No. 01-770 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 82 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

NATHANIEL COLE PITZER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Kenneth R. Neill, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Carl Jensen, Attorney at Law, Great Falls, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; Pamela D. Bucy, 

Assistant Attorney General, Helena, Montana 

Brant Light, Cascade County Attorney; John Parker, Deputy 

County Attorney, Great Falls, Montana 

 Submitted on Briefs: February 28, 2002 

Decided: April 30, 2002 

Filed: 

__________________________________________ 

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

¶1 Nathaniel Cole Pitzer (Pitzer) appeals from the Judgment of Conviction and Sentence 

entered by the Eighth Judicial District Court, Cascade County, on a jury verdict finding him 

guilty of the offense of felony theft. We affirm. 

¶2 The sole restated issue on appeal is whether sufficient evidence supports the verdict 

convicting Pitzer of felony theft. 

BACKGROUND 

¶3 Pitzer was arrested in early December of 1999 in Great Falls, Montana, for attempting 

to pawn an oboe that had been stolen by an unknown person from a local music store the 

previous day. The State of Montana (State) filed an information on December 9, 1999, 

charging Pitzer with felony theft by knowingly obtaining control over stolen property valued 

at more than $1,000 with the purpose of depriving the owner of the property. 

¶4 The case proceeded to a jury trial during which the victim of the alleged theft, Gerald 

Whiteman (Whiteman), testified regarding the events surrounding the theft of the oboe and 

its recovery the following day in a Great Falls pawnshop. Whiteman also testified regarding 

his credentials as a music teacher and instrument salesman. He estimated the value of the 

stolen oboe at between $2,500 and $3,000. 

¶5 The jury subsequently convicted Pitzer of the charged offense and the District Court 

sentenced him to the Department of Corrections for a term of five years, suspended on 

conditions. Pitzer appeals. 

DISCUSSION 
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¶6 Does sufficient evidence support the verdict convicting Pitzer of felony theft? 

¶7 The theft charge against Pitzer was filed pursuant to § 45-6-301(3)(a), MCA (1999). 

The State alleged that the value of the property at issue exceeded $1,000. The value of the 

property taken is an essential element of the offense which the State must prove beyond a 

reasonable doubt in a felony theft case. See State v. Martin, 2001 MT 83, ¶ 60, 305 Mont. 

123, ¶ 60, 23 P.3d 216, ¶ 60 (citation omitted). 

¶8 Pitzer’s sole challenge to the sufficiency of the evidence to support his conviction 

relates to the State’s proof of the value of the stolen oboe. We review the sufficiency of 

evidence in a criminal case to determine whether, upon viewing the evidence in the light 

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

elements of the offense beyond a reasonable doubt. See State v. Doyle, 1999 MT 318, ¶ 6, 

297 Mont. 270, ¶ 6, 993 P.2d 9, ¶ 6 (citation omitted). 

¶9 Section 45-2-101(76)(a), MCA (1999), defines “value” as “the market value of the 

property at the time and place of the crime . . . .” Pitzer cites to State v. Pierce (1992), 255 

Mont. 378, 842 P.2d 344; State v. Fox (1984), 212 Mont. 488, 689 P.2d 252; and State v. 

Dess (1984), 207 Mont. 468, 674 P.2d 502, as examples of cases in which this Court 

determined sufficient evidence existed to establish the value of stolen items. The problem is 

that those cases support the sufficiency of the evidence in the present case. 

¶10 In Pierce, the witness testifying as to the value of stolen antiques was a local school 

teacher and part-time antique dealer. We held any rational trier of fact could have found the 

retail value assessed by a local antique dealer was in fact the market value of the stolen 
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goods. Pierce, 255 Mont. at 383, 842 P.2d at 347, 348. In Fox, a computer store operator 

testified regarding the minimum worth of several items of used computer equipment stolen 

from an apartment. The appellant presented no substantial counter evidence. We concluded 

the computer store operator’s value testimony was sufficient to support the jury’s conviction 

of appellant for felony theft. Fox, 212 Mont. at 492, 689 P.2d at 254. Finally, in Dess, two 

witnesses testified regarding the value of stolen bicycles. The first owned a cyclery and had 

two years of experience in buying and selling new and used bicycles, and the second had five 

years of nonprofessional experience in repairing bicycles. Dess, 207 Mont. at 471, 674 P.2d 

at 504. 

¶11 In the present case, Whiteman testified he has been a music educator for 37 years, 

played the oboe in college and is qualified to teach oboe, bassoon and all double reed and 

woodwind instruments. Whiteman also testified that he had been employed as a music 

consultant in Great Falls for two years prior to the theft, and that his duties included teaching 

private lessons; coordinating with school districts in the area; and acting as a music 

adjudicator, guest conductor and salesman of musical instruments. Moreover, Whiteman 

presented detailed information regarding his oboe, as contrasted with other oboes on the 

market, which enhanced its value and supported his valuation. For example, he testified the 

oboe was made by Linton--a company which no longer produces oboes--during the early 

1960s and that the instrument is made of Granadilla wood which is indigenous to South 

America. He also testified as to the differences between silver plated and sterling silver keys, 

the open hole and plateau key systems and how many octave and trill keys the oboe has, all 
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of which relate to the value of the oboe. Pitzer did not present evidence in support of a lower 

valuation for the oboe. 

¶12 Pitzer does not attempt to distinguish Whiteman’s background and experience with 

musical instruments from the background and experience of the valuation witnesses in 

Pierce, Fox, and Dess. His contention is that the State could meet its burden of proving the 

value of the oboe beyond a reasonable doubt only by presenting an “independent valuation” 

rather than a valuation from the owner. However, he advances no authority in support of this 

contention as required under Rule 23(a)(4), M.R.App.P., and we decline to address it further. 

¶13 The weight of the evidence and the credibility of the witnesses are exclusively within 

the province of the trier of fact. Pierce, 255 Mont. at 383, 842 P.2d at 347 (citation omitted). 

 Consequently, the jury was free to rely upon Whiteman’s extensive experience with musical 

instruments and to accept Whiteman’s testimony regarding the unique features of the oboe 

and their enhancement of the instrument’s value. Accordingly, we conclude that, viewing the 

evidence in the light most favorable to the prosecution, sufficient evidence existed from 

which a jury could find, beyond a reasonable doubt, that the value of the stolen oboe 

exceeded $1,000. 

¶14 Affirmed. 

/S/ KARLA M. GRAY 

We concur: 

/S/ W. WILLIAM LEAPHART 
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/S/ PATRICIA COTTER 

/S/ JIM REGNIER 

/S/ JIM RICE