                            No.    94-195
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.
RENO MCLAUGHLIN,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable John M. McCarvel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Scott A. Albers, Attorney at Law, Great Falls,
               Montana

          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General; Jennifer
               Anders, Ass't Attorney General, Helena, Montana
               Brant Light, Cascade County Attorney, Great Falls,
               Montana



                             Submitted on Briefs:     July 6, 1995
                                            Decided: September 8, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

       Appellant Reno McLaughlin appeals from his convictions in the
Eighth Judicial District Court, Cascade County, for two counts of
sexual    intercourse      without   consent      and his designation as a
dangerous     offender.    We affirm.
       S.R.M. is the natural mother of J.K.M., a ten-year-old                  male,

and    J.M.M.,   a five-year-old female.               S.R.M. is     married to
McLaughlin.      McLaughlin is not the children's biological father.
After enduring a period of sexual abuse by McLaughlin, J.K.M. and
J.M.M.    informed their mother that they were being molested by
McLaughlin.
         S.R.M. contacted the police and took steps to keep McLaughlin
from being alone          with the children.          At trial the children
testified that McLaughlin forced them to engage in a number of
sexual acts with him,         including       masturbation,   oral   intercourse,
vaginal and anal intercourse, and that he forced them to engage in
sexual    contact with each other.                J.K.M. and J.M.M.        further
testified that McLaughlin threatened both children with a shotgun,
that he tried to run over J.K.M. with a motorcycle, and that he
threatened to harm members of their family.                   Additional      facts
appear where necessary in the remainder of this opinion.
       McLaughlin was charged by information with two counts of
sexual intercourse without consent in violation of § 45-5-503(l),
MCA.     McLaughlin was found guilty by jury verdict and filed a
motion for new trial.          The motion was denied.            McLaughlin     was
sentenced to twenty years            in prison on each count,              to run
                                          2
consecutively.      McLaughlin received an additional ten-year sentence
for his use of a weapon during commission of a crime.          Finally,
McLaughlin    was     designated a dangerous     offender   for parole
eligibility   purposes.
     McLaughlin raises five issues on appeal.
1.   Did the State fail to give McLaughlin Just notice under Rule
     404(b), M.R.Evid., for the following sub-issues:
           (a) Questioning J.K.M.    regarding  McLaughlin's
     shotgun and threats to kill J.K.M. and his family?
           (b) Questioning J.K.M.     regarding  McLaughlin's
     alleged flight from police and attempts to remove/conceal
     McLaughlin's shotgun?
           (c) Questioning J.K.M.     regarding  McLaughlin's
     confession to him of the murder of another individual and
     the reasonableness of J.K.M.' s fear of being killed by
     McLaughlin?
           (d) Questioning J.K.M. regarding McLaughlin's
     attempts to kill him by running over him with a
     motorcycle?
           (e) Questioning      J.M.M.    regarding   McLaughlin's
     threats to kill her?
           (f) Questioning Officer Grubb regarding S.R.M.'s
     hearsay statement to him that McLaughlin "had a violent
     temper?"
           (g) Questioning Officer Grubb regarding S.R.M.'s
     hearsay statement to the police that McLaughlin "had
     previously been in prison?"
           (h) Questioning Officer Bellusci and obtaining the
     statement that "evidently that gun was one that he had
     when he was out to get his ex-wife --?'I
           (i) Questioning McLaughlin regarding his alleged
     bigamy at the time of his marriage to S.R.M.?
           (j) QuestioningMcLaughlinregardinghis        suspicions
     that the possession of a particular gun          mayhave been
     illegal?
2.   Did the        State's   use of an   expert to     testify to   the
                                     3
        truthfulness of a child witness violate McLaughlin's right to
        confront the witnesses against him?
3.      Did the State violate McLaughlin's right to a fair trial by
        making improper comments during closing argument?
4.      Did the District Court violate McLaughlin's right to a fair
        trial when it admonished defense counsel not to object during
        closing argument "until you have a real serious reason to do
        it?"
5.      Did the District Court improperly construe Rule 801(d) (1) (B),
        M.R.Evid.?


                                 Issue I
        (a) Did the State fail to give McLaughlin Just notice under
        Rule 404(b), M.R.Evid., for questioning J.K.M. regarding
        McLaughlin's shotgun and threats to kill J.K.M. and his
        family?
        McLaughlin did not object at trial to the allegations
contained in sub-issue (a).     We have held that the failure to raise
an issue before the district court bars a defendant from raising
the issue on appeal under § 46-20-104, MCA.         State v. Arlington

(1994),    265 Mont. 127, 151, 875 P.2d 307, 321.       Section    46-20-

104(2),    MCA, provides:
              (2) upon appeal from a judgment, the court may
        review the verdict or decision and any alleged error
        objected to which involves the merits or necessarily
        affects the judgment. Failure to make a timelv obiection
        during trial constitutes a waiver of the obiection exceot
        as provided in 46-20-701(2).    [Emphasis added.]
None of the exceptions in § 46-20-701(Z), MCA, apply to the instant
case.     We hold that McLaughlin is barred from raising sub-issue (a)
on appeal and we need not further consider the      merits   of this sub-
issue.
        (b) Did the State fail to give McLaughlin Just notice under
        Rule 404(b), M.R.Evid., for questioning J.K.M. regarding
                                    4
    McLaughlin's alleged flight from police and McLaughlin's
    attempts to conceal his shotgun from authorities.
    Rule 404(b), M.R.Evid., provides that:
          Other crimes, wrongs, acts.     Evidence of other
    crimes, wrongs, or acts is not admissible to prove the
    character of a person in order to show action in
    conformity therewith. It may, however, be admissible for
    other purposes, such as proof of motive, opportunity,
    intent,   preparation, plan,   knowledge,  identity, or
    absence of mistake or accident.
In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, we held that
the State must provide notice, prior to trial, when it intends to
offer evidence of other crimes, wrongs, or acts at trial.
     McLaughlin's objection was based upon a motion in limine which
did not address the question of any shotgun evidence.              Further,
McLaughlin has not cited to any pretrial ruling which would have
limited the discussion of shotgun evidence. We hold that the court
did not err in overruling the objection.
     (c)  Did the State fail to give McLaughlin Just notice under
     Rule 404(b), M.R.Evid., for questioning J.K.M. regarding
     McLaughlin's confession to him of the murder of another
     individual and regarding the reasonableness of J.K.M.'s fear
     of being killed by McLaughlin.
     In the context of the acts committed by McLaughlin,                the
reasonableness of J.K.M.'s fear of being killed by McLaughlin was
not another crime, wrong, or act.          Rather, J.K.M.'s fear of being
killed or harmed was closely tied to how McLaughlin was able to
force himself upon J.K.M. and J.M.M. through the use of fear and
intimidation.     Therefore, gust notice does not apply.
     After    asking J.K.M. about his          fear of being killed by
McLaughlin,     the   prosecutor   asked   J.K.M.,   "Do you think he is
capable of      [killing you]?"       J.K.M.   responded   "Yes"   and the
                                      5
prosecutor    asked   "Why?"    McLaughlin's    counsel   objected,   claiming
that this question was speculative.               The court overruled the
objection and J.K.M. answered suggesting that if McLaughlin ever
got out of jail and saw J.K.M.,              J.K.M.   would be dead.       The
prosecutor then asked,         "Let me get more specific.       Has he ever
claimed to have killed anyone--."               The court interrupted and
terminated that line of questioning.               The question was never
completed and was never answered.          More importantly, McLaughlin did
not properly object to this question on Rule 404(b) or Just notice
grounds.      McLaughlin fails to demonstrate that the prosecutor's
unanswered questions in any way impaired his right to a fair trial.
We hold that this was not a reversible error.             See Arlinston, 075
P.2d at 321.
        (d) D~O4t~~~ State fail to give McLaughlin Just notice under
        Rule             M.R.Evid.,  for questioning    J.K.M.  about
        McLaughlin's attempts to kill J.K.M. by running over him with
        a motorcycle?
        McLaughlin did not object at trial to questioning or testimony
about his attempts to kill J.K.M.              by running over him with a
motorcycle.     We have held that the failure to raise an issue before
the district court bars a defendant from raising the issue on
appeal under § 46-20-104, MCA.         Arlinqton,     875 P.2d at 321.    None

of the exceptions in 5 46-20-701(2), MCA, apply to the instant
case.     We hold that McLaughlin is barred from raising this issue on
appeal.
        (e)  Did the State fail to give McLaughlin Just notice under
        Rule   404(b),  M.R.Evid.,  for questioning    J.M.M.  about
        McLaughlin's threats to kill her?
        McLaughlin did not object at trial to the questioning of
                                       6
J.M.M. regarding his threats to kill her.        We have held that the
failure to raise an issue before the district court bars a
defendant from raising the issue on appeal under § 46-20-104, MCA.
Arlinqton,     875 P.2d at 321.   None of the exceptions in § 46-20-
701(2),     MCA, apply to the instant case.    Therefore, McLaughlin is
barred from raising this issue on appeal.
     (f)  Did the State fail to give McLaughlin Just notice under
     Rule 404(b), M.R.Evid., for questioning Officer Grubb about
     S.R.M.'s hearsay statement to him that McLaughlin "had a
     violent temper."
     During the prosecution's redirect examination, the following
statements were made regarding S.R.M. 's returning to the house that
she shared with McLaughlin:
     PROSECUTION:  And did she indicate that she felt that
     would be a problem?
     WITNESS:      She indicated to me that Reno had a violent
     temper.
     MCLAUGHLIN'S COUNSEL: Objection, Your Honor, this goes
     into 404(b), and no Just notice was filed.
     PROSECUTION:   The question is, did she indicate to you
     there would be a problem if she returned to the home with
     the kids; did you write anything about that in your
     report?
While the witness' response touched on McLaughlin's violent temper,
the questioning did not attempt to elicit character-type or other
crimes      evidence.    McLaughlin fails to demonstrate that the
prosecutor's statements in any way impaired his right to a fair
trial.      This was not a reversible error.    See Arlinston, 875 P.2d
at 321.      We hold that this was not a Rule 404(b) or JUSt notice
violation and did not deprive McLaughlin of a fair trial.

      (g)     Did the State fail to give McLaughlin Just notice under
                                    7
      Rule 404(b), M.R.Evid., for questioning Officer Grubb about
      S.R.M.'s hearsay statement to the police that McLaughlin "had
      previously been in prison?"
      The State asked Officer Grubb to refer to his report to see if
it indicated whether the children's mother had any concerns about
taking the children back to the residence where McLaughlin resided.
The officer read from the wrong line of the report and gave a non
responsive answer to the effect that McLaughlin had previously been
in   prison.   The trial. transcript evidences that this was an honest
mistake by the officer and was not an error attributable to the
prosecution.    More importantly, this was not an error that supports
a Rule 404(b) or Just notice violation.      We note finally that the
judge admonished the jury to disregard the improperly read lines,
thus minimizing any harm to McLaughlin.     We hold that the State was
not required to give McLaughlin Just notice under Rule 404(b),
M.R.Evid., for questioning Officer Grubb in an instance wherein he
mistakenly read a statement given to the police that McLaughlin
"had previously been in prison."
      (h)  Did the State fail to give McLaughlin Just notice under
      Rule 404(b), M.R.Evid., for questioning Officer Bellusci and
      obtaining the statement that "evidently that gun was one that
      he had when he was out to get his ex-wife --I'?
      McLaughlin objected that Officer Bellusci's statement that
"evidently that gun was one that he had when he was out to get his
ex-wife . . .lt was ixrelevant and prejudicial.     The court granted
the defense's motion to strike the answer.       McLaughlin's   counsel
did not make a Rule 404(b) or Just notice objection. We have held
that the failure to raise an issue before the district court bars
a defendant from raising the issue on appeal under § 46-20-104,
                                    8
MCA. Arlinqton, 875 P.2d at 321.            None of the exceptions in 5 46-
20-701(2), MCA, apply to the instant case.          We hold that McLaughlin
is barred from raising this issue on appeal.
        (i)  Did the State fail to give McLaughlin Just notice under
        Rule 404(b), M.R.Evid., for questioning McLaughlin regarding
        his alleged bigamy at the time of his marriage to S.R.M.
        McLaughlin allegedly did not divorce his first wife before
marrying S.R.M.     McLaughlin argues that because bigamy is a crime,
the State was required to give Just notice regarding its questions
about his marital status.          We disagree.    The State did not raise
the question of bigamy during its case-in-chief.            Rather, it raised
the issue in its cross-examination of McLaughlin after he had
testified that he was married to S.R.M.
        In a conference with the judge and counsel, away from the

jury,    the judge concluded that evidence of bigamy pertained to
McLaughlin‘s credibility and was therefore admissible. We conclude
that     the   District    Court    correctly     allowed      this     evidence.
McLaughlin testified that he was married to S.R.M. and that she had
coached the children to make false accusations of sexual abuse
because of a pending divorce which S.R.M. did not want.                    Having
testified      about his    marriage/divorce       situation     with     S.R.M.,
McLaughlin opened the door to discussion of the legality of his
marriage in the first instance.             We hold that the District Court
did not err in allowing the State to question McLaughlin regarding
his alleged bigamy at the time of his marriage to S.R.M.

        (j)  Did the State fail to give McLaughlin Just notice under
        Rule 404(b), M.R.Evid., for questioning McLaughlin as to
        whether he possessed a particular gun that may have been
        illegal.
                                        9
     On direct examination McLaughlin testified that he possessed
a shotgun.   Although McLaughlin testified that he possessed a
shotgun, McLaughlin conceded, on cross-examination, that he had not
identified the shotgun as his own.        Rather, he testified that the
shotgun was given to him by a friend who was leaving town to work
as a traveling harvester.     McLaughlin further testified that he
could not remember his friend's last name and that he referred to
him as "Fat Mike."   Finally, McLaughlin testified that,      by   the   time

of trial, he had not been asked to return the shotgun.
     On cross-examination the prosecutor asked McLaughlin if he
knew that the shotgun was an illegal length.         McLaughlin    answered
that "I had my suspicions it was illegal, but I thought it was--"
whereupon his counsel objected.         The judge ruled that the answer
went to McLaughlin's credibility.        We agree.
     Having testified about his possession of the shotgun on direct
examination, McLaughlin opened the door to cross-examination as to
the legality of the shotgun length.       We hold that the questions as
to the legality of the shotgun were legitimate cross-examination.


                              Issue II
     Did the State's use of an expert to testify to the
     truthfulness of a child witness violate McLaughlin's
     right to confront the witnesses against him?
     McLaughlin did not object to expert testimony about the
truthfulness of child witnesses.        We have held that the failure to
raise an issue before the district court bars a defendant from

                                   10
raising the issue on appeal under § 46-20-104, MCA. Arlinqton, 875
P.2d at 321.           None of the exceptions in § 46-20-701(2), MCA, apply
to the instant case.             We hold that McLaughlin is barred from
raising this issue on appeal.
     Additionally,          we note that we are unaware of any Montana
authority prohibiting a qualified expert from testifying about the
credibility of a minor sexual abuse victim who has testified at
trial and whose credibility has been challenged.               In State v.
Scheffelman (1991), 250 Mont. 334, 342, 820 P.2d 1293, 1298, we
held that this type of expert testimony is permitted in Montana.
Finally,       given the nature of the defense's cross-examination of
J.K.M. and J.M.M., their credibility was sufficiently challenged to
warrant expert testimony about their credibility.


                                     Issue III
     Did the State violate McLaughlin's right to a fair trial
     when the State referred to McLaughlin as 'I a sick
     individual" and "pedophile" in its closing and when it
     told the jury that McLaughlin "has inconvenienced all of
     us to come here and conduct this trial?"
     The relevant comments by the prosecutor are as follows:
     PROSECUTION:  They want you to think this is a vendetta
     of the mother LS.R.M.1 and the defendant.     For what?
     They weren't even legally married. There was no divorce
     here, and no need for one.
     .     .   .   .

     There is no custody battle here, they are not his kids.
     There is no reason for a custody battle, no reason for
     any of that.
          What's the reason for all of this? The reason is
     you have got one sick individual there that likes to
     molest children. It's a case of a pedophile.
                                         11
      THE COURT:     Sit down.
      MCLAUGHLIN'S     ATTORNEY:    I must object. . . .
      THE COURT:     He can state that if he wishes . . . .

      McLaughlin argues that we should apply State v. Statczar

(1987),   228 Mont. 446,        743 P.2d 606.        McLaughlin urges that
Statczar stands for the proposition that attorneys should not
proclaim personal opinion to a jury as such proclamation invades
the province of the trier of fact.
      In Statczar      the prosecutor commented that the prosecutor's
office was too busy to prosecute innocent persons.             Although   we
disapproved of        prosecutors    expressing personal      opinions in
Statczar, we found no evidence of undue prejudice.
      We do not here consider whether the comments McLaughlin
challenges were accurate or appropriate.         Rather we decide whether
the comments constituted undue prejudice depriving McLaughlin of a
fair trial.     We do not condone this type of characterization in
front of a jury.        However,    considered in light of McLaughlin's
closing   argument,     which included suggestions         that the mother
coached the children to falsely testify against him and that the
mother inappropriately influenced the prosecution, the prosecutor
was   arguing   that     this    was a     case of    psychiatric disorder
(pedophilia) rather than a case of witness coaching. We conclude
that McLaughlin has not shown, and we do not find, that these
comments constituted undue prejudice or denial of a fair trial.
      McLaughlin's appeal brief also makes passing reference to the
fact that the prosecutor, during closing, suggested that "they
                                      12
inconvenienced all of us to come here,           and conduct a trial."
McLaughlin does not        cite any authority as       to why this would
constitute error nor does he present any argument to the effect
that the comment prejudiced him or denied him a fair trial. A
party asserting error by the district court must present argument,
supported by citation to legal authorities.            Rule 23, M.R.App.P.
We note that the comment was made in the context of the State's
characterization (whether accurate or not) of the testimony of
defense witness Kathy Taylor who wrote a statement indicating that
she knew McLaughlin was not guilty.          According to the State, Ms.
Taylor gave the statement to McLaughlin's mother.          In closing, the
State was pointing out that, if this statement were so important to
the defense, it was incongruous for the defense to have not turned
that information over to the police or to the county attorney,
rather than inconveniencing everyone "to come here and conduct a
trial." When the comment was objected to, the prosecutor, in the
presence of the jury,       stated that he was not talking about the
"client,"    McLaughlin.     We conclude that the comment did not
constitute undue prejudice or deny McLaughlin a fair trial.


                                  Issue IV
     Did the District Court violate McLaughlin's right to a
     fair trial when, after the State commented in its closing
     that McLaughlin was a sick individual and pedophile, the
     District Court told the defense, "Don't interrupt until
     you have a real serious reason to do it?"
     After   the   prosecutor's   comments    during   closing,   McLaughlin
objected,    stating "I must object to the characterization of my

                                     13
client as a sick individual and pedophile."                  The judge responded:
        He can state that if he wishes. Now don't interrupt on
        that, you know he can make those statements.        Don't
        interrupt until you have a real serious reason to do it.
        McLaughlin argues that the court's response demonstrated to
the jury that the court did not consider such slander improper and
that it      agreed   with the prosection's             comments .      McLaughlin
concludes that the court's response to the objection impliedly told
the jury to convict McLaughlin and denied McLaughlin an unbiased
judge.     We disagree.
        McLaughlin presents no law, and we have found none, to suggest
that a judge may not instruct attorneys about their conduct. It
may have been preferable for the judge to have simply overruled the
objection, but because of the wide latitude generally afforded in
closing     arguments,     the    judge's         comments    were   permissible.
Particularly in light of our holding that the prosecutor's comments
which prompted the objection did not deny McLaughlin a fair trial,
we hold that neither did the judge's comments deny McLaughlin a
fair trial.


                                    Issue V
        Did the District        Court          improperly    construe    Rule
        801(d) (1) (B), M.R.Evid.?
        McLaughlin argues that testimony presented by police officers
about     what   J.K.M.   and    J.M.M.        had stated during the police
investigation violated Rule 801(d) (1) (B), M.R.Evid.                Although the
State does not raise the issue in its brief, the record indicates
that McLaughlin did not object to the testimony in question as
                                          14
containing   prior   consistent   statements   in   violation   of   Rule

801(d) (1) (B), M.R.Evid.    As we indicated in Issue l(a) above, the

failure to raise an         issue before the district court bars a

defendant from raising the issue on appeal under § 46-20-104, MCA.
     Affirmed.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.




We concur.


         Chief Justice /




                                    15
                                                      i




                                        September 8, 1995

                                  CERTIFICATE OF SERVICE

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


Scott A. Albers
Attorney at Law
Cascade County Courthouse
415 2nd Ave. No., RM 110
Great Falls, MT 59401

Patrick L. Paul
Cascade County Attorney
Cascade County Courthouse
Great Falls MT 59401

Joseph P. Mazurek, Attorney General
     , Assistant
Justice Building
215 N. Sanders
Helena MT 59620

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
