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, 1992Justice 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. InApril 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 2became physically abusive, threw her to the floor and had sexual intercoursewith 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 occurredwhen 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 intercoursewith 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 afterhe returned home fromwork and foundher still asleep inbed. 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. 'sprior sexual conductpursuant 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 fatherand 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 evidenceregardingK.L. 'sprior sexual
3abuse. He argued that such evidence was admissible to rebut the State'soffered expert testimony thatK.L. suffered fromborderline personality disorder, depression and post
-traumatic stress disorder. Theparties' motions in liminewere orally argued to the court that afternoon: the courtdid notmake a ruling at that time. That same day,the State filed an objectionto 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 relationshipbetween Dr. Hess
-Homeierand K.L. The Staterequested the court to deny Rhyne access to Dr. Hess
-Homeier's records outright or, in the alternative, inspect the records camera to determinetheirrelevancy. The State's objectionwas 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 recordspertaining 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 orderprohibited "referenceto or offering evidence concerning the

4alleged 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 ofwitnesses onOctober 22, 1990,inwhich he stated thathe intended to call Dr. JamesWemple 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 evidencewould open thedoor toRhyne's introductionofK.L. 's prior sexual abuse. The State also filed a motion in limine to exclude evidence relating to K.L. 'sclaim that shehad 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 courtdeferred,until trial,ruling
on the admissibility of K.L.'s medical recordswhichwere obtained
5by Rhyne and served as thebasis of his expert's opinion concerning K.L. A jury trial was held on October 25, 26 and 29, 1990. During voir dire, theprosecutor inquired of theprospective 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. Duringthedefendant's case-in

-chief,Dr.Wemplewas called to testify andwas qualifiedas 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 considerand ruleupon the admissibilityof 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

6not 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. Statev. Hall (1990),244Mont. 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 introduceK.L. 'smedical records ordiscusshermental 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 informationregardingK.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, 1990prohibited 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 thevictim is admissible in prosecutions under thispart except: (a) evidence of the victim's past sexual conduct with the offender; (b) evidence of specific instances of thevictim's 7sexual activity to show the origin of semen,pregnancy, or disease which 

### is at issue in the prosecution. K.L. Ismedical records whichwere obtainedby Rhyneand evidence of her mental conditionwere 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. Wepreviously haveheld 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 thevictim'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, evidencepertaining 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 8abuse and the medical records that documented them. Defense counsel questioned K.L. regarding the times, places and circumstances surroundingthe alleged assaultsby 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 havemade 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 

### itwould 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 Rhynewas afforded the opportunityto effectively cross-examine K.L. We conclude, therefore, that

9Rhyne's right to confrontation was not violated. Rhynenextassertsthat theDistrictCourt's ruling concerning K.L.'s medical recordswas erroneousbecause 

### 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 couldgivememeaningfultestimonywithoutrelying upon the kinds of evidencewhich the Courthas excluded, specifically theprior sexual offensesby persons other than this defendant. [DEFENSE COUNSEL]: I've asked Doctor Wemple that question. And he said, "I can't ignore them asa part of understandingwho she is,but Idon'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 thepsychology underlying [K.L.] andpeople like her,he doesn'thave to refer to sexualassaults

## -- 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 specificallywhat parts of the record he relies upon.

THE COURT: Butyour expert simplycan't give expert testimony without the material that's been excluded as forming the basis for his opinion. [DEFENSECOUNSEL]: That's correct

## -- not correct, 10yourHonor. He thinkshe can talk aboutwho this girl is. He can start fromher diagnosis,

### which I've described to you, and then describewhat 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 courterred 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 testimonywould have been based,were inextricably related toher claims of prior sexual abuse. It is clear from the colloquybetween the courtand defense counsel that K.L. 'sprior sexual abusewas an integralpart ofboth the medical records and Dr. Wemple's offered testimony. To allow Dr. Wemple's testimonywould have been to allow Rhyne to circumvent the court's orderprohibiting 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 introductionof K.L.'s medical recordsbecause 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 notpoint 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 Courtdid 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'smotion 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 contendswas "a false report of an abortion." The State'smotion in limine and oral argument at thehearing
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.

12The State’smotion and argumentwere also based on its contention of undueprejudicewith 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. Itdid 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 probativevalue issubstantially outweighedby thedanger of unfair prejudice, confusion of the issues, or misleading the jury,orby 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’sright 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, 211Mont. 272, 13

,.686 P.2d 193 (generalpolicy 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 relevanceunderRule 401,M.R.Evid., in that 

### itmay have touched on K.L. Is credibility. We further conclude, however, that the limited relevance or probative value of the evidencewas outweighedby itsprejudice 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 essentiallywanted towork backwards

--showingthat the abortion was "unlikely," therefore K.L. Is pregnancy did not occur, therefore sexual intercourse/incest did not occur. This approachnot onlypresented a danger of undueprejudice to K.L. but also was circuitous and confusing. The District Court noted the possibility of the evidence'srelevancebutthen,afterconsidering 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

14K.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 containedmaterial [he] shouldhave 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 inspectDr. Hess
-Homeier's recordspertaining to K.L. 

### b camera before ruling on Rhyne's discovery request. Dr. Hess
-Homeierwas 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 thedistrict court'srefusal to order the releaseand disclosure of the victim's medical and psychiatric records. We held that the defendantwas not denied his right of confrontation, stating:
15"[Tlhe right of a defendantto confronthis accusers is not equivalenttoa constitutionallycompelledruleof 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 againsthim, the court'sruling 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-examineallwitnesses againsthim. 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'spsychological recordspertaining toK.L. IV

## . Was the defendant denied a fair trial as a result of prosecutorial misconduct? As previously noted, theprosecutor 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 tomake no further comments whichwould suggest that the alleged acts of incestwereK.L.'s first sexual experiences. Rhyne contends that the prosecutor's comment denied him a fair trial

16because 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 casewill not be presumed,butmust appear fromthedenial
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 panelwith respect to thepotential difficulty on K.L.'s part to testify about the alleged acts of incest. Significantly,althoughRhyne objected totheprosecutor's comment,he did not request the District Court to admonishthe 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

17July2, 1992 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentbyUnitedStates mail,prepaid,tothe following named: BenjaminR. Anciaux Attorney at Law 107SixthAve.E.,POBox 1670 Polson,MT 59860 Hon.MarcRacicot, AttorneyGeneral Justice Bldg. Helena,MT 59620 Larry Nistler,County Attorney KathleenO’Rourke-Mullins,Deputy Lake CountyCourthouse, 106

-4th Ave. E. Polson,MT 59860

-2183 EDSMITH CLERKOFTHESUPREME COURT STATKOFMONTANA 

### BY:

# pk Depu