State v. Steffes

NO. 94-099
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA,
Plaintiff and Respondent,
-v-
THOMAS J. STEFFES,
Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
1:n and for the County of Yellowstone,
T:he Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
C:harles F. Moses, Moses Law Firm, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Patricia
Jordan, Assistant Attorney General, Helena, Montana;
Dennis Paxinos, Yellowstone County Attorney, Dale R.
Mrkich and Marsha Sept, Deputy Yellowstone County
Attorneys, Billings, Montana

Submitted on Briefs: September 15, 1994
Decided: December 21, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

Defendant/appellant Thomas J. Steffes (Steffesl was found
guilty of three counts of deviate sexual conduct following a jury

trial in the District Court for the Thirteenth Judicial District,

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

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

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

count, to be served concurrently. We affirm.

Steffes raises nine issues on appeal.

1. Whether the District Court erred in denying the
motion to dismiss based on insufficiency of the amended
information?

2. Whether the District Court erred in admitting other
acts evidence?

3. Whether the District Court erred in limiting the
expert testimony of a psychologist?

4. Whether the District Court erred in denying the
motion for acquittal on the ground of variance at the
close of the State's case?

5. Whether the District Court erred in excluding
evidence of the alleged prior sexual abuse of a victim?

6. Whether the District Court erred in refusing Steffes'
renewed request for production of evidence regarding the
alleged prior sexual abuse of the victim?

7. Whether the District Court erred in refusing a lesser
included offense instruction?

8 . Whether the District Court erred in instructing the
jury?

9. Whether the District Court erred in not suppressing
the search warrant?
Steffes was charged by an amended information with two counts

of deviate sexual conduct for knowingly causing J.W., who was
thirteen years old at the time of trial, to engage in deviate
sexual relations without his consent, and one count of deviate
sexual conduct for knowingly causing R.T., who was ten years old at
the time of tria:L, to engage in sexual conduct without his consent
in violation of § 45-5-505, MCA.
J.W. testified concerning the events which resulted in the
first two charges against Steffes. Regarding the first incident,
J.W. testified that he was spending the night with Steffes' son,
M.S., in September 1990. The two boys were lying awake in the T.V.
room when Steffes came in and asked J.W. to come upstairs. J.W.
complied and followed Steffes into his bedroom. Steffes then asked
J.W. if he knew what a "hard-on" was and asked J.W. to pull his
pants down. J:W. initially said no, but did so after Steffes
repeated his request. Steffes then asked J.W. to lay down on the
bed and began to stimulate J.W.'s penis. Steffes asked J.W. if it
felt good. J.W. asked Steffes if he could leave, and Steffes told
him not to tell anyone about the incident. Steffes then went into
the bathroom, and J.W. went back downstairs to the T.V. room.
J.W. testified that he did not tell M.S. or anyone else what
had happened at that time because he knew what had happened was
wrong, and that he was afraid to tell anyone what had happened
because he did not know what Steffes would do to him if he did.
With regard to Count II, J.W. testified that on Father‘s Day,
June 16, 1991, he went to the Steffes' home where J.W., M.S.,
Steffes and his daughter had a water balloon fight. After the
fight, Steffes watched while J.W. and M.S. dried off and changed

3
into dry clothes. The two boys then went to the basement to watch
a movie. Later in the afternoon, J.W. went to get his clothes off
the line, and he encountered Steffes in the hallway. Steffes asked
J.W. to come into his bedroom, J.W. replied that he was going to

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

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

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

Steffes then asked J.W. to come over to his dresser, where he
took a red condom out of one of the top drawers, and told J.W. what

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

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

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

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

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

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

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

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

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

that Steffes had "touched me in a way I didn't think dads did . .
. [and] I didn't like it." J.W.'s mother who had overheard the

conversation immediately called 911, and an officer came to the

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

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

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

involved in which resulted in the third charge against Steffes.

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

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

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

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

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

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

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

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

Steffes was videotaping them.
Detective Richardson conducted the investigation of J.W.'s

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

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

the condom and the bottle of Rush that J.W. had described in his
statement. Upon executing the search warrant, Detective Richardson

found five colored condoms and four bottles of Rush in the left-

hand side drawer of Steffes' dresser.

During the course of the investigation Detective Richardson

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

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

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

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

and told his parents about Steffes touching him and videotaping

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

During trial, the State introduced testimony from David

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

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

home to help Steffes' tear out insulation from his attic. Thorsby
worked for Steffes for about a week, but quit because Steffes'

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

caressed his buttocks and around his genital area. Thorsby
reported the incidents to the police and charges were filed against

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

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

during the time Thorsby alleged the incidents occurred.

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

Rather, Steffes' account of the events concerning Count I was that
on the night J.W. slept over, he had caught J.W. and his son naked

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

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

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

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

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

In testifying about Count II, Steffes stated that he found

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

tell his parents about him taking things. Steffes denied any

contact or touching.

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

videotaped R.T., and alleged that both his wife and M.S. would have
been in the room at the time of the alleged incident. Steffes'

wife and children testified on his behalf.

Additional facts will be presented as necessary for discussion

6
of the issues.

ISSUE 1
Whether the District Court erred in denying the motion to
dismiss based on insufficiency of the amended
information?

In his motion to dismiss, Steffes argues that the amended
information was insufficient because it failed to inform him of all

of the essential elements constituting the crime of deviate sexual

conduct. Specifically, Steffes contends that the amended

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

Montana follows the general rule that an information is

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

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

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

purpose of an information which is to "reasonably apprise the

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

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

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

information is sufficient, the court examines whether a person of

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

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

436.

At the time Steffes was charged, the applicable statute

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

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

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

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

7
concise language and in such a manner as to enable a person of
common understanding to know what is intended. Section 46-ll-

401(l) Cc), MCA (1989).

While Steffes agrees with these general rules, he argues that

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

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

essential elements that are required to be alleged and proven

beyond a reasonable doubt. Steffes maintains that touching for the

purpose of arousing or gratifying the sexual desire of either party
is an essential element of the crime of deviate sexual conduct.

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

this language, Steffes alleges the information was insufficient.

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

Deviate sexual conduct. A person who knowingly engages
in deviate sexual relations or who causes another to
engage in deviate sexual relations commits the offense of
deviate sexual conduct.

While the terms "deviate sexual relations" and "sexual

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

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

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

of another for the purpose of arousing or gratifying the sexual

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

sexual relations" means "sexual contact or sexual intercourse

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

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

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

749, 765, 82 S.Ct. 1038, 1047-48, 8 L.Ed.Zd 240, 251, to support
8
his argument that the words of a statute may not be sufficient in

a charging document if the words themselves do not "fully,
directly, and expressly, without any uncertainty or ambiguity, set

forth all the elements necessary to constitute the offense intended

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

refusing to answer certain questions after being summoned before a

congressional subcommittee. The defendants moved to quash the

indictments for failure to state the subject under investigation

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

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

brought before the United States Supreme Court on a writ of

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

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

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

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

uniformly held that an indictment must do more than simply repeat

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

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

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

convictions.

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

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

distinguished between cases where the offense charged depends upon

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

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

defendants in Hamlinq, were charged and convicted of mailing and

9
conspiring to mail obscene material. Hamlinq, 418 U.S. at 91, 94
S.Ct. at 2894-95, 41 L.Ed.2d at 605. Relying on the holding in
Russell, the defendants alleged that the statute they were charged

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

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

L.Ed.2d at 620.

The Court disagreed and held that the definition of obscenity

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

art it was sufficiently definite in legal meaning to give the

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

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

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

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

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

In the instant case the amended information cited the name of

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

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

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

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

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

its motion for leave to file the amended information which

contained sufficient facts to apprise Steffes of the charges

against him.

Therefore, we conclude that defendant's contention that the

information was insufficient because it did not specify that the

sexual contact was for the purpose of gratifying the sexual desire

10
of either party, is without merit. The information did not have to
allege this as both sexual contact and deviate sexual conduct are
legal terms of art which are defined elsewhere in the code. We
therefore hold that the District Court did not err in denying
Steffes' motion to dismiss based on insufficiency of the amended
information.
ISSUE 2
Whether the District Court erred in admitting other acts
evidence?
On May 27, 1992, the State filed its notice of intent to use
evidence of other crimes, wrongs or acts as required by State v.
Just (1979), 184 Mont. 262, 602 P.2d 957, and State v. Matt (1991),
249 Mont. 136, 814 P.2d 52. Subsequently on August 13, 1992,
Steffes filed a motion in limine seeking to limit the other acts
evidence. After determining that the proffered other acts evidence
met the requirements of JuSt and m, the modified Just rule, the
District Court denied Steffes' motion. On appeal, Steffes argues
that the District Court erred in denying his motion and admitting
the other acts evidence for two reasons.
First, Steffes contends that the State's JUST notice was
procedurally defective because it failed to specify the purposes
for which the evidence would be offered. Second, Steffes contends
that the District Court erred by failing to make any findings or
conduct a hearing to determine the admissibility of the evidence.
This Court reviews a district court's admission of other acts
evidence to determine whether the district court abused its
discretion. State v. Johnston (1994), 51 St.Rep. 1078, 1079, _
11
P.2d _, __.

Steffes maintains that Just notice was procedurally defective
because the State used the impermissible "shotgun" approach,

because the notice named several of the exceptions from Rule

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

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

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

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

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

failed to meet the procedural requirements of JUSt, because it did
not specifically state the relevant reason for admitting the other

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

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

acts evidence] is to be admitted." Croteau, 812 P.2d at 1255.
In the instant case the notice stated:

The foregoing [the other acts] evidence is relevant in
that it tends to establish plan, knowledge and absence of
mistake or accident concerning the commission of the
offenses currently charged . .

We conclude that this notice was sufficient to apprise Steffes of

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

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

stand for the proposition that the "shotgun" approach is

impermissible when identifying the purpose for which the other acts

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

more than one applicable purpose for the admission of other acts

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

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

12
Steffes of the purpose for which the other acts evidence was to be
introduced given that Steffes defended on the basis that his
conduct was not what the victims alleged it to be.
Steffes second argument is also without merit. A district
court need not issue findings or conduct a full evidentiary hearing
to determine the admissibility of other acts evidence. Rather, the
court must determine if the evidence meets both procedural
requirements and substantive requirements. State v. Little (1993),
260 Mont. 460, 473, 861 P.2d 154, 162. The procedural requirement
for the notice provides in part:
Evidence of other crimes, wrongs, or acts may not be
received unless there has been written notice to the
defendant that such evidence is to be introduced. The
notice to the defendant shall specify the other crimes,
wrongs, or acts to be admitted, and the specific rule
404(b) propose or purposes for which it is to be
admitted.
Johnston, 51 St.Rep. 1078, 1079, P.2d __, _. The modified
jolt rule sets forth the substantive requirements of the admission
of other acts evidence. Little, 861 P.2d at 163. Here, the State
provided Steffes with written notice of its intent to use other
acts evidence, and the District Court determined that proffered
evidence met the requirements of the modified Just rule. In
addition, the State filed the documents regarding the prior charges
under seal, thereby apprising the District Court of the proffered
testimony. Therefore, we conclude that Steffes' second argument is
without merit, and hold that the District Court did not abuse its
discretion in admitting the other acts evidence.

13
 ISSUE 3

Whether the District Court erred in limiting the expert
testimony of a psychologist?

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

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

and validity of the statements the victims gave to the police

officers investigating the case. The State filed a motion in

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

of which is pertinent here. The State argued that the purpose of
Whaley-Olson's testimony was to show that the victims' statements

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

State maintained that this opinion testimony is inadmissible

because it invades the province of the jury to decide for

themselves the credibility of the child witnesses.

The court allowed Whaley-Olson to testify to the general

procedures used to conduct interviews of alleged child sexual abuse

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

to the validity or reliability of the interviews conducted in this

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

that Whaley-Olson did not possess the necessary qualifications

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

1293, that an expert must possess before testifying about the

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

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

The determination of whether a witness is an expert is within

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

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

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

The threshold test to determine whether an expert witness may

testify directly about the credibility of a child sexual abuse

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

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

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

Upon meeting the threshold test, the court must then determine

whether the expert is properly qualified. The court must determine

whether the expert has: (I) extensive first hand experience with

sexually abused and non-sexually abused children; (2) thorough and
up to date knowledge of the professional literature on child sexual

abuse; and (3) objectivity and neutrality about individual cases as

are required of other experts. Scheffelman, 820 P.2d at 1298.

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

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

first hand experience working with sexually abused children, as is

evidenced by the following testimony.

Q: [By State's counsel] . . Have you interviewed
sexually abused children?

A: [Whaley-Olson1 Not a lot.

.

Q: [By the Court] Could you give me your--first your
extensive, firsthand experience with sexually abused
ch i l d r e n ;

A: [Whaley-Olson1 Well, I'm not a child psychologist.
I don't specialize in child abuse cases. It's not my
area of specialty. In the course of training to become
a psychologist, I have interviewed a number of children.
I have taught how to interview children. I still
supervise some counselors in California. Most of those
were not sexual abuse.
15
 The instant case is similar to the facts of Scheffelman, where
we found that an expert was not qualified to give her opinion
concerning the child sexual abuse victim's credibility because she
had no experience dealing with non-sexually abused children.
Likewise, here, we conclude that without extensive first hand
experience dealing with sexually abused children, an expert is not
qualified to testify concerning the credibility of a child sexual
abuse victim. Therefore, we hold that the District Court did not
abuse its discretion in limiting Whaley-Olson's testimony because
she did not meet the requirements of Scheffelman.
ISSUE 4
Whether the District Court erred in denying the motion
for acquittal on the ground of variance at the close of
the State's case?
Steffes moved for a judgment of acquittal at the end of the
State's case, on the ground that a variance occurred on Counts I
and III. Steffes argues that the District Court erred in denying
his motion because no testimony was presented for Counts I and III
showing that he caused another to engage in deviate sexual
relations. Rather, the evidence indicated that the victims were
passive participants in both Counts I and III, and therefore, the
State should have charged him with engaging in deviate sexual
relations.
It is well established that allegations and proof must
correspond for a defendant to be properly convicted. State v.
Holmes (1984), 212 Mont. 526, 533, 687 P.2d 662, 666. The purpose
of this rule is to protect the defendant from being misled at trial

16
and prosecuted twice for the same crime. Holmes, 687 P.2d at 666,
citing, State v. Rindal (1965), 146 Mont. 64, 404 P.2d 327. If

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

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

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

Here, the State filed an affidavit outlining the events

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

alleged Steffes touched the victims' penises, rather than causing

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

adequate notice of the crimes he must defend against. Knowing

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

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

acts. Accordingly, we conclude that no substantial rights of

Steffes were prejudiced by the language contained in the
information. The decision whether to direct a verdict of acquittal

lies within the sound discretion of the trial court and will not be
disturbed absent an abuse of that discretion. State v. Bromgard

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

District Court did not abuse its discretion in denying Steffes'

motion for judgment of acquittal.
ISSUE 5

Whether the District Court erred in excluding evidence of
the alleged prior sexual abuse of a victim?

During trial preparation, Steffes filed a request for

supplemental discovery regarding one of the victims, claiming he

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

in counseling. The defense requested counseling notes and
17
information about the incident. Subsequently, the State filed a
motion in limine to exclude any evidence regarding any alleged
prior sexual conduct of the victims. The District Court denied the
defendant's discovery request, and granted the State's motion in
limine citing 5 45-5-511(2), MCA, the rape shield statute. On

appeal, Steffes argues that the rape shield statute violates his
Sixth Amendment right to confront witnesses against him.
Section 455-511(2), MCA, provides:
No evidence concerning the sexual conduct of the victim
is admissible in prosecutions under this part except
evidence of the victim's past sexual conduct with the
offender or evidence of specific instances of the
victim's sexual activity to show the origin of semen,
pregnancy, or disease which is at issue in the
prosecution.
The purpose of § 45-5-511(2), MCA, is to prevent the trial
from becoming a trial of the victim, State v. Van Pelt (1991), 247
Mont. 99, 103, 805 P.2d 549, 552; Compiler's Comments for Section
45-5-511, MCA, Annotations. We have determined that inadmissible
evidence concerning sexual conduct of the victim includes prior
sexual abuse. State v. Rhyne (19921, 253 Mont. 513, 519, 833 P.2d
1112, 1116. We also recognize that the defendant has a
constitutional right to confront witnesses against him. U.S.
Const. amend. VI; Mont. Const. Art. II, Sec. 24. In balancing the
rights of victims and the rights of the defendant, we have stated:
The Sixth Amendment is not absolute, and “may bow to
accommodate other legitimate interests in the criminal
trial process." The rape shield statute has been upheld
as a legitimate interest justifying curtailment of the
constitutional right to confront witnesses. [Citations
omitted.]
State v. Howell (1992), 254 Mont. 438, 445-46, 839 P.2d 87, 91.
18
 This Court has addressed the issue of whether the rape shield
statute violates a defendant's constitutional right to confront
witnesses on several occasions. State v. Anderson (1984), 211
Mont. 272, 686 P.2d 193; Van Pelt, 805 P.2d 549; Rhvne, 833 P.2d
1112. In those cases we have determined that a defendant's
constitutional right to confront witnesses is not violated by the
exclusion of evidence of the victim's prior sexual abuse unless the
victim's accusations or allegations of prior sexual abuse have been
proven to be false. Anderson, 686 P.2d at 200, Van Pelt, 805 P.2d
at 552-53, Rhvne, 833 P.2d at 1116.
Therefore, while it is permissible for a defendant to examine
a complaining witness in a sex offense case where there are prior
accusations which have been proven to be false, there is no claim
that the alleged victim in this case has made prior false sexual
abuse allegations.
We review a district court's conclusion of law to determine
whether the district court's interpretation of the law was correct.
State v. Sullivan (1994), 51 St.Rep. 827, 829, 880 P.2d 829, 832.
We hold that the District Court was correct in deciding that the
rape shield statute did not violate Steffes' right to
confrontation.
ISSUE 6
Whether the District Court erred in refusing Steffes'
renewed request for production of evidence regarding the
alleged prior sexual abuse of the victim?
On May 4, 1994, Steffes moved the court to reconsider its
ruling that the prior sexual abuse of one of the victims could not

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

conduct of the victim is relevant to rebut the testimony that the
victim acquired his knowledge of sexual matters at school. Steffes

also contends that the testimony is relevant to rebut the victim's
mother's testimony that when the victim told her about the
incidents she related that she had never seen her son so upset.

The District Court denied the renewed motion, ruling that any

evidence of prior sexual conduct was inadmissible pursuant to the

rape shield statute.

The distric.t court has broad discretion to determine whether

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

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

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

P.2d 378, 380.
We have previously rejected the argument that a defendant may

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

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

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

gained her knowledge of sexual matters outside of her contact with

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

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

credibility is impermissible under the rape shield statute. Van

Pelt
-t 805 P.2d at 552.

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

acquired some knowledge of sexual matters at school. In so

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

20
concerning sexual matters was gained through his contact with

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

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

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

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

Therefore, we find no merit to this argument and hold that the
District Court did not abuse its discretion in ruling that the

evidence of prior sexual abuse was inadmissible.

ISSUE 7

Whether the District Court erred in refusing a lesser
included offense instruction?

Steffes offered two proposed instructions that the charge of

deviate sexual conduct included the lesser offense of endangering

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

claims the court erred by refusing the endangering the welfare of

children instructions he offered.

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

lesser included offense instruction. That section provides:

A lesser included offense instruction must be given when
there is a proper request by one of the parties and the
jury, based on the evidence, could be warranted in
finding the defendant guilty of a lesser included
offense.

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

offense actually must constitute a lesser included offense. State

v. Fisch (1994), 51 St.Rep. 907, 881 P.2d 626.
This court applies the test from Blockburger v. United States

(19321, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, to determine
whether one crime is a lesser included offense of another.
[Wlhere the same act or transaction constitutes a
violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses
or only one is whether each provision requires proof of
an additional fact which the other does not. . .
State v. Madera (1983), 206 Mont. 140, 151, 670 P.2d 552, 557-58.
This Court looks to the statutory elements of the respective crimes
to determine if each offense requires proof of a fact which the
other does not to determine if there is indeed a lesser included
offense. Madera, 670 P.2d at 558.
The elements at issue for the offense of deviate sexual
conduct are: (1) knowingly; (2) causing another to engage in
deviate sexual relations. Section 45-5-505, MCA. As noted earlier
in this opinion, the term "deviate sexual relations" is defined as
"sexual contact or sexual intercourse between two persons of the
same sex. " Section 45-2-101(20), MCA.
The applicable elements of the crime of endangering the
welfare of children are: (I) A person who is 18 years of age or
older; (2) commits the offense of endangering the welfare of
children if he; (3) knowingly; (4) contributes to the delinquency
of a child less than 16 years old by assisting, promoting, or
encouraging the child to; (5) engage in sexual conduct. Section
45-5-622(2) (b) (ii), MCA.
As is evidenced from the plain language of the applicable
statutes, the offense of deviate sexual conduct requires proof that
the persons were of the same sex. The offense of endangering the

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

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

of additional facts which the other does not. Therefore, we
conclude that the crime of endangering the welfare of a child is

not a lesser included offense of deviate sexual conduct.
Accordingly we hold that the District Court did not err by refusing

Steffes' proposed instructions.

ISSUE 8

Whether the :District Court erred in instructing the jury?

Steffes alleges the District Court erred by giving five of the
State's proposed instructions and by refusing to give eight

instructions which he offered. We review each of Steffes'

allegations of error in turn.

Steffes argues the court erred in giving the following five

instructions:

(1) Instruction No. 6.

Steffes argues the instruction regarding the definition of

knowingly was incomplete and misled the jury. However, Steffes

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

argument as to how the instruction was incomplete or misled the

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

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

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

(2) Instructions 9. 10, and 11.
Steffes complains that the jury was not properly instructed on

whether the sexual contact was for the purpose of gratifying the

sexual desires of either party. Steffes contends that whether the

23
sexual contact was done for the purpose of sexual gratification is
an essential element of the crime, and the jury was not properly
instructed regarding the sexual gratification element.
However, the instructions noted that the State must prove that
Steffes caused the victims to engage in an act of deviate sexual
relations I' as defined in these instruction. .!I [sic]
Instructions 14 and 15 respectively defined the terms "deviate
sexual relations" and "sexual contact." We therefore conclude the
jury was properly instructed as to the elements of the crime.
(3) Instruction 17.
Steffes objected to this instruction because it stated that a
defendant's purpose to gratify his sexual desire can be inferred
from his conduct. However, according to Montana law, a defendant's
intent to gratify his sexual desire mav be inferred from his
conduct. State V. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147,
150; State V. Gilpen (1988), 232 Mont. 56, 69, 756 P.2d 445, 452.
Therefore, we conclude the instruction was a correct statement of
the law.
Steffes argues the court erred by failing to give the
following instructions:
(a) Steffes' Provosed Instruction 6.
The court was correct in refusing this instruction concerning
the testimony of the defendant because the instruction contained
language regarding the defendant's failure to testify and Steffes
testified at trial. Furthermore, the law concerning witness
testimony was adequately covered in instruction 2.

24
 (b) steffes' Proposed Instruction 8.
Steffes' proposed instruction stated that the defendant could

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

adequately covered in instructions 1 and 8.

(c) Steffes' Proposed Instruction 19.
The District Court was correct in refusing this instruction

concerning expert opinion testimony, as it had previously correctly

ruled that Steffes' expert could not give her opinion.

(d) Steffes' Pronosed Instruction 24.

This instruction essentially recites the statutory definition

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

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

was correct in concluding that the definition of purposely was

irrelevant.
(e) Steffes' Prouosed Amended Instruction 26.

Steffes offered this instruction as the definition of the

presumption of innocence. He maintains that the court's

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

innocence, and claims his own instruction should have been given

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

informed the jury of Steffes' presumption of innocence.

(f) Steffes' Prouosed Instructions 28 and 29.

Steffes' proposed instructions concerned the definition of

reasonable doubt. However, this Court has specifically approved

the instruction which was given as an appropriate definition of

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

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

instructed as regards the definition of reasonable doubt.
(g) Steffes' Prooosed Instruction 35.

This instruction read as follows:

You are instructed that if the testimony in this case, in
its weight and effect, be such that two conclusions can
be reasonably drawn from it, one favoring the defendant's
innocence, and the other tending to establish his guilt,
the jury should adopt the conclusion of innocence.

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

substantially or entirely on circumstantial evidence, State v.

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

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

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

1n reviewing whether a district court erred in instructing a

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

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

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

737. Furthermore, while the general rule is that the defendant is
entitled to have instructions on his theory of the case, I' [tlhe

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

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

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

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

instructions accurately reflected the applicable law. We also

conclude that the court properly rejected Steffes' proposed

instructions, for the reasons indicated. Accordingly we hold that

the District Court properly instructed the jury.

26
 ISSUE 9
Whether the District Court erred in not suppressing the
search warrant?

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

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

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

Upon executing the search warrant police officers found and seized

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

of Steffes' dresser.

On November 7, 1991, Steffes filed a motion to suppress the
search warrant on three grounds, two of which he raises on appeal:

(1) there was no probable cause to issue the search warrant, and
(2) there was procedural error in the issuance and service of the

warrant and that law enforcement was without authority to execute

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

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

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

of his motion to suppress in his motion for a new trial, which the
District Court denied on August 5, 1993. Steffes appeals from that

order.

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

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

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

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

307, 321.

Steffes first argues that the search warrant was issued

without probable cause because law enforcement did not corroborate
27
or confirm J.W.'s testimony. HOWeVer, while corroboration may be
necessary in cases where police receive their information through

an informant; a victim is not equivalent to an informant, and
therefore those principles do not apply. In State v. Kelly (1983),
205 Mont. 417, 435-36, 668 P.2d 1032, 1042, we noted the difference

between an informant and a victim of crime:

[Aln 'informer,' in the narrow sense of that word,
is by no means presumed to be a credible person. This
means that it is generally necessary, as a prerequisite
to establishing probable cause on the basis of what the
informer has told the police, to establish that he is
reliable (e.g., by showing that he has proved to be
reliable on past occasions) or that his information is
reliable (e.g., by showing that he has made an admission
against his penal interest in the course of giving the
information). By contrast, the average citizen who is
thrust into the position of being a victim of or a
witness to criminal conduct and who thereafter reports
what he saw and heard to the police is generally presumed
to be reliable, and thus no special showing of such
reliability in the particular case is necessary.

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

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

reviewing court is to ensure the magistrate had a 'substantial

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

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

Here, the magistrate issued the search warrant upon application

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

the information contained in the application demonstrated probable

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

District Court did not abuse its discretion in denying Steffes'

motion for a new trial on that basis.

Steffes also attacks the search warrant's validity on the

28
ground that the search warrant was dated June 19, 1991, but was
executed on June 18, 1991. In response to Steffes' argument, the
State called Justice of the Peace Pedro Hernandez to testify

concerning the discrepancy between the dates. Justice Hernandez

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

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

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

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

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

Justice Hernandez' testimony, the District Court determined the

discrepancy between the dates was merely technical, and did not

affect the substantial rights of the defendant. We agree.

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

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

When search and seizure not illegal. No search and
seizure, whether with or without a warrant, shall be held
to be illegal as to a defendant if:
.
(3) any irregularities in the proceedings do not
affect the substantial rights of the accused.

Steffes has neither alleged nor shown that he suffered any

prejudice as a result of the typographical error on the search

warrant, nor does anything in the record indicate any possibility

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

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

Furthermore, we conclude that the State adequately explained any

discrepancy between the date typed on the search warrant and the

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

did not abuse its discretion in denying Steffes' motion for a new
29
trial on the basis that the search warrant was invalid.
In conclusion, after carefully considering all the issues
raised by Steffes, we hold that the District Court did not commit
reversible error on any of the issues raised on appeal.
Accordingly, his conviction is AFFIRMED.

We Concur:

Chief Justice

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