prosecutor inquired of the prospective jurors if any 

of them would feel uncomfortable telling a group of people the 

details of his or her first sexual experience. In chambers, Rhyne 

objected to any reference to the incest claims as K.L.'s first 

sexual experiences. The court instructed the prosecutor to avoid 

any comments which would suggest that the alleged acts of incest 

were K.L.'s first sexual experiences. 

During the defendant's case-in-chief, Dr. Wemple was called to 

testify and was qualified as an expert. When defense counsel asked 

Dr. Wemple whether he had received and reviewed any information 

regarding K.L., a recess was taken to allow the court to further 

consider and rule upon the admissibility of K.L.'s medical records. 

Thereafter, the court concluded that the State had not opened the 

door to K.L.'s prior sexual abuse or mental condition and ruled 

that Rhyne could not introduce K.L.'s medical records or present 

testimony, based on the records, regarding her mental condition. 

The jury found Rhyne guilty on all five counts of incest. He 

was sentenced to ten years in prison on each count with the 

sentences to run consecutively. The District Court suspended the 

sentences on four of the five counts and ordered Rhyne to complete 

sexual offender treatment at the prison. Rhyne appeals. 

I. 

Did the District Court err in ruling that the defendant could 

6 
not introduce into evidence the victim's medical records obtained 

by the defendant or testimony based on the records? 

Rhyne presents several arguments in support of his position 

that the District Court erred in prohibiting the introduction of 

K.L.'s medical records into evidence. We will not disturb a 

district court's ruling on the admissibility of evidence absent an 

abuse of discretion. State v. Hall (1990), 244 Mont. 161, 169, 797 

P.2d 183, 189. 

Rhyne first asserts that he was denied his Sixth Amendment 

right to confront witnesses against him because he was not 

permitted to introduce K.L. 's medical records or discuss her mental 

condition. He argues that, as a result of the court's ruling, he 

was not able to effectively cross-examine K.L. 

The medical records at issue were obtained by Rhyne through 

pretrial discovery and contained information regarding K.L.'s prior 

sexual abuse. Rhyne attempted to use the records to support his 

claim that K.L. was suffering from a mental condition which was 

caused, at least in part, by her prior sexual abuse and which 

reduced her credibility. 

The District Court's order of October 19, 1990 prohibited the 

introduction of evidence of K.L.'s prior sexual abuse pursuant to 

5 45-5-511(4), MCA (1989), which provides: 

(4) No evidence concerning the sexual conduct of 

the victim is admissible in prosecutions under this part 

except: 

(a) evidence of the victim's past sexual conduct 

with the offender; 

(b) evidence of specific instances of the victim's 

7 
sexual activity to show the origin of semen, pregnancy, 

or disease which is at issue in the prosecution. 

K.L. Is medical records which were obtained by Rhyne and evidence of 

her mental condition were excluded on the basis that such evidence 

would violate the court's October 19, 1990 order prohibiting 

evidence regarding K.L.'s prior sexual abuse. 

We previously have held that, under § 45-5-511(4), MCA (1989), 

sexual conduct of the victim which is inadmissible includes prior 

sexual abuse. State v. Van Pelt (1991), 247 Mont. 99, 103, 805 

P.2d 549, 552. Additionally, we held in Van Pelt that a 

defendant's constitutional right to confront witnesses is not 

violated by the exclusion of evidence of the victim's prior sexual 

abuse unless the victim's accusations or allegations of prior 

sexual abuse have been proven to be false or are admitted to be 

false. Van Pelt, 247 Mont. at 104, 805 P.2d at 552; see also State 

v. Anderson (1984), 211 Mont. 272, 686 P.2d 193 (limiting a 

defendant's cross-examination of a complaining witness in a sex 

offense case where there is evidence of prior false accusations 

infringes upon the defendant's constitutional right to confront 

witnesses). 

In the present case, K.L.'s claims of prior sexual abuse had 

not been adjudicated to be false, nor were they admitted to be 

false. As such, evidence pertaining to K.L.'s prior sexual abuse 

as a means to attack her credibility was not admissible. 

In addition, Rhyne was allowed to thoroughly cross-examine 

K.L.; his cross-examination was restricted only when he attempted 

to elicit testimony regarding K.L.'s prior incidents of sexual 

8 
abuse and the medical records that documented them. Defense 

counsel questioned K.L. regarding the times, places and 

circumstances surrounding the alleged assaults by Rhyne. He asked 

K.L. about inconsistent statements that she had given to a law 

enforcement officer concerning the assaults. He asked her about 

statements regarding the assaults that she claimed to have made to 

friends. In addition, defense counsel inquired about K.L.Is 

feelings toward Rhyne, her anger toward him for moving the family 

to a house out of town and other possible influences upon her 

testimony. 

Defense counsel asked K.L. at one point during crossexamination if she had always told the truth to her counselors. 

K.L. admitted that she had not revealed certain facts, but she 

denied that she had lied. In chambers, the State objected to 

defense counsel's inquiry on the grounds that he was merely 

attempting to introduce K.L.'s mental condition so as to open the 

door to prior sexual abuse. Defense counsel openly admitted that 

he wished to discuss K.L.'s medical records for impeachment 

purposes. The court stated that it would not allow defense counsel 

to use the medical records for impeachment. The court did, 

however, permit defense counsel to inquire of K.L. what facts she 

claimed to have withheld from her counselors. Thus, consistent 

with the court's earlier ruling, Rhynels cross-examination was 

limited only with regard to evidence of K.L.'s prior sexual abuse. 

The record clearly shows that Rhyne was afforded the opportunity to 

effectively cross-examine K.L. We conclude, therefore, that 

9 
Rhyne's right to confrontation was not violated. 

Rhyne next asserts that the District Court's ruling concerning 

K.L.'s medical records was erroneous because it prevented him from 

presenting his defense through an expert witness. Rhyne wished to 

present the testimony of Dr. Wemple in an attempt to show that K.L. 

suffered from depression and other mental disorders and that her 

mental condition may have existed prior to Rhyne's alleged 

assaults. In addition, Rhyne wished to show that K.L.'s mental 

condition adversely affected her credibility. The District Court 

inquired of defense counsel: 

THE COURT: [Tell me how] you believe that Doctor 

Wemple could give me meaningful testimony without relying 

upon the kinds of evidence which the Court has excluded, 

specifically the prior sexual offenses by persons other 

than this defendant. 

[DEFENSE COUNSEL] : I 've asked Doctor Wemple that 

question. And he said, "I can't ignore them as a part of 

understanding who she is, but I don't have to talk about 

them to the jury." In other words, he can review the 

whole record and have it in hand and in mind but as he 

explains the psychology underlying [K.L.] and people like 

her, he doesn't have to refer to sexual assaults -- other 

sexual assaults at all. . . . 

THE COURT: He won't refer to it but nevertheless 

it's an integral and essential part of his reaching the 

conclusion. 

[DEFENSE COUNSEL]: But the jury will never know 

that. He simply is going to discuss his conclusions 

based on having read the records unless I or the State 

asks him specifically what parts of the record he relies 

upon. 

THE COURT: But your expert simply can't give expert 

testimony without the material that's been excluded as 

forming the basis for his opinion. 

[DEFENSE COUNSEL]: That's correct -- not correct, 

10 
your Honor. He thinks he can talk about who this girl is. 

He can start from her diagnosis, which I've described to 

you, and then describe what that class of people is like 

and the problems that arise with credibility. 

THE COURT: That very diagnosis is based upon her 

entirety [sic]. 

[DEFENSE COUNSEL]: Yes, of necessity, but he 

doesn't have to testify as to the elements of that, so 

there is no prejudice. They're not going to be talking 

about sexual assaults. 

The court ruled that Dr. Wemple could not give any testimony 

regarding K.L.'s mental condition which would be based upon her 

medical records. Rhyne argues that the court erred by not allowing 

Dr. Wemple to testify without specifically referring to K.L.'s 

prior sexual abuse. We disagree. 

Rhyne's argument ignores the fact that K.L.'s medical records 

and mental condition, upon which his expert's testimony would have 

been based, were inextricably related to her claims of prior sexual 

abuse. It is clear from the colloquy between the court and defense 

counsel that K.L. 's prior sexual abuse was an integral part of both 

the medical records and Dr. Wemple's offered testimony. To allow 

Dr. Wemple's testimony would have been to allow Rhyne to circumvent 

the court's order prohibiting evidence, pursuant to 5 45-5-511(4), 

MCA (1989), of K.L.'s prior sexual abuse. 

Finally, Rhyne asserts that the District Court erred in 

prohibiting the introduction of K.L.'s medical records because they 

contained "[n]umerous other examples showing [K.L.'s] biases, 

motives and prejudices that could cause her to testify falsely." 

Rhyne's assertion lacks merit. Although the records in question 

were obtained during discovery and reviewed by Rhyne, he did not 
point out during trial, nor does he now, what these Ifnumerous" 

examples are or how they could have been used to challenge K.L.'s 

testimony. Rhyne's unsupported and conclusory allegation is 

inadequate to show that the court abused its discretion in making 

its ruling. For the foregoing reasons, we hold that the District 

Court did not abuse its discretion and, thus, did not err in ruling 

that Rhyne could not introduce K.L.'s medical records into 

evidence. 

11. 

Did the District Court err in granting the State's motion in 

limine to exclude evidence relating to the victim's claimed 

abortion? 

K.L. told an investigating officer that she had become 

pregnant by Rhyne and had aborted the pregnancy in Missoula. She 

maintained that she did not know where the abortion had been 

performed but did indicate that it may not have occurred in a 

medical clinic. Rhyne used a release form signed by K.L. and her 

mother in an unsuccessful attempt to find records of the abortion. 

Rhyne argues on appeal that the District Court's ruling excluding 

evidence relating to K.L.'s claimed abortion erroneously deprived 

him of an opportunity to attack K.L.'s credibility on what he 

contends was "a false report of an abortion." 

The State's motion in limine and oral argument at the hearing 

on the motion were based largely on its contention that evidence 

regarding K.L.'s claimed abortion was irrelevant to the incest 

charges and, thus, inadmissible pursuant to Rule 402, M.R.Evid. 

12 
The State’s motion and argument were also based on its contention 

of undue prejudice with respect to casting K.L. as a “bad” person 

for having an abortion. In response, Rhyne argued that the 

evidence was relevant to K.L.’s credibility and, therefore, 

admissible. The District Court granted the motion to exclude the 

abortion related evidence but did not state the basis for its 

ruling. It did state that it would permit the introduction of the 

evidence if the State opened the door to such evidence at trial. 

Rule 401, M.R.Evid., defines relevant evidence as evidence 

having any tendency to make the existence of any fact in question 

more probable or less probable than it would be without the 

evidence; it may include evidence bearing upon a witness’ 

credibility. Under Rule 402, M.R.Evid., relevant evidence is 

generally admissible while irrelevant evidence is not admissible. 

Rule 403, M.R.Evid., provides that relevant evidence may be 

excluded under certain circumstances: 

Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, 

waste of time, or needless presentation of cumulative 

evidence. 

As stated earlier, the District Court’s determination of the 

admissibility of evidence will not be disturbed absent an abuse of 

discretion. m, 244 Mont. at 169, 797 P.2d at 189. 

This Court is very protective of a defendant’s right to show 

lack of veracity and credibility of a complaining witness, 

particularly in sex offense cases where it is often one person’s 

word against that of another. See, e.g., Anderson, 211 Mont. 272, 

13 

, . 
686 P.2d 193 (general policy against sordid probes into a victim's 

past sexual conduct is not violated if the offered evidence can be 

narrowed to the issue of the complaining witness' veracity). We 

conclude that in this case the excluded evidence did have some 

relevance under Rule 401, M.R.Evid., in that it may have touched on 

K.L. Is credibility. 

We further conclude, however, that the limited relevance or 

probative value of the evidence was outweighed by its prejudice to 

K.L. and confusion of the issues under Rule 403, M.R.Evid. Rhyne 

could not show with certainty that K.L. did not have an abortion 

and he admitted at the hearing on the motion that he did not have 

impeaching evidence "of an absolute nature." He nevertheless 

wanted to show that the abortion was "unlikely" through "a lot of 

facts" which flowed from K.L.'s statement that she had the 

abortion. Rhyne essentially wanted to work backwards--showing that 

the abortion was "unlikely," therefore K.L. Is pregnancy did not 

occur, therefore sexual intercourse/incest did not occur. This 

approach not only presented a danger of undue prejudice to K.L. but 

also was circuitous and confusing. The District Court noted the 

possibility of the evidence's relevance butthen, after considering 

all of Rhyne's arguments and offer of proof, granted the State's 

motion with the condition that the evidence could be introduced if 

the State opened the door at trial. Under these particular facts 

and Rule 403, M.R.Evid., the court's ruling did not constitute an 

abuse of discretion. We hold that the District Court did not err 

in granting the State's motion in limine to exclude evidence of 

14 
K.L.'s claimed abortion. 

111. 

Did the District Court err in denying the defendant's 

discovery request to obtain the victim's records from her current 

psychological counselor? 

Rhyne contends that the District Court erred when it denied 

his discovery request to obtain K.L.'s records from her current 

psychological counselor, Dr. Hess-Homeier. He asserts that the 

court should have conducted an b camera inspection of those 

records "[tlo determine if they contained material [he] should have 

had access to'' before ruling that they were not to be disclosed. 

He argues that the court's ruling denied him his constitutional 

right to confront witnesses against him. 

We find no error on the part of the District Court in failing 

to inspect Dr. Hess-Homeier's records pertaining to K.L. b camera 

before ruling on Rhyne's discovery request. Dr. Hess-Homeier was 

not a witness against Rhyne and the State did not rely on her 

records as part of its case. Moreover, Rhyne neither requested 

permission to conduct an b camera inspection of the records nor 

requested the District Court to make such an inspection. 

In addition, the District Court's refusal to grant Rhyne's 

discovery request did not violate his right of confrontation. In 

State v. Reynolds (1990), 243 Mont. 1, 792 P.2d 1111, we affirmed 

the district court's refusal to order the release and disclosure of 

the victim's medical and psychiatric records. We held that the 

defendant was not denied his right of confrontation, stating: 

15 
"[Tlhe right of a defendant to confront his accusers 

is not equivalent to a constitutionally compelled rule of 

pretrial discovery. Rather, the right of confrontation 

is a trial right, guaranteeing an opportunity for 

effective cross-examination. See Pennsvlvania v. 

Ritchie, 480 U.S. 39, 109 S.Ct. 989, 94 L.Ed.2d 40 

(1987)." [Emphasis in original.] 

Reynolds, 243 Mont. at 7, 792 P.2d at 1115 (quoting People v. 

Exline (Colo. App. 1988), 775 P.2d 48, 49). Because the defendant: 

was afforded the opportunity at trial to cross-examine all 

witnesses against him, the court's ruling denying him access to the 

records did not violate his right of confrontation. Reynolds, 243 

Mont. at 8, 792 P.2d at 1115 (citing State v. Thiel (1989), 236 

Mont. 63, 768 P.2d 343). 

In the present case, Rhyne was afforded the opportunity to 

effectively cross-examine all witnesses against him. Therefore, he 

was not denied his right of confrontation. We hold that the 

District Court did not err in denying Rhyne's discovery request to 

obtain Dr. Hess-Homeier's psychological records pertaining to K.L. 

IV . 

Was the defendant denied a fair trial as a result of 

prosecutorial misconduct? 

As previously noted, the prosecutor inquired during voir dire 

of the prospective jurors if any of them would feel uncomfortable 

telling a group of people the details of his or her first sexual 

experience. After an objection by Rhyne, the court instructed the 

prosecutor to make no further comments which would suggest that the 

alleged acts of incest were K.L.'s first sexual experiences. Rhyne 

contends that the prosecutor's comment denied him a fair trial 

16 
because he was not allowed to present "[alny possible explanation 

for K.L.'s motives, biases and prejudices other than his guilt to 

the offense charged." 

"It has long been the law of this state that prejudice in a 

criminal case will not be presumed, but must appear from the denial 

or invasion of a substantial right from which the law imputes 

prejudice." State v. Miller (1988), 231 Mont. 497, 507, 757 P.2d 

1275, 1281. Rhyne has not demonstrated that he was prejudiced by 

the prosecutor's comment. Our review of the record reveals that 

the thrust of the comment was not the suggestion that the alleged 

acts were K.L.'s first sexual experiences. Rather, it was made to 

elicit a response from the jury panel with respect to the potential 

difficulty on K.L.'s part to testify about the alleged acts of 

incest. Significantly, although Rhyne objected to the prosecutor's 

comment, he did not request the District Court to admonish the jury 

panel or give a cautionary instruction. Nor did he request a 

mistrial. Given these circumstances, we hold that Rhyne was not 

denied a fair trial as a result of prosecutorial misconduct. 

Affirmed. 

We concur: 

. /I 

17 
July 2, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Benjamin R. Anciaux 

Attorney at Law 

107 Sixth Ave. E., PO Box 1670 

Polson, MT 59860 

Hon. Marc Racicot, Attorney General 

Justice Bldg. 

Helena, MT 59620 

Larry Nistler, County Attorney 

Kathleen O’Rourke-Mullins, Deputy 

Lake County Courthouse, 106-4th Ave. E. 

Polson, MT 59860-2183 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATKOF MONTANA 

BY: pk Depu