author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, -v-THOMAS HASKINS, Defendant and Appellant.
    No. 93-408.
    Submitted on Briefs September 1, 1994.
    Decided December 21, 1994.
    51 St.Rep. 1474.
    269 Mont. 202.
    887 P.2d 1189.

      For Appellant: William F. Hooks, State Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Larry J. Nistler, Lake County Attorney, Poison.
   JUSTICE NELSON

delivered the Opinion of the Court

Appellant Thomas Haskins (Haskins) appeals from his November 27, 1989 conviction by a Twentieth Judicial District Court, Lake County jury of four counts of criminal sale of dangerous drugs. We affirm.

BACKGROUND

The factual background and a portion of the procedural background of this case is set forth in State v. Haskins (1992), 255 Mont. 202, 841 P.2d 542, (Haskins I) and will not be repeated in any detail here except as necessary to address the issues raised. Suffice it to say that Haskins is a non-Indian; that the State criminal offenses of which he was convicted were committed entirely within the exterior boundaries of the Flathead Indian Reservation in Lake County, Montana; that he was arrested for those offenses by law enforcement authorities of the State of Montana; that he was prosecuted and sentenced for those offenses by the State of Montana in district court in Lake County; that the evidence utilized by the State in Haskins’ conviction was obtained as a result of an undercover investigation and controlled drug buys conducted by police officers employed by the Confederated Salish and Kootenai Tribes for the Flathead Tribal Police Department, the evidence being then turned over to the State authorities by those officers; and that two of the State’s witnesses were Indian tribal police officers.

Haskins’ raised thirteen issues in his first appeal. We determined that only eight of those issues had been properly preserved for appeal, and as to those issues, we affirmed. Haskins I, 841 P.2d 545, 548. On August 18,1993, Haskins filed a petition for postconviction relief in this Court alleging ineffective assistance of counsel, based on his counsel's failure to preserve the five defaulted issues for appeal. In January 1994, we issued an order permitting Haskins to go forward with the appeal on those five issues and authorized the filing of supplemental briefs. Subsequently, we also granted leave to the Confederated Salish and Kootenai Tribes to appear amicus curiae. The five remaining issues which we consider on this appeal are:

1. Whether the District Court abused its discretion in not allowing Haskins to call Martin Cramer as an expert witness?
2. Whether undercover officer Robert Nelson was competent to testify?
3. Whether Haskins’ conviction should be reversed because it was based solely upon the testimony of an undercover officer who was accountable for the same conduct for which Haskins was convicted?
4. Whether the Confederated Salish and Kootenai Tribes exceeded its jurisdiction in the investigation of Haskins by using undercover officer Nelson?
5. Whether cumulative error warrants a new trial?

DISCUSSION

1. Whether the District Court abused its discretion in not allowing Haskins to call Martin Cramer as an expert witness?

On the opening day of trial, the prosecution filed a motion in limine to prohibit Haskins from calling Martin Cramer (Cramer) as an expert witness. Cramer, a private investigator, had, pursuant to a court order, investigated undercover officer Nelson in another case. Following argument, the District Court granted the State’s motion in limine in part and precluded Haskins from calling Cramer to offer expert opinion testimony on whether Nelson’s conduct deviated from what Cramer considered to be proper training or instructions for an undercover drug operation. Haskins was, however, allowed to call Cramer to testify about his (Cramer’s) own background and training as to proper procedure. The defendant did not call Cramer as a witness and did not raise the District Court’s order in his motions for new trial.

The State’s motion in limine was premised on its allegation that the prosecutor had first received notice of Haskins’ intent to call Cramer on the day of trial and on its contention that the defendant had not complied with the court’s pretrial order granting the State’s discovery motion under § 46-15-323, MCA.

Under § 46-15-323(4)(b), MCA (1987), the defendant was required to provide the prosecution written notice of certain defenses within 30 days after arraignment and, simultaneously, to make available to the State the names and addresses of experts whom he intended to call at trial together with, among other things, copies of reports and statements generated by those experts in connection with the case. The prosecutor argued that the late notice of Haskins’ intention to call Cramer and the failure to provide any written report or resume from Cramer, precluded the State from effectively meeting the proposed expert testimony.

The District Court apparently agreed with the State and, in prohibiting Cramer from offering opinion evidence as an expert, it imposed one of the sanctions authorized under § 46-15-329(4), MCA (1989), that is, “precluding a party from calling a witness, offering evidence, or raising a defense not disclosed.”

We hold that the District Court did not err in granting the State’s motion in limine in part. In the first place, it is well established that whether a witness is an expert and whether his or her testimony is admissible is largely within the discretion of the trial court and that we will not overturn the trial court’s decision on such matters absent an abuse of discretion. State v. Baker (1991), 249 Mont. 156, 160, 815 P.2d 587, 589. Moreover, in State v. Clark (1984), 209 Mont. 473, 682 P.2d 1339, we determined that, under Rule 702, M.R.Evid., a private investigator could not testify as an expert as to the results of his investigation as such testimony would not involve “scientific, technical or other specialized knowledge.” Clark, 209 Mont. 473, 682 P.2d at 1345. Accordingly, the District Court was well within its discretion to preclude Cramer from offering expert opinion testimony on the results of his investigation of officer Nelson.

Secondly, we conclude that the court properly sanctioned Has-kins for failing to comply with the discovery order and the disclosure requirements of § 46-15-323(4)(b), MCA (1987). In State v. Waters (1987), 228 Mont. 490, 743 P.2d 617, we observed that, consistent with the discovery goals of enhancing the search for truth, § 46-15-329, MCA, endows a district court with the discretion and flexibility to impose sanctions commensurate with the failure to comply with discovery orders and that, absent a clear abuse of discretion, we will not interfere with the trial court’s decision. Waters, 743 P.2d at 621. See, also, State v. Van Voast (1991), 247 Mont. 194, 202, 805 P.2d 1380, 1385; and State v. Kaczmarek (1990), 243 Mont. 456, 462, 795 P.2d 439, 443.

Under the circumstances, where Haskins failed to comply with the disclosure requirements of the court’s discovery order and § 46-15-323(4)(b), MCA (1987), and where the offered expert opinion testimony was not within the requirements of Rule 702, M.R.Evid., we hold that the District Court did not abuse its discretion in granting the State’s motion in limine in part, and in sanctioning Haskins by prohibiting Cramer from offering expert opinion testimony on the results of his investigation of undercover officer Nelson.

2. Whether undercover officer Nelson was competent to testify?

Haskins contends that undercover officer Nelson was not competent to testify as a witness and that the trial court should have so ruled as a matter of law. According to Haskins, “Nelson’s inability to tell the truth even though he was under oath is clear evidence of his inability to understand the duty of a witness to tell the truth.” In support of his position Haskins cites changes in Nelson’s testimony, the witness’ apparent disregard of the law, Rule 601, M.R.Evid., and State v. Phelps (1985), 215 Mont. 217, 696 P.2d 447. We conclude that Haskins’ arguments are without merit.

Rule 601, M.R.Evid., provides that every person is competent to be a witness unless disqualified on the basis of a judicial finding that the witness is incapable of expression concerning the matter so as to be understood by the judge and jury or incapable of understanding the duty of a witness to tell the truth. The record fails to disclose any judicial finding that Nelson was disqualified under either requirement. Haskins cites no authority that would require the trial court to disqualify the witness, sua sponte, after the witness has testified, simply because of inconsistencies in the witness’ testimony. Indeed, were that the rule, the testimony of very few witnesses would survive disqualification.

Nor does State v. Phelps, support Haskins’ position. In that case we affirmed the district court’s finding that a five year old witness was competent to testify, noting that competence of the witness is unaffected by inconsistencies in perception but rather is determined by capacity of expression and appreciation of the duty to tell the truth. Phelps, 696 P.2d at 453. Moreover, it is axiomatic that inconsistencies in a witness’ testimony go to the matter of credibility, not competence to testify. State v. Newman (1990), 242 Mont. 315, 321, 790 P.2d 971, 974.

Finally, Nelson’s appreciation of his duty to tell the truth is not necessarily diminished by prior violations of the law. See, Commission Comments to Rule 609, M.R.Evid., “[t]he Commission does not accept as valid the theory that a person’s willingness to break the law can automatically be translated into willingness to give false testimony.”

Accordingly, we hold that Haskins has not demonstrated reversible error in his claim that undercover officer Nelson was incompetent to testify as a witness.

3. Whether Haskins’ conviction should be reversed because it was based solely upon the testimony of an undercover officer who was accountable for the same conduct for which Haskins was convicted?

Haskins contends that undercover officer Nelson, as the purchaser of dangerous drugs during the controlled buys, was legally accountable for the defendant’s conduct as an accomplice and that, accordingly, Nelson’s testimony was required to be corroborated by other evidence tending to connect the defendant with the commission of the offenses. Haskins cites §§ 45-2-301, 45-2-302 and 46-16-213, MCA.

Aside from the fact that Haskins did not raise this issue before the trial court — that failure being fatal, without more, to his raising this issue for the first time on appeal, (§§ 46-20-104 and 46-20-701, MCA) — our prior case law does not support his position, in any event. In State v. Godsey (1982), 202 Mont. 100, 108, 656 P.2d 811, 815, we rejected the argument that a person who was offered marijuana by the accused and who subsequently testified under a grant immunity from prosecution was rendered an accomplice and was legally accountable for defendant’s possession of marijuana. Likewise, we reject Haskins’ claim of error on this issue, and we hold that undercover officer Nelson was not legally accountable for defendant’s sales of dangerous drugs.

4. Whether the Confederated Salish and Kootenai Tribes exceeded its jurisdiction in the investigation of Haskins by using undercover officer Nelson?

Haskins contends that the Indian tribal police officers who, as a result of their extended investigation, gathered the evidence ultimately used in his conviction exceeded their authority. Haskins maintains that where the Indian tribe lacks criminal jurisdiction to prosecute a person for a criminal offense committed within the exterior boundaries of the reservation, the tribal police officers only have the power to detain and to promptly eject the offender and do not have the power to undertake a lengthy criminal investigation. We disagree.

As the United States Supreme Court pointed out in Duro v. Reina (1990), 495 U.S. 676, 680-81 n.1, 110 S.Ct. 2053, 2057, n.1, 109 L.Ed.2d 693, 700-01, jurisdiction in “Indian country” is controlled “by a complex patchwork of federal, state and tribal law.” However, there is little question that, under the law as it presently stands, Indian tribes do not have criminal jurisdiction to prosecute non-Indians for crimes committed in Indian country. Oliphant v. Suquamish Indian Tribe (1978), 435 U.S. 191, 195, 98 S.Ct. 1011, 1014, 55 L.Ed.2d 209.

Moreover, with respect to crimes committed by non-Indians in Indian country, it is also clear that the prosecution of such offenses must be accomplished either by the federal government, (see 18 U.S.C. §§ 1152, 1153) or by the state. A state’s ability to prosecute crimes committed by non-Indians in Indian country is limited, however. Basically, the State of Montana may not prosecute a criminal offense committed by a non-Indian in Indian country where the victim of the offense is an Indian or where Indian property is the subject of the offense. However, the State may prosecute a criminal offense committed by a non-Indian in Indian country where the victim of the offense is a non-Indian or where the offense involves a ‘Victimless” crime. See, State v. Greenwalt (1983), 204 Mont. 196, 663 P.2d 1178; Solem v. Bartlett (1984), 465 U.S. 463, 465, n.2, 104 S.Ct. 1161, 1163, n.2, 79 L.Ed.2d 443; State v. Thomas (1988), 233 Mont. 451, 760 P.2d 96; State v. Schaefer (1989), 239 Mont. 437, 781 P.2d 264; State ex rel. Poll v. Mont. 9th Jud. Dist. (1993), 257 Mont. 512, 851 P.2d 405; and LaPier v. McCormick (9th Cir. 1993), 986 F.2d 303.

Furthermore, the State may assume criminal jurisdiction over crimes committed in Indian country with the consent of the affected tribe under Public Law No. 83-280, Act of August 15, 1953, 67 Stat. 588 (1953), (PL 280). In Montana, the State has assumed PL 280 criminal jurisdiction on the Flathead Reservation. See, State ex rel. McDonald v. District Ct. of Fourth J.D. (1972), 159 Mont. 156, 496 P.2d 78; §§ 2-1-301, et seq. MCA; and Campbell v. Crist (D. Mont. 1980), 491 F.Supp. 586.

In this case, the State of Montana’s jurisdiction to prosecute Haskins, a non-Indian, for his drug sales offenses committed within the exterior boundaries of the Flathead Reservation derives from the Tribe’s inability to prosecute (Oliphant and Poll) and from the State’s authority to prosecute, not only under PL 280 and §§ 2-1-301, et seq., MCA, but also since the offenses, sales of dangerous drugs through controlled undercover buys, were victimless crimes.

Accordingly, there is no question that the State had jurisdiction to prosecute Haskins for the criminal offenses which he committed within the exterior boundaries of the Flathead Reservation. Contrary to the defendant’s position, however, it does not then follow that since the State had criminal jurisdiction to prosecute Haskins, the tribal police officers were thereby precluded from investigating and gathering evidence of his offenses and then turning that evidence over to the proper jurisdiction with authority to prosecute his crimes.

Indian tribes have authority to enact ordinances regulating the conduct of their members and to employ law enforcement officers to enforce such ordinances and to maintain the peace. See, generally, Williams v. Lee (1959), 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251. See also, United States v. Wheeler (1978), 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303; Montana v. United States (1981), 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493. Moreover, tribal police officers have the power to restrain non-Indians who commit offenses within the exterior boundaries of the reservation and to eject them by turning such offenders over to the proper authority with jurisdiction to prosecute. Duro, 495 U.S. at 697, 110 S.Ct. at 2065-66, 109 L.Ed.2d at 711; State v. Horseman (1993), 263 Mont. 87, 96, 866 P.2d 1110, 1116.

Incident to those powers of the tribe, tribal police also have authority to investigate violations of state and federal law. Ortiz-Barraza v. United States (9th Cir. 1975), 512 F.2d 1176. As stated by the Court, “[t]he power ofthe Papago to exclude non-Indian state and federal law violators from the reservation would be meaningless were the tribal police not empowered to investigate such violations. Obviously, tribal police must have such power.” Ortiz-Barraza, 512 F.2d at 1180.

The Washington Supreme Court addressed a similar issue as that raised by Haskins, in State v. Schmuck (Wash.1993), 850 P.2d 1332, cert. denied, _ U.S. _, 114 S.Ct. 343, 126 L.Ed.2d 308. In Schmuck, the Washington Court addressed the authority of tribal authorities to stop a non-Indian who was driving a vehicle on a public road within the Suquamish Reservation. The court held that a tribal officer had authority to investigate a violation of state law prior to delivery of the offender to state law enforcement.

Similarly, in State v. Ryder (N.M.App. 1982), 649 P.2d 756, a tribal officer’s detention and search of a non-Indian suspected of illegal drug possession pending arrival of a state police officer was upheld as a valid tribal power.

Finally, in State v. Zackuse (1992), 253 Mont. 305, 833 P.2d 143, we upheld the conviction of a non-Indian in a state court prosecution that was based on evidence gathered by a tribal police officer. That case involved a non-Indian defendant whose illegal drug sales activity on the Flathead Reservation was investigated by tribal officers. As here, a tribal police officer testified against the defendant in state district court trial which resulted in the defendant’s conviction of criminal sale of dangerous drugs. Zaekuse argued that the investigation of his illegal drug activities by tribal police exceeded the tribe’s jurisdiction and authority; violated unspecified federal and state constitutional rights; and subjected him, a non-Indian, to tribal law. Zackuse 833 P.2d at 145. We disagreed and, while not analyzing that issue in any depth, we noted that “[t]he fact that this criminal investigation was conducted by a tribal law enforcement officer has no relevance in determining the jurisdiction of this case.”

Haskins distinguishes this line of cases by arguing that tribal authorities only have jurisdiction to detain the non-Indian offender for as long as is necessary to turn him over to state authorities. Here, according to Haskins, the tribal officers failed to detain and promptly eject him and failed to turn the evidence of his unlawful drug activity over to the State authorities after the first drug sale. Instead, argues Haskins, the tribal police officers exceeded their authority by engaging in an extended and ongoing investigation and in gathering evidence of subsequent drug sales.

Haskins draws a distinction that we are simply not willing to accept. We are not cited to any authority that so limits the authority of tribal law enforcement to investigate and gather evidence of criminal activities on the reservation. While tribal authorities have jurisdiction to detain and eject a non-Indian offender, it does not follow that the non-Indian offender has a “right” to immediate detention and ejectment. Since tribal police officers have authority to investigate unlawful criminal activity on the reservation, then it is reasonable that they would also have authority to conduct a proper and thorough investigation, to gather the evidence necessary for a successful prosecution and then, in due course, to turn that evidence over to the proper jurisdiction with authority to prosecute any non-Indians involved.

Haskins fails to point to any authority directly supporting his position or to any State or federal constitutional right that was violated by the manner in which the tribal officers proceeded in this case. Haskins was not detained, arrested, prosecuted or sentenced by any tribal authorities; none of his constitutional rights concerning detention, search and seizure, arrest or prosecution were implicated by the conduct of the tribal officers involved in this case. The evidence used against Haskins at trial was admissible evidence. The fact that admissible evidence was gathered by peace officers employed by a jurisdiction without authority to prosecute does not render the evidence per se inadmissible for use by a jurisdiction with such authority. Under the circumstances here, we conclude that Haskins has not demonstrated reversible error as to this issue, and we hold that the Confederated Salish and Kootenai Tribe did not exceed its jurisdiction in this case.

5. Whether cumulative error warrants a new trial?

Having found no reversible error in any of the above issues raised by Haskins, nor in the issues raised in Haskins 7, any consideration of his claim of cumulative error is moot. Accordingly, Haskins’ conviction is, in all respects, and the District Court’s denial of his motions for new trial are AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and WEBER concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, -v-THOMAS J. STEFFES, Defendant and Appellant.
    No. 94-099.
    Submitted on Briefs September 15, 1994.
    Rehearing Denied January 18, 1995.
    Decided December 21, 1994.
    51 St.Rep. 1463.
    269 Mont. 214.
    887 P.2d 1196.

      For Appellant: Charles F. Moses, Moses Law Firm, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Patricia Jordan, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Dale R. Mrkich and Marsha Sept, Deputy Yellowstone County Attorneys, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendant/appellant Thomas J. Steffes (Steffes) 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 trial, 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 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. 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 against 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 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, andM.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 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 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)(c), 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(1), 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,” 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 45-2-101(20), MCA.

Steffes relies on Russell v. United States (1962), 369 U.S. 749, 765, 82 S.Ct. 1038, 1047-48, 8 L.Ed.2d 240, 251, to support 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, “[w]here 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 (1974), 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 Hamling, were charged and convicted of mailing and conspiring to mail obscene material. Hamling, 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. Hamling, 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. Hamling, 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. Hamling, 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 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 Matt, 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), [267 Mont. 474], 885 P.2d 402, 404.

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 (1991), 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 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, [267 Mont. 474], 885 P.2d 402,405. The modified Just 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.

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 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: (1) 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-Olson] Not a lot.
Q: [By the Cotut] Could you give me your — first your extensive, firsthand experience with sexually abused children; ...
A: [Whaley-Olson] 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.

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 WhaleyOlson’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 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 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 § 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 45-5-511(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 (1992), 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.

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; Rhyne, 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, Rhyne, 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), [266 Mont. 313], 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 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 district 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, 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 concerning sexual matters was gained through his contact with Steffes, 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), [266 Mont. 520], 881 P.2d 626.

This court applies the test from Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, to determine whether one crime is a lesser included offense of another.

[W]here 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: (1) Aperson 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 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 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 “as defined in these instruction...” [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 may 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’Proposed 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.

(b) Steffes’Proposed Instruction 8.

Steffes’ proposed instruction stated that the defendant could not be convicted by conjecture. Conjecture, however, was 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’Proposed 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’Proposed 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’Proposed 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 (1984), 214 Mont. 334, 344, 693 P.2d 511, 516. We therefore conclude that the jury was properly instructed as regards the definition of reasonable doubt.

(g) Steffes’Proposed 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.

In 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 rale is that the defendant is entitled to have instructions on his theory of the case, “[t]he 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.

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 (1994), 265 Mont. 127, 150-51, 875 P.2d 307, 321.

Steffes first argues that the search warrant was issued without probable cause because law enforcement did not corroborate 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:

[A]n ‘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 rehable (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 rehable, 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... concluding] 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 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 (1989), 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 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.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and HUNT concur.


author: CHIEF JUSTICE TURNAGE

text:
    Y A BAR LIVESTOCK COMPANY, Plaintiff and Respondent, v. MILES HARKNESS, et al., Defendants and Appellants.
    No. 94-121.
    Submitted November 15, 1994.
    Rehearing Denied February 7, 1995.
    Decided December 23, 1994.
    51 St.Rep. 1517.
    269 Mont. 239.
    887 P.2d 1211.

      For Appellant: Stuart R. Whitehair, Bozeman.
    For Respondent: Carl M. Davis, Schulz, Davis & Warren, Dillon.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Miles Harkness, Max Harkness, Leila Dallas, Evelyn Erickson, Doris Haws, Milton Harkness, Colleen Rasmussen, Stacy Turner, Nancy Goodrow, Wade Draper, Amy Dean Raymond, Richard Wayne Harkness, Dorothy Lee Harkness Messick, Robert Earl Harkness and Gale Harkness (the heirs) appeal the decision of the Fifth Judicial District Court, Beaverhead County, quieting title to certain real property located in Beaverhead County to YABar Livestock Company (YABar). We reverse.

The sole issue is whether the District Court erred in determining that YA Bar had adversely possessed the land of its cotenants.

In order to fully understand the issue raised on appeal, a review of the historical and procedural background is necessary. All parties to this litigation, including the heirs, the current shareholders of YA Bar, and the predecessors in interest to YA Bar are descendants of Ernest I. and Arabina Harkness. Ernest I. and Arabina had six children: Ernest B. Harkness, Guy L. Harkness, Ross A. Harkness, Earl D. Harkness, Bessie (Harkness) Lewis and Jessie (Harkness) Jensen. In 1931 Earl D. Harkness homesteaded and patented 448.22 acres of land located in Beaverhead County, Montana (S1/2SW1/4 Section 3; Lots 1 & 2, S1/2NE1/4, N1/2SE1/4, SE1/4SE1/4 Section 4; NW1/4NE1/4, NE1/4NW1/4 — Section 10, Township 14 South, Range 10 West, M.P.M.). In 1936 Earl conveyed this land to his father, Ernest I. Harkness. Three years before, in 1933, Ernest I. had sold his ranch, which consisted of various lands in the same general vicinity as the 448.22 acre parcel, to his eldest son Ernest B. Harkness. Earl and Ernest I. moved to Idaho and did not return to Montana. In 1944 Ernest I. Harkness died. His wife, Arabina, died in 1946. The 448.22 acres in question were included in Arabina’s estate at the time of her death. Ernest B. was appointed executor of Arabina’s estate pursuant to the terms of her will. Arabina’s will was admitted to probate in Idaho and in Beaverhead County, Montana. Arabina was preceded in death by one of her children, Earl. She was survived by her five remaining children: Ernest B., Guy, Ross, Bessie, Jessie, and Earl’s six children: Amy (Harkness) Raymond, Richard Harkness, Robert Harkness, Dorothy (Harkness) Messick, Melvin Harkness, and Miles Harkness. At the time of Arabina’s death, the Harkness family tree was as follows:

* ** *

HARKNESS FAMILY TREE

Amy Raymond Richard Harkness Robert Harkness

Dorothy Messick Melvin Harkness Miles Harkness

* * *

As previously stated, the 448.22 acres in question were included in Arabina’s estate. The Inventory and Appraisement and the Petition for Final Settlement and Distribution of Arabina’s estate filed for by Ernest B. also included this parcel, except that approximately 40 acres was omitted from the legal description of the parcel in these two documents (NE1/4NW1/4 Section 10, Township 14 South, Range 10 West, M.P.M., Beaverhead County, Montana).

Ernest B. sought to acquire title to the 448.22 acres, as he was the sole remaining Harkness living in Montana and the parcel in question was compatible with the ranch land he had purchased from his father in 1933. Ernest B. received quitclaim deeds from his living brothers and sisters: Ross, Guy, Bessie, and Jessie. However, the quitclaim deeds also omitted the 40 acres from the legal description. Earl’s six children did not quitclaim their interest in the land to Ernest B.

The District Court, in conformity with the petition of Ernest B., ordered distribution of Arabina’s estate. The court distributed a 5/6 interest in the parcel to Ernest B. and a 1/6 interest to Earl’s six children (1/36 per child). This Final Settlement and Distribution again omitted the 40 acre parcel. All heirs therefore took their respective share of the omitted 40 acre parcel pursuant to the “any and all other property not now known or hereafter discovered” clause of Arabina’s will.

The net result from the above transactions left the title to the land following Arabina’s death and the probate of her will as follows:

408.22 acres (448.22 acre parcel minus the omitted 40 acres)
5/6 Ernest B. Harkness
1/6 children of Earl Harkness (1/36 for each: Amy, Richard, Dorothy, Robert, Melvin and Miles)
40 acres
1/6 Ernest B. Harkness
1/6 Ross Harkness
1/6 Guy Harkness
1/6 Bessie (Harkness) Lewis
1/6 Jessie (Harkness) Jensen
1/6 children of Earl Harkness (1/36 for each: Amy, Richard, Dorothy, Robert, Melvin and Miles)

Ernest B. received a 5/6 interest in the 408.22 acre parcel pursuant to the quitclaim deeds from his four siblings and pursuant to his petition for distribution of Arabina’s estate. He received a 1/6 interest in the 40 acre parcel pursuant to the “any and all other property clause” of Arabina’s will.

The six children of Earl Harkness received a 1/6 (1/36 per child) interest in the entire 448.22 acre parcel. Each child received a 1/36 interest, their respective 1/6 interest in their deceased father’s 1/6 interest, of the 408.22 acre parcel pursuant to the distribution of Arabina’s estate. They each likewise received a similar 1/36 interest in the omitted 40 acres pursuant to the “any and all other property clause” of Arabina’s will.

The remaining offspring of Arabina each received a 1/6 interest in the omitted 40 acres pursuant to the “any and all other property clause” of Arabina’s will. Jessie (Harkness) Jensen, the heirs of Ross Harkness, and the heirs of Bessie (Harkness) Lewis failed to appear in the quiet title action and default was entered against them. The heirs of Guy Harkness are parties to this action and seek to maintain their respective share of Guy Harkness’s 1/6 interest in the omitted 40 acres.

In 1950 Ernest B. Harkness formed YA Bar Livestock Company. Ernest B. and his wife, Ruth, conveyed all their ranch property to the corporation. Included in this conveyance was the disputed 448.22 acres. YA Bar has used the 448.22 acres extensively in its ranching operation. The parcel is integrated into the other deeded and leased lands operated by YA Bar. The ranch, including the parcel in question, has been mortgaged six times. YA Bar has leased mineral rights and granted easements over the 448.22 acres without the knowledge or consent of the heirs. YA Bar has paid all taxes levied on the parcel and received all rents and profits as if it was the sole owner of the land.

In 1987, Ernest B. Harkness died. The current shareholders of YA Bar are Ernest B.’s son, Bernard Harkness; Bernard’s wife, Jean Harkness; Ernest B.’s daughter, Bonnie (Harkness) McNich; and her husband, R.M. McNich. YA Bar found the property unmarketable when a title commitment listed the heirs’ interest in the 448.22 acres. YA Bar sought quitclaim deeds from the heirs to clear title to the parcel. The heirs refused to grant YA Bar quitclaim deeds.

YA Bar instituted this quiet title action, claiming it had adversely possessed the land of its cotenants. The District Court agreed and quieted titled to YA Bar. The heirs appeal from the District Court’s decision.

Did the District Court err in determining that YA Bar had adversely possessed the land of its cotenants?

This Court reviews the findings of a trial court sitting without a jury to determine if the court’s findings are clearly erroneous. Rule 52(a), M.R.Civ.R A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

For a claim of adverse possession to succeed, the claimant must prove that the property was claimed under color of title or by actual, visible, exclusive, hostile and continuous possession for the full statutory period of five years. In addition, the claimant must have paid the taxes on the property throughout the entire statutory period. Smithers v. Hagerman (1990), 244 Mont. 182, 189, 797 P.2d 177, 182.

Section 70-19-404, MCA, governs adverse possession against a landowner who has legal title to the property in question. This section states:

[T]he person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title unless it appears that the property has been held and possessed adversely to such legal title for 5 years before the commencement of the action.

Section 70-19-404, MCA. The heirs gained a legal interest in the property following the probate of Arabina’s estate; therefore, any use of the property by YA Bar is presumed to be subordinate to the heirs’ interests.

Additionally, adverse possession by one cotenant against another cotenant requires an even higher standard than adverse possession against a stranger. To adversely possess against a cotenant, the claimant must meet the above requirements and also “oust” the cotenant from the property. This additional requirement is necessary because any possession of land by one cotenant is considered to be consistent with and in recognition of the cotenancy. Fitschen Bros. Comm. Co. v. Noyes’ Estate (1926), 76 Mont. 175, 246 P. 773. In Fitschen, this Court explained this concept as follows:

When a cotenant... enters on the common land he is exercising a right which his title gives him; and his resulting possession is presumed to be consistent with his assumed title, and therefore to be the possession of his cotenants and himself.... But the doctrine has been long since held... that one tenant in common may so enter and hold as to render the entry and possession adverse, and amount to an ouster of a cotenant. And so, where once it appears that the party occupying the premises holds not in recognition of, but in hostility to, the rights of his cotenants, his possession ceases to amount to constructive possession by them, becomes adverse, and, if maintained for the period provided for by the statute of limitations, will vest in the possessor a sole title by adverse possession to the premises.

Fitschen, 246 P. at 779.

A cotenant must give his or her fellow cotenants notice that possession of the land is no longer consistent with the cotenancy and that he or she asserts a claim as sole owner of the property. In Fitschen this Court further stated:

While it is true that actual ouster of the cotenants must appear, this does not necessarily imply an actual physical ouster, but it is sufficient if the grantee claims exclusive ownership and by his conduct denies the right of others to any interest in the property.

Fitschen, 246 P. at 779. The theory of adverse possession against a cotenant was again explored by this Court in LeVasseur v. Roullman (1933), 93 Mont. 552, 20 P.2d 250. In further discussing the difficult hurdle a cotenant must clear to adversely possess against a fellow cotenant, this Court stated:

All acts done by a cotenant and relating to or affecting the common property, are presumed to have been done by him for the common benefit of himself and the others. The relation between him and the other owners is always supposed to be amicable rather than hostile; and his acts are therefore regarded as being in subordination to the title of all the tenants, for by so regarding them they may be made to promote the interests of all. ... [Possession of a cotenant... is the possession of all the cotenants.
However, one tenant in common may oust his cotenant and make his possession adverse. But, as prima facie the possession of every cotenant is presumed to be by virtue of his title, and not in hostility to the rights of his cotenants .... In order to sustain the claim that he has obtained title by adverse possession, the claimant must show that his cotenants had sufficient notice of his exclusive and hostile claim.
... The knowledge must be either brought home to him, or the occupier must make his possession so visibly hostile, notorious, and adverse, as to justify an inference of knowledge on the part of the tenant sought to be ousted ....

LeVasseur, 20 P.2d at 252.

Thus, to adversely possess against a cotenant, the claimant must oust the fellow cotenants. A cotenant can oust a fellow cotenant by giving the fellow cotenant notice that he or she is claiming an interest hostile and adverse to the fellow cotenant’s interest.

YA Bar has failed to meet this standard. The heirs claim that they were unaware of their interest in the 448.22 acre parcel until they received quitclaim deeds from YA Bar in 1991. YA Bar does not claim that the heirs knew of the cotenancy nor did it present any evidence which would show how the heirs would have received such notice. YA Bar did not establish that the children of Earl Harkness received any notice of their inheritance from their grandmother, Arabina. YA Bar did not show that Earl’s children had ever received deeds to the property or that YA Bar had presented them with quitclaim deeds in 1946 as it did the other heirs. YABar did not claim to have informed the heirs of their interest until the issuance of the quitclaim deeds in 1991. We conclude that YA Bar’s use of the 448.22 acres in conjunction with its other ranch lands did not give the heirs sufficient notice to constitute an “ouster” as discussed in Fitschen and LeVasseur.

YA Bar next argues that when cotenants are unaware of the existence of a cotenancy, they are in essence “strangers” and therefore only the general elements of adverse possession are required. YABar relies on two cases, Nicholas v. Cousins (Wash. Ct. App. 1969), 459 P.2d 970, and City and County of Honolulu v. Bennett (Haw. 1976), 552 P.2d 1380, for this proposition.

In Nicholas, the Washington Court of Appeals found that a cotenancy existed, although neither party was aware of it. The court carved out an exception for adverse possession between non-knowing cotenants, stating:

When the cotenant in possession of land is a non-knowing cotenant, i.e., one who is unaware of the existence of the cotenancy, subjectively he is a stranger to the title held by the non-possessing cotenant; and, therefore, may possess the requisite intent of a “stranger” for adverse possession. If he does possess the “stranger’s” intent, and his conduct complies with the general statutory requirements for ouster by adverse possession, his claim is perfected.
A non-possessing cotenant who is unaware of his position as a cotenant is in the same position as any other member of the public at large. Thus, when a person claims sole and exclusive ownership of property and the non-possessing cotenant has notice of this claim, actual or constructive, he is bound in the same way as those who, by mistake of fact or law, are ignorant of their interest and have allowed strangers to claim adversely to their property rights.

Nicholas, 459 P.2d at 975. Thus, under Washington law, a non-knowing cotenant can adversely possess against a fellow non-knowing cotenant just as he or she would against any other member of society, by satisfying the general statutory elements for adverse possession.

In Bennett the Supreme Court of Hawaii created another, although narrower, exception for adverse possession by a non-knowing cotenant. That court ruled that if a cotenant acting in good faith has no reason to believe that a cotenancy exists, then actual notice to the fellow cotenant is not required. Bennett, 552 P.2d at 1391.

However, it is unnecessary for us to either adopt or reject the analysis of Nicholas or Bennett because under either theory YA Bar would be charged withknowledge of the cotenancy. Nicholas and Bennett both rely on the claimant being a non-knowing cotenant. Since we conclude, as discussed below, that YA Bar must be charged with knowledge of the cotenancies, Nicholas and Bennett are inapplicable.

Ernest B. Harkness, the predecessor in interest, founder, and 37 year president of YA Bar was the executor of Arabina’s estate. Ernest B. therefore knew how Arabina’s estate was distributed. The Final Settlement and Distribution of Arabina’s estate granted a 1/36 interest in the 408.22 acre parcel to each of Earl Harkness’s six children. Ernest B., as executor of Arabina’s estate, filed the Final Settlement and Distribution which resulted in the creation of those interests. Ernest B. requested and received quitclaim deeds to the 408.22 acre parcel from his four remaining siblings. Ernest B. did not, however, receive quitclaim deeds from Earl’s six children. These facts clearly establish that Ernest B. knew of the heirs’ interests in the 408.22 acre parcel.

YA Bar claims it was a non-knowing cotenant and held the entire parcel as sole owner under “color of title.” The facts and circumstances of this case do not support YA Bar’s claim. Color of title is created by a document “which has the appearance or gives the semblance of title but is not such in fact.” Stevenson v. Owen (1984), 212 Mont. 287, 295, 687 P.2d 1010, 1015. However, not every deficient conveyance will create color of title in the grantee. In Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 605 P.2d 1107, this Court found that a claim of color of title must be made in good faith. In denying defendant’s claim of color of title, this Court stated:

Adverse possession under color of title is possession based on a written instrument which purports to pass title but which in reality does not. ...
... [Color of title is created by] a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law. (citation omitted). Under Montana law, “an instrument which purports to convey land or the right to its possession is sufficient color of title as a basis for adverse possession if the claim is made in good faith.” (citations omitted).

Russell, 605 P.2d at 1111.

Ernest B. Harkness purported to transfer sole ownership of the 448.22 acre parcel to YA Bar, a corporation in which he was the president and a major shareholder. Since Ernest B. had knowledge of Earl’s children’s interest in the property, this conveyance was not made in good faith. At least one court has held that a grantor cannot create color of title in land in which he does not have an interest by transferring the land to a corporation or a trust in which he has an interest. In State v. King (W.Va. 1915), 87 S.E. 170, the West Virginia Supreme Court concluded that the claimant did not create color of title by deeding land he did not own to a trust which he controlled. The court stated:

[A] deed made by a man to himself could not well be supposed to have the characteristics of color of title.
... [T]he doctrine [of color of title] fairly and conclusively assumes that there has been a transaction between two or more persons by which a futile effort to pass title from one to another has been made, a transaction in which the actors were prompted by good intentions and honest motives ....

King, 87 S.E. at 171-72.

This rule of law was confirmed by the West Virginia Supreme Court in State v. Altizer Coal Land Co. (W.Va. 1925), 128 S.E. 286. The court held that a grantor could not create color of title by conveying land which he did not own to a corporation in which he was the president and majority shareholder. Altizer, 128 S.E. at 288-90. YABar claims to have created color of title in just this manner. Ernest B. owned a 5/6 interest in the 408.22 acre parcel. In 1950 he purported to grant this land to YA Bar as sole owner. YA Bar now claims to hold the parcel under color of title as sole owner. Ernest B. knew of the other interests in the parcel, did not act in good faith in conveying the parcel as sole owner and therefore YA Bar cannot claim to hold the parcel under color of title.

YA Bar is also charged with notice of the various interests in the 40 acre parcel. The Final Settlement and Distribution of Arabina’s estate omitted the 40 acre parcel. The quitclaim deeds received by Ernest B. from his four siblings likewise omitted the 40 acres. However, in 1950 when Ernest B. conveyed his property to YA Bar, he included the 40 acre parcel in the conveyance. Ernest B. owned only a 1/6 interest in the 40 acre parcel yet purported to convey the entire parcel as sole owner. The 40 acres was not distributed solely to him by Arabina’s Final Settlement and Distribution nor by the quitclaim deeds from his siblings. The “reappearance” of the omitted 40 acres in the deed from Ernest B. to YA Bar puts Ernest B. and YA Bar on further notice of the other potential claims to the 40 acre parcel.

We conclude that the District Court erred in finding that YA Bar had adversely possessed the land of its cotenants. YABar did not give the heirs sufficient notice to constitute an ouster under Fitschen or LeVasseur. YA Bar was not a non-knowing cotenant, and therefore the theories discussed in Nicholas and Bennett are inapplicable.

We note that YA Bar was not without a remedy when it wished to extinguish the cotenancy. Aparty is not bound to remain an unwilling cotenant with another party. The law provides a remedy through the laws of partition. A cotenant can institute partition proceedings to have the cotenancy terminated and the land or the proceeds from the sale of the land equitably divided. Sections 70-29-101 through -221, MCA.

We reverse the decision of the District Court.

JUSTICES GRAY, TRIEWEILER, HUNT, NELSON, WEBER and District Judge LANGTON concur.