NO. 92-560 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

STATE OF MONTANA, Plaintiff and Respondent,

-vsSTEVEN L. LITTLE, Defendant and Appellant.

APPEAL FROM: DistrictCourt of theThirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD: For Appellant: Teresa McCann Ofconnor;OIConnor& O'Connor, Billings,Montana

For Respondent: Hon. Joseph P. Mazurek,Attorney General, Patricia J. Jordon,Ass't Attorney General, Helena, Montana Dennis J. Paxinos, Yellowstone County Attorney, Marcia Good Sept and Dale R. Mrkich, Deputy County Attorneys, Billings, Montana

Filed: Submitted on Briefs: August 19, 1993 Decided: October 4, 1993Justice Karla M. Gray delivered the Opinion of the Court

Steven L. Little appeals from pre-trial and evidentiary rulings and a jury verdict entered in the Thirteenth Judicial District Court, Yellowstone County, finding him guilty of three counts of sexual intercourse without consent and one count of sexual assault. We affirm. We restate the issues on appeal as follows: 1) Did the District Court err in denying Little's "investigatory" motions? 2) Did the District Court err in denying Little's motions to dismiss the information? 3) Did the District Court err in admitting evidence of other crimes, wrongs or acts? 4) Did theDistrict Court err in excludingevidenceregarding the "motorcycle incident?" 5) Did the District Court err in refusing to admit two photographs of the scene of the Flathead Lake incident? 6) Is the evidence sufficient to support the jury's verdict? On August 7, 1991, an information was filed against Steve Little (Little) alleging three counts of sexual intercourse without consent in violation of 

### 5 45-5-503, MCA, and one count of sexual assault in violation of 5 45-5-502, MCA. The first two counts alleged that in 1987-88, Little knowingly had sexual intercourse without consent with D.H. (oldervictim). CountThreealleged that

on or about 1990, Little had sexual intercourse without consent with D.H. (younger victim), while Count Four alleged that Little 2knowingly had subjected the younger victim to sexual contact without her consent. The victims were Little's stepdaughters. Little was subsequently arrested and released on bond. On November 21 and 22, 1991, Little filed numerous motions, including three motions to dismiss the information, motions to compel medical and psychological evaluations on the victims, a motion for additional discovery of the Department of Family Servicesi (DFS) files regarding the victims, a motion for disclosure of the victims1 counselor's notes, and a motion for a polygraph examination of the older victim. He asserted that the motions were necessary to remedy the Staterslack of investigation of the charges against him. In response to one of Little's motions to dismiss, the State

was granted leave to file an amended information, which detailed two specific acts of sexual intercourse without consent involving the older victim and one specific act of both sexual intercourse without consent and sexual assault involving the younger victim. Little thenmoved to dismiss the amended information. The District Court denied Little's motions regarding the psychological, medicaland polygraph examinations, counseling notes and DFS files on February 25, 1992. On that date, the court also denied Little's motions todismiss the information. One weekprior to trial, the State submitted notice of its intent to introduce evidence of "other crimes" and alleged that, in Flathead County, Little had attempted sexual intercourse with the oldervictim and had performed oral sex on the older victim without her consent.After a three-day trial, the jury found Little guilty on all four counts. On August 26, 1992, the District Court sentenced Little to terms of imprisonment totalling forty-five consecutive years,with ten years suspended. Little appeals.

Did the District Court err in denying Little's **investigatoryw motions? As stated above, Little filed several motions in support of his general allegation that the State had not sufficiently investigated the victims' allegations. On appeal, Little again broadly assertsthat the Statedid not sufficiently investigatethe allegations made against him; he urges this Court to require prosecutors and law enforcement to "search for andweigh pieces of information which tend to show innocence as well as those which tend to show guilt." He cites no authority for imposing this requirement as a matter of law nor does he identify the bases for his assertions. In the interest of clarity, we examine Little's arguments regardinghis various "investigatory" motions in turn. DEPARTMENT OF FAMILY SERVICES FILES Little argued that he should be allowed discovery of the victims' files held by DFS or, at a minimum, the files should be inspected in camera by the District Court. The State informed the District Court that it knew ofno relevant information contained in the DFS files. The District Court denied Little's requests. OnJune 23, 1993,this Court issuedan interlocutory appellate order requiring the District Court to conduct an in camera inspectionof thevictims' DFS filesand enter appropriate findingsregarding whether the files contained information relevant to Little's prosecution. We relied on § 41-3-205, MCA,whichprovides that DFS records may be disclosed to a court for an in camera inspection if relevant to an issuebefore it. We concluded that an actual in camera inspection of the DFS files was necessary to complete the record on appeal. On August 6, 1993, the District Court entered an order stating that it had inspected the victimsJ DFS files and concluded that they contained no disclosable information. The court forwarded the DFS files to us with its order. If a district courtmakes an in camera review of confidential records and concludes that no material information is contained therein (and that conclusion is subject to review on appeal), the defendant's interest in ensuring a fair trial is protected. See State v. Thiel (1989), 236 Mont. 63, 67, 768 P.2d 343, 345. In 

## w,we quoted with approval the United States Supreme Court's explanation of the policy underlying this principle: To allow full disclosure todefense counsel in this type of casewould sacrificeunnecessarily theCommonwealth's compelling interest in protecting its child abuse information. If the

# . .. records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania's efforts to uncover and treat abuse. 

# m,768 P.2d at 345, quoting Pennsylvaniav. Ritchie (l987), 480 U.S. 39, 60-61, 107 S.Ct. 989, 1003-4, 94 L.Ed.2d 40, 59. We have reviewed the DFS files and conclude that the District Court properly determined that Little was not entitled to their disclosure. See also Statev. Goodwin (1991), 249 Mont. 1,20-21,813 P.2d 953,965. We conclude that the DistrictCourtdid not err indenying Little's motion to compel disclosureof thevictims' DFS files. COUNSELOR'S NOTES Little also requested discovery of the victims' counselor's notes, arguing that they might contain exculpatory evidence. The District Court denied the motion, concluding that Little was not entitled to discovery of the counselor's notes because the State did not have possession of thenotes and did not intend to call the counselor as a witness. Little then subpoenaed the counselor as

a witness at trial and, at that point, requested an in camera inspection of the notes by the District Court. The District Court declined to inspect the notes in camera. The counselor testified, in essence, that the notes contained no exculpatory evidence and that she had no information indicating that the girls had fabricated their allegations against Little. No statutory authority permits or requiresa district courtto make an in camera inspection of a counselor's notes and Little cites no other authority requiring disclosure or in camera inspectionof the counselor's notes. In Statev. Rhyne (1992),253 Mont. 513, 524, 833 P.2d 1112, 1119, we held that it was not error for a district court to refuse to examine or turn over counselor's notes if the counselor was not a witness against the defendant and the counselor's opinions were not used by the prosecution in preparing the case. Here, the State did not call the counselor as a witnessagainst Little and did not rely on the counselor's notes or opinions in preparing the case. Indeed, the prosecutor indicated that the State had not viewed the counselor's files prior to the trial. We conclude that the District Court did not err in refusing todisclosethe victims1counselor's notes to Little or in refusing to conduct an in camera inspection of the notes at trial. PSYCHOLOGICAL EXAMINATIONS Little argues thathe shouldbe allowed to require thevictims to submit to a psychiatric examination. It is well-established that a defendant cannot force a child victim of a sexual crime to undergo a psychological evaluation. State v. Crist (1992), 253 Mont. 442, 447, 833 P.2d 1052, 1056: State v. Gilpin (1986), 232 Mont. 56, 67, 756 P.2d 445, 451. Rule 35(a), M.R.Civ.P., allows for a mental or physical examinationby a physician only when the mental or physical condition of a party is in controversy. State

v. Liddel (l984), 211 Mont. 180, 191, 685 P.2d 918, 924. As was the case in

# w,Gil~in, and Liddel, the victims are witnesses, not parties, to this action. Little concedes that this Court has held that a defendant cannot compel the psychiatric examination of a victim of a sexual crime. Instead,he argues that the reasoning of Statev. Malee, an unpublished opinion and order issuedby this Court in 1988, is more applicable to his situation. We do not recognize citations to unpublished opinions. MEDICAL EXAXINATIONS Little alsomoved for production ofmedical reports or for anordercompelling thevictimstoundergo amedical examination. The District Court denied this motion based primarily on the State's assertion that it had no medical records to disclose. For the same reasons that underlie our conclusion regarding thepsychological examination,we conclude that a defendant cannot compel a child victim of a sexual offense toundergo an independent medical examination. Goodwin, 813 P.2d at 964. The victims are witnesses, not parties. As we have repeatedly admonished, tohold otherwise would permit the defense to try the victim of the crime and divert the jury's attention from the primary issue--the guilt

or innocence of the defendant. Goodwin, 813 P.2d at 964.

Did the District Court err in denying Little's motions to dismiss the information? Little made four motions to dismiss the information filed againsthim,ail of which werewithdrawnby Little ordenied by the District Court. On appeal, he asserts three separate and independent grounds to support his argument that the information should have been dismissed: (1) the informationwas not supported by probable cause; (2) the informationwas not specific regarding thedates of the offenses;and (3) the informationwasnot specific enough to protect him from double jeopardy. We examine each contention in turn. PROBABLE CAUSE Section 46-11-201, MCA, which sets forth the statutory requirements for obtaining leave to file an information, provides in pertinent part: 8(2)An application mustbeby affidavit supportedby evidence that the judge

# . .

# .may require. If it appears that there is probable cause to believe that an offense has been committed by the defendant, the judge 

# . . . shall grant leave to filethe information, otherwise the application is denied. Little argues that the affidavit filed in support of the informationwas insufficient because the victims' allegations were not corroborated. He also contends that, taken as a whole, the entire investigative file did not contain sufficient informationto support a probability that hehad committed the offenses charged. An affidavit filed in support of amotion for leave to filean information need only recite facts sufficient to indicate a probability that the defendant committed an offense; it need not demonstrate a prima facie case. State v. Ramstead (19901, 243 Mont. 162, 166, 793 P.2d 802, 804. An information is intended to provide the defendantwith notice,not to provide discovery of the State's evidence. State v. Riley j1982j, 199 Mont. 413, 421, 649 P.2d 1273, 1277. Further, a court reviewing an affidavit for probable cause may use common sense and draw permissible inferences;the standards are less stringent than those governing the admissibility of evidence. State v. Miner (1976), 169 Mont. 260, 264, 546 P.2d 252, 255. This probable cause determination will not be reversed absent an abuse of discretion. State v. Buckingham (1989), 240 Mont. 252, 256, 783 P.2d 1331, 1334. With those standards inmind, we review the affidavit filed in support of the motion for leave to file the information in this

case. The crime of sexual intercourse without consent requires thatthedefendant knowinglyhad sexual intercourse without consent 9with anotherperson. Section 46-5-503,MCA. Avictim is incapable of consent if she is less than 16 years old. Section 45-5- 5Ol(b)(iii)

### , MCA. Here, the affidavit related that the oldervictim stated that Little had sexual contact with her beginning in 1987,when she was 15 years old. The sexual contact originally consisted of kissing and fondling but progressed to the insertion of Little's fingers into her vagina and forced oral intercourse. The affidavit also alleged that theyounger victim,who was 11years old at the time, had stated that Little had inserted his fingers into her vagina. Thus, the affidavit sufficiently indicated a probability that Littlehad committed thethree countsof sexual intercoursewithout consent. The affidavit also satisfied the probable cause requirement for the count of sexual assault by alleging that, beginning in early 1990, Little had fondled the younger victim's breasts and vaginal area and had forced her to fondlehis penis. See 5 45-5- 502,MCA. Lastly, the standards for probable causewith regard to filing an informationdo not require corroborationof thevictims' allegations; the affidavit filed was sufficient to indicate a probability that Little committed the charged offenses. We conclude that the District Court did not abuse its discretion in denying Little's motion to dismiss the information for lack of probable cause. LACK OF SPECIFICITY OF DATE The amended information alleged that "on or about 1987-88,"Littlehad committed sexual intercourse without consent against the oldervictim (Counts I and 11) and "on or about 1990,"Little had committed sexual intercourse without consent and sexual assault against the youngervictim (Counts I11 and IV). Little argues that the information isdeficient because thedates of the offenses

are not alleged with sufficient particularity to allow him to meaningfully assert the defense of alibi. The law does not require that the time and place in an informationbe stated with impossibleprecision. 

# w, 649 P.2d at 1277. Section 46-11-401(1)(c)(iv), MCA, requires that the information "charge the commission of an offense by 

# . . . stating the time and place of the offense as definitelv as can be done."

(emphasisadded.) In cases of sexual abuse against children, this Courthasdeclinedto impose exacting standards for identifying the dates of the offenses contained in the charging document even where the defense of alibi is asserted. See State v. Clark (19841, 209 Mont. 473,481-83, 682 P.2d 1339, 1343-45; Statev. D.B.S. (1985), 216 Mont. 234, 239-40, 700 P.2d 630, 633-35: and State v. Shaver (1988),233 Mont. 438,445-46,760P.2d 1230, 1235. Indetermining whether the dates are alleged with sufficient particularity in these situations, we review whether 1) time is a material ingredient in the offense, and 2) whether a continuing course of conduct is alleged. Clark, 682 P.2d at 1344. In D.B.S., the information alleged that the defendant had committed a single act of incest sometime during a ten-month period. D.B.S., 700 P.2d at 633. In applying the first elementfrom Clark,we concluded that timewasnot a material ingredient in the offense of incest, even though the defendant had asserted the defense of alibi. D.B.S., 700 P.2d at 634. Regarding the second element, we stated that when a continuing course of conduct is alleged, further specificity in the information is not required. Even if a continuing course of conduct is not alleged, and a single act of incest is charged over a period of time, the information is not automatically insufficient. D.B.S., 700 P.2d at 634. After surveying the law in other jurisdictions, we concluded in D.B.S. that, because children are less likely to distinguish dates and timeswith specificity,the fact that thevictim cannot set a date for the crime should not be fatal to the State's case. To hold otherwise would leave the defendant virtually immune from prosecution. D.B.S., 700 P.2d at 634. The same reasoning applies here. Little's assertion of the defense of alibi does not make time a material ingredient to the crime of sexual intercourse without consent or sexual assault. Shaver, 760 P.2d at 1234-35. It is clear, and Little does not challenge,that the time during which the specificacts are alleged to have occurred was when both victims were under the age of sixteen. Thus,he asserts no challenge that relates to time as a material element of the offenses. We also conclude that the time frame alleged in the information is sufficiently particular under these circumstances. Although the State's amended information alleged four specific criminal acts instead of a continuing course of conduct, thestatements taken from both victims indicate that the defendant repeatedly subjected the children to sexual acts. We do not hold abused children to a standard requiring them to comprehend and remember specific times and dates. Shaver, 760 P.2d at 1235. Little attempts to distinguishD.B.S. on thegrounds that the victim in that case was four years old, and argues that the leniency afforded to such a young child should not be granted to thesevictims, who were 15and 11at the time of the criminal acts. We have previously rejected a similar argument with regard to a twelve-year-old victim, stating that, even though the victim was older than the child in D.B.S., the rationale of D.B.S. was still instructive. Shaver, 760 P.2d at 1235. We conclude that the information alleged the dates of the offenses with sufficient particularity to inform Little of the general time period in which the offenses occurred. Shaver, 760 P.2d at 1235. DOUBLE JEOPARDY Little's final argument regarding the sufficiency of the information is that Counts 1and I1 "charge the same statute,"and that Counts I11 and IV alleged the same course of conduct. He contends, therefore, that the information violates the statutory and constitutional prohibitions against double jeopardy. He concedes that this alleged double jeopardy violation was cured by the time the trial began, but argues that his ability to prepare his defense was hindered by the confusion caused by the information.We find no merit to this argument. The facts constituting Count I in the

## mended Information read: ThattheDefendant, STEVELITTLE,DOB 12-24-47, knowingly had sexual intercourse without consentwith D.H., DOB 10- 6-72, when she was less than 16 and he was three or more yearsolder,whenhe insertedhis fingers intohervagina

The facts constituting Count I1 read: That the Defendant, STEVE LITTLE, DOB 12-24-47,knowing had sexual intercourse without consent with D.H., DOB 10- 6-72, when she was less than 16 and hewas three or more years older, when he would insert his penis into her mouth 

## . . . The facts constituting Count I11 of the amended informationdetail digital penetration againsttheyoungervictim, in language similar to that of Count I. Count IV sets forth the facts constituting sexual assault, which are: That theDefendant, STEVELITTLE,DOB 12-24-47, knowingly subjected D.H., DOB 11-4-79, to sexual contact without her consent,when she was less than 16 and he was three or more 

### years older, when he fondled her breasts and vaginal area and forced her to fondle his penis 

# . . 

# . The information clearlysets forth four specificand distinct sexual acts which occurred during a specified time period. It is elementary that separate acts can be charged in an information as separate offenses. 5 46-11-404 and -410, MCA: State v. Boe (1963), 143 Mont. 141, 145, 388 P.2d 372, 375; State v. Sanderson (1985), 214 Mont. 437,451, 692 P.2d 479, 487. No double jeopardy violation occurred here. We hold that the District Court did not err in denying Little's motions to dismiss the information.Did the District Court err in admitting evidence of other crimes,wrongs or acts? In the older victim's initial statement made July 15, 1991, she referred to an incident in Flathead County where Little had attempted sexual intercourse with her in the family camper while the rest of the familywas at thewaterslides. Shealso related an incidentwhere, while picking cherries near Flathead Lake, Little sather on a stump in the orchard and placed a cherry inhervagina with his tongue. On April 1, 1992, three weeks prior to trial, defense counsel interviewed the oldervictim and she again related the incidents in Flathead County. On April 13, 1992, seven days before the trial began, the State filed notice of its intent to use evidence of other crimes, wrongs or acts,as requiredby State

### v. Just (1979)

### , 184Mont. 262, 602 P.2d 957. The

### Just notice specified that: 1) Duringtheoffense period,thedefendant forced sexual intercourse without consent upon victim D.H. DOB 10-6-72 [the older victim] during a family vacation to Flathead Lake, Montana. During the vacation, defendant forced oral intercourseupon victim and and [sic] he attempted to force sexual intercourse upon her. The attempted sexual intercourseoccurred in Flathead County,Montana and the forced oral intercourse occurred in either Lake County or Flathead County,Montana. The Defendant's attorney learned of these allegations through D.H.'s original statement in the police investigative file. The attorney again heard the allegations fromD.H. duringherrecorded interview which was taken on April 1, 1992. The foregoing evidence is relevant to establish the plan which the defendanthad established for the sexual abuse of D.H. and a lack of mistake or accident that the defendant's actions constituted sexual intercourse without consent. The District Court admitted the evidence over Little's objections.On appeal, Little argues that the one-week notice was not timely and that the acts described in the notice were not sufficiently similar to the crimes charged. In reviewing evidentiary rulings, this Court will not overturn the district court's determinationabsentanabuse of discretion. Statev. Hage

(Mont. 1993), 853 P.2d 1251, 1253, 50 St.Rep. 631, 632. We have developed extensive procedural and substantive requirementsthat governtheadmissionof evidenceof othercrimes, wrongs oracts in a criminalcase. Procedurally, evidenceof other crimesmay not be received unless therehas been written notice to the defendant that such evidence is to be introduced. State v. Howell (1992), 254 Mont. 438, 443, 839 P.2d 87, 90; Gilvin, 756 P.2d at 450. In Gilvin, on the day before trial, the State gave notice of its intentto introduceevidenceofprior sexualassaults

on a child victim. We determined that the notice must be given before thecase is called fortrial and, therefore,notice given on the day before trial began was timely. Gilpin, 756 P.2d at 450. Applied to this case, the State's one-week notice is sufficient. Little argues that the State's notice was deficient under State v. Croteau (1991), 248 Mont. 403, 812 P.2d 1251. Croteau lends no support to Little's argument. In Croteau, the Just notice, given one year before trial, stated that the defendant fondled victim R.B. in Wyoming in 1982 and in Mexico in 1985. Croteau, 812 P.2d at 1252. While testifying, victim R.B. stated that the defendant had fondledhim while he spent the night at the defendant's house; the defense objected that this evidence of anpri~r act," which was neither charged nor included in the 

### Just notice,was improperly admitted. Croteau, 812 P.2d at 1253. In response, the State asserted that the lack of Just notice

was curedwhen itdelivered, on themorning of the trial,a copy of a new statement by victim R.B. in which the incident at the defendant's house was described. Croteau, 812 P.2d at 1253. We disagreed, concluding that the last minute delivery of victim R.B.*s statement violated the notice requirements of 

## Just. Croteau, 812 P.2d at 1254. Unlike the defendant in Croteau, Littlehas been aware of the details of the allegations concerning the Flathead incidents since the outset of the case. As we stated in Croteau, the purpose of the notice requirement is to allow the defendant a reasonable opportunity to prepare tomeet the evidence againsthim. Croteau, 812 P.2d at 1254. Here, Little had ample knowledge of the allegations and sufficient opportunityto respond to the evidence. We conclude that the StatersJust notice was timely. Little also argues that the admission of the evidence 

### of the other crimes, wrongs or actsviolatesthe substantive requirements of

## Justbecause the other crimes,wrongs or acts are not similar to those alleged in the information. To admit evidence of other crimes, wrongs or acts, the "ModifiedJust RuleN requires: 1) the other crimes, wrongs or acts must be similar; 2) theother crimes,wrongs or actsmust notbe remote in time; 3) the evidence of other crimes, wrongs or acts is not admissible toprove the characterof a person in order to show thathe acted in conformitywith suchcharacter,but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,knowledge, identity or absence of accident or mistake; and 4) although relevant, evidence may be excluded if its probativevalue issubstantially outweighedby thedanger of unfairprejudice, confusionof the issues, misleading the jury,considerationsof undue delay,waste of time or needlesspresentation of cumulative evidence. State v. Matt (1991), 249 Mont. 136, 142, 814 P.2d 52, 56. Regarding the first element, it is not necessary that the prior act and the charged offensebe identical. Gil~in, 756 P.2d at 449;

# e, 833 P.2d at 1054. In State v. Medina (l99O), 245 Mont. 25, 31-32, 798 P.2d 1032, 1035-36,we concluded that a prior act ofattempted sexual intercoursewas sufficiently similarto the charged acts of fondling and forced oral sex against the same victim. Here,both theother acts evidence introducedat trialand the acts charged involved the same victim. The defendant's actions during each incident and the charged offenses were basically the same: the defendantwaited until he and the victim were alone and attempted or completed some form of sexual intercourse without consenttowardhis stepdaughter. SeeStatev. McKnight (1991), 250 Mont. 457, 462-63,820 P.2d 1279, 1282. We conclude that the acts in Flathead County were sufficiently similar to the charged offenses. Little does not challenge the existence of the other three substantive requirementsof the Modified Just Rule. We hold that the District Court did not abuse its discretion in admitting evidence of other acts, wrongs or crimes.

Did the District Court err in excluding evidenceregarding the "motorcycle incident?"On appeal,Little argues that the court improperlydenied him the right to impeach the credibility of the older victim by "excluding evidence" regarding an incident that the older victim had described in a pre-trial interview with defense counsel concerninganalleged sexualassaultonamotorcycle in Yellowstone County. Little's argument ismisplaced. It is well-established that admitting or refusing evidence lies within the sound discretion of the trial judge. State v. Kowalski (1992),252 Mont. 166, 171, 827 P.2d 1253, 1256. We will not hold a trial court in error for a procedure in which a party acquiesced at trial. In reMarriage of West (1988), 233Mont. 47, 51, 758 P.2d 282, 285. For similar reasons, we will not hold a district court in error for a procedure that did not occur. During the older victim's cross-examination, defense counsel did not question, or attempt to question, her regarding the motorcycle incident. The court did sustain the State's objection to defense counsel's general question concerning the victim's truthfulness on the basis that the question was outside the scope of direct examination. That ruling, however, did not relieve the defense of its obligation to at least attempt to question the victim about the motorcycle incident so that a record would be available for review. Absent such a record,we have no basis for concluding that the court wrongfully @'excludedM this evidence Additionally, Little argues that he was prohibited from recalling the older victim as a witness and from introducing independent evidenceabout themotorcycle incident. Thisargumentfails for two reasons. First, notwithstanding the court's suggestionduring the oldervictimsscross-examinationthat Little could call thewitness inhis case-in-chief,Little did not do so. Therecord contains no rulingby theDistrictCourt thatprohibited Little from recalling the oldervictim as a witness. Second,three days prior to trial, Little submitted a motion in limine seeking to limit the State from referring to any acts alleged to have been committed by the defendant other than the specific four offenses charged and those covered by the 

### Just notice. While no specific ruling appears of record, the District Court appears to have granted the motion, at least tacitly; throughout the proceedings, the court consistently limited the State's evidence to the four charged acts and the two acts described in the

### Just notice. When Little's counsel announcedher intention to introduce independent evidence that would prove that the motorcycle incident could not have occurred as the victim described in her interview, the District Court ruled that such evidence would be excluded. Because of Little's successful motion in limine, the older victim did not, and could not, testify on direct examination regarding the motorcycle incident. As discussed above,Little did not attempt to cross-examine the older victim concerning the motorcycle incident. Nor did Little call the older victim as a witness in his case-in-chief. Without testimony regarding the motorcycle incident in the record, it would be improper for the defense to introduce evidence from an independent witness as towhether that incident could have occurred. Little seeks the best of bothworlds: he argues that the Statecannot introduce evidence of his other sexual acts towards the victim because it would be unduly prejudicial;yet,when it suits his purpose,he urges this Court to ascribe error to the District Court for refusing to allow him to question the oldervictim regarding the "otheract,"and for refusing to allowhim to introduce independent evidence concerning this "other act." We hold that the District Court did not abuse its discretion in refusing to admit evidence of the "motorcycle incident."

Did the District Court err in refusing to admit two photographs of the scene of the Flathead Lake incident? During Little's testimony, he attempted to introduce three photographs which depicted the cherry orchard near Flathead Lake where the incident of oral intercourse was alleged to have taken place. The District Court refused to admit two of thephotographs

on relevancygrounds. Little argues that he intended to introduce the photographs to demonstrate that there was no stump in the orchard and that the incident could not have happened as the older victim described. As stated earlier, the trial court has wide discretion in admitting or refusing evidence. Kowalski, 827 P.2d at 1256. The two excluded photographs depict fairly close-up pictures of cherry trees, which, as conceded by Little's counsel, do not exclude the possibility of a stump in the orchard. As the District Court observed, only the photograph admitted into evidence depicts the 21road and orchard in such a way that Little could demonstrate the absence of the stump. Therefore, the relevance of the other excluded photographs is minimal. We cannot conclude that the District Court's evidentiary ruling constituted an abuse of discretion.

Is the evidence sufficient to support the jury's verdict? In reviewing a jury verdict in a criminal case, the proper inquiry is whether, after the viewing the evidence in the light most favorable to the prosecution,any rational trier of factcould have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Whitcher (1991), 248 Mont. 183, 187, 810 P.2d 751, 753. Like thedefendant in Whitcher, Little argues that the jury verdict cannot stand because it is based on the uncorroborated testimony of the victims. We have held repeatedly that convictions for sexual intercourse without consent and sexual assault are sustainable based entirely on the uncorroborated testimony of the victim. Whitcher, 810 P.2d at 754: Gilwin, 756 P.2d at 453; Howell, 839 P.2d at 93: Statev. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348, 351. Here, both victims testified that Little had performed various sexual acts upon them during the specified time periods, while they were under the age of 16. Further, Little's natural daughter confirmed that the youngervictim had told her of Little's sexual acts.We hold that, based upon the evidence presented at trial, a rational trier of fact could have found thedefendant guilty of the offenses of sexual assault and sexual intercourse without consent beyond a reasonable doubt. Affirmed.October4, 1993 CERTIFICATEOFSERVICE Ihereby certifythatthefollowingorderwassentby UnitedStatesmail,prepaid, to thefollowing named:

TeresaMcCannO'Connor O'Connor &O'Connor 208North Broadway,Suite 412 Billings,MT 59101 Hon. Joseph P.Mazurek,Attorney General PatriciaJ.Jordan,Assistant 215N.Sanders, JusticeBuilding Helena,MT 59620 DennisJ.Paxinos YellowstoneCountyAttorney P.0.Box 35025 Billings,MT 59107 Marcia Sept DeputyCountyAttorney P.0.Box35025 Billings,MT 59107

EDSMITH CLERKOFTHESUPREMECOURT STATF,OFMONTANA