No. 12821 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

DEAN WILLIAM BALLEW, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record : 

For Appellant: 

John L. Adams, Jr. argued, Billings, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas A. Budewitz, Assistant Attorney General, argued, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Charles A. Bradley, Deputy County Attorney, argued, 

Billings, Montana 

Submitted: January 17, 1975 

Decided : 2 5 1975 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal from a conviction of deviate sexual 

conduct, entered in the district court, Yellowstone County. 

Defendant raises five issues on appeal: 

(1) Is section 94-5-505, R.C.M. 1947, unconstitutionally 

vague, indefinite and uncertain? 

(2) Did the district court err by giving an incorrect 

instruction on the statutory elements of the offense? 

(3) Did the district court err in refusing an instruction on the necessity of viewing the complaining witness' testimony with caution? 

(4) Did the district court err in refusing defendant's 

proposed instruction on impeachment of witnesses? 

(5) Does the evidence support the verdict? 

The deviate sexual conduct allegedly occurred on the 

evening of February 15, 1974, in Billings, Montana. The prosecution and the defense each presented a different version of the 

events of that evening. 

The complaining witness (hereinafter referred to as the 

"victim"), a sixteen-year-old boy, testified he was walking home 

from a friend's house shortly after 10:OO p.m. on the day in 

question. He crossed the parking lot of a store and continued 

across a nearby field. He was then accosted by defendant, who 

drove up to him in a private automobile, accompanied by two young 

ladies. The conversation which ensued, outside the hearing of 

the women, was to the effect that defendant suspected the victim's 

involvement in burglaries of the store which the victim had just 

passed. Although the victim had never seen the defendant before, 

he entered the car with him, thinking he was a security guard for 

the store. 

One of the women drove the car back to the store parking 
1ot.where the two women got out and left in another vehicle. 

Defendant then drove to a remote part of the city and, after 

threatening to get mean if the victim did not cooperate, he 

performed acts of oral and anal intercourse on the victim. 

He then returETthe victim to a point near where he had picked 

him up and let him out of the car. The victim went to the 

nearest public phone amd called the police. Defendant was 

arrested the following afternoon, after the victim had identified 

him and the vehicle which he was driving the previous night. 

Defendant testified he worked as a stock boy in a store 

in Billings, and that he had been approached by the victim, who 

requested a ride home after the store closed. Defendant agreed 

and when he later saw the victim in the parking lot, he assumed 

that he still needed a ride. After some difficulty in locating 

him, he approached the victim and offered to drive him home. 

After dropping the women off at their car, he then took the 

victim directly to the location indicated by the victim, and let 

him out of the car. He denied that he ever made sexual advances 

toward the victim. 

The only other evidence presented was certain physical 

evidence tending to substantiate the victim's version of the 

events, and certain character evidence favoring defendant. The 

physical evidence included laboratory analysis of semen stains 

and hairs found on the victims clothing and clothing taken from 

defendant when he was arrested. The character evidence showed 

that the defendant had not molested other youngsters although 

he had opportunity to do so while baby-sitting young boys. Defendant did admit to having engaged in homosexual activities for 

over five years, but indicated he had discontinued this practice 

more than six months before this incident. 

Defendant was charged with violation of section 94-5-505, 
R.C.M. 1947, which provides, in pertinent part: 

l1 (1) 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. 

"(3) A person convicted of deviate sexual 

conduct without consent shall be imprisoned * *- *'I* 

Relying primarily on Harris v. State, (Alas. 1969), 457 P-2d 638

defendant urges the quoted statute is unconstitutionally vague 

and ambiguous. In Harris, the Alaska court was considering a 

statute which employed the term "crime against nature". That 

court held, citing Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 

618, 83 L.Ed. 888, that the term was so vague it failed to give 

fair warning of the acts prohibited and therefore it worked a 

deprivation of due process in violation of the Fourteenth Amendment to the United States Constitution. 

Defendant alleges the Montana statute does not sufficiently 

enunciate the prohibited conduct and, like the Alaska statute, it 

must therefore be held unconstitutional. We disagree. 

The attack on the constitutionality of the statute was 

raised for the first time in defendant's supplemental appellate 

brief. However, since this is a criminal case, we will not content ourselves with disposing of the challenge on that basis alone. 

See e.g. State v. Braden, 163 Mont. 124, 515 P.2d 692, 30 St.Rep. 

961. The allegation of vagueness is not supported by the statute 

itself when viewed in the context of Montana's criminal code. 

Section 94-2-101, R.C.M. 1947, defines the terms used in 

the statute proscribing deviate sexual conduct. The specificity 

of those definitions avoids a result similar to that reached in 

Harris, urged by defendant. In pertinent part, those definitions 

provide : 

" (14) 'Deviate sexual relations' means sexual 
contact or sexual intercourse between two (2) 

persons of the same sex, or any form of sexual 

intercourse with an animal. 

"(55) 'Sexual contact1 means 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. 

"(56) 'Sexual intercourse' means penetration of 

the vulva, anus or mouth of one person by the penis 

of another person, or penetration of the vulva or 

anus of one person by any body member of another 

person or penetration of the vulva, or anus of one 

person by any foreign instrument or object manipulated 

by another person for the purpose of arousing or 

gratifying the sexual desire of either party. Any 

penetration, however slight, is sufficient. 

"(68) 'Without consent' means: 

"(a) the victim is compelled to submit by force or 

by threat of imminent death, bodily injury, or 

kidnaping, to be inflicted on anyone * * *." 

The text of these definitions is set forth completely 

to show the specificity and absolute lack of vagueness in the 

statutory formulation of the offense of deviate sexual conduct. 

Defendant's second issue is also raised for the first 

time on appeal. He objects to the district court's instruction 

informing the jury of the elements of the offense. The challenged 

portion of Instruction No. 15 reads: 

"SECOND: That the Defendant did so [performed 

the act] without the consent of [the victim], 

said consent having been overcome by threats or 

putting in fear of his, [the victim's] safety." 

[Bracketed words supplied or substituted.] 

Defense raised no objection when this instruction was offered. 

This, in itself, is sufficient to defeat defendant's arguments 

on appeal. See: State v. Braden, 163 Mont. 124, 515 P.2d 692, 

30 St.Rep. 961; Section 95-1910(d), R.C.M. 1947; Rule 2, M.R.App. 

However, apart from this procedural deficiency we can 
find no prejudice resulting from ;he instruction. It is true 

that, in a vacuum, the instruction might be construed to include fear for safety other than in the sense of death, bodily 

injury or kidnapping. An instruction using the statutory 

language of section 94-2-101 (68), R.C.M. 1947, would have been 

preferable. 

However, under the facts of this case, we can find no 

other plausible construction for the language of the instruction. 

The threat made against the victim here clearly involved his 

physical well-being. If the jury had considered the meaning 

which defendant attaches-to the i.nstruction, it would have discarded it as unsupported by the evidence. Finding no prejudice, 

we find no reversible error. 

Defendant next argues that the jury should have been 

instructed that the testimony of a complaining witness in a sex 

offense case should be viewed with caution, since the charge is 

easily made and difficult to disprove. The instruction which 

defendant proposed in the district court is almost identical to 

the one quoted in State v. Boe, 143 Mont. 141, 148, 388 P.2d 372. 

Similar instructions were presented in State v. Stevens, 119 Mont. 

169, 172 P.2d 299; State v. Peterson, 102 Mont. 495, 59 P.2d 61; 

State v. Mihalovich, 69 Mont. 579, 222 P. 695; State v. Gaimos, 

53 Mont. 118, 162 P. 596; and State v. Keeler, 52 Mont. 205, 156 

P. 1080. These cases recognized that such instructions may be 

given but that, at least in these cases, it was not reversible 

error to refuse to do so. 

Given this authority in our own jurisdiction, we need 

not consider the California cases cited by defendant in support 

of his contention. Under the cases cited above, it is clear 

that refusal to give such an instruction will be error only when 

some specific cause is shown for distrusting the testimony of the 
complaining witness. Such causes might include manifest malice, 

desire for revenge, or an absence of corroborating evidence 

tending to support the facts testified to by the complaining 

witness. Apart from the bald assertion that defendant was framed, 

we find no facts in the instant record which suggest the necessity 

of such an instruction. Defendant's unsubstantiated allegation 

is insufficient to make the refusal of the instruction reversible 

error. 

Defendant's assertion that the district court erred in 

refusing to give his proposed instruction on the weight which 

should be accorded to testimony of impeached witnesses is equally 

unimpressive. The omnibus instruction which was given to the 

jury covered all the material points raised by defendant's proposed instruction. The district court alluded to that fact at 

the time it refused the offered instruction. Under such circumstances, we have previously recognized that the refusal of a 

similar instruction was not error, even though the language applied 

more directly to the factual situation presented by the case. 

State v. Black, 163 Mont. 302, 516 P.2d 1163, 30 St.Rep. 1106. 

That reasoning is equally applicable here, particularly when the 

scarcity of impeachment evidence is considered. 

Defendant's final argument is that the evidence does not 

support the verdict. Without further detailing the facts which 

were before the jury, we have reviewed the entire record and find 

ample, credible evidence upon which the verdict could be grounded. 

Accordingly, we affirm the conviction. 

Justice 

Justices ;I -7-