State v. Kapps, 2017 MT 207N

Defendant Mark Kapps lived with the victim’s mother; victim (M.C.), then a child, alleged multiple sexual acts by Kapps between Dec. 26, 2013 and Aug. 4, 2014.
Allegations included digital and penile contact, coercion to touch the defendant, and ejaculation onto a blanket; a sperm sample from the blanket matched Kapps’ DNA.
Charges: Sexual Assault and Sexual Intercourse Without Consent (two felony counts). Jury convicted on both counts.
Defense did not object at trial to jury instructions or prosecutor’s closing remarks; post-trial Kapps raised several grounds on appeal including unanimity/double jeopardy, prosecutorial vouching, ineffective assistance of counsel, and improper sentencing conditions.
District Court imposed probation conditions restricting possession/viewing of sexually explicit material and limiting internet/cellphone/device access, subject to parole officer/therapist approval for exceptions. Court of Appeals affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unanimity instruction / double jeopardy	State: jury must unanimously agree on specific act; instruction adequate.	Kapps: unanimity instruction insufficient—may have been convicted twice for same act, violating double jeopardy.	Court: Instructions (Weaver language) plus closing argument were adequate; evidence supported separate convictions; no plain error.
Prosecutorial vouching (closing)	State: brief statements did not rise to reversible error.	Kapps: prosecutor vouched for victim and attacked his credibility, requiring reversal under plain error.	Court: comments were brief; no plain error warranting reversal.
Ineffective assistance of counsel (IAC)	State: record does not clearly show counsel was ineffective.	Kapps: counsel failed to prepare, object, and raise issues at trial.	Court: Claims require facts outside record to evaluate; not resolved on direct appeal—may be raised in postconviction relief.
Sentencing conditions (First Amendment; tech restrictions)	State: conditions reasonably related to rehabilitation and public/victim protection; narrowly tailored with supervisory exceptions.	Kapps: Conditions 30–31 (content bans) and 32–33/40 (internet/device limits) are overbroad, unconstitutional, or impractical.	Court: Conditions further compelling interests (rehabilitation/protection) and are facially reasonable; internet/device limits include exceptions and are not overly broad.

State v. Crider, 375 Mont. 187, 328 P.3d 612 (Mont. 2014) (plain error review standard)
State v. Weaver, 290 Mont. 58, 964 P.2d 713 (Mont. 1998) (unanimity instruction language and standard)
State v. Skinner, 338 Mont. 197, 163 P.3d 399 (Mont. 2007) (preserving sufficiency-of-evidence challenges on appeal)
City of Helena v. Strobel, 387 Mont. 17, 390 P.3d 921 (Mont. 2017) (sufficiency-of-evidence standard)
State v. Maxwell, 198 Mont. 498, 647 P.2d 348 (Mont. 1982) (jury as sole judge of witness credibility)
State v. Merrick, 299 Mont. 472, 2 P.3d 242 (Mont. 2000) (single witness testimony may suffice for conviction)
State v. Howard, 362 Mont. 196, 265 P.3d 606 (Mont. 2011) (IAC claims limited by record; some claims require postconviction proceedings)
State v. Guill, 359 Mont. 225, 248 P.3d 826 (Mont. 2011) (restrictions on fundamental rights subject to strict scrutiny; rehabilitation/protection are compelling interests)
State v. Burch, 342 Mont. 499, 182 P.3d 66 (Mont. 2008) (sentencing conditions must be authorized and reasonably related to objectives)