                              No.    93-279
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1994


STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
LANCE DIXON,
            Defendant and Appellant.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable Maurice R. Colberg, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Gary E. Wilcox, Yellowstone County Public Defenders,
                 Billings, Montana
                 William F. Hooks, Appellate Defender Office, Helena,
                 Montana

            For Respondent:
                 Hon. Joseph P. Mazurek, Attorney General: Patricia
                 J. Jordan, Ass't Attorney General, Helena, Montana
                 Dennis Paxinos, Yellowstone County Attorney: Charles
                 Bradley, Deputy Yellowstone County Attorney,
                 Billings, Montana


                               Submitted on Briefs:      January 7, 1994
                                              Decided:   February 24, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

       This is an appeal from the Thirteenth Judicial District Court,
Yellowstone County.     A jury convicted defendant Lance Dixon (Dixon)
on two counts of sexual intercourse without consent.            He appeals.
We affirm.
       Dixon presents two issues:
       1.    Whether the District Court erred by limiting Dixon's
cross-examination of the complaining witness, H.D.
       2.    Whether the District Court erred by denying Dixon's
motions for a mistrial based on alleged prosecutorial misconduct.
       On New Year's Eve, 1991, H.D.        went with some friends to a
local bar in Billings, Montana.          While leaving the bar she became
separated from her friends.       Dixon was outside the bar and he and
H.D.   started   talking.    Dixon offered her a ride home which she
refused.
       Dixon then mentioned that he knew where her friends were and
offered her a ride to find her friends.         She accepted.    Dixon told
her that he left his car at a trailer where he was staying.           Thus,
at about 2:00 a.m., H.D. got into a cab with Dixon and the cab
dropped them off at the trailer.
       Dixon then told H.D. that he did not have his car keys and
suggested that she enter the trailer since it was cold outside.
H.D. testified that once inside the trailer, Dixon shoved H.D. down
the hallway to a bedroom,        where he forced her to have sexual
intercourse with him.       She also testified that he later forced her
to perform oral sex on him.
                                     2
     Dixon admitted that the sexual acts occurred, but contended

that H.D. consented to the sexual acts.    A jury convicted Dixon and

the District Court sentenced him to a total of thirteen years in

the Montana State Prison, to run concurrent with a federal court

sentence imposed on him.    He appeals.

                                  I



     Did the District      Court err by limiting Dixon's cross-

examination of H.D.?
     At trial, Dixon placed H.D.' s toxicology and lab reports into

evidence, which indicated that H.D. had a blood alcohol level of

.06 at 7:00 a.m. the morning after the incident.        H.D.   testified

that she had consumed a glass of wine, maybe two beers and some

champagne the evening before the sexual assault, but had no alcohol

after midnight.   H.D., then 20, also testified that she knew it was

illegal to use a false identification card to purchase alcohol.

     During   cross-examination, Dixon's counsel asked H.D. if she

was aware that the legal limit of intoxication in Montana was .lO.

The prosecutor objected to the question           on   the   grounds   of

relevance.    The District Court sustained the objection and stated

that the evidence about H.D. 's intoxicated condition was relevant,

but the statutory inference of .lO was irrelevant.

     Dixon argues that the court improperly limited his cross-

examination of H.D.    He contends that the question of whether H.D.

knew the legal limit of intoxication was relevant because:         1) the

State "opened the door 'I by asking about her knowledge of the law--

the false I.D.      question; and 2)      the   testimony    was   proper


                                  3
impeachment testimony since she testified to the amount of alcohol
she had consumed.
        Section 61-8-401(4), MCA, states:
        Upon the trial of any civil or criminal action or
        proceeding arising out of acts alleged to have been
        committed by any person driving or in actual physical
        control of a vehicle while under the influence of
        alcohol, the concentration of alcohol in the person at
        the time alleged, as shown by analysis of the person's
        blood, urine, or breath, shall give rise to the following
        inferences:
        .    .   .

              Cc)    If there was at that time an alcohol
        concentration of 0.10 or more, it may be inferred that
        the person was under the influence of alcohol.     The
        inference is rebuttable.
The statutory inference of . 10 is only relevant in "civil or
criminal actions . . . [in which a] person [is] driving or [is] in
actual physical control of a vehicle while under the influence of
alcohol."            Section 61-8-401(4)(c), MCA.
        Here, there was no evidence to show that H.D. was driving or
in actual physical control of a car that night.                    Thus, her
knowledge of the statute was irrelevant and the State's objection
was properly sustained.
        Since H.D. testified to the amount of alcohol she consumed,
the court allowed evidence of H.D.'s intoxicated condition. In
fact,       Dixon testified that H.D. was tipsy, but she was not drunk.
We hold that the District Court correctly acknowledged that
evidence of             H.D.'s   intoxicated   condition   was   relevant as
impeachment testimony, but her knowledge of the statutory inference
of . 10 was irrelevant.

                                          4
                                      II
     Did the District Court err by denying Dixon's motions for a
mistrial based on alleged prosecutorial misconduct?
     Dixon alleges that the prosecutor acted so inappropriately
that his misconduct was sufficiently prejudicial to warrant a
mistrial.    First, he argues that, in the presence of the jury, the
prosecutor    improperly   attacked   defense   counsel   while   conducting
voir dire of the alternate jurors.         The prosecutor stated:
     [Defense counsel] asked you this question, would you like
     to be seated in . . . [the defendant's] chair and have
     someone of your mind [on the jury]? I don't think anyone
     can answer that. I think that's a verv, verv, verv wrong
     ouestion to ask a juror.    Put yourself in place of the
     defendant.   I will ask you if you will be fair and keep
     in mind that this is an open court where we try to have
     honesty because they're going to decide. Would you buy
     that?
(Emphasis added.)     The prosecutor also stated:
     And do you understand that no witness has to be
     corroborated?   [Defense counsel] asked a question of one
     of the jurors, would you look for other evidence to
     determine if it were blue paint or red paint? What his
     question was getting at is this. I think you could not
     resolve the conflict unless you had other corroborating
     evidence, some other evidence to tell whether it was blue
     paint or red paint, you understand? And I think you'll
     be instructed that you don't need corroborating evidence
     to believe one witness over another.     It's nice if you
     have it, but you don't need it. How many witnesses do
     you believe you will find to an act of forcible
     intercourse?
After the second question, Defense counsel approached the bench and
moved for a mistrial.      The court denied the motion.
     Additionally,    Dixon argues that the prosecutor violated an
order in limine prohibiting references to H.D. during trial as a
Wictim.a'    He alleges that the prosecutor acted improperly when he

                                       5
referred to H.D. as a "female rape victim."         (Emphasis added.)
        When the District Court granted the motion in limine to
exclude any references to H.D. as the VVictim,'1 it stated:
        I guess I worry about if I grant a motion in limine and
        the word victim slips out, then where are we?
        DEFENSE COUNSEL:    Well,    I don't think that would be
        prejudicial err[or].
        THE COURT: Okay. Basically you're agreeing to that; so
        I'll grant that motion in limine and recognize we always
        could be faced with a problem if it happens.
        Later, in trial, the prosecutor objected to a question posed
to a detective about a knife found at the trailer. H.D. had
earlier testified that Dixon used a foot long knife with a wooden
handle to assault her.       But, the only knife found at the trailer
was a green lock blade knife.       Defense counsel asked the detective:
        Do you think under any lighting circumstances you would
        confuse [the green lock blade knife] for a foot long
        knife with a wooden handle?
        PROSECUTOR:   Objection.    I think if he were a female rape
        victim --
After    this   comment,   defense counsel moved for a mistrial: the
court, however, denied the motion.
        "A mistrial is appropriate only upon a demonstration of
manifest necessity coupled with the denial of a fair and impartial
trial."     State v. Benton (1992), 251 Mont. 401, 404, 825 P.2d 565,
567.     We will uphold a district lVcourt's denial of a motion for
mistrial . . . [if there is not] clear and convincing proof of
error. I1   Id. at 567-68.
        Here, Dixon has failed to establish error. Although improper,
the prosecutor's comments were insignificant when viewed in context
                                       6
with the entire record.        We hold that the prosecutor's comments did
not prejudice Dixon and he was not denied a fair and impartial
trial.
     In fact, the     District   Court ensured that Dixon's right to a
fair trial was preserved.         The court instructed the jury that the
comments of counsel were not evidence.         The court also instructed
the jury to consider only the evidence when deciding Dixon's fate.
Thus, the jury was instructed not to use the prosecutor's comments
to decide the outcome of the case.         After a careful review of the
record, we conclude the District Court properly denied Dixon's
motions   for    a mistrial.

     Affirmed.




                                       7
