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: District Court of the Thirteenth 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, 1993 
Justice 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 the District Court err in excluding evidence regarding 

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. (older victim). Count Three alleged that 

on or about 1990, Little had sexual intercourse without consent 

with D.H. (younger victim), while Count Four alleged that Little 

2 
knowingly 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 Staters lack 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 then moved to dismiss the amended information. 

The District Court denied Little's motions regarding the 

psychological, medical and polygraph examinations, counseling notes 

and DFS files on February 25, 1992. On that date, the court also 

denied Little's motions to dismiss the information. One week prior 

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 older victim 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 asserts that the State did not sufficiently investigate the 

allegations made against him; he urges this Court to require 

prosecutors and law enforcement to "search for and weigh 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 regarding his 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 of no relevant information contained in 

the DFS files. The District Court denied Little's requests. 

On June 23, 1993, this Court issued an interlocutory appellate 

order requiring the District Court to conduct an in camera 

inspection of the victims' DFS files and enter appropriate findings 
regarding whether the files contained information relevant to 

Little's prosecution. We relied on § 41-3-205, MCA, which provides 

that DFS records may be disclosed to a court for an in camera 

inspection if relevant to an issue before 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 court makes 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 to defense counsel in this type 

of case would sacrifice unnecessarily the Commonwealth'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 Pennsylvania v. 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 State v. Goodwin (1991), 249 Mont. 1, 20-21, 
813 P.2d 953, 965. We conclude that the District Court did not err 

in denying Little's motion to compel disclosure of the victims' 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 the notes 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 requires a district court to 

make an in camera inspection of a counselor's notes and Little 

cites no other authority requiring disclosure or in camera 

inspection of the counselor's notes. In State v. 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 witness 
against 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 

to disclose the victims1 counselor's notes to Little or in refusing 

to conduct an in camera inspection of the notes at trial. 

PSYCHOLOGICAL EXAMINATIONS 

Little argues that he should be allowed to require the victims 

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 examination by 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 State v. Malee, an 

unpublished opinion and order issued by this Court in 1988, is more 

applicable to his situation. We do not recognize citations to 

unpublished opinions. 

MEDICAL EXAXINATIONS 

Little also moved for production of medical reports or for an 
order compelling the victims to undergo a medical 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 

the psychological examination, we conclude that a defendant cannot 

compel a child victim of a sexual offense to undergo an independent 

medical examination. Goodwin, 813 P.2d at 964. The victims are 

witnesses, not parties. As we have repeatedly admonished, to hold 

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 

against him, ail of which were withdrawn by Little or denied 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 information was not supported 

by probable cause; (2) the information was not specific regarding 

the dates of the offenses; and (3) the information was not 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 must be by affidavit supported by 

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 file the information, otherwise the 

application is denied. 

Little argues that the affidavit filed in support of the 

information was insufficient because the victims' allegations were 

not corroborated. He also contends that, taken as a whole, the 

entire investigative file did not contain sufficient information to 

support a probability that he had committed the offenses charged. 

An affidavit filed in support of a motion for leave to file an 

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 defendant with 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 in mind, 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 

that the defendant knowingly had sexual intercourse without consent 

9 
with another person. Section 46-5-503, MCA. A victim 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 older victim 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 the younger victim, who was 11 years old at the time, 

had stated that Little had inserted his fingers into her vagina. 

Thus, the affidavit sufficiently indicated a probability that 

Little had committed the three counts of sexual intercourse without 

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 fondle his penis. See 5 45-5- 

502, MCA. Lastly, the standards for probable cause with regard to 

filing an information do not require corroboration of the victims' 

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," 
Little had committed sexual intercourse without consent against the 

older victim (Counts I and 11) and "on or about 1990," Little had 

committed sexual intercourse without consent and sexual assault 

against the younger victim (Counts I11 and IV). Little argues 

that the information is deficient because the dates 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 

information be stated with impossible precision. 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." 

(emphasis added.) In cases of sexual abuse against children, this 

Court has declinedto 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; State v. 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, 760 P.2d 1230, 1235. In determining 

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 element 
from Clark, we concluded that time was not 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 

times with specificity, the fact that the victim 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 specific acts 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, the 
statements 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 distinguish D.B.S. on the grounds 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 

these victims, who were 15 and 11 at 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 1 and 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: 

That the Defendant, STEVE LITTLE, DOB 12-24-47, knowingly 

had sexual intercourse without consent with D.H., DOB 10- 

6-72, when she was less than 16 and he was three or more 

years older, when he inserted his fingers into her vagina 

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 he was three or more 

years older, when he would insert his penis into her 

mouth . . . 

The facts constituting Count I11 of the amended information detail 

digital penetration against the younger victim, in language similar 

to that of Count I. Count IV sets forth the facts constituting 

sexual assault, which are: 

That the Defendant, STEVE LITTLE, 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 clearly sets forth four specific and 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 family was at the waterslides. She also related an 

incident where, while picking cherries near Flathead Lake, Little 

sat her on a stump in the orchard and placed a cherry in her vagina 

with his tongue. On April 1, 1992, three weeks prior to trial, 

defense counsel interviewed the older victim 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 required by State v. Just (1979) , 184 Mont. 262, 

602 P.2d 957. The Just notice specified that: 

1) During the offense period, the defendant 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 intercourse upon victim and and [sic] he attempted 

to force sexual intercourse upon her. The attempted 

sexual intercourse occurred 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 from D.H. during her recorded interview which 

was taken on April 1, 1992. 

The foregoing evidence is relevant to establish the plan 

which the defendant had 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 determination absent an abuse of discretion. State v. Hage 

(Mont. 1993), 853 P.2d 1251, 1253, 50 St.Rep. 631, 632. 

We have developed extensive procedural and substantive 

requirements that govern the admission of evidence of other crimes, 

wrongs or acts in a criminal case. Procedurally, evidence of other 

crimes may not be received unless there has 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 intent to introduce evidence of prior sexual assaults 

on a child victim. We determined that the notice must be given 

before the case is called for trial 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 fondled him while he spent the night at the 

defendant's house; the defense objected that this evidence of a 
npri~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 cured when it delivered, on the morning 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, Little has 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 to meet the evidence against him. Croteau, 

812 P.2d at 1254. Here, Little had ample knowledge of the 

allegations and sufficient opportunity to respond to the evidence. 

We conclude that the Staters Just notice was timely. 

Little also argues that the admission of the evidence of the 

other crimes, wrongs or acts violates the substantive requirements 

of Just because 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 "Modified Just RuleN requires: 

1) the other crimes, wrongs or acts must be similar; 

2) the other crimes, wrongs or acts must not be remote in 

time ; 

3) the evidence of other crimes, wrongs or acts is not 

admissible to prove the character of a person in order to 

show that he acted in conformity with such character, 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 

probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, misleading 

the jury, considerations of undue delay, waste of time or 

needless presentation 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 offense be 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 of attempted sexual intercourse was sufficiently similar to the 

charged acts of fondling and forced oral sex against the same 

victim. 

Here, both the other acts evidence introduced at trial and the 

acts charged involved the same victim. The defendant's actions 

during each incident and the charged offenses were basically the 

same: the defendant waited until he and the victim were alone and 

attempted or completed some form of sexual intercourse without 

consent toward his stepdaughter. See State v. 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 requirements of 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 evidence regarding the 

"motorcycle incident?" 
On appeal, Little argues that the court improperly denied 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 

concerning an alleged sexual assault on a motorcycle in Yellowstone 

County. Little's argument is misplaced. 

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 re Marriage of West (1988), 233 Mont. 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 evidence about the motorcycle incident. This argument 
fails for two reasons. First, notwithstanding the court's 

suggestion during the older victimss cross-examination that Little 

could call the witness in his case-in-chief, Little did not do so. 

The record contains no ruling by the District Court that prohibited 

Little from recalling the older victim 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 announced her 

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 to 
whether that incident could have occurred. Little seeks the best 

of both worlds: he argues that the State cannot 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 older victim regarding the "other act," and for 

refusing to allow him 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 the photographs 

on relevancy grounds. 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 

2 1 
road 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 fact could 

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 the defendant 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: State v. 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 younger victim 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 the defendant guilty of the 

offenses of sexual assault and sexual intercourse without consent 

beyond a reasonable doubt. 

Affirmed. 
October 4, 1993 

CERTIFICATE OF SERVICE 

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

named: 

Teresa McCann O'Connor 

O'Connor & O'Connor 

208 North Broadway, Suite 412 

Billings, MT 59101 

Hon. Joseph P. Mazurek, Attorney General 

Patricia J. Jordan, Assistant 

215 N. Sanders, Justice Building 

Helena, MT 59620 

Dennis J. Paxinos 

Yellowstone County Attorney 

P. 0. Box 35025 

Billings, MT 59107 

Marcia Sept 

Deputy County Attorney 

P. 0. Box 35025 

Billings, MT 59107 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATF, OF MONTANA