concurring in part and dissenting in part:
I concur with the majority’s conclusion that Atkinson’s constitutional right to confront witnesses was violated when the district *934court prohibited Atkinson from cross-examining L.P. regarding the events of Friday night.
However, I dissent from the holding that the trial court erred in not allowing Atkinson to present evidence and cross-examine L.P. regarding her inconsistent statements to police about previous consensual sex with Atkinson. Whether L.P. and Atkinson did or did not have sex 4 or 6 months earlier was not relevant to any issue in the case; therefore, L.P.’s inconsistent statements on the subject were not admissible. Contrary to the majority’s reasoning, the statements were not admissible under K.S.A. 60-420, as a prior inconsistent statement, or under a theory that evidentiary rules should be stretched when at odds with the defendant’s right to present a defense.
The right to present a defense “is subject to statutory rules and case law interpretation of rules of evidence and procedure.” State v. Thomas, 252 Kan. 564, 573, 847 P.2d 1219 (1993). Applying this rule in State v. Davis, 256 Kan. 1, 883 P. 2d 735 (1994), this court found threats made by a codefendant which were subsequent to the crime were not relevant to the defendant’s compulsion defense and were not admissible. We stated: “ While the subsequent threats may make more probable the inference that Davis believed [his codefendants] would harm him if he did not participate, reasonable minds could differ as to whether the evidence was relevant. This court will not substitute its judgment for that of the trial court where the trial court used its discretion in excluding the evidence.” 256 Kan. at 11.
The same conclusion applies in this case. Even if the evidence Atkinson seeks to admit may make more probable Atkinson’s version of events, the evidence is not admissible under the rules of evidence and is not an integral part of the defense. Therefore, it was not an abuse of discretion to refuse to admit the evidence.
In seeking to admit L.P.’s statement that she had sex with Atkinson several months before the alleged crime, Atkinson argues that the prior sexual relationship was relevant because it established consent and it made his version of events more plausible. However, consent was not an issue in this case. Atkinson was charged based upon the events of Sunday morning and the jury *935was instructed that one element that must be determined was that the acts occurred on January 28, 2001. Atkinson denied having any contact, much less sexual contact, with L.P. on that night. Even if L.P. consented to some act under Atkinson’s theory, it was not the act with which he was charged.
This court, in applying K.S.A. 21-3525, the rape shield statute, has stated that a rape victim’s prior sexual activity is “generally inadmissible since prior sexual activity, even with the accused, does not of itself imply consent to the act complained of.” State v. Stellwagen, 232 Kan. 744, 747, 659 P.2d 167 (1983); see also State v. Walker, 252 Kan. 279, 286, 845 P.2d 1 (1993) (no claim of consensual sexual relations between victim and defendant on night in question; whether victim and defendant had engaged in consensual sexual relations on some prior occasion had no relevance to events of night in question and was properly excluded under rape shield statute).
Atkinson cites two cases in arguing that prior sexual relations can be relevant to the issue of consent. However, both are distinguishable. In In re Nichols, 2 Kan. App. 2d 431, 436, 580 P.2d 1370, rev. denied 225 Kan. 844 (1978), our Court of Appeals ruled that evidence of prior sexual relations was not relevant in that case because the rape allegedly occurred while defendant’s friends were present. While the issue was made more difficult by an allegation that the two enjoyed rough sex, and the court conceded that “often the victim’s prior conduct with the defendant would be relevant to the consent issue,” the court found that the victim’s prior consent to intercourse with the defendant alone did not imply consent to intercourse with defendant’s friends or in their presence. 2 Kan. App. 2d at 436. There is no such unique circumstance in evidence in this case. If anything, the evidence was that L.P. was pregnant and in a relationship with another man; this makes even more questionable the inference that because she consented to sex several months earlier she consented again on the night in question.
Atkinson also cites State v. Perez, 26 Kan. App. 2d 777, 781, 995 P.2d 372 (1999), rev. denied 269 Kan. 939 (2000), in which the Court of Appeals reversed a rape conviction because the district court excluded evidence of the victim’s sexual intercourse with oth*936ers on the same evening. The court noted close time proximity (all acts occurred at the same party); a distinctive pattern (the victim had sex with the others while the defendant observed, giving credence to the defendant’s version that there was a witness to his sex act with the victim); and inconsistencies in the victim’s testimony which went to credibility (in initial statements the victim was unsure whether there was penetration). There are no such factors in this case to weigh in favor of admissibility.
Furthermore, the Court of Appeals majority was correct in ruling that the 4-month interval between the September incident and the alleged rape rendered that evidence too remote to be relevant. In support of this conclusion, the majority cited State v. Montes, 28 Kan. App. 2d 768, 774, 21 P.3d 592, rev. denied 271 Kan. 1040 (2001) (prior sexual encounter 1 to 2 months before rape too far removed to be relevant). Even if consent had been in issue, the fact that L.P. had consensual sex with Atkinson months prior to the alleged rape could have no possible bearing on whether she consented to sex on the night of the alleged rape.
Additionally, L.P.’s statements to police and testimony at the preliminary hearing are not admissible under Atkinson’s second theory, that L.P.’s statements affect her credibility. The rules of evidence, specifically K.S.A. 60-422, prohibit their admission. The majority relied upon K.S.A. 60-420, which provides:
“Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
The majority does not consider the limitations of K.S.A. 60-421 or 60-422. K.S.A. 60-421 limits the admissibility of evidence of conviction of a witness for a crime when introduced to affect credibility and does not apply in this case. K.S.A. 60-422 provides further limitations on admissibility of evidence affecting credibility:
“As affecting the credibility of a witness (a) in examining the witness as to a statement made by him or her in writing inconsistent with any part of his or her testimony it shall not be necessary to show or read to the witness any part of the writing provided that if the judge deems it feasible the time and place of the writing and the name of the person addressed, if any, shall be indicated to the *937witness; (b) extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness, may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him or her an opportunity to identify, explain or deny the statement; (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
L.P.’s statements were a specific instance of conduct tending to show a lack of honesty or veracity and were, therefore, inadmissible because of the provisions of subsection (d). Furthermore, the statements were not admissible as a prior, inconsistent statement. It must be noted that the prosecutor did not ask L.P. whether she had ever had consensual sex with Atkinson. (Nor should the question have been asked even if the in limine ruling were not in place because the question sought irrelevant information.) Rather, L.P.’s prior statements were inconsistent with each other. In order to use prior statements for the purposes of impeachment, the prior statements must be inconsistent with the witness’ testimony. State v. Miles, 191 Kan. 457, 461, 382 P.2d 307 (1963).
Also, it is well established that prior inconsistent statements are inadmissible if the subject matter of the statements is not relevant but relates to a collateral matter:
“Extrinsic evidence of prior inconsistent statements is inadmissible to impeach the statement of a witness on cross-examination as to a collateral matter. The matter involved in the supposed contradiction must be relevant to the issue being tried, for it is well settled that a witness may not be impeached by proof of statements as to matters not material.” 81 Am. Jur. 2d, Witnesses $ 932.
For example, in State v. Dean, 272 Kan. 429, 33 P.3d 225 (2001), we affirmed the trial court’s refusal to allow the defendant to introduce evidence that a witness, who testified he sold the murder weapon to the defendant, had lied to police about where he originally purchased the weapon. The defendant argued the evidence was admissible to question the witness’ credibility and truthfulness. In affirming this ruling, we stated that because the State had not introduced evidence about where the witness had purchased the gun, there was no need for the defendant to introduce rebuttal evidence that the witness had made a false statement about where *938he purchased the gun. In doing so, we distinguished several cases where the witness who was being impeached had raised the collateral matter in testimony. See State v. Nixon, 223 Kan. 788, 576 P.2d 691 1978); Dewey v. Funk, 211 Kan. 54, 505 P.2d 722 (1973). In this case, L.P. did not raise the issue in her testimony, and the cases relied upon by the majority are therefore distinguishable.
In Dean, we also held that where the witness purchased the gun was not relevant. Finally, we held that the witness’ prior false statements about where he purchased the gun were inadmissible under K.S.A. 60-422(d) as a specific instance of a prior bad act offered to attack the witness’ credibility. 272 Kan. at 436.
Similarly, because evidence of a prior sexual relationship between L.P. and Atkinson was irrelevant, evidence that L.P. lied to police about that relationship was also irrelevant. Furthermore, L.P. did not testify at trial that she had never had consensual sex with Atkinson. If she had, that might have opened the door for Atkinson to present rebuttal evidence that she previously made an inconsistent statement. However, because L.P.’s previous statements to police were not truly inconsistent with her trial testimony, Atkinson had no basis to offer her previous statements for impeachment purposes. As in Dean, L.P.’s prior false statements to police were inadmissible under K.S.A. 60-422(d) as a specific instance of a prior bad act offered to attack L.P.’s credibility.
The trial court did not abuse its discretion in refusing to admit evidence of L.P.’s prior statements or preliminary hearing testimony regarding her prior consensual sex with Atkinson.