                                          No. 04-614

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 156


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ARTHUR DENNIS KUIPERS,

              Defendant and Appellant.


APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and For the County of Gallatin, Cause No. DC 2003-344
                     Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Kirsten Mull Core, Attorney at Law, Bozeman, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Ilka Becker,
                     Assistant Attorney General, Helena, Montana

                     Marty Lambert, Gallatin County Attorney; Gary Balaz,
                     Deputy County Attorney, Bozeman, Montana



                                                  Submitted on Briefs: May 31, 2005

                                                            Decided: June 21, 2005


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.



¶1     Arthur Dennis Kuipers appeals from the Judgment and Sentence entered by the

Eighteenth Judicial District Court, Gallatin County, upon a jury verdict finding him guilty

of theft and violating an order of protection. We affirm.

¶2     The issue on appeal is whether the evidence is sufficient to support the jury’s verdict.

                                     BACKGROUND

¶3     The marriage of Kuipers and Martha Kuipers (Martha) was dissolved in 1998. The

dissolution decree included a restraining order prohibiting Kuipers from, among other things:

going to a residence and four-plex identified by addresses; following, harassing, intimidat-

ing, telephoning or threatening Martha; and contacting his teenaged sons Colter and Dustin.

The restraining order was amended in 2001 and again in January of 2002.

¶4     In October of 2002, Kuipers and Martha each gave Colter $2400 to purchase two

snowmobiles. Colter obtained titles to the snowmobiles in his name. On November 14,

2003, Kuipers called Colter and Martha and told them he intended to take a snowmobile

from the four-plex where Colter lived. Upon receiving messages from Kuipers, Colter called

Martha from his work and asked her to go to the four-plex. Martha did so, observed

Kuipers’ truck and called 911 from a neighbor’s driveway. She then watched Kuipers drive

off with a snowmobile. Gallatin County Sheriff’s Deputy Mark Murphy responded to the

911 call and questioned Kuipers, who stated he owned the snowmobile. After learning the

snowmobile was registered to Colter, Murphy arrested Kuipers.



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¶5     The State of Montana charged Kuipers with theft, a felony, and violating an order of

protection, a misdemeanor. Colter, Martha, and Murphy testified for the State at trial.

Kuipers, Dustin, and Kuipers’ sister, Terry Carlson, testified for the defense. The jury found

Kuipers guilty of both charged offenses, and the District Court subsequently sentenced him.

Kuipers appeals. We include additional facts as necessary in the discussion below.

                               STANDARD OF REVIEW

¶6     We review whether the evidence is sufficient to support a verdict of guilty in a

criminal case to determine whether, after reviewing the evidence in a light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. That review encompasses whether the verdict is supported

by sufficient evidence, not whether the evidence would support a different verdict. See State

v. Larson, 2004 MT 345, ¶ 52, 324 Mont. 310, ¶ 52, 103 P.3d 524, ¶ 52 (citations omitted).

                                     DISCUSSION

¶7     Was the evidence sufficient to support the jury’s verdict?

¶8     Kuipers first asserts the evidence was insufficient to support the jury’s finding that

he was guilty of theft. Section 45-6-301(1)(a), MCA, provides that a person commits theft

by purposely or knowingly obtaining or exerting unauthorized control over property of the

owner with the purpose of depriving the owner of the property.

¶9     Kuipers asserts the State did not prove he purposely or knowingly had unauthorized

control of the snowmobile, because he believed he owned or partially owned it. He points




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to evidence that he paid $2400 toward the snowmobiles’ purchase, the snowmobiles were

for the family’s use and he did not know Colter held the titles to the snowmobiles.

¶10    As stated above, the question is not whether the evidence could support a different

verdict, but whether sufficient evidence supports the verdict rendered. See Larson, ¶ 52. At

trial, Colter testified the $2400 check from Kuipers was a gift.        Martha stated the

snowmobiles were purchased for Colter and Dustin’s use, and Colter was more likely to take

care of the paperwork than Dustin. Dustin testified he assumed Colter’s name was on the

titles because Colter “took care of [the snowmobiles], used them most.” Kuipers stated he

was in drug treatment when the snowmobiles were titled, and he had assumed the

snowmobiles were titled to Martha and himself. Kuipers admitted on cross-examination that,

rather than giving Colter a check, he could have purchased the snowmobiles himself and had

them registered in his own name.

¶11    Weighing evidence, assessing witness credibility and resolving conflicting evidence

are within the province of the trier of fact. State v. Gilmore, 2004 MT 363, ¶ 18, 324 Mont.

488, ¶ 18, 104 P.3d 1051, ¶ 18 (citations omitted). Here, the jury assessed witness

credibility and resolved conflicting evidence. Viewing the testimony in a light most

favorable to the prosecution, we conclude the jury had sufficient evidence to find Kuipers

purposely or knowingly obtained or exerted unauthorized control over property owned by

Colter beyond a reasonable doubt.

¶12    Kuipers also argues, however, that the State did not establish his purpose was to

deprive Colter of property. He asserts he had the same right to use the snowmobile as the


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rest of the family. In addition, he contends that “beyond the insinuation that [Kuipers]

intended to sell the snowmobile, the State failed to prove that he . . . intended to dispose of

the property.” He also contends “it is highly unlikely” that he would have “forewarn[ed]”

Martha and Colter of his plan to take the snowmobile if he intended to dispose of it.

¶13    Again, the question is not whether evidence would support a different verdict, but

whether sufficient evidence supports the verdict rendered. See Larson, ¶ 52. Martha

testified at trial that, on November 14, 2003, Kuipers called her twice at work, indicating he

“was desperate for money” and stating he wanted to get the snowmobiles to sell. Colter

testified the family could use the snowmobiles “in a responsible manner,” but “not to sell

[them] to get drugs.” Kuipers testified that he had left a message for Colter on November

14, stating he had told Martha the night before that he “was broke and she was only willing

to give [him] $5 and nothing more” and he was going to take one of the snowmobiles.

Viewing this testimony in a light most favorable to the prosecution, we conclude the jury had

sufficient evidence to find Kuipers’ purpose was to deprive Colter of property beyond a

reasonable doubt.

¶14    Next, Kuipers asserts the evidence was insufficient to support the jury’s finding that

he was guilty of violating an order of protection. Section 45-5-626(1), MCA, provides, in

pertinent part, that a person violates an order of protection if the person, with knowledge of

the order, purposely or knowingly violates one of the order’s provisions.

¶15    The 1998 dissolution decree provided that a prior restraining order would remain in

effect and set forth the order’s terms, including a provision that Kuipers “is hereby excluded


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from the [four-plex] rental property . . . and from the grounds thereof.” The order was

amended in 2002, pursuant to the parties’ stipulation,

       to allow telephone, mail and personal contact between Martha Kuipers and
       Dustin Kuipers and Respondent, Dennis Kuipers, so long as Dennis Kuipers
       is under the custody of the Montana State Department of Corrections. All
       other parts of the Restraining Order not conflicting are to remain in full force
       and effect[.]

In the 2002 amendment, the court noted a 2001 amendment that is not of record, which

apparently allowed “full contact” between Kuipers and Colter. Kuipers does not contest that

he was aware of the 1998 order and the amendments.

¶16    Noting the State charged him with going to the four-plex, Kuipers asserts the

amended order is “not clear” and “[i]t begs reason that a Court would allow all parties to

enjoy contact with each other and maintain a provision that prohibits them from going to

specific property.” Pointing to evidence that he lived with Martha and Dustin at the

residence listed in the amended restraining order and stored a boat he co-owned with Colter

at the four-plex, he asserts it is “unreasonable” to hold him responsible for going to the four-

plex when the other family members previously allowed him to do so. He argues “the only

logical reading” of the amended order is that it only prohibited his following, harassing,

intimidating or threatening Martha.

¶17    The issue before us is not whether the restraining order begs reason or is logical. In

2002, the parties--including Kuipers--stipulated to certain amendments to the restraining

order and left “other parts . . . not conflicting . . . in full force and effect[.]” The provision

from the 1998 order excluding Kuipers from the four-plex does not on its face conflict with


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the amendments allowing contact between Kuipers, Martha, Colter and Dustin. Moreover,

the jury apparently did not believe Kuipers’ testimony that he thought the amended order

“was in effect while [he] was under the hands of Montana State Prison system, and that when

[he] was through with [his] prison term or [his] sentencing, the restraining order was then

not in effect.” As stated above, credibility determinations are within the province of the trier

of fact. Gilmore, ¶ 18.

¶18    In reviewing a jury verdict, we do not decide whether we would have reached the

same result. We conclude the jury had sufficient evidence to find Kuipers guilty of violating

the protective order beyond a reasonable doubt.

¶19    We hold the evidence was sufficient to support the jury’s verdict.

¶20    Affirmed.



                                            /S/ KARLA M. GRAY

We concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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