NO. 94-099

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

Plaintiff and Respondent,

-vTHOMAS J. STEFFES,

Defendant and Appellant.

STATE OF MONTANA,

APPEAL FROM: District Court of the Thirteenth Judicial District,

1:n and for the County of Yellowstone,

T:he Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

C:harles F. Moses, Moses Law Firm, Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Patricia

Jordan, Assistant Attorney General, Helena, Montana;

Dennis Paxinos, Yellowstone County Attorney, Dale R.

Mrkich and Marsha Sept, Deputy Yellowstone County

Attorneys, Billings, Montana

Filed:

Submitted on Briefs: September 15, 1994

Decided: December 21, 1994
Justice James C. Nelson delivered the Opinion of the Court.

Defendant/appellant Thomas J. Steffes (Steffesl was found

guilty of three counts of deviate sexual conduct following a jury

trial in the District Court for the Thirteenth Judicial District,

Yellowstone County. Steffes appeals the District Court's denial of

his motion for a new trial, and its judgment and commitment

sentencing Steffes to a term of ten years' imprisonment on each

count, to be served concurrently. We affirm.

Steffes raises nine issues on appeal.

1 . Whether the District Court erred in denying the

motion to dismiss based on insufficiency of the amended

information?

2 . Whether the District Court erred in admitting other

acts evidence?

3 . Whether the District Court erred in limiting the

expert testimony of a psychologist?

4 . Whether the District Court erred in denying the

motion for acquittal on the ground of variance at the

close of the State's case?

5 . Whether the District Court erred in excluding

evidence of the alleged prior sexual abuse of a victim?

6. Whether the District Court erred in refusing Steffes'

renewed request for production of evidence regarding the

alleged prior sexual abuse of the victim?

7. Whether the District Court erred in refusing a lesser

included offense instruction?

8 . Whether the District Court erred in instructing the

jury?

9 . Whether the District Court erred in not suppressing

the search warrant?

Steffes was charged by an amended information with two counts

of deviate sexual conduct for knowingly causing J.W., who was
thirteen years old at the time of trial, to engage in deviate

sexual relations without his consent, and one count of deviate

sexual conduct for knowingly causing R.T., who was ten years old at

the time of tria:L, to engage in sexual conduct without his consent

in violation of § 45-5-505, MCA.

J.W. testified concerning the events which resulted in the

first two charges against Steffes. Regarding the first incident,

J.W. testified that he was spending the night with Steffes' son,

M.S., in September 1990. The two boys were lying awake in the T.V.

room when Steffes came in and asked J.W. to come upstairs. J.W.

complied and followed Steffes into his bedroom. Steffes then asked

J.W. if he knew what a "hard-on" was and asked J.W. to pull his

pants down. J:W. initially said no, but did so after Steffes

repeated his request. Steffes then asked J.W. to lay down on the

bed and began to stimulate J.W.'s penis. Steffes asked J.W. if it

felt good. J.W. asked Steffes if he could leave, and Steffes told

him not to tell anyone about the incident. Steffes then went into

the bathroom, and J.W. went back downstairs to the T.V. room.

J.W. testified that he did not tell M.S. or anyone else what

had happened at that time because he knew what had happened was

wrong, and that he was afraid to tell anyone what had happened

because he did not know what Steffes would do to him if he did.

With regard to Count II, J.W. testified that on Father‘s Day,

June 16, 1991, he went to the Steffes' home where J.W., M.S.,

Steffes and his daughter had a water balloon fight. After the

fight, Steffes watched while J.W. and M.S. dried off and changed

3
into dry clothes. The two boys then went to the basement to watch

a movie. Later in the afternoon, J.W. went to get his clothes off

the line, and he encountered Steffes in the hallway. Steffes asked

J.W. to come into his bedroom, J.W. replied that he was going to

the bathroom to change his clothes, and Steffes told him he could

use his bathroom. While J.W. was changing his clothes, Steffes

came into the bathroom and asked J.W. to come into his room.

Steffes then asked J.W. to come over to his dresser, where he

took a red condom out of one of the top drawers, and told J.W. what

it was. Steffes then pulled out a little yellow bottle of Rush, a

sexual stimulant, put it up to J.W.'s nose, and asked him to smell

it. Steffes told J.W. the Rush would give him an erection, and

asked J.W. if he had one. Steffes pulled out J.W's shorts and said

that he did. Steffes then laid on the bed and asked J.W. to come

over. J.W. went over to the bed, and Steffes took his own penis

out and forced J.W. to feel it. J.W. took his hand away, and left

the room.

That night J.W. could not sleep as a result of what had

happened that day. He went to his parents' room and told his dad

that Steffes had "touched me in a way I didn't think dads did . .

. [and] I didn't like it." J.W.'s mother who had overheard the

conversation immediately called 911, and an officer came to the

house and took a statement from J.W. Two days later, on June 18,

1991, Detective Richardson, conducted a taped interview of J.W.

R.T. testified at trial concerning the incident he was

involved in which resulted in the third charge against Steffes.

4
R.T. explained that in May or June of 1991, he was at Steffes'

house playing with M.S. R.T. and M.S. were wrestling while Steffes

was watching T.V. Steffes asked R.T. to come over to the couch

where he was sitting, and then stuck his hands down R.T.'s pants

and touched his penis.

R.T. also testified that one night while spending the night at

the Steffes' home, he and M.S. took a shower together, and Steffes

came in with a video camera. Steffes told the boys the camera was

off, but R.T. saw a red light flashing on the camera, so he thought

Steffes was videotaping them.

Detective Richardson conducted the investigation of J.W.'s

complaint again& Steffes. After taking J.W.'s statement, he

obtained a search warrant for the Steffes' residence to look for

the condom and the bottle of Rush that J.W. had described in his

statement. Upon executing the search warrant, Detective Richardson

found five colored condoms and four bottles of Rush in the lefthand side drawer of Steffes' dresser.

During the course of the investigation Detective Richardson

also contacted R.T.' s parents and asked them if anything unusual

had happened to :R.T. while he was at the Steffes' home. R.T.'s

father then asked R.T. if anything unusual had happened and R.T.

initially said no. The next evening R.T. remembered the offense

and told his parents about Steffes touching him and videotaping

him. R.T. was then interviewed by Detective Richardson.

During trial, the State introduced testimony from David

Thorsby, a resident of South Dakota. Thorsby testified that in the

5
fall of 1986, when he was eleven years old, he went to the Steffes'

home to help Steffes' tear out insulation from his attic. Thorsby

worked for Steffes for about a week, but quit because Steffes'

brushed up against him, prodded him with a screwdriver, and

caressed his buttocks and around his genital area. Thorsby

reported the incidents to the police and charges were filed against

Steffes. However, the case was later dismissed for lack of a

speedy trial. Steffes testified at trial that he was not home

during the time Thorsby alleged the incidents occurred.

Steffes denied committing any offenses against J.W. and R.T.

Rather, Steffes' account of the events concerning Count I was that

on the night J.W. slept over, he had caught J.W. and his son naked

in one sleeping bag, and M.S. accused J.W. of molesting him.

Steffes testified that he explained to J.W. that this kind of

conduct was not allowed and that he should tell J.W.'s parents.

However, after speaking to his wife about the incident, Steffes'

testified he decided not to tell J.W.'s parents.

In testifying about Count II, Steffes stated that he found

J.W. going through his dresser drawer and J.W. asked him not to

tell his parents about him taking things. Steffes denied any

contact or touching.

With respect to Count III, Steffes denied that he touched or

videotaped R.T., and alleged that both his wife and M.S. would have

been in the room at the time of the alleged incident. Steffes'

wife and children testified on his behalf.

Additional facts will be presented as necessary for discussion

6
of the issues.

ISSUE 1

Whether the District Court erred in denying the motion to

dismiss based on insufficiency of the amended

information?

In his motion to dismiss, Steffes argues that the amended

information was insufficient because it failed to inform him of all

of the essential elements constituting the crime of deviate sexual

conduct. Specifically, Steffes contends that the amended

information did not contain the definition of "sexual contact."

Montana follows the general rule that an information is

sufficient if it properly charges an offense in the language of the

statute describing the offense. State v. Matson (1987), 227 Mont.

36, 43, 736 P.2d 971, 975. This rule supports the underlying

purpose of an information which is to "reasonably apprise the

person of the charges against him so that he may have an

opportunity to prepare his defense." State v. Matt (1990), 245

Mont. 208, 213, 799 P.2d 1085, 1088. In determining if an

information is sufficient, the court examines whether a person of

common understanding would know what was charged. -,Matt 799 P.2d

at 1088, citing, State v. Longneck (1981), 196 Mont. 151, 640 P.2d

436.

At the time Steffes was charged, the applicable statute

required that the charging document (1) state the name of the

offense; (2) cite in customary form the statute, rule, or other

provision of law which the defendant is alleged to have violated;

(3) state the facts constituting the offense in ordinary and

7
concise language and in such a manner as to enable a person of

common understanding to know what is intended. Section 46-ll401(l) Cc), MCA (1989).

While Steffes agrees with these general rules, he argues that

the statute defining the crime of deviate sexual conduct, § 45-5-

505, MCA, is itself deficient because it does not contain the

essential elements that are required to be alleged and proven

beyond a reasonable doubt. Steffes maintains that touching for the

purpose of arousing or gratifying the sexual desire of either party

is an essential element of the crime of deviate sexual conduct.

Because § 45-5-505, MCA, and the charging document did not contain

this language, Steffes alleges the information was insufficient.

Section 45-5-505(l), MCA provides:

Deviate sexual conduct. A person who knowingly engages

in deviate sexual relations or who causes another to

engage in deviate sexual relations commits the offense of

deviate sexual conduct.

While the terms "deviate sexual relations" and "sexual

contact" are not defined in § 45-5-505, MCA, both terms are

defined elsewhere in the code. "Sexual contact, I' is defined as

"any touching of the sexual or other intimate parts of the person

of another for the purpose of arousing or gratifying the sexual

desire of either party." Section 45-2-101(60), MCA. "Deviate

sexual relations" means "sexual contact or sexual intercourse

between two persons of the same sex or any form of sexual

intercourse with an animal." Sections 45-Z-101(20), MCA.

Steffes relies on Russell v. United States (1962), 369 U.S.

749, 765, 82 S.Ct. 1038, 1047-48, 8 L.Ed.Zd 240, 251, to support

8
his argument that the words of a statute may not be sufficient in

a charging document if the words themselves do not "fully,

directly, and expressly, without any uncertainty or ambiguity, set

forth all the elements necessary to constitute the offense intended

to be punished." In Russell, six defendants were charged for

refusing to answer certain questions after being summoned before a

congressional subcommittee. The defendants moved to quash the

indictments for failure to state the subject under investigation

at the time of the subcommittee's interrogation of the defendants.

The motions were denied, and the issue was preserved on appeal and

brought before the United States Supreme Court on a writ of

certiorari. Russell, 369 U.S. at 752-53, 82 S.Ct. at 1041, 8

L.Ed.2d at 244-45. In determining the sufficiency of the

indictments, the Court held, "[wlhere guilt depends so crucially

upon. . a specific identification of fact, our cases have

uniformly held that an indictment must do more than simply repeat

the language of the statute." Russell, 369 U.S. at 764, 82 S.Ct.

at 1047, 8 L.Ed.2d 240, at 251. Because specific identification of

facts was necessary for the crime charged, the Court reversed the

convictions.

However, in Hamling v. United States (19741, 418 U.S. 87, 94

s.ct. 2887, 41 L.Ed.2d 590, the United States Supreme Court

distinguished between cases where the offense charged depends upon

" a specific identification of fact," and instances where the

definition of the offense is not one of fact, but one of law. The

defendants in Hamlinq, were charged and convicted of mailing and

9
conspiring to mail obscene material. Hamlinq, 418 U.S. at 91, 94

S.Ct. at 2894-95, 41 L.Ed.2d at 605. Relying on the holding in

Russell, the defendants alleged that the statute they were charged

under was insufficient to give them notice of the crime with which

they were charged. Hamlinq, 418 U.S. at 117, 94 s.ct. at 2907, 41

L.Ed.2d at 620.

The Court disagreed and held that the definition of obscenity

was not a question of fact, but one of law, and as a legal term of

art it was sufficiently definite in legal meaning to give the

defendants notice of the charge against them. Hamlinq, 418 U.S. at

118-19, 94 S.Ct. at 2908, 41 L.Ed.2d at 621. The Court noted that

a charging document need not contain all of the definitions of the

legal terms of art used in the statute creating the crime.

Hamlinq, 418 U.S. at 118-19, 94 S.Ct. at 2908, 41 L.Ed.2d at 621.

In the instant case the amended information cited the name of

the offense and the statute Steffes' was alleged to have violated,

along with the time and place of each offense. The information

also stated that "Steffes, DOB 11-24-47, knowingly caused . . .

[the victim] to engage in deviate sexual relations without his

consent." In addition, the State filed an affidavit in support of

its motion for leave to file the amended information which

contained sufficient facts to apprise Steffes of the charges

against him.

Therefore, we conclude that defendant's contention that the

information was insufficient because it did not specify that the

sexual contact was for the purpose of gratifying the sexual desire

10
of either party, is without merit. The information did not have to

allege this as both sexual contact and deviate sexual conduct are

legal terms of art which are defined elsewhere in the code. We

therefore hold that the District Court did not err in denying

Steffes' motion to dismiss based on insufficiency of the amended

information.

ISSUE 2

Whether the District Court erred in admitting other acts

evidence?

On May 27, 1992, the State filed its notice of intent to use

evidence of other crimes, wrongs or acts as required by State v.

Just (1979), 184 Mont. 262, 602 P.2d 957, and State v. Matt (1991),

249 Mont. 136, 814 P.2d 52. Subsequently on August 13, 1992,

Steffes filed a motion in limine seeking to limit the other acts

evidence. After determining that the proffered other acts evidence

met the requirements of JuSt and m, the modified Just rule, the

District Court denied Steffes' motion. On appeal, Steffes argues

that the District Court erred in denying his motion and admitting

the other acts evidence for two reasons.

First, Steffes contends that the State's JUST notice was

procedurally defective because it failed to specify the purposes

for which the evidence would be offered. Second, Steffes contends

that the District Court erred by failing to make any findings or

conduct a hearing to determine the admissibility of the evidence.

This Court reviews a district court's admission of other acts

evidence to determine whether the district court abused its

discretion. State v. Johnston (1994), 51 St.Rep. 1078, 1079, _

1 1
P.2d _, __.

Steffes maintains that Just notice was procedurally defective

because the State used the impermissible "shotgun" approach,

because the notice named several of the exceptions from Rule

404(b), M.R.Evid., for which other acts may be admissible. Steffes

relies on State v. Croteau (39911, 248 Mont. 403, 812 P.2d 1251, to

support his argument. In Croteau, the State's Just notice

contained all but one of the named Rule 404(b) exceptions.

Croteau, 812 P.2d at 1254-55. We held that this type of notice

failed to meet the procedural requirements of JUSt, because it did

not specifically state the relevant reason for admitting the other

acts evidence. We also held that future Just notices "must

identify the specific Rule 404(b) purpose for which it [the other

acts evidence] is to be admitted." Croteau, 812 P.2d at 1255.

In the instant case the notice stated:

The foregoing [the other acts] evidence is relevant in

that it tends to establish plan, knowledge and absence of

mistake or accident concerning the commission of the

offenses currently charged . .

We conclude that this notice was sufficient to apprise Steffes of

the purpose for which the evidence was sought to be introduced and

that Steffes' reliance on Croteau is misplaced. While Croteau does

stand for the proposition that the "shotgun" approach is

impermissible when identifying the purpose for which the other acts

evidence is to be introduced, it did not prohibit the election of

more than one applicable purpose for the admission of other acts

evidence. In this case, the alleged purposes of "plan, knowledge

and absence of mistake or accident," are sufficient to notify

12
Steffes of the purpose for which the other acts evidence was to be

introduced given that Steffes defended on the basis that his

conduct was not what the victims alleged it to be.

Steffes second argument is also without merit. A district

court need not issue findings or conduct a full evidentiary hearing

to determine the admissibility of other acts evidence. Rather, the

court must determine if the evidence meets both procedural

requirements and substantive requirements. State v. Little (1993),

260 Mont. 460, 473, 861 P.2d 154, 162. The procedural requirement

for the notice provides in part:

Evidence of other crimes, wrongs, or acts may not be

received unless there has been written notice to the

defendant that such evidence is to be introduced. The

notice to the defendant shall specify the other crimes,

wrongs, or acts to be admitted, and the specific rule

404(b) propose or purposes for which it is to be

admitted.

Johnston, 51 St.Rep. 1078, 1079, P.2d __, _. The modified

jolt rule sets forth the substantive requirements of the admission

of other acts evidence. Little, 861 P.2d at 163. Here, the State

provided Steffes with written notice of its intent to use other

acts evidence, and the District Court determined that proffered

evidence met the requirements of the modified Just rule. In

addition, the State filed the documents regarding the prior charges

under seal, thereby apprising the District Court of the proffered

testimony. Therefore, we conclude that Steffes' second argument is

without merit, and hold that the District Court did not abuse its

discretion in admitting the other acts evidence.

13
ISSUE 3

Whether the District Court erred in limiting the expert

testimony of a psychologist?

Prior to trial, Steffes gave notice that he intended to call

Sandra Whaley-Olson, a psychologist, to testify to the reliability

and validity of the statements the victims gave to the police

officers investigating the case. The State filed a motion in

limine to exclude Whaley-Olson's testimony on two grounds, only one

of which is pertinent here. The State argued that the purpose of

Whaley-Olson's testimony was to show that the victims' statements

were unreliable, and thus were not to be considered credible. The

State maintained that this opinion testimony is inadmissible

because it invades the province of the jury to decide for

themselves the credibility of the child witnesses.

The court allowed Whaley-Olson to testify to the general

procedures used to conduct interviews of alleged child sexual abuse

victims, but would not allow her to give her opinion with respect

to the validity or reliability of the interviews conducted in this

case, or the credibility of the child victims. The court concluded

that Whaley-Olson did not possess the necessary qualifications

required by State v. Scheffelman (1991), 250 Mont. 334, 820 P.2d

1293, that an expert must possess before testifying about the

credibility of a victim in a child sexual abuse trial. Steffes

claims the court erred by so limiting Whaley-Olson's testimony.

The determination of whether a witness is an expert is within

the discretion of the district court, and will not be disturbed on

appeal absent an abuse of discretion. State v. Evans (1991), 247

14
Mont. 218, 228-29, 806 P.2d 512, 519.

The threshold test to determine whether an expert witness may

testify directly about the credibility of a child sexual abuse

victim is that the child victim must testify and the child's

credibility must be attacked. Scheffelman, 820 P.2d at 1298.

There is no argument that the threshold test was met in this case.

Upon meeting the threshold test, the court must then determine

whether the expert is properly qualified. The court must determine

whether the expert has: (I) 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. Scheffelman, 820 P.2d at 1298.

Upon review of the transcript we find that Whaley-Olson did

not meet the first criteria, as she testified she had very little

first hand experience working with sexually abused children, as is

evidenced by the following testimony.

Q: [By State's counsel] . . Have you interviewed

sexually abused children?

A: [Whaley-Olson1 Not a lot.

.

Q: [By the Court] Could you give me your--first your

extensive, firsthand experience with sexually abused

children;

A: [Whaley-Olson1 Well, I'm not a child psychologist.

I don't specialize in child abuse cases. It's not my

area of specialty. In the course of training to become

a psychologist, I have interviewed a number of children.

I have taught how to interview children. I still

supervise some counselors in California. Most of those

were not sexual abuse.

15
The instant case is similar to the facts of Scheffelman, where

we found that an expert was not qualified to give her opinion

concerning the child sexual abuse victim's credibility because she

had no experience dealing with non-sexually abused children.

Likewise, here, we conclude that without extensive first hand

experience dealing with sexually abused children, an expert is not

qualified to testify concerning the credibility of a child sexual

abuse victim. Therefore, we hold that the District Court did not

abuse its discretion in limiting Whaley-Olson's testimony because

she did not meet the requirements of Scheffelman.

ISSUE 4

Whether the District Court erred in denying the motion

for acquittal on the ground of variance at the close of

the State's case?

Steffes moved for a judgment of acquittal at the end of the

State's case, on the ground that a variance occurred on Counts I

and III. Steffes argues that the District Court erred in denying

his motion because no testimony was presented for Counts I and III

showing that he caused another to engage in deviate sexual

relations. Rather, the evidence indicated that the victims were

passive participants in both Counts I and III, and therefore, the

State should have charged him with engaging in deviate sexual

relations.

It is well established that allegations and proof must

correspond for a defendant to be properly convicted. State v.

Holmes (1984), 212 Mont. 526, 533, 687 P.2d 662, 666. The purpose

of this rule is to protect the defendant from being misled at trial

16
and prosecuted twice for the same crime. Holmes, 687 P.2d at 666,

citing, State v. Rindal (1965), 146 Mont. 64, 404 P.2d 327. If

there is a variance between the allegations and proof, the charge

should not be dismissed unless a defendant's substantial rights are

prejudiced. Holmes, 687 P.2d at 666.

Here, the State filed an affidavit outlining the events

surrounding both Counts I and III. While both Counts I and III

alleged Steffes touched the victims' penises, rather than causing

the victims to touch his penis, the charging documents gave Steffes

adequate notice of the crimes he must defend against. Knowing

this, he cannot now complain that he was surprised or misled, or

that he was in danger from being prosecuted twice for the same

acts. Accordingly, we conclude that no substantial rights of

Steffes were prejudiced by the language contained in the

information. The decision whether to direct a verdict of acquittal

lies within the sound discretion of the trial court and will not be

disturbed absent an abuse of that discretion. State v. Bromgard

(1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141. We hold that the

District Court did not abuse its discretion in denying Steffes'

motion for judgment of acquittal.

ISSUE 5

Whether the District Court erred in excluding evidence of

the alleged prior sexual abuse of a victim?

During trial preparation, Steffes filed a request for

supplemental discovery regarding one of the victims, claiming he

had been a victim of sexual abuse in the past and had possibly been

in counseling. The defense requested counseling notes and

17
information about the incident. Subsequently, the State filed a

motion in limine to exclude any evidence regarding any alleged

prior sexual conduct of the victims. The District Court denied the

defendant's discovery request, and granted the State's motion in

limine citing 5 45-5-511(2), MCA, the rape shield statute. On

appeal, Steffes argues that the rape shield statute violates his

Sixth Amendment right to confront witnesses against him.

Section 455-511(2), MCA, provides:

No evidence concerning the sexual conduct of the victim

is admissible in prosecutions under this part except

evidence of the victim's past sexual conduct with the

offender or evidence of specific instances of the

victim's sexual activity to show the origin of semen,

pregnancy, or disease which is at issue in the

prosecution.

The purpose of § 45-5-511(2), MCA, is to prevent the trial

from becoming a trial of the victim, State v. Van Pelt (1991), 247

Mont. 99, 103, 805 P.2d 549, 552; Compiler's Comments for Section

45-5-511, MCA, Annotations. We have determined that inadmissible

evidence concerning sexual conduct of the victim includes prior

sexual abuse. State v. Rhyne (19921, 253 Mont. 513, 519, 833 P.2d

1112, 1116. W e also recognize that the defendant has a

constitutional right to confront witnesses against him. U.S.

Const. amend. VI; Mont. Const. Art. II, Sec. 24. In balancing the

rights of victims and the rights of the defendant, we have stated:

The Sixth Amendment is not absolute, and “may bow to

accommodate other legitimate interests in the criminal

trial process." The rape shield statute has been upheld

as a legitimate interest justifying curtailment of the

constitutional right to confront witnesses. [Citations

omitted.]

State v. Howell (1992), 254 Mont. 438, 445-46, 839 P.2d 87, 91.

18
This Court has addressed the issue of whether the rape shield

statute violates a defendant's constitutional right to confront

witnesses on several occasions. State v. Anderson (1984), 211

Mont. 272, 686 P.2d 193; Van Pelt, 805 P.2d 549; Rhvne, 833 P.2d

1112. In those cases we have determined that a defendant's

constitutional right to confront witnesses is not violated by the

exclusion of evidence of the victim's prior sexual abuse unless the

victim's accusations or allegations of prior sexual abuse have been

proven to be false. Anderson, 686 P.2d at 200, Van Pelt, 805 P.2d

at 552-53, Rhvne, 833 P.2d at 1116.

Therefore, while it is permissible for a defendant to examine

a complaining witness in a sex offense case where there are prior

accusations which have been proven to be false, there is no claim

that the alleged victim in this case has made prior false sexual

abuse allegations.

We review a district court's conclusion of law to determine

whether the district court's interpretation of the law was correct.

State v. Sullivan (1994), 51 St.Rep. 827, 829, 880 P.2d 829, 832.

We hold that the District Court was correct in deciding that the

rape shield statute did not violate Steffes' right to

confrontation.

ISSUE 6

Whether the District Court erred in refusing Steffes'

renewed request for production of evidence regarding the

alleged prior sexual abuse of the victim?

On May 4, 1994, Steffes moved the court to reconsider its

ruling that the prior sexual abuse of one of the victims could not

19
be referred to during trial. Steffes alleges the prior sexual

conduct of the victim is relevant to rebut the testimony that the

victim acquired his knowledge of sexual matters at school. Steffes

also contends that the testimony is relevant to rebut the victim's

mother's testimony that when the victim told her about the

incidents she related that she had never seen her son so upset.

The District Court denied the renewed motion, ruling that any

evidence of prior sexual conduct was inadmissible pursuant to the

rape shield statute.

The distric.t court has broad discretion to determine whether

evidence is relevant and admissible, and absent a showing of an

abuse of discretion, we will not overturn the district court's

determination. State v. Passama (1993), 261 Mont. 338, 341, 863

P.2d 378, 380.

We have previously rejected the argument that a defendant may

introduce evidence of how a victim obtained his or her knowledge of

sexual matters. Van Pelt, 805 P.2d at 552. In Van Pelt, we

concluded a defendant's attempt to show that the victim could have

gained her knowledge of sexual matters outside of her contact with

the defendant, was merely a guise to attack the credibility of the

victim. We held that this type of attack upon the victim's

credibility is impermissible under the rape shield statute. Van

-tPelt 805 P.2d at 552.

In this case, one of the victims testified that he had

acquired some knowledge of sexual matters at school. In so

testifying, the -victim was not claiming that all of his knowledge

20
concerning sexual matters was gained through his contact with

S&ffes, and therefore, Steffes had no reason to rebut his

testimony.

Finally, whether the victim had ever been as upset as the

evening he told his parents about the actions of Steffes is not

relevant to the issue of whether Steffes did the alleged acts.

Therefore, we find no merit to this argument and hold that the

District Court did not abuse its discretion in ruling that the

evidence of prior sexual abuse was inadmissible.

ISSUE 7

Whether the District Court erred in refusing a lesser

included offense instruction?

Steffes offered two proposed instructions that the charge of

deviate sexual conduct included the lesser offense of endangering

the welfare of children, which the District Court refused. Steffes

claims the court erred by refusing the endangering the welfare of

children instructions he offered.

Section 46-16-607(2), MCA, defines when a court must give a

lesser included offense instruction. That section provides:

A lesser included offense instruction must be given when

there is a proper request by one of the parties and the

jury, based on the evidence, could be warranted in

finding the defendant guilty of a lesser included

offense.

However, before a lesser included instruction may be given, the

offense actually must constitute a lesser included offense. State

v. Fisch (1994), 51 St.Rep. 907, 881 P.2d 626.

This court applies the test from Blockburger v. United States

(19321, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, to determine
whether one crime is a lesser included offense of another.

[Wlhere the same act or transaction constitutes a

violation of two distinct statutory provisions, the test

to be applied to determine whether there are two offenses

or only one is whether each provision requires proof of

an additional fact which the other does not. . .

State v. Madera (1983), 206 Mont. 140, 151, 670 P.2d 552, 557-58.

This Court looks to the statutory elements of the respective crimes

to determine if each offense requires proof of a fact which the

other does not to determine if there is indeed a lesser included

offense. Madera, 670 P.2d at 558.

The elements at issue for the offense of deviate sexual

conduct are: (1) knowingly; (2) causing another to engage in

deviate sexual relations. Section 45-5-505, MCA. As noted earlier

in this opinion, the term "deviate sexual relations" is defined as

"sexual contact or sexual intercourse between two persons of the

same sex. " Section 45-2-101(20), MCA.

The applicable elements of the crime of endangering the

welfare of children are: (I) A person who is 18 years of age or

older; (2) commits the offense of endangering the welfare of

children if he; (3) knowingly; (4) contributes to the delinquency

of a child less than 16 years old by assisting, promoting, or

encouraging the child to; (5) engage in sexual conduct. Section

45-5-622(2) (b) (ii), MCA.

As is evidenced from the plain language of the applicable

statutes, the offense of deviate sexual conduct requires proof that

the persons were of the same sex. The offense of endangering the

welfare of children requires proof of the ages of the offender and

22
the victim. It is clear that each of the two crimes requires proof

of additional facts which the other does not. Therefore, we

conclude that the crime of endangering the welfare of a child is

not a lesser included offense of deviate sexual conduct.

Accordingly we hold that the District Court did not err by refusing

Steffes' proposed instructions.

ISSUE 8

Whether the :District Court erred in instructing the jury?

Steffes alleges the District Court erred by giving five of the

State's proposed instructions and by refusing to give eight

instructions which he offered. We review each of Steffes'

allegations of error in turn.

Steffes argues the court erred in giving the following five

instructions:

(1) Instruction No. 6.

Steffes argues the instruction regarding the definition of

knowingly was incomplete and misled the jury. However, Steffes

offers no authority for this proposition, nor does he offer any

argument as to how the instruction was incomplete or misled the

jury. Accordingly we will not address this allegation of error.

Rule 23(a) (4), M.R.App.P.; Allmaras v. Yellowstone Basin Properties

(1991), 248 Mont. 477, 483, 812 P.2d 770, 773.

(2) Instructions 9. 10, and 11.

Steffes complains that the jury was not properly instructed on

whether the sexual contact was for the purpose of gratifying the

sexual desires of either party. Steffes contends that whether the

23
sexual contact was done for the purpose of sexual gratification is

an essential element of the crime, and the jury was not properly

instructed regarding the sexual gratification element.

However, the instructions noted that the State must prove that

Steffes caused the victims to engage in an act of deviate sexual

relations I' as defined in these instruction. .!I [sic]

Instructions 14 and 15 respectively defined the terms "deviate

sexual relations" and "sexual contact." We therefore conclude the

jury was properly instructed as to the elements of the crime.

(3) Instruction 17.

Steffes objected to this instruction because it stated that a

defendant's purpose to gratify his sexual desire can be inferred

from his conduct. However, according to Montana law, a defendant's

intent to gratify his sexual desire mav be inferred from his

conduct. State V. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147,

150; State V. Gilpen (1988), 232 Mont. 56, 69, 756 P.2d 445, 452.

Therefore, we conclude the instruction was a correct statement of

the law.

Steffes argues the court erred by failing to give the

following instructions:

(a) Steffes' Provosed Instruction 6.

The court was correct in refusing this instruction concerning

the testimony of the defendant because the instruction contained

language regarding the defendant's failure to testify and Steffes

testified at trial. Furthermore, the law concerning witness

testimony was adequately covered in instruction 2.

24
(b) steffes' Proposed Instruction 8.

Steffes' proposed instruction stated that the defendant could

not be convicted by conjecture. Conjecture, however, WF&S

adequately covered in instructions 1 and 8.

(c) Steffes' Proposed Instruction 19.

The District Court was correct in refusing this instruction

concerning expert opinion testimony, as it had previously correctly

ruled that Steffes' expert could not give her opinion.

(d) Steffes' Pronosed Instruction 24.

This instruction essentially recites the statutory definition

of "purposely." 'The offense of deviate sexual conduct requires the

State to prove the mental state "knowingly." Therefore, the court

was correct in concluding that the definition of purposely was

irrelevant.

(e) Steffes' Prouosed Amended Instruction 26.

Steffes offered this instruction as the definition of the

presumption of innocence. H e maintains that the court's

instruction gave "short shrift" to the defendant's presumption of

innocence, and claims his own instruction should have been given

instead. However, we conclude the court's instruction adequately

informed the jury of Steffes' presumption of innocence.

(f) Steffes' Prouosed Instructions 28 and 29.

Steffes' proposed instructions concerned the definition of

reasonable doubt. However, this Court has specifically approved

the instruction which was given as an appropriate definition of

reasonable doubt. State v. Lucero (19841, 214 Mont. 334, 344, 693

25
P.2d 511, 516. We therefore conclude that the jury was properly

instructed as regards the definition of reasonable doubt.

(g) Steffes' Prooosed Instruction 35.

This instruction read as follows:

You are instructed that if the testimony in this case, in

its weight and effect, be such that two conclusions can

be reasonably drawn from it, one favoring the defendant's

innocence, and the other tending to establish his guilt,

the jury should adopt the conclusion of innocence.

While this instruction is proper where the State's case rests

substantially or entirely on circumstantial evidence, State v.

Crazy Boy (1988), 232 Mont. 398, 403, 757 P.2d 341, 344, this case

was based substantially on direct evidence, i.e., the testimony of

the two victims. Therefore, the instruction was properly refused.

1n reviewing whether a district court erred in instructing a

jury, this Court determines whether the instructions, as a whole,

fully and fairly instruct the jury on the law applicable to the

case. State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734,

737. Furthermore, while the general rule is that the defendant is

entitled to have instructions on his theory of the case, I' [tlhe

defense cannot insist that every nuance of its theory of the case

be given to the jury via instructions." State v. Webb (1992), 252

Mont. 248, 253, 828 P.2d 1351, 1354. Upon a careful review of the

instructions which were given in this case, we conclude that the

instructions accurately reflected the applicable law. We also

conclude that the court properly rejected Steffes' proposed

instructions, for the reasons indicated. Accordingly we hold that

the District Court properly instructed the jury.

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ISSUE 9

Whether the District Court erred in not suppressing the

search warrant?

Pursuant to J.W.'s statements that Steffes had shown him a

condom and a bottle of Rush, the police obtained a search warrant

to search Steffes home for condoms, Rush, or any other sexual aids.

Upon executing the search warrant police officers found and seized

five colored condoms and four bottles of Rush from the top drawer

of Steffes' dresser.

On November 7, 1991, Steffes filed a motion to suppress the

search warrant on three grounds, two of which he raises on appeal:

(1) there was no probable cause to issue the search warrant, and

(2) there was procedural error in the issuance and service of the

warrant and that law enforcement was without authority to execute

the warrant. The motion was submitted on briefs to the District

Court, and it denied the motion in an Order and Memorandum dated

May 21, 1992. Steffes renewed his objection to the court's denial

of his motion to suppress in his motion for a new trial, which the

District Court denied on August 5, 1993. Steffes appeals from that

order.

The decision to grant a new trial is left to the sound

discretion of the trial judge. Absent an abuse of that discretion,

we will not overturn a denial of a motion for a new trial on

appeal. State v. Arlington (19941, 51 St.Rep. 417, 427, 875 P.Zd

307, 321.

Steffes first argues that the search warrant was issued

without probable cause because law enforcement did not corroborate

27
or confirm J.W.'s testimony. HOWeVer, while corroboration may be

necessary in cases where police receive their information through

an informant; a victim is not equivalent to an informant, and

therefore those principles do not apply. In State v. Kelly (1983),

205 Mont. 417, 435-36, 668 P.2d 1032, 1042, we noted the difference

between an informant and a victim of crime:

[Aln 'informer,' in the narrow sense of that word,

is by no means presumed to be a credible person. This

means that it is generally necessary, as a prerequisite

to establishing probable cause on the basis of what the

informer has told the police, to establish that he is

reliable (e.g., by showing that he has proved to be

reliable on past occasions) or that his information is

reliable (e.g., by showing that he has made an admission

against his penal interest in the course of giving the

information). By contrast, the average citizen who is

thrust into the position of being a victim of or a

witness to criminal conduct and who thereafter reports

what he saw and heard to the police is generally presumed

to be reliable, and thus no special showing of such

reliability in the particular case is necessary.

Citing, W. LaFave, SEARCH AND SEIZURE § 3.5(a) (1978) at 619-20.

In reviewing whether probable cause exists: "the duty of the

reviewing court is to ensure the magistrate had a 'substantial

basis' for . . conclud[ingl that probable cause existed." State

v. Wilson (1992), 254 Mont. 317, 318-19, 837 P.2d 1346, 1347.

Here, the magistrate issued the search warrant upon application

affirming the victim's statements to the police. We conclude that

the information contained in the application demonstrated probable

cause existed for the search warrant. We therefore hold that the

District Court did not abuse its discretion in denying Steffes'

motion for a new trial on that basis.

Steffes also attacks the search warrant's validity on the

28
ground that the search warrant was dated June 19, 1991, but was

executed on June 18, 1991. In response to Steffes' argument, the

State called Justice of the Peace Pedro Hernandez to testify

concerning the discrepancy between the dates. Justice Hernandez

swore that he signed the application at approximately 11:25 a.m. on

June 18, 1991, and that the search warrant was issued at the same

time. Justice Hernandez also testified that he did not type the

June 19, 1991 date on the search warrant, but he stated that date

was already on the search warrant when he signed it. Through

Justice Hernandez' testimony, the District Court determined the

discrepancy between the dates was merely technical, and did not

affect the substantial rights of the defendant. We agree.

Section 46-5-103, MCA (19891, the controlling statute at the

time the search warrant was issued, provides in pertinent part:

When search and seizure not illegal. No search and

seizure, whether with or without a warrant, shall be held

to be illegal as to a defendant if:

.

(3) any irregularities in the proceedings do not

affect the substantial rights of the accused.

Steffes has neither alleged nor shown that he suffered any

prejudice as a result of the typographical error on the search

warrant, nor does anything in the record indicate any possibility

of prejudice arising from the error in dating the search warrant.

See, United States v. McKenzie (6th Cir. 1971), 446 F.2d 949.

Furthermore, we conclude that the State adequately explained any

discrepancy between the date typed on the search warrant and the

date it was executed. We therefore hold, that the District Court

did not abuse its discretion in denying Steffes' motion for a new

29
trial on the basis that the search warrant was invalid.

In conclusion, after carefully considering all the issues

raised by Steffes, we hold that the District Court did not commit

reversible error on any of the issues raised on appeal.

Accordingly, his conviction is AFFIRMED.

We Concur:

Chief Justice

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