                              No.    91-236

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1991


THE STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
WILLIAM NELSON KOWALSKI,
            Defendant and Appellant.



APPEAL FROM:    District Court of the Nineteenth Judicial District,
                In and for the County of Lincoln,
                The Honorable Robert S . Keller, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Stephen J. Nardi, Sherlock         &     Nardi, Kalispell,
                Montana.
            For Respondent:
                Marc Racicot, Attorney General, Helena, Montana;
                Micheal S. Wellenstein, Assistant Attorney General,
                Helena, Montana;      Scott B. Spencer, County
                Attorney, Libby, Montana.


                              Submitted on briefs:        October 31, 1991
                                              Decided:    March 5 , 1992




                                    Clerk
Justice Fred 3 . Weber delivered the Opinion of the Court.

     Following jury trial in the Nineteenth Judicial District
Court, Lincoln County, Montana, the defendant, William Kowalski
(Kowalski) was convicted of two counts of             felony   incest in
violation of   § 45- 5- 507,   MCA, for sexual contact with his daughters
M.K. and C.K.    Kowalski appeals.       We affirm.
     The determinative issues are restated as follows.
     1.   Did the court err in ruling that if Kowalski introduced
letters M.K. had written, then it would allow the State to disclose
circumstances surrounding the communication?
     2.   Did the court abuse its discretion by prohibiting Kowalski
from using extrinsic evidence, on the issue of physical assault, to
impeach C.K.'s testimony?
     3.   Did the court abuse its discretion by prohibiting Kowalski
from using extrinsic evidence on the issue of physical assault to
impeach Bushfield's testimony?
     In April 1989, C.K. moved from Missouri to Eureka, Montana to
live with her father, William Kowalski, and her sister, M.K.        M.K.
and C.K. testified that after C.K. arrived, Kowalski would have the
girls undress to their waist or place h i s hands under their
clothing, and fondle their breasts.          They further testified that
Kowalski measured their breasts, recorded these measurements on a
door frame in his bedroom, and commented on their shape and
development. Additionally, Kowalski painted a star on C.K.'s naked
breast, and attempted to cast a mold of his daughters' breasts with
"plaster-".
       The girls related this conduct to their brother Benjamin who
came to Eureka in November 1989 to stay with M.K. and      C.K.    while
Kowalski was in Belgium. After listening to the victims, observing
them, and seeing the measurements on Kowalski's door frame,
Benjamin drove the victims to Missouri.        There they reported
Kowalski's conduct to Missouri officials.
       On February 7, 1990, the State of Montana charged Kowalski
with incest for repeated sexual contact with his daughters M.K. and
C.K.   from June 1989 through November 1989.   M.K. and C.K.      were 13
and 15 years old at the time. On July 11, 1990, pursuant to a plea
agreement, Kowalski pled guilty to felony assault.        The District
Court accepted this plea on the condition that Kowalski complete a
sex offender examination.     Kowalski failed to complete the sex
offender examination, thus the court allowed him to withdraw his
guilty plea, and the case proceeded to trial.        At        trial,
Kowalski testified that he only measured the victims' bustlines
while they were fully clothed. Further, he stated that he painted
a star on C.K.'s    breast as a joke, at the child's insistence.
Finally, Kowalski argued that the girls fabricated the story of
sexual touching in order to escape his physical and emotional
abuse.    Kowalski testified that due to post traumatic stress, he
would often hit and yell at his children.
                                  I
       Did the court err in ruling that if Kowalski introduced
letters M.K. had written, then it would allow the State to disclose
circumstances surrounding the communication?
       M.K. testified at trial that she was afraid of Kowalski.        In

                                  3
cross-examination, Kowalski attempted to impeach M.K.'s claim of
fear and undermine her credibility by introducing letters M.K. sent
to Kowalski from Missouri.    M.K. sent these letters after the
defendant pled guilty to felony assault.
     The court ruled that if Kowalski introduced these letters, he
would open the door for the State to explore circumstances
surrounding the communication. At the time M.K. wrote to Kowalski
she was in Missouri and he was in Montana.    He had pled guilty to
felony assault based on his sexual contact with the victims and was
awaiting sentencing. Thus Kowalski posed no threat to M.K. or C.K.
at the time his daughter wrote the letters.    As a result of this
ruling, Kowalski withdrew his request to introduce the letters.
     Kowalski contends the court violated Rule 410, M.R.Evid., by
ruling that the introduction of M.K.'s       letters required full
disclosure of the facts underlying Kowalski's prior plea.     Under
Rule 410, evidence of guilty pleas, later withdrawn, and statements
made during pleading are inadmissable in criminal trials except for
impeachment purposes.   Kowalski relies on State v. Hanson (1981),
194 Mont. 197, 204, 633 P.2d 1202, 1207, where this Court citing

Commission Comments stated:
     [Rule 4101 allows an accused to offer to plead
     guilty...or to withdraw such plea without either action
     being used against him in any subsequent trial. This is
     intended ...  to allow highly prejudicial evidence to be
     excluded under considerations that the reasons for
     offering to plead or withdrawing pleas of guilty ...
                                                        would
     not be understood by a jury and would almost preclude a
     fair trial.
Kowalski contends the court's ruling denied him a fair trial by
forcing him to choose between effectively cross-examining M.K. and


                                 4
exposing the jury to highly prejudicial statements made during
pleading.
       The State contends that the trial court's ruling was proper.
In United States v. Martinez (2nd Cir. 1985), 775 F.2d 31, 37, the
court allowed the prosecution to introduce prejudicial evidence to
rehabilitate the credibility of a witness during re-direct.        The
court held:
       . . .   [I]t is well settled that a cross-examination
       attacking a witness's credibility and character will open
       the door to redirect examination rehabilitating the
       witness. Evidence whose probative value might not be
       thought to outweigh its prejudicial effect if offered on
       direct examination may well be admitted during redirect
       examination "for the purpose of rebutting the false
       impression which resulted from  ...  cross examination."
       [Citations omitted.]
       We agree with the State and conclude that allowing evidence of
guilty pleas under the Martinez analysis is consistent with Rule
410.    Here, Kowalski intended to introduce the letters to impeach
M.K. and attack her credibility.       Had the court suppressed the
circumstances surrounding the letters while allowing Kowalski to
use the letters to impeach M.K., it would have misled the jury. We
conclude the court properly ruled that if the letters were
introduced, a full disclosure of the circumstances surrounding
Kowalski's guilty plea was       necessary   for the   jury's proper
evaluation of the evidence.
       We hold that the court correctly determined that if Kowalski
impeached M.K. with letters she mailed to Kowalski, then the State
could disclose the circumstances surrounding the guilty plea.
                                  I1
       Did the court abuse its discretion by prohibiting Kowalski

                                   5
from using extrinsic evidence on the issue of physical assault to
impeach C.K.'s testimony?
    At trial, C.K. testified that she was afraid of Kowalski, but
he never struck her.     Further, C.K. denied telling anyone that
Kowalski had struck her.    Subsequently, Sarah Bushfield, a friend
of C.K., and Detective Vessel, of the Jefferson County, Missouri
Sheriff's Department, both offered opinion testimony that C.K. was
truthful, without objection on the part of the defendant.
     On cross-examination, Bushfield was asked whether C.K. said
that Kowalski had struck her.      Bushfield responded tlno.tl that
                                                             At
point, Kowalski attempted to attack C.K.'s credibility with a prior
out of court statement Bushfield made to officers during the
investigation.    Bushfield previously told officers that Kowalski
had struck C.K. in the ribs.      The State objected to Kowalski using
extrinsic evidence to impeach C.K.       on the collateral issue of
physical abuse.
     Later, during cross-examination of Detective Vessel, Kowalski
once again attempted to impeach C.K. on the issue of physical

abuse.   Vessel was asked whether C.K. admitted being "hit" by
Kowalski.   The State again objected to Kowalski's using extrinsic
evidence to impeach C.K. on the collateral issue of physical abuse.
     The court sustained both objections. It ruled that the issue
of Kowalski's physical abuse of the children was collateral to the
issue of sexual abuse.     Thus, Kowalski was improperly impeaching
C.K. on a collateral issue. In each instance Kowalski submitted an
offer of proof.
     Admitting    or   refusing    evidence   lies   within   the   sound

                                    6
discretion of the trial judge.   State v. Rudolph   (1989),   238 Mont.

135, 142, 777 P.2d 296, 301.     Thus, the rulings of the District
Court will be upheld unless Kowalski proves the court abused its
discretion by refusing the testimony. Here we conclude the court
did not abuse its discretion in excluding the contested testimony.
     First, Kowalski contends the District Court should have
admitted the extrinsic evidence to show C.K.'s bias and motive to
fabricate the sexual assault.    Here, the record reflects that the
jury had overwhelming evidence from which to conclude that Kowalski
physically abused his children. Kowalski testified that he slapped
and yelled at the children.      M.K. stated she was afraid of her
father, and that he had hit her and C.K.   Kowalski's son, Benjamin,
testified Kowalski hit and yelled at M.K.,       C.K.   and himself.
Benjamin's wife Salina Echolt, testified Kowalski was violent with
the children. Finally, although C.K. testified that her father did
not hit her, she did testify that she was afraid of him and that he
hit M.K.
     Given the amount of evidence indicating that Kowalski had
previously "hit*'C.K., her testimony to the contrary is of little
consequence. Clearly the jury had sufficient evidence to conclude
that the girls had motive to fabricate the sexual fondling in order
to escape the physical abuse. Accordingly, the court did not abuse
its discretion in refusing to admit this testimony to show C.K.'s
bias and motive to fabricate.
     Next, Kowalski contends that the testimony was properly
admissable to attack C.K.'s credibility. Here, under Rule 608(b),
M.R.Evid., Kowalski is not allowed to introduce extrinsic evidence

                                  7
of specific instance of C.K. I s conduct.       Rule 608(b), M.R.Evid.
states:
     Specific instances of the conduct of a witness, for the
     purpose of attacking or supporting the witness'
     credibility, may not be proved by extrinsic evidence.
     They may, however, in the discretion of the court, if
     probative of truthfulness or untruthfulness, be inquired
     into on cross-examinations of the witness...
Under Rule 608(b), Kowalski could, at the court's discretion,
introduce C.K.'s     prior   statements    in   the   course   of   cross-
examination of C.K. in order to attack her credibility.             Here,
Kowalski    chose to   introduce   these   statements    through     other
witnesses instead of during his cross-examination of C.K.           Thus,
under Rule 608(b), the court did not abuse its discretion in
excluding Kowalski's questioning of Bushfield and Vessel.
     Next, Kowalski contends the court should have admitted the
evidence under Rule 613(b), M.R.Evid., which allows extrinsic
evidence of a witness's prior inconsistent statement.          The State
contends these statements regarding physical abuse were collateral
to the charge of incest and the court correctly prohibited Kowalski
from using extrinsic evidence of prior inconsistent statements to
impeach C.K. on this collateral issue.
     The State and the trial court improperly addressed the issue
of collateral matters. A s stated in Cooper v. Rosston (1988), 232
Mont.     186, 756 P.2d   1125, the rule limiting impeachment of
witnesses on collateral matters was abolished in favor of a
relevancy analysis under Rules 401 and 403, M.R.Evid.               Citing
Commission comments, CooDer stated:
        The Commission believes that the limitation of
        impeachment by Rule 401, defining relevant evidence as

                                   8
    including impeaching evidence, and Rule 403, allowing the
    court to exclude relevant evidence if its probative value
    is outweighed by prejudice, confusion, waste of time,
    will allow the same result to be reached through a more
    flexible means than currently used with the collateral
    matters rule. Therefore, Section 93-401-25, R.C.M. 1947
    [superseded], (to the extent that it is concerned with
    collateral matters) and case law statinq the collateral
    matters rule are abolished in favor of the relevancy
    aQQroach. (Emphasis supplied.)
CooDer, 232 Mont. at 191, 756 P.2d 1128.     While the District Court
applied the collateral matters rule instead of using the relevancy
analysis, it did not abuse its discretion in excluding this
evidence under Rule 401, M.R.Evid.
     Rule 401, M.R.Evid., defines relevant evidence as evidence
which tends to make the existence of any fact at issue more or less
probable   and   may   include   evidence   relating    to   a   witness's
credibility.     Rule 403, M.R.Evid., excludes relevant evidence if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.
     In State v. Hammer (1988), 233 Mont. 101, 759 P.2d 979, this
Court upheld the trial court's decision to exclude credibility
evidence using Rules 401 and 403, M.R.Evid.            In that case, the
defendant attempted to introduce evidence of an assault victim's
prior traffic offenses and misdemeanor possession charges.             The
Court held that: "the evidence in question does not tend to make
any fact at issue in this action more or less probable than that
fact would be without the evidence." Rule 401, M.R.Evid.           Hammer,
233 Mont. at 111, 759 P.2d at 985.      While Hammer raised the issue
of self-defense, the Court concluded this evidence failed to make
the defendant's assault more or less probable.         Further, evidence


                                    9
of   the   victim's   criminal   conduct   did   not    reflect   on   the
truthfulness of his testimony regarding the assault.               Thus,
although the nature of the victim's prior crimes was not highly
inflammatory, the probative value of the evidence did not exceed
its prejudicial effect.
     Similarly, in this case, we conclude that evidence of Kowalski
striking C.K. fails to make it more or less probable that he had
sexual contact with M.K. and C.K.    Likewise, such evidence does not
reflect on the credibility of C.K.'s testimony regarding the sexual
contact.    Thus we conclude the trial court did not abuse its
discretion in excluding the evidence under a Rule 401, M.R.Evid.,
analysis.
      In addition, while 16 years old at the time of trial, C.K. had
a "borderline IQ" and functioned at around an 11 or 12 year old
level. This is an additional factor which the court could properly
consider in exercising its discretion.
      We hold that the District Court did not abuse its discretion
by prohibiting Kowalski from using extrinsic evidence, on the issue
of physical assault, to impeach C.K.
                                  I11
      Did the court abuse its discretion by prohibiting Kowalski
from using extrinsic evidence, on the issue of physical assault, to
impeach Bushfield's testimony?
      Finally, Kowalski contends Bushfield's prior inconsistent
statement regarding Kowalski striking C.K.             in the ribs, was
properly admissible to attack Bushfield's credibility. As with the
previous issue, we point out that evidence of Kowalski's physical

                                    10
abuse of C.K. does not make it more or less probable that he
sexually abused the victims.   Kowalski failed to prove the court
abused its discretion in excluding the evidence. Thus, we hold the
court did not abuse its discretion by prohibiting Kowalski from
using extrinsic evidence, on the issue of sexual assault to impeach
Bushfield's testimony.
     Af finned.



We Concur:

  --4--/e++,p-q
             /
       Chief JusticeA/\




             Justices




                                11
Justice Karla M. Gray, concurring in part and dissenting in part.

      I concur in the opinion of the majority as to the first issue.
I must respectfully dissent from that opinion on issue two, which
relates to the important question of evidence impeaching the
credibility of an alleged incest victim.     The majority's analysis
is confused, at best, and legally flawed; the extent of the flaw is
apparent even in the majority's statement of the issues, where the
evidence at issue is characterized as "extrinsic evidence, on the
issue of physical assault,   ...      In fact, the issue is whether
"extrinsic evidence of prior inconsistent statements of a witness"
is admissible under Rule 613(b), M.R.Evid.   The majority opinion in
this case will create unnecessary confusion and uncertainty for
attorneys practicing on both sides of the minefield commonly called
criminal law, as well as €or the district courts of this state.
      This case involves two charges of felony incest against
Kowalski for sexual conduct with his daughters M.K. and C.K.      My
disagreement with the majority is only as to the evidence relating
to the charge of incest with daughter C.K.     As is not uncommon in
sex offense cases of all types, this case boils down to the
credibility of the victim and the credibility of the defendant.
The importance of the credibility issue is clear from the fact that
the State put on several witnesses to opine, without objection, as
to C.K.'s truthfulness.
      During her testimony, C.K. denied that her father had ever
struck her.   She also denied ever telling anyone that he had done
so.    The defense then sought to impeach C.R.'s     credibility by
                                 12
inquiring of the State witnesses who testified as to C.K.'s
truthfulness regarding certain statements         C . K . made   to them stating
that    her   father    had   struck    her,      statements       clearly   and
unequivocally inconsistent with her testimony at trial.                  As the
majority notes, the State objected to Kowalski using extrinsic
evidence to impeach C.K. on the collateral issue of physical abuse.
       The court sustained the State's objections, ruling that the
physical abuse issue was collateral to the issue of sexual abuse
and, therefore, that the impeachment was improper.                 The majority
affirms the District Court on other grounds, purportedly rejecting
the "collateral matters rule" and premising its affirmance on Rule
401, M.R.Evid.      It is my view that the majority herein did not
altogether succeed in divorcing itself from the collateral matters
analysis.      As   a   result, the         majority   never     addresses    the
dispositive issue, whether the statements were Rule 613 prior
inconsistent     statements   admissible        for    impeachment     of    C.K.
Furthermore, the majority concludes that the evidence was properly
excludible under an erroneous Rule 401 relevancy analysis, relying
on an entirely inapposite case. The flaws in the majority approach
are addressed separately below.
       The majority first raises Kowalski's contention that the
"extrinsic evidence" relating to physical abuse was admissible to
show C.K.'s bias and motive to fabricate the sexual assault. This
argument not having been made at the trial, it simply should not be
considered by this Court on appeal: the majority should have so
stated and moved on. However, rather than take that clear, direct

                                       13
and correct approach to the issue, the majority sets off at some
length to insert the question of physical abuse into its opinion.
It then cavalierly concludes that C.K.'s testimony that her father
did not strike her "is of little consequence."     This is the first
clear indication that the majority has totally missed the mark in
this case: the "consequence" of any part of a victim's testimony is
not for this Court to weigh, but for the jury to consider.
Further, this case has to do with credibility and with impeachment
evidence.   It does not have to do with whether or not physical
abuse occurred, but with the consistency and, as a result, the
credibility of the statements of the victim C.K.
     Next, the majority addresses Kowalski's argument that the
testimony was admissible under Rule 608(b), M.R.Evid.          since
Kowalski concedes in his brief that the evidence was not admissible
under Rule 608(b), this issue should not have been addressed.
     The majority finally seems headed in the right direction when
it raises Kowalskils contention that the evidence was admissible
under Rule 613(b), M.R.Evid., which allows extrinsic evidence of a
witness' prior inconsistent statement. Unfortunately, this is the
last mention the majority makes of Rule 613(b); the Rule, and
Kowalski's entire argument on prior inconsistent statements, are
never again taken up by the majority.    Concluding correctly that
both the State and the trial court improperly addressed the issue
of vtcollateral
              matters" and that the 'Icollateral matters rule" has
been abolished in favor of a relevancy approach, the Court proceeds
to make a confusing and      incorrect application of Rule 401,

                                14
M.R.Evid., and the Hammer case.    It never comes back to the Rule
613 argument, apparently     unable to differentiate between the
concepts of extrinsic evidence, collateral matters, and prior
inconsistent statements.
       An appropriate analysis under Rules 401 through 403 would
conclude that the testimony at issue in this case was relevant and
admissible. As the majority notes, relevant evidence “may include
evidence bearing upon the credibility of a witness.    ..   .‘I   Rule
401,    M.R.Evid.   Indeed, in a trial of the type before us,
credibility is often the crucial determination to be made by the
jury.     It is quintessentially clear to me that the testimony at
issue, relating to statements the victim made to the very witnesses
who supported her truthfulness, and directly at odds with testimony
she gave at trial, is relevant.        Therefore, the evidence is
admissible pursuant to Rule 402, M.R.Evid.
       Rule 403 cautions, of course, that even relevant evidence may
be excluded if its probative value is outweighed by one of the
considerations mentioned in the Rule. None of those considerations
is present here and, to its credit, the majority does not suggest
otherwise.     In any event, given the overwhelming importance of
credibility in this case and, therefore, of other statements made
by the victim which conflicted with her trial testimony, it is
beyond me how the probative value could seriously be suggested to
be outweighed.      I conclude that the evidence was relevant and
admissible under Rules 401 through 403, M.R.Evid.
        Further, the majority‘s reliance on Hammer to buttress its

                                  15
relevancy analysis is misplaced.          In Hammer, the excluded evidence
was of an assault victim's prior traffic and misdemeanor offenses:
it was offered both to impeach the victim's credibility and, in
conjunction with a self-defense theory, to show the victim's
violent tendencies.       We held in Hammer, and rightly so, that the
evidence was not relevant for either purpose: it did not reflect on
the truthfulness of the witness and did not relate in any way to
the probability of the assault against the victim having taken
place.   For reasons unclear to me, the Court went on in Hammer to
reference Rule        403's   balancing    test   and   conclude that   the
prejudicial effect of the evidence outweighed any probative value.
       If the case before us were of the Hammer variety, I would
agree with the majority's analysis.           The evidence at issue here,
however, is not even superficially related to the type properly
excluded in Hammer. Here we are faced with statements made by the
victim which directly conflict with her testimony at trial.
       The majority completes its analysis of the issue by re-
evidencing its inability to divorce itself from the "collateral
matters" theory or to focus on the question of inconsistent
statements by concluding that evidence of Kowalski striking C.K.
"fails to make it more or less probable that he had sexual contact
with   . ..   C.K."    The evidence was not offered to prove that the
physical contact occurred: that was not the "fact at issue" under
Rule 401, M.R.Evid.           The evidence was offered to impeach the
credibility of the victim, as specifically authorized by Rule 401.
       Under Rule 613(b), M.R.Evid.,        extrinsic evidence of a prior

                                     16
inconsistent statement of a witness is admissible if certain
procedural safeguards are met.   It is clear to me that the evidence
Kowalski attempted to introduce was, indeed, extrinsic evidence of
prior inconsistent statements by C.K. to the State's two witnesses.
The statements to them that her father had         struck her were
undeniably inconsistent with her sworn testimony at trial that he
had never struck her:    they were also inconsistent with her
testimony denying that she ever told anyone that he hit her.     As

such, they constituted evidence going directly to C.K.'s overall
truthfulness. The evidence was atextrinsic" that Kowalski wanted
                                          in
to introduce it through the witnesses to whom the inconsistent
statements had been made, rather than through the victim herself.
The Rule specifically allows for extrinsic evidence; the statements
were both "prior1'in time to the testimony given at trial by the
victim and "inconsistent1'with that testimony.    I would hold that
the evidence was admissible under Rule 613(b), reverse and remand.




     Justice Terry N. Trieweiler joins in the foregoing concurring
and dissenting opinion of Justice Karla M. Gray.
