                              NO.       90-220

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1991


STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
RICKY SCHEFFELMAN,
            Defendant and Appellant.



APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable G . Todd Baugh, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Stephen C. Moses; Charles F. Moses argued; Moses Law
                Firm, Billings, Montana.
            For Respondent:
                Marc Racicot, Attorney General, Helena, Montana;
                Elizabeth S. Baker argued, Assistant Attorney
                General, Helena, Montana; Harold F. Hanser, County
                Attorney, Billings, Montana; Donna K. Heffington,
                Deputy County Attorney.


                                                 Submitted: June 11, 1991
                                                  Decided: November 18, 1991
Filed:


                                    7
                                Clerk
Justice R. C. McDonough delivered the Opinion of the Court.

     Defendant, Ricky Scheffelman, appeals his conviction by a jury
of the Thirteenth Judicial District, Yellowstone County, for sexual
intercourse without consent and sexual assault.    Scheffelman was
sentenced to 20 years in prison for sexual intercourse without
consent and 15 years for sexual assault.    These terms are to be
served consecutively.     The last ten years of each sentence was
suspended. The District Court designated Scheffelman a persistent
felony offender and added ten years to each of the above counts to
be served consecutively to the above sentences.    Scheffelman was
designated dangerous for purposes of parole.    We reverse.
     The issues on appeal are:
     1.   Whether the ~istrictCourt erred in admitting the child
victim's prior statements;
     2.      Whether the District Court erred    in admitting the
testimony of Linda Crummet, a clinical social worker;
     3.   Whether the defendant was entitled to a mistrial on the
ground that one of the jurors failed to disclose during voir dire
examination that he was acquainted with a State witness;
     4.   Whether the defendant was entitled to a mistrial on the
ground that a State witness made a remark regarding drug use;
     5.   Whether the District Court erred in refusing defendant's
request to review the victim's psychological records;
     6.   Whether the ~istrictCourt erred in instructing the jury;
     7.      Whether the convictions are supported by substantial
evidence ;
     8.    Whether the District Court erred in sentencing defendant.
     Defendant, Ricky Scheffelman, was convicted of molesting his
step-daughter, S.S., during the period of time between Christmas
Eve of 1985 and May of 1986.    According to the allegations of the
State, Scheffelman entered the victim's bedroom on Christmas Eve
of 1985.    The victim was asleep in a bed that was shared with her
two siblings. Scheffelman laid down next to the bed, reached over
the top and fondled the victim.         According to the victim's
testimony, Scheffelman inserted his fingers into her vagina and
"wiggled them around."      This conduct continued, on a periodic
basis, until May of 1986 when Scheffelman was imprisoned on an
unrelated charge.
     The victim did not report these incidents to anyone until the
spring of 1988, when she was living with her grandmother, Lovyce
Smith.    At this time Ms. Smith questioned the victim about sexual
abuse.     Initially, the victim denied that any abuse occurred.
However after several discussions of the matter, the victim
recanted her earlier denials and told her grandmother that she had,
in fact, been sexually molested by the defendant.
     Following these revelations Ms. Smith brought the victim to
see Pastor Johan Rockstad.     The victim told him the same stories
she told her grandmother.    She also told Pastor Rockstad that the
defendant had sexual intercourse with her.       When the victim's
grandmother questioned her about this incident, the victim admitted
that she "lied about that part."
     On December 30, 1988, Scheffelman was charged with sexual
intercourse without consent and. sexual assault.    On November 6,
1989, defendant was convicted of the above-named crimes.    Several
errors have been set forth in the appeal of those convictions. The
facts surrounding these errors will be discussed in greater depth
under the appropriate issues contained in this opinion.
                              ISSUE I

     Whether prior consistent statements of the child witness were
properly admitted to rebut the defendant's express and implied
charges of fabrication and improper influence.
     During trial, the State's attorney in her opening statement,
believing that the defendant would attack the victim's credibility
through the use of her inconsistent statements, mentioned the prior
consistent statements of the victim. She also alluded to the fact
that the victim had a motive in reporting Scheffelman's conduct
because she did not want him to return to the family home and
molest her again.   Defendant objected and was overruled.   During
the State's case in chief, and after the testimony of the victim,
which included cross-examination by the defendant, the State sought
to introduce prior consistent statements of the victim through the
hearsay exclusion contained in Rule 801(d)(1)(B), M.R. Evid.   The
defendant objected; his objections were overruled and the evidence
was introduced.
      Scheffelman argues that the District Court improperly allowed
these statements into evidence. His argument of this issue has two
bases. First he maintains the District Court erred when it allowed
the State to introduce impeaching evidence against its own witness.
Through its introduction of thiq evidence, the State was able to
introduce several out of court statements made by the victim under
Rule 801(d)(1)(B), M.R. Evid. Scheffelman argues that these tactics
deprived him of his ability to formulate his own trial strategy
because he was forced to react to the strategy set forth by the
State.    In his second argument, Scheffelman maintains the out of
court statements introduced under Rule 801(d)(1)(B), M.R. Evid.,
should not have been allowed into evidence because they were made
after the victim had a motive to falsify. We will address each of
these arguments in order.
     Rule 801(d) (1)(B), M.R.Evid., provides:
     A statement is not hearsay if      . . . [tlhe declarant
     testifies at trial     . . . and is subject to cross-
     examination concerning the statement and the statement
     is   ... consistent with his testimony and is offered to
     rebut an express or implied charge against him of
     subsequent fabrication, improper influence or motive[.]
     There are four requirements before prior statements qualify
for admission under this rule: 1) the declarant must testify and
2) be subject to cross-examination concerning her statement, and
3) the statements to which the witness testifies must be consistent

with the declarantgstestimony, and 4) the statement must rebut an
express or implied charge of fabrication, improper influence or
motive.   See State v. Mackie (1981), 191 Mont. 138, 622 P.2d 673.
     Scheffelman argues that the statements introduced by the State
do not qualify for admission under this rule because they were not
introduced to rebut a charge of fabrication. As stated above, the
State,    through   its   opening   statement   and   through   direct
examination, introduced several inconsistent statements made by the
victim.    It also set forth a possible motive that may have led the
victim to falsify testimony concerning the defendant's conduct.
After   this evidence was admitted, the State             introduced the
testimony of the grandmother, Lovyce Smith; Pastor Rockstad; and
also Linda Crummet and Terri Herman.          Each of these witnesses
repeated statements made by the victim that were consistent with
her trial testimony.        Their testimony was allowed into evidence
under     the   exception to    the hearsay   rule     provided   by   Rule
801(d) (1)(B), M.R.Evid.
     Scheffelman objected to the statements made by the prosecutor
during opening statement concerning the victim's inconsistencies.
He also objected to this evidence during the State's direct
examination      of   the   victim.   The   District    Court     overruled
Scheffelman's objections.       However, in doing so, it reminded the
prosecutor that she might "back herself into a corner" if she made
statements during her opening that could not be proven by
admissible evidence.         The assertion of facts in an opening
statement which are not proved during trial may constitute grounds
for a mistrial if there is a reasonable possibility that the
inadmissible evidence contributed to the conviction. State v. West
(1980), 190 Mont. 38, 42, 617 P.2d 1298, 1300.
     During defendant's counsel's opening statement he stated the
victim will tell a tale and that she lied to her grandmother and
the pastor.     During cross-examination of the victim, Scheffelman's
attorney attempted to challenge her testimony. He also alluded to
the possibility that the victim may have had a motive to fabricate
and implied she was subject to improper influence on the part of
the prosecuting attorney.        Following cross-examination the State
was allowed to present testimony of the prior out of court
statements made by the victim that were consistent with her
testimony.
     The    defendant   claims    he   does   not   assert   a   subsequent
fabrication on the part of the victim, but that she was fabricating
or lying all along.     Generally speaking, if this were true, prior
consistent statements would not be admitted.          However, given the
fact that the defense implied improper influence on the part of the
prosecuting attorney in cross examining the victim, we hold that
her prior    consistent statements in this case were properly
admitted. The statements made by the prosecutor during her opening
statement could possibly have resulted in a mistrial if they could
not be proven by the evidence. The prosecutor was warned of this
possibility by the District Court.        However, the door opened for
the introduction of the victim's prior consistent statements by
the defense's implication of improper influence by the prosecuting
attorney. Once this was done, the State was free to introduce the
out of court declarations through testimony provided by rebuttal
witnesses.
     Scheffelman next argues that the prior consistent statements
should not have been allowed into evidence because they were made
after the victim had a motive to falsify.           At common law, prior
consistent statements were normally excluded from evidence because
they were viewed as irrelevant.        It was recognized that the mere
fact that a declarant made the same statement on several occasions
had no bearing on the veracity of that statement:
     Evidence which merely shows that the witness said the
     same thing on other occasions when his motive was the
     same does not have much probative force for the simple
     reason that mere repetition does not imply veracity.
See Weinstein and Berger, Weinstein's Evidence 801-105 to -151
(1988).
     With the adoption of the new rules of evidence, however, it
has been recognized that prior consistent statements are relevant
to rebut a charge of fabrication, improper influence, or motive.
Most jurisdictions still look to the time that the statement was
made in order to address concerns of relevancy, however.      These
jurisdictions hold that in order to be relevant, a prior consistent
statement must be made before the declarant has a motive to
fabricate.   If a declarant makes consistent statements after the
motive to fabricate arises, the relevancy of those statements under
Rules 402 and 403, M.R.Evid, is lost because they have no bearing
upon truthfulness or veracity.    See e.g. United States v. Miller,
(9th Cir. 1989), 874 F.2d 1255, 1272; State v. Martin (Ariz. 1983),
663 P.2d 236; People v. Buckley (Ill. 1976), 356 N.E.2d 1112.
     Other jurisdictions have taken different approaches when
considering the admissibility of prior consistent statements. The
State argues that this Court should adopt the approach taken by
Colorado and New Mexico.     These states have rejected the theory
that Rule 801(d)(l)(B),   M.R.Evid., imposes any time requirement as
a prerequisite to admissibility of prior statements. These courts
have held that ' i the credibility of a witness is at issue, the
                'f
  I    .




jury should have access to all the relevant facts including
consistent and inconsistent statements and the reasons for possible
fabrication."         See e.g. People v. Andrews (Colo. 1986), 729 P.2d
997.        Under this view, a jury would have access to all statements
made by the declarant, together with evidence surrounding the
timing and possible motives for fabrication of such statements.
The jury would be able to assess the appropriate weight to be given
the statements.
           After   considering   each   approach   taken   by   the   various
jurisdictions, we believe that the most logical view is that held
by the Ninth Circuit.        As described above, this view requires the
prior consistent statement to be made before any motive to
fabricate has arisen.            This view is most in line with the
traditional common law and with common sense notions of relevancy.
We now consider whether the prior consistent statements of this
case were properly admitted under the guidelines set down by this
rule.
           According to Scheffelman, the victim's prior statements should
not have been admitted because she had a motive to fabricate when
they were made.        However, according to the testimony, the victim's
motive for fabrication was that she did not want Scheffelman to
return to the family household and continue his pattern of abuse.
This reason cannot be considered a motive to fabricate.               Rather,
it is inherently intertwined with the truth or falsity of the
charge of the crime itself.         It may provide the impetus to report
the defendant's abuse, but it does not evidence any motive to lie
or fabricate.    Therefore,. we .hold no error was committed in
allowing the prior consistent statements into evidence.
                                ISSUE I1

     Whether the District Court erred in admitting the testimony
of Linda Crummet.
     The State called Linda Crummet to testify as an expert in the
area of child sexual abuse.      Following testimony concerning her
degrees, her licenses, the nature and extent of her practice and
her position as a clinical social worker, the State moved to have
Ms. Crummet recognized as an expert in the area of child sexual
abuse due to both training and experience.     Scheffelman objected
to the State's motion; however, he did agree that she was qualified
as an expert in the area of social work.      The court granted the
State's motion and allowed Ms. Crummet to testify as an expert in
the area of child sexual abuse.
     After Ms. Crummet was qualified, the State asked a number of
questions that were designed to elicit testimony concerning the
nature of the victim's experiences of sexual abuse.     Ms. Crummet
also gave her opinion that the victim's statements were truthful
and that she was a victim of sexual abuse, which was subject to a
continuing objection.
     Under the preceding issue, we discussed the propriety of the
District Court's decision to allow Ms. Crummet to testify under
Rule 801(d) (1)(B), M.R.Evid.     We held that under this rule, the
court properly allowed Ms. Crummet, as well as other witnesses, to
testify about prior statements made by the victim that were
consistent with her trial testimony.         Ms. Crummetls testimony on
factual   components      of   the   victim's   testimony   was   properly
admissible   for    the    purpose    of   rehabilitating   the   victim's
credibility, which had been attacked by the defense. However, Ms.
Crummet could not render expert opinions under the authority of
Rule 801, M.R.Evid.    The admission of her opinions must, therefore,
be justified by some other rule of law.
     Montana follows the minority view that allows expert witnesses
to testify directly about the credibility of a victim who testifies
in a child sexual abuse trial.         See State v. Geyman (1986), 224
Mont. 194, 729 P.2d 475.        Such testimony is properly admissible
when the child victim testifies and her credibility is attacked.
See State v. Harris (Mont. 1991), 808 P.2d 453, 48 St.Rep. 62.
However, in order to render such an opinion and like opinions, the
expert must be properly qualified.
     In the developing field of child sexual abuse law, the
critical factors relating to qualification as an expert include:
(1) extensive first hand experience with sexually abused and non-
sexually abused children; (2) thorough and up to date knowledge of
the professional      literature on child       sexual abuse; and      (3)

objectivity and neutrality about individual cases as are required
of other experts.     Meyers, Expert Testimony in Child Sexual Abuse
Litiqation, 68 Nebraska Law Rev. 1, 12 (1989)       .   If these factors
cannot be shown, the individual witness should not be allowed to
testify as an expert on child sexual abuse.              See Meyers, 68
Nebraska Law Rev. at 12.
     In the case now before us,, it is clear that Ms. Crummet did
not meet the qualifications set out above that must necessarily be
shown before she can give her opinion relative to the child being
a victim of sexual abuse.   We have fully read the transcript and
there is no indication that Ms. Crummet has had experience in
treating   children who   have not been   sexually abused.     She
lvspecialized working with sexual abuse victims."
            in                                         Without such
experience her opinion on the particular issue of whether or not
the victim had been sexually abused or showed symptoms and behavior
consistent with child sexual abuse could not be properly given.
Also, there is no indication that she utilized any controlled
standard to arrive at this conclusion.    See State v. Black (Me.
1988), 537 A.2d 1154.
     Indeed many of the symptoms that the victim experienced were
general disturbances that are often present in children who
experience traumatic events other than sexual abuse.   For example,
when asked whether the victim had experienced characteristic
symptoms of sexual abuse, Ms. Crummet affirmed that the victim had
experienced a number of anxiety symptoms that commonly result from
such abuse. In the victim's case, these symptoms included anxiety,
having a hard time sitting still, having a hard time staying on a
task and some sleep disturbance.    It is true that such symptoms
often result from sexual abuse; however; it is also true that
children who have experienced disruptive events, such as separation
from a parent, can experience elevations in these anxiety symptoms.
See Meyers, 68 Nebraska Law Rev. 1, at 60-61.
     In the victim's case, we note that during the period of time
surrounding the onset of these symptoms, she had been subject to
a number of anxiety producing events which included living in a
alcoholic household and separation from her parents who were
incarcerated in the Montana State Prison.            In order to properly
establish that the victim's symptoms of anxiety did not result from
these disturbances, rather than from sexual abuse, the expert
testifying on behalf of the State must have experience in treating
both sexually and non-sexually abused children.
     When Ms. Crummet was asked whether she had formed an opinion
on whether or not the victim had been sexually abused, the defense
objected on the grounds that she was not qualified to render such
an opinion.         This objection properly reserved this issue for
appeal.     As the above analysis indicates, Ms. Crummet was not
qualified     'I.    . .    by knowledge, skill, experience, training or
education   ..      .I1   to render this opinion. Rule 701, M.R.Evid.   The
above question asked of the expert and its answer are difficult to
classify.    Would the answer to the question be an opinion of fact
or law?   In order to avoid the opinion being one of law, or being
inferred to be one of the law fitting the statutory crime, the
expert should give an opinion such as that the child demonstrates
age-inappropriate sexual knowledge and awareness; that the child's
symptoms and behavior are consistent with child sexual abuse; and
in the expert's opinion, no explanation or cause other than sexual
abuse seems plausible.
    We hold that the admission of Ms. Crummetlstestimony on the
issue of whether S.S. was the v.ictim of sexual abuse constituted
reversible error.
     Because this case will be reversed and remanded for a new
trial, the only other issue we find it necessary to address is
issue 5, whether Scheffelman should be allowed to review the
victim's psychological records.      During     cross-examination   of
Lovyce Smith, Scheffelman's counsel learned that the victim had
seen a psychologist prior to the time she reported any incident of
sexual abuse.   Apparently, neither the State nor Scheffelman had
any knowledge of these counseling sessions.      The purpose of these
sessions was to provide counseling for problems that the victim may
have experienced due to her mother's drug and alcohol abuse.
     Following Scheffelman's request to view records of these
counseling sessions, the District Court reviewed the records in
camera.     It then determined that they reflected the victim's
participation in a group involving children of alcoholics and
consisted   primarily   of   reports of   the   staff psychologist's
observations of the victim at play and during counseling.           The
trial court found that the reports would not be useful and they
contained no exculpatory material.
     Scheffelman argues that the exclusion of these reports, after
it was    revealed   to the jury that the victim        had   received
psychological counseling, may have left an impression that she
received treatment for sexual abuse.      However, Terri Herman, the
victim's mother, clearly testified that the victim            received
counseling as a result of the mother's drug abuse.      Therefore, we
fail to see how the record's exclusion would lead the jury to
believe that these sessions were for sexual abuse.
     Additionally, Scheffelman maintains that he should have been
able to utilize the records to show absence of rape trauma
syndrome. He argues that if the records contained no reference to
the symptoms of this syndrome, he could use this as evidence that
no abuse occurred.      We reject this argument.    The absence of
evidence of psychological trauma logically does not prove that the
offense did not occur.    State v. Gilpin (1988), 232 Mont. 56, 756
P.2d 445.    The District Court held that these records contained no
evidence applicable to Scheffelmanls trial.     We find no abuse of
discretion in this ruling. However, if a qualified expert for the
State is anticipated to testify that certain symptoms and behavior
of the victim are consistent with sexual abuse, the defense, upon
proper motion, should be allowed to examine such pertinent records
after examination in camera by the court, if such records show or
tend to show other reasons for such symptoms and behavior.    As to
issues 3, 4, 7 and 8, they need not be addressed because of the
retrial.     As to issue 6, relative to the courtls instructing the
jury, no error was committed.
     Reversed and remanded for retrial.



We Concur:       I
Justices
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
        I concur with the majority's conclusions that the victim's
prior     consistent    statements   were    admissible   under   Rule
801(d) (1)(B), M.R.Evid., and that the District Court did not abuse
its discretion when it refused to permit inspection of the victim's
psychological records.     However, I do not agree with all that is
said in the majority's discussion of prior consistent statements.
        I dissent from that part of the majority's opinion which holds
that the testimony of Linda Crummett was inadmissible and reverses
the defendant's conviction on that basis.
        The State of Montana, the County Attorney, and the District
Court had a right to rely on this Court's prior decisions in State v.

French (1988), 233 Mont. 364, 760 P.2d 86, and State v. Geyman (1986),

224 Mont. 194, 729 P.2d 475, when they offered and admitted the
testimony of Ms. Crummett.
        In French, we held that a school counselor with a master's

degree in counseling and a bachelor's degree in education who had
counseled a young victim of sexual abuse was qualified to testify
that in her opinion the victim had been truthful when she described
the defendant's abusive acts to her.        There were no foundational
requirements established by that case for such testimony and the
rules of evidence are purposely liberal regarding the necessary
qualifications for expert testimony. See Rules 701, 702, 703, and

704, M.R.Evid.
     In this case, the State went to greater lengths to qualify Ms.
Crumrnett than was done with the expert who testified in French.   It

established that she is a clinical social worker with a master's
degree in social work who specializes in working with sexual abuse
victims.   At the time of trial, she had been a specialist in that
field for a period of from eight to nine years and had counseled
over 1000 children who had been victims of sexual abuse.
     Ms. Crummett had attended as many as 30 classes which dealt
with the subject of recognizing victims of sexual abuse and during
many of those courses was instructed on techniques for evaluating
the credibility of children who claimed to be victims.      She was
certified by the National Association of Social Workers and
licensed as a social worker by the State of Montana.        She was
employed as a clinical social worker by Eastern Montana College, in
addition to engaging in private practice.
     In fact, the defendant in this case stipulated to Ms.
Crummettts expertise in the area of social work, and the District
Court found, without objection, that she was qualified as an expert
in the area of child sexual abuse.
     When Ms. Crummett was asked for her opinions regarding the
victim's credibility, defendant objected for two reasons.          He

stated that the question called for her to express an opinion which
invaded the province of the jury. However, that issue had clearly
been resolved by our previous decisions in French and Geyrnan.    He

also objected that her testimony included hearsay statements made
by the victim.    However, that issue was addressed by the majority
under its discussion of prior consistent statements.      For these
reasons, Ms. Crummett was permitted by the District Court to
express her opinions regarding the victim's credibility.
     Interestingly, on appeal defendant raised no objection to Ms.
Crummett's qualifications for expressing the opinions that she
expressed.    Defendant's argument was limited to his claim that Ms.
Crummett was improperly allowed to relate the victim's prior
statements.
     Based on the aforementioned foundation, Ms. Crummett related
what characteristics she has been trained to look for in evaluating
an alleged victim's complaints of sexual abuse and testified that
she found several of those characteristics in this victim.       She
expressed the opinion that, based upon her experience in the ten
interviews that she had with the victim, the victim had been abused
and the description of that abuse related to her by the victim was
truthful.     At no time during any of her testimony did defendant
raise the objections which now form the basis for the majority's
reversal of defendant's conviction.
     The District Court had no opportunity to consider those
objections before     allowing Ms.   Crummett's testimony and    the
prosecutor had no opportunity to consider the majority's analysis
before she decided to offer Ms. Crummettls testimony.
     I     question   the   significance    of    the    new   foundational
requirements imposed by the majority.       However, of greater concern
is my belief that all trial lawyers, whether representing the State
or private individuals, have a right to know the rules for
foundationing expert testimony in advance.         If this Court wants to
change the rules, then it should do so prospectively.
     In this case, the State followed all the rules that it was
aware of at the time of trial and still finds its hard-earned
conviction of defendant overturned due to another llmid-course
correctionw by this Court.
     Furthermore, I disagree with the majority's analysis of Ms.
Crummett's testimony on the basis of an article in the Nebraska Law
Review.     Ms. Crummett observed symptoms in the victim's behavior
which were consistent with victimization by defendant.                   The
majority observes that these symptoms are consistent with other
''anxiety producing events1'which were present in the victim's life.
However,     those    observations    are        more    appropriate     for
cross-examination than as a basis for excluding her opinion as a
matter of law.        In this case, Ms.          Crummett was thoroughly
cross-examined regarding other possible causes for the victim's
symptoms.      However, after    having     had    the   benefit   of   that
cross-examination and the benefit of personally observing the
witness, the jury concluded that she properly attributed those
symptoms to sexual abuse.
     The argument that this victim's     symptoms may have been
attributable to some cause other than sexual abuse was appropriate
in the District Court.   It is not a proper basis for reversal of
the jury's verdict.
     For these reasons, I would conclude that in offering the
testimony of Linda Crummett the State satisfied all foundational
requirements of which it had previously been apprised, and would
affirm the judgment of the District Court.
Justice Fred J. Weber dissents as follows:
       I dissent from Issue I1 of the majority opinion where the
majority concludes that the District Court erred in admitting the

testimony of Linda Crummet.          In quoting from Mevers, 68 Nebraska
Law Rev.     1, 12   (1989), the majority points out that in the
developing field of child sexual abuse, the critical factors
relating to qualification as an expert include: (1) extensive first
hand   experience with      sexually abused and       non-sexually abused
children; (2) thorough and up to date knowledge of the professional
literature    on    child   sexual    abuse;   and   (3)   objectivity   and
neutrality about individual cases as are required of other experts.
The majority       opinion raises no      issue as to       Linda   Crummet's

extensive first-hand experience with sexually abused children, her
thorough and up to date knowledge of professional literature and
her objectivity and neutrality.         The majority does conclude that
there is no indication that Ms. Crummet has had experience in
treating non-sexually abused children; and without such experience,
her opinion on the issue of whether or not the victim had been
sexually abused could not properly be given.               To me the record
requires a different conclusion.            Following are parts of the
qualifying testimony on the part of Linda Crummet:
            Q. Would you state your name, please.
            A. Linda Crummett.
            Q. And your occupation.
            A. I am clinical social worker.
            Q. Where do you work, Ms. Crummett?
            A. I work twenty hours a week at Eastern Montana
       College as a counselor at the Health Center, and I have
       a private practice.
            Q.   Would you tell the jury, please, what your
       educational background is.
          A.   I have a Masters in social work from the
     University of Minnesota.
          Q. Is there any area in which you specialize in
     your practice?
          A.   I specialize in working with sexual abuse
     victims.
           . . .
           Q    . . .  Were there any courses that involved
     dealing with and recognizing the victims of sexual abuse?
          A.    Many.    Many in graduate school and then
     subsequently in specialized workshop and training.
          Q. All right. When would the specialized workshops
     have taken place, were they before or after you received
     your masters degree?
          A. After I received my masters degree, and off and
     on since 1981 and I continue to do so.
          Q. Can you tell the jury within a fair number the
     workshops you have attended since you obtained your
     degree.
          A. Oh I would say thirty, forty at least.
          Q. And how many of those workshops would have dealt
     with sexual abuse of children?
          A. The majority, probably eighty percent.
           . . .
This establishes without contradiction that Linda Crummet, over the
past ten years, had taken many courses involving the recognition
and identifcation of victims of sexual abuse.     This was done in
approximately thirty specialized workshops over the span of ten
years.   This directly contradicts the majority conclusion that she
had no basis for concluding that a victim had been sexually abused.
The uncontradicted record establishes that she had       extensive
workshops and training for the express purpose of identifying and
concluding that a particular person had been or had not been a
sexual abuse victim.    The foregoing testimony together with other

testimony on the part of Linda Crummet established that at Eastern
Montana College where she works twenty hours a week, approximately
forty to fifty percent of her cases are not sexual abuse cases. In
her private practice about ten percent are not sexual abuse cases.

                                 23
The District Court in the exercise of its discretion concluded that
Linda Crummet was qualified as an expert Itby knowledge, skill,
experience, training or education, and may testify as an expert in
this area of child sexual abuse.!!       There is certainly substantial
evidence for that District Court conclusion and I am unable to see
on what basis the majority has in effect concluded that the
District Court was clearly erroneous in reaching that conclusion.
       We   will   next    discuss   additional   pertinent   information
disclosed by       the    examination and   cross-examination of   Linda
Crummet.      Following cross-examination on the question of her
ability to determine when a child, sexually abused or not, might be
lying she gave the following response:
            Q.   I would like to go into that a little bit
       farther. What type of training have you had to deal with
       making a distinction between a child who is lying and a
       child who is actually a victim of sexual abuse?
            A. Well that's a focus of much of the training as
       far as workshops that have to do with determining whether
       a child is credible and determining whether a child is
       telling the truth versus telling a lie, how to do that.
       Interviewing workshops, how to interview children. And
       there are always a lot of questions and confusion about
       what legal issues versus treatment issues sometimes can
       clash. And so much of that has been covered in many
       treatment workshops, supervision, I have had a great deal
       of supervision in cases in working with kids.
with   regard to the statements made by           S.S.   as compared to
statements which might be a lie, she testified as follows:

            Q. Let me- just stop you a minute here. With regard
       to the authenticity then, how did that apply to your
       stated conclusion that you believed the statements [S.S.]
       made to you were true?
            A.   Well [S.S.] would essentially give the same
       information over time but was able to give, use different
       words and she was consistent with her affect without it
       appearing staged or unreal.
            Q.   Now affect you have indicated is difficulty
     saying words, hesitation, embarrassment?
          A. Emotional kinds of response, yes, and hers was
     pretty appropriate to the content.
          Q. And with a child who is making up the story what
     affect do you see?
          A. They can be agitated or flat, meaning they just
     kind of get the words and don't have a lot of fear or
     concern or the kinds of icky feeling that a child shows,
     and you can see when a child feels real dirty, when they
     feel responsible, when they feel scared.
          Q. You also indicated that there have been a number
     of cases you have dealt with where you did conclude the
     child was lying?
          A. Yes.
     Such   testimony        demonstrated   that    Linda    Crummet     could
distinguish between a child who is lying about being a victim of
sexual   abuse and      an   actual   sexual   abuse victim.         She also
demonstrated an ability to distinguish coached children and lying
children from those telling the truth about sexual abuse.                    She
explained   some   of    the    characteristics which       helped     her   to
distinguish the truth.           From that testimony we may properly
conclude that she had significant experience in treating abused and
non-abused children, and had extensive training and experience in
determining whether or not a child was telling the truth in
connection with claims of sexual abuse.            After considering this
extensive testimony which goes beyond              the   initial qualifying
testimony, I disagree even more emphatically with the majority
conclusion that Linda Crummet did not have experience in treating
non-sexually abused children so that her opinion could not be
given.
     I also emphasize that the defense counsel did not raise an
issue as to the lack of experience of Linda Crummet with non-
sexually abused children.        Had such an objection been raised, it
would have given an additional opportunity for presentation of
additional evidence and consideration of the same by the trial
court.
     I conclude the record amply demonstrates that Linda Crummet
had experience in treating both sexually abused and non-sexually
abused   children.    I   conclude   that   Linda   Crummet   had   the
qualifications by    knowledge,   skill,    experience, training     or
education to render an expert opinion as required under Rule 701,


     I would affirm the conviction of
