“Sexual Contact” Under Montana Law: “Knowingly” Is an Alternative to “Purposely,” and Omitting “Purposely” from the Instruction Was Not Plain Error (State v. Steffens)

1. Introduction

Dennis Steffens appealed his Gallatin County conviction for felony sexual assault under § 45-5-502, MCA. The State alleged Steffens subjected his niece, A.E., to sexual contact multiple times from 2009–2013 when she was under fourteen and Steffens was at least three years older. A.E. described repeated “robot game” episodes behind closed doors during annual visits, involving removal of clothing and touching of her vagina and nipples. Steffens denied the allegations, admitting only a benign version of the “robot game.”

On appeal, Steffens raised three core issues:

• Plain error/due process: whether the jury instruction defining “sexual contact” improperly reduced the State’s burden by omitting “purposely.”
• Ineffective assistance: whether counsel was ineffective for failing to seek a “purposely” instruction or object to the given instruction.
• Sufficiency: whether evidence supported a finding that any touching was done “in order to” arouse or gratify sexual desire/response.

2. Summary of the Opinion

The Montana Supreme Court affirmed. It declined plain error review because it was not “plain” that the instruction was erroneous: the statutory definition of “sexual contact” in § 45-2-101(67), MCA, uses “knowingly or purposely,” so instructing only “knowingly” still captured an alternative statutory mental state. The Court also declined to reach ineffective assistance on direct appeal because the record reflected plausible justification for counsel’s agreement to the instruction. Finally, it held the evidence was sufficient: A.E.’s testimony alone could support conviction, and intent to gratify sexual desire may be inferred from conduct.

3. Analysis

3.1 Precedents Cited

A. Preservation, plain error, and what qualifies as “plain”

• State v. George (citing State v. Hatfield; State v. Akers): The Court relied on these cases for the baseline rule that unpreserved issues are generally forfeited, and for the narrow, discretionary nature of plain error review. George supplied the two-part “firmly convince” framework (fundamental right + miscarriage of justice/fairness/integrity concerns).
• State v. Tadewaldt (citing State v. Godfrey): These cases supplied a threshold requirement that must be met before plain error review is even considered—“it be plain that there was error at trial.” The Court used this to reject plain error review where the challenged instruction plausibly tracked a statutory alternative.

B. Due process and mental state as an element

• State v. Mills: The Court used Mills to anchor the due process principle that the State must prove every element beyond a reasonable doubt, including the “requisite criminal mental state applicable to each element.”
• State v. Rowe: This decision was central to the Court’s treatment of mens rea instructions. It reinforced (1) the requirement that instructions “fully and fairly” cover applicable law and element-by-element mental state, and (2) that “knowingly” has distinct statutory variants (conduct-based, result-based, knowledge-of-fact). The Court invoked Rowe to uphold the conduct-based “knowingly” definition used in this sexual assault case (“aware of his conduct”).

C. Standards of review: ineffective assistance and sufficiency

• State v. Sawyer: Provided the de novo standard for ineffective assistance claims and, more importantly, the gatekeeping approach to deciding whether an IAC claim is suitable for direct appeal.
• Soraich v. State; State v. Robinson: These cases shaped the “record adequacy” rule—direct-appeal IAC is considered when the record adequately documents the act/omission and explains why counsel acted as they did.
• State v. Wittal: Supplied the “no plausible justification” exception allowing direct-appeal IAC review even when the record does not explain counsel’s decision-making.
• State v. Johnston: Used as a comparator for when failure to object is indefensible—there, the statute “clearly requires more” and counsel had “nothing to lose.” The Court distinguished Johnston to show why counsel’s agreement here was at least plausibly justified given the statutory “knowingly or purposely” phrasing.
• State v. McCoy; State v. Sheehan: McCoy supplied the sufficiency test (“any rational trier of fact…” viewing evidence favorably to the prosecution). Sheehan reinforced that credibility determinations and weighing conflicts are for the jury.

D. Proof of sexual contact and sexual gratification intent

• State v. Duncan: The Court relied on Duncan for two crucial propositions: (1) a sex offense conviction may rest solely on the victim’s uncorroborated testimony, and (2) direct evidence of sexual arousal is not required.
• State v. Gerstner: Provided the key inference rule that intent to gratify sexual desire “may be inferred from his conduct alone.”
• State v. McLain: Cited as an example where a jury’s inference of sexual gratification was upheld based on the nature and context of touching, reinforcing the sufficiency holding in Steffens.

3.2 Legal Reasoning

A. The instruction challenge: “knowingly or purposely” is disjunctive

Steffens’s primary claim was that the district court lowered the State’s burden by modifying the statutory definition of “sexual contact” to remove “purposely,” leaving: “touching…in order to knowingly arouse or gratify the sexual response or desire of either party.”

The Court’s core reasoning was textual and structural:

• The sexual assault statute, § 45-5-502(1), MCA, requires that a person “knowingly subjects another person to any sexual contact without consent.”
• The definitional statute, § 45-2-101(67), MCA, defines “sexual contact” as touching “in order to knowingly or purposely” accomplish listed ends, including to “arouse or gratify” sexual desire/response.
• Because “knowingly” and “purposely” are connected by “or,” the Court treated them as alternative mental states; instructing the jury on “knowingly” alone did not, on this record, plainly omit a required element.

That disjunctive reading did the work of defeating plain error at the threshold: if the statute permits either mental state, it is not “plain” the instruction was wrong merely because it chose one.

B. Plain error was denied because no “plain” due process violation was shown

The Court accepted the general due process framework from State v. Mills (proof beyond a reasonable doubt of each element and its mental state), but concluded Steffens did not “firmly convince” the Court that an instruction using one statutory alternative (“knowingly”) reduced the burden or made the trial fundamentally unfair. Under State v. Tadewaldt, without plain instructional error, the Court would not proceed to discretionary plain error relief.

C. Ineffective assistance was deferred because counsel’s conduct had plausible justification

The record showed defense counsel affirmatively agreed (with the State and court) to remove “purposely” to maintain consistency with a “knowingly” prosecution theory. Applying State v. Sawyer, Soraich v. State, State v. Robinson, and State v. Wittal, the Court concluded the decision was not so inexplicable that it could be resolved as IAC on direct appeal. It distinguished State v. Johnston because § 45-2-101(67), MCA, did not “clearly require more” than “knowingly,” making an objection not obviously mandatory.

D. Evidence was sufficient: victim testimony + contextual inference of sexual gratification

The Court upheld sufficiency using the State v. McCoy standard and State v. Sheehan deference to the jury’s credibility choices. It found:

• A.E.’s testimony was enough to prove touching of intimate parts (State v. Duncan).
• The jury could infer intent to arouse/gratify from conduct alone (State v. Gerstner), without direct evidence of arousal (Duncan).
• The frequency, secrecy (closed door), removal of clothing, and “special game” framing supported the inference, paralleling inferences upheld in Duncan and State v. McLain.

3.3 Impact

Formally, the opinion is noncitable and “does not serve as precedent.” Practically, it signals how the Court is likely to approach three recurring issues in Montana sex offense litigation:

• Mens rea drafting disputes in instructions: Where a definitional statute uses disjunctive mental states (“knowingly or purposely”), an instruction selecting one alternative may be difficult to characterize as obvious (i.e., “plain”) error—especially when aligned with the charged offense’s mental state.
• Direct-appeal IAC limitations: When counsel’s instructional choices were made on-record and are consistent with an arguable statutory reading, the Court is likely to treat the claim as unsuitable for direct appeal absent a record establishing deficient performance (or an absence of any plausible justification).
• Sufficiency in child sexual assault cases: The Court reaffirmed that juries may infer sexual gratification from context and conduct, and that uncorroborated victim testimony can be enough—making sufficiency challenges particularly steep when the jury credited the complainant.

4. Complex Concepts Simplified

• Plain error review: A narrow, discretionary doctrine allowing appellate review of unpreserved issues, but only when error is obvious (“plain”) and threatens fundamental fairness or the integrity of the process.
• Disjunctive mental states (“or”): When a statute uses “A or B,” the State may satisfy the element by proving either A or B (unless context clearly requires both). Here, “knowingly or purposely” was treated as alternatives.
• Conduct-based “knowingly”: Under Montana’s definitional scheme discussed in State v. Rowe, “knowingly” can attach to conduct, results, or facts. For sexual assault, the Court approved the conduct-based form: awareness of one’s conduct.
• IAC on direct appeal: Montana often requires an adequate record showing not just what counsel did/didn’t do, but why. Without that, claims typically belong in postconviction proceedings unless counsel’s inaction has “no plausible justification.”
• Inferring sexual gratification: Juries can infer intent from the nature of touching and surrounding circumstances; direct proof of arousal is not required.

5. Conclusion

State v. Steffens affirmed a sexual assault conviction by (1) rejecting plain error where the challenged “sexual contact” instruction used “knowingly,” an alternative mental state expressly included in § 45-2-101(67), MCA; (2) declining to decide ineffective assistance on direct appeal because counsel’s instructional choices had plausible justification on this record; and (3) holding the evidence sufficient where the victim’s testimony and contextual circumstances supported an inference of sexual gratification intent. Though nonprecedential, the opinion reflects a cautious approach to unpreserved instructional challenges, a disciplined direct-appeal IAC screen, and continued reliance on contextual inference in proving sexual intent.