### No. 12821 INTHE 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

## 51975Mr. JusticeFrank I. Haswell delivered the Opinion of the Court.
This 

### isan appeal from a conviction of deviate sexual conduct, entered inthe districtcourt, Yellowstone County. Defendant raises fiveissues on appeal: (1) Is section 94-5-505, R.C.M. 1947, unconstitutionally vague, indefinite and uncertain? (2) Did the districtcourt errby giving an incorrect instruction on the statutory elements of the offense? (3) Did the districtcourt err inrefusing an instruction on the necessity of viewing the complaining witness' testimony with caution? (4) Did the districtcourt 

### err inrefusing 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, inBillings, Montana. The prosecution and the defense each presented a differentversion of the events of that evening. The complaining witness (hereinafter referred toasthe "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 theparking lotof a storeand continued
across a nearby field. He was then accosted by defendant, who drove up tohim ina private automobile, accompanied by two young ladies. The conversation which ensued, outside the hearing of thewomen, was to the effect that defendant suspected the victim's involvement inburglaries of the store which thevictim had just passed. Although the victim had never seen thedefendant before, he entered the car with him, thinking he was a security guard for the store. One of the women drove the car back tothe store parking1ot.wherethe two women got out and left inanother vehicle. Defendant then drove toa remote part of the cityand, after threatening togetmean if thevictimdid not cooperate, he performed actsof oraland anal intercourse on the victim. Hethen returETthe victim toa point near where he had picked him up and lethim out of the car. The victim went tothe nearest public phone amd called the police. Defendant 

### was arrested the following afternoon, after thevictim had identified him and the vehicle which he was driving the previous night. Defendant testified he worked as a stock boy in a store inBillings, and that he had been approached by the victim, who requested a ride home after the storeclosed. Defendant agreed and when he later saw the victim inthe parking lot, he assumed that he still needed a ride. After some difficulty inlocating him, he approached the victim and offered todrive him home. After dropping the women off attheir car, he then took the victim directlytothe location indicated by thevictim, and let him out of the car. He denied that he ever made sexual advances toward thevictim. The only other evidence presented was certain physical evidence tending tosubstantiatethe 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 todo sowhile baby-sitting young boys. Defendant did admit to having engaged inhomosexual activities for
over fiveyears, but indicated he had discontinued thispractice
more than sixmonths before this incident. Defendant was charged with violation of section 94-5-505,R.C.M. 1947, which provides, inpertinent part:

l1(1) A person who knowingly engages in deviate sexual relations, orwho causes another toengage indeviate sexual relations commits the offense of deviate sexual conduct.
"(3) A person convicted of deviate sexual conduct without consent shallbe imprisoned 

## * *- *'I* Relying primarily on Harris 

### v. State, (Alas. 1969), 457 P-2d 6381 defendant urges the quoted statuteisunconstitutionally vague and ambiguous. In Harris, the Alaska court was considering a statutewhich 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 

### termwas so vague it failed togive fairwarning of the actsprohibited and therefore it worked a deprivation of due process inviolation of the Fourteenth Amendment tothe United States Constitution. Defendant alleges the Montana statutedoes not sufficiently enunciate the prohibited conduct and, like the Alaska statute, it must therefore be held unconstitutional. Wedisagree. The attack on the constitutionality of the statutewas raised for the firsttime indefendant's supplemental appellate brief. However, since this 

### isa criminal case, 

### we willnot content ourselves with disposing of the challenge on that basis alone. See e.g. State

### v. Braden, 163Mont. 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 statuteproscribing deviate sexual conduct. The specificity of those definitions avoids a result similar tothatreached in Harris, urged by defendant. In pertinent part, those definitions provide:

## "(14) 'Deviate sexual relations' means sexualcontact or sexual intercourse between two (2) persons of the same sex, or any form of sexual intercourse with an animal.
"(55) 'Sexual contact1means 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 thevulva, anus ormouth 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 orpenetration of the vulva, oranus of one person by any foreign instrument or objectmanipulated by another person for the purpose of arousing or gratifying the sexual desireof either party. Any penetration, however slight, is sufficient.
"(68) 'Without consent' means: "(a) the victim is compelled tosubmit by force or by threat of imminent death, bodily injury, or kidnaping, to be inflicted on anyone 

## * * 

## *." The text of these definitions 

### is set forthcompletely to show the specificity and absolute lack of vagueness inthe statutory formulation of the offense of deviate sexual conduct. Defendant's second issue is alsoraised for the first 

### timeon appeal. He objects tothe district court's instruction informing thejury 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, initself, is sufficient todefeat defendant's arguments
on appeal. See: Statev. Braden, 163Mont. 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 canfind no prejudice resulting from ;he instruction. It 

### istrue that, ina vacuum, the instructionmight be construed to include fear for safetyother than inthe sense of death, bodily injuryor kidnapping. An instructionusing the statutory language of section 94-2-101 (68), R.C.M. 1947, would have been preferable. However, under the facts of thiscase, we can find no other plausible construction for the language of the instruction. The threatmade against thevictim here clearly involved his physical well-being. If thejury had considered themeaning which defendant attaches-tothe 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 ina sex offense 

### case should be viewed with caution, since the charge is easilymade and difficult todisprove. The instruction which defendant proposed inthe districtcourt is almost identical to the one quoted in State v. Boe, 143Mont. 141, 148, 388 P.2d 372. Similar instructions were presented in Statev. Stevens, 119 Mont. 169, 172 P.2d 299; Statev. Peterson, 102 Mont. 495, 59 P.2d 61; Statev. 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 instructionsmay be given but that, at least inthese cases, it 

### was not reversible
error torefuse todo so. Given this authority inour 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 togive such an instruction

### willbe error only when
some specific cause 

### is shown fordistrusting the testimony of the

### complaining witness. Such causesmight includemanifest 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 insufficientto 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. Statev. 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-