                               NO.    93-107
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1994


THE STATE OF MONTANA,
           Plaintiff and Respondent,
     V .


SCOTT MUIR,
           Defendant



APPEAL FROM:    District Court of the Tenth Judicial District,
                In and for the County of Fergus,
                The Honorable Peter L. Rapkoch, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Craig Buehler, Attorney at Law,
                Lewistown, Montana
           For Respondent:

                Hon. Joseph P. Mazurek, Attorney General,
                Barbara C. Harris, Assistant Attorney
                General, Helena, Montana
                Thomas P. Meissner, Fergus County Attorney,
                Lewistown, Montana


                             Submitted on Briefs:      September 30, 1993
                                            Decided:   January 25, 1994
Filed:



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Justice William E. Hunt, Sr., delivered the opinion of the Court.
        Appellant Scott Muir appeals from a jury verdict in the Tenth

Judicial District Court, Fergus County,             finding him guilty of

sexual intercourse without consent.

        We affirm.

        The sole issue is whether the District Court erred when it

denied appellant access to the victim's treatment counselor and the

counselor's    records.
        On July 6, 1992, appellant       was   charged   by   information   with

sexual intercourse without consent, in violation of § 45-5-503(l),

MCA.     The State further based the charges on fi 45-5-501(a)(iii),

MCA, that the victim could not consent to the act because she was

14 years of age when the offense occurred.           Appellant was 19 years

of age.
        One evening in September or October 1990, the victim and a

16-year-old    friend, B.L., were drinking alcohol and cruising the

streets of Lewistown.     At midnight, they picked up another friend,

N.R.,    from her job at the Dairy Queen,         and then stopped at the

Circle K store where they saw appellant with a friend.

        Appellant and his friend were on their way to the friend's

home in Forest Grove,      a community approximately 25 miles from

Lewistown.     B.L. and N.R. both knew appellant and his friend and

talked to them.      The victim had never met either appellant or his

friend.     B.L. testified that the victim was intoxicated when they

were all at the Circle K store.          The   victim    approached   appellant

and his friend and was touching and flirting with them.               Appellant

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and his friend agreed to follow the girls to the Dairy Queen where

they would drop off N.R.              Appellant,     his friend, B.L., and the

victim then rode in the friend's pickup to the friend's house.

        The victim sat next to appellant as he drove the pickup and

continued to be sexually aggressive toward him.                  B.L. commented to
appellant that the victim was not usually that aggressive, but that

she was just drunk.         Appellant testified that sometime during the

drive,    the victim told him she was 17.              Upon arriving in Forest

Grove,    appellant and the victim started walking down the road.

B.L. testified that as they were leaving, she told appellant "not
to do anything," and that the victim was only 14 years old.

        Appellant and the victim walked behind a large round hay bale

in a nearby field and had sexual intercourse.                 They returned to the
pickup and the four of them drove back to Lewistown, where the

victim spent the night at B.L.'s home.

        In March 1991,      the victim was admitted to the Yellowstone

Youth    Treatment    Center    for   an   alcohol    abuse   problem.       While   in

treatment,     she spoke       with her treatment counselor about the

incident,    who subsequently informed the victim's mother.                          On

April 22, 1991,       the victim's mother filed a complaint with the
Fergus    County   Sheriff's     Department,    but    because    of   the   victim's

emotional    state,    an   investigation      was    delayed.     In April 1992,

Deputy Rolf Danzer investigated the complaint by speaking with the

victim,     her mother,        and her counselor.             Deputy Danzer then

questioned    appellant, and appellant gave him a written statement

which documented that he did have sexual intercourse with the

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victim,     and that he knew she was 14 years old when the act

occurred.

     On     July   6,   1992,   the appellant was charged with sexual

intercourse    without    consent.   Appellant pled not guilty, and at

trial presented tlestimony       that he reasonably believed the victim
was 17 years old when the act occurred.

     Appellant was found guilty by a jury on September 1, 1992, and

was sentenced to a term of 10 years at the Montana State Prison.
He was also required to successfully complete the sex offender

program at the prison prior to his release.

     Did the District Court err when it denied appellant access to

the victim's treatment counselor and the counselor's records?

     Appellant contends that the State deliberately withheld

information from him which it had access to and used in its

investigation of the case.        Prior to trial, appellant requested by

motion the right to interview the counselor at the Yellowstone

Youth Treatment Center and gain access to her written records

because she was listed on the information as a potential witness.

The State contends that appellant received the same investigative

records that it used to prepare its case in chief, and that the

treatment records were privileged as communications between a

psychologist and a client.

     The court denied appellant's motion pending its review, and

directed the State provide the court with the records.        Later, the

State informed the court of its attempts to secure the records from



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the Yellowstone Youth Treatment Center, but reported that it was
able to obtain only one report which it submitted to the court.
      The court viewed the report in camera and denied appellant
access to the report stating that it found no exculpatory evidence
that was relevant to the issues.                    The court further denied
appellant the right to          interview the counselor because the
counselor was not called as a witness at the trial.                     The   court
directed the State to continue its efforts to determine if there
were more records from the treatment center that may contain
exculpatory    evidence.
      While 5 46-15-322, MCA,         requires the State to provide all
pertinent information within its possession or control,                       "the
statutes have no effect until the State actually develops the
knowledge of a specific act, fact or information that exculpates
the   defendant."   State v. Shaver (1988), 233 Mont. 438, 447, 760
P.2d 1230, 1235.
      This Court r'ecently upheld a trial court's decision to deny a
defendant access .to a victim’s counselor's information because the
State did not possess the information, nor did the State use the
information to prepare its case.            State v. Little (Mont. 1993),       861
P.2d 154, 50 St. Rep. 86.            In Little,      a defendant charged with
sexual   intercourse       without    consent,       requested    the victim's
counselor's    notes asserting       that    they    might   contain   exculpatory
information.     The District Court found that the defendant was not
entitled to discovery of the notes because the State did not
possess the notes, did not use the counselor's notes or opinions to

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prepare its case, and did not intend to call the counselor as a
witness.     Little, 861 P.2d at 159.    Seealso, State v. Rhyne (1992),

253 Mont. 513, 833 P.2d 1112.
     In the present case, the State reported to the District Court
that no written reports were submitted by the counselor to the
sheriff's    investigator.   The sheriff's investigator interviewed the
victim's counselor, the victim, and her mother.          The details of
these interviews were in the investigator's report, which was
provided to both the State and appellant.        The State informed the
District court that it gave appellant all the information it had
received from the investigative officer.        The State did not view
the counselor's records, use them to prepare its case, or call the
counselor as a witness.      We hold that appellant failed to show that
the State deliberately withheld information from him which it had
access to and used in its investigation of the case.
     Next,    appellant contends that the District Court erred by
denying him access to the victim's counselor and her treatment
records, thereby denying his right to confront witnesses and compel
testimony.
     The Montana Rules of Evidence allow the trial court to refuse
evidence by first testing the relevance of the evidence, and then
determining whether the evidence should be excluded by a provision
of law.      Rule 402, M.R.Evid.     Rulings on the admissibility of
evidence are left to the sound discretion of the trial court.
State v. Mayes (1992), 251Mont. 358, 373, 825 P.2d 1196, 1205. On


                                     6
appeal, this Court will not disturb such a ruling absent abuse of
discretion.       Maves, 825 P.2d at 1205.
        Appellant requested access to the counselor's records several
times     throughout      the proceedings        and    for several purposes.
Appellant requested the right to review the counselor's records for
information with which to impeach the victim's mother concerning
the victim's alcohol abuse, and to scan for potential witnesses for
the defense.       At the sentencing hearing, appellant again requested
access to the victim's treatment records to rebut the State's
assertion that all. of the victim's emotional problems resulted from
appellant's       actions.
        The District Court denied appellant's requests, stating that
the sexual intercourse without consent charge was grounded upon
§ 45-5-501(a)(iii),          MCA, that the victim was under the age of 16
when the alleged offense occurred and she could not give her
consent.          The   court   reasoned that no connection had been
established between the incident and the victim's alcohol abuse and
emotional problems, and therefore, found the issue of the victim's
character and alcohol abuse irrelevant to these charges.                   Further,
the court reasoned that its sentence and judgment were not based on
the contents of the treatment records, but instead upon evidence
submitted at trial, and that witnesses' testimony                    concerning   the
victim's emotional history and alcohol abuse contained the same
information as did the counselor's treatment records.
        Montana     protects      confidential         information      between    a

psychologist and a client from disclosure. Section 26-l-807, MCA.

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In State v. Reynolds (1990),          243 Mont. 1, 8, 792 P.2d 1111, 1115,
this Court held that the district court properly denied the

defendant's motion to obtain all medical and psychiatric records of

a sexual assault victim.           There, we cited the privilege stated in

5   26-l-807,   MCA,     and our holding in State v. Thiel (1989),            236
Mont. 63, 66, 768 P.2d 343, 345.

       In   Revnolds,,    792 P.2d at 1115,      this Court reasoned that a
defendant's right to confront his accusers in pretrial discovery is
not   equivalent to the constitutional               right of confrontation.
Rather,     confrontation is          a trial     right   that   guarantees   an

opportunity     for    effective   cross-examination.     A right to question
adverse witnesses does not include the power to require the

pretrial disclosure of any and all information that might be useful

in contradicting unfavorable testimony.             Revnolds, 792 P.2d at 1115
(citing Pennsylvania v. Ritchie (1987),            480 U.S. 39, 53, 107 S. Ct.

989, 999, 94 L. Ed. 2d 40, 54).              This Court has held that an in
camera inspection by the trial court pursuant to § 41-3-205(2),

MCA, suffices to protect the confrontation rights of a defendant,

and to protect the privacy rights of a victim.                State v. Donnelly

(1990) I    244 Mont.. 371, 376, 798 P.2d 89,         92 (overruled on other

grounds in State v. Imlay (1991), 249 Mont. 82, 813 P.2d 979).

      In the present case, the District Court properly examined the

report in camera to determine whether exculpatory evidence was

present.        The      court   found the      counselor's    report   involved

privileged information involving the victim's psychological history

and   treatment.          At trial,    the appellant had opportunity to

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cross-examine    alll    adverse    witnesses,   including    his    accuser,    the
victim.     Throughout the entire trial and sentencing, appellant

attempted   to   gain    access    to   information    concerning   the   victim's

alcohol and emotional problems after the incident.                     The court
denied access, reasoning that no correlation to the information was

provided at trial.        The court seemingly addressed the correlation

between the victim's past emotional problems and alcohol abuse, and

her consent at the time of the incident. The court also considered
that the State did not establish a correlation at trial between the

trauma of the incident and the victim's current emotional problems.

We agree with the court when it found that the victim's historic
emotional problems and current emotional state were irrelevant to

the issue of whether appellant was guilty of sexual intercourse

without consent.        We hold that the District Court did not abuse its

discretion when it denied appellant access to the victim's

counselor or the treatment records.

     Appellant also contends that without the requested treatment

records he was denied access to potential information to build the

defense that he reasonably believed the victim was 17 years old.

     Section 45-5-511(l),          MCA, provides that:

     When criminality depends on the victim being less than 16
     years old, it is a defense for the offender to prove that
     he reasonably believed the child to be above that age.
     Such belief shall not be deemed reasonable if the child
     is less than 14 years old.

At trial, appellant offered evidence that he reasonably believed
the victim was 17 years old.             The   State   submitted    evidence    that

appellant was aware the victim was 14 years old.                       The court

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instructed the jury on § 45-5-511(l), MCA, and the jury was not

persuaded by appellant's evidence.

     Further,    the jury was instructed that the State must prove

that appellant had sexual intercourse with the victim, and that the

victim was 14 years old at the time of the offense.      The State

proved its case.

     We hold that the District Court did not err in denying the
appellant access to the victim's counselor or the counselor's

treatment    records.

     We affirm.


                                         Justice


We concur:




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