                                       No. 8 6 - 0 9
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          1986




STATE OF MONTANA,
                    Plaintiff and Respondent,

         -vs-
PHYLLIS CRUMLEY,
                    Defendant and Appellant.




APPEAL FROM:        District Court of the Fourth Judicial District,
                    In and for the County of Missoula,
                    The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                    O'Brien   &   Conrad; Barbara J. Conrad, Missoula,
                    Montana

         For Respondent :
                    Hon. Mike Greely, Attorney General, Helena, Montana
                    Kathy Seeley, Asst. Attorney General, Helena
                    Robert L. Deschamps, 111, County Attorney, Missoula,
                    Montana




                                          Submitted on Briefs: July 10, 1 9 8 6
                                             Decided:   September 16, 1986


          g$ ri -
           -. 1     1985
Filed:
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


        This is an appeal from a conviction for felony theft of
food stamps by making false representations.                   After a trial
in   the      District     Court   of the Fourth Judicial District,
Missoula County, the defendant was sentenced to five years in
prison, and the sentence was suspended on condition she pay
$1,808.00 in restitution to SR.S.              She appeals.          We affirm.
       Appellant raises two issues:
        1.      Whether or not there is sufficient evidence to
conclude beyond a reasonable doubt that the defendant did not
maintain        a    "separate household"      in       accordance    with    the
governing regulations?
        2.     Even if it is concluded that the defendant did not
in fact maintain a "separate household" as defined, was there
sufficient evidence to conclude beyond a reasonable doubt
that    the     defendant knowingly made            a    false statement or
representation that she maintained a "separate household"?
       The District Court found that from October 12, 1982
through May 31, 1983, the defendant applied for and received
and used        food stamps in excess of $300 from the Montana
Department of Social and Rehabilitation Services.                    To receive
these food stamps, the defendant represented that she, her
husband David, her child, her sister-in-law Cindy Heminger
and her child maintained a separate household in the form of
an     upstairs       apartment    in   her    parent's       home.      These
representations enabled the defendant to receive $50 a month
more in food stamps than they would have been entitled to if
they were living in their parent's household.                   The District
Court        found   the   defendant    and   her   parents were        not   in
separate households because:                     they all lived in a sinale
family dwelling containing one kitchen located downstairs,
the area defendant claimed was a.n upstairs apartment were
upstairs bedrooms, with no tables, dishes, pots, pans or
appliances, defendant and her family never paid rent for the
bedrooms, when defendant and her sister-in-law learned of a
planned     home    visit       to    verify      that   a    separate household
existed they withdrew their application for further food
stamps, and when the home visit occurred SRS employees found
no evidence of a separate apartment but only t w o bedrooms and
a hallway.
       As   to     the    first       issue, defendant          argues      there    is
insufficient evidence to show defendant did not maintain a
"separate        household"          as    required      by     SRS     regulations.
Defendant maintains that she purchased her own                              food and
prepared her own meals, separate from those of her parents.
She alleges that she used an electric frying pan, a crockpot,
a popcorn popper, and a coffee pot and ate on folding chairs.
She    maintains         that   the        appliances     she    used       were    not
immediately noticeable because the items were unplugged and
stored away when not in use because of the children.                                She
contends she was maintaining a separate household within the
SRS definition.

       We   begin    with       the       test   to   determine        if   there    ?s
sufficient evidence to support the verdict:                           whether, after
viewing the evidence in the light most                          favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560, 573; State v. McHugh (Mont. 1985), 697
P.2d   466, 469, 42 St.Rep.                371, 374.         The elements of the
crime     here   are   set   out   in   5   53-2-107,   MCA    and   F


     Section 53-2-107, MCA, provides:
    Whoever knowingly obtains by means of a willfully
    false statement, representation, or impersonation
    or other fraudulent devise public assistance to
    which he is not entitled is guilty of theft as
    provided in 45-6-301.
     Section 45-6-301 (4)(a), MCA, provides:
     (4)  A person commits the offense of theft when he
     purposely   or    knowingly   obtains   or   exerts
     unauthorized control over any part of any public
     assistance provided under Title 53 by a state or
     county agency, regardless of the original source of
     assistance, by means of:
     (a) a knowingly false statement, representation,
     or impersonation..      ..
    As we review this issue, we must accept the version of
the facts as found by the District Court judge.              We cannot
consider disputed questions of fact on appeal, nor can we
weigh the credibility of the witnesses or their testimony.
State v. Green (Mont. 1984), 685 P.2d 370, 371-72, 41 St.Rep.
1562, 1564; State v. Shurtliff (1981), 195 Mont. 213, 215-16,
635 P.2d 1294, 1296; State v. Crockett (1.966), 148 Mont. 402,
406-07, 421 P.2d 722, 724.         The food stamp regulation which
defined household stated:
     [A] household may be composed           of   any   of    the
     following individuals or groups:
     1.    an individual living alone;
    2. an individual living with others but who
    customarily purchases food and prepares meals for
    home consumption separate and apart from the
    others;
    3. a group of individuals who live together and
    customarily purchase food and prepare meals
    together for home consumption.
    SEPARATE HOUSEHOLD STATUS CANNOT BE GIVEN--In no
    event shall separate household status he granted
    to :
       1. Children under 18 years of age under the
       parental control of a member of the household;
       2. Either parents living with their children or
       children living with their parents unless at least
       one parent is 60 years of age or older;
       The record shows the defendant's parents with whom she
lived were at that time, 47 and 45 years old.
       The record shows that several SRS employees reviewed the
regulations with the defendant and explained that parents and
children must     live in totally      separate apa.rtments to be
certified separately.
       In light of the evidence in the record, we hold there
was sufficient evidence to conclude beyond a reasonable doubt
that defendant did not maintain a separate residence.
       Second, defendant argues that there was not sufficient
evidence to conclude that she made a knowing false statement.
She contends that Cindy Heminger, her sister-in-law, and
Katherine    Fairbanks,   her    mother,     were   responsible   for
creating the impression that there was a separate household.
She also contends she did not know what a separate household
was therefore she could not make             an intentionally false
statement about how her living situation falls wi.thin the
concept.
       Intent is normally inferred from conduct and surrounding
circumstances.      State v. Pierce (1982), 199 Mont. 57, 647
P.2d 847; State v. Weaver (1981), 195 Mont. 481, 637 P.2d 23.
In this case there is evidence in the record that several SRS
employees explained the concept to her and interviewed her as
to whether there was indeed a separate household.           There is
also   in   the   application   for   food   stamps signed by     the
defendant, a section which asks the applicant to list a11
members of the household.       In a large box, in capital letters
is the following statement:   "INCLUDE AS HOUSEHOLD MEMBERS,
THE FOLLOWING PEOPLE WHO LIVE TOGETHER:   Parents and children
under    -
         60."   (Emphasis in original.)
     Given the evidence in the record, we find there was
sufficient evidence to conclude the defendant knowingly made
a false statement in order to obtain public assistance.
    We affirm the conviction and sentence below.




We Concur:
                A
                '
         /'
   Chief Justice
