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Big Arm man guilty of criminal mischief, trespassing in property dispute

POLSON — A Big Arm man was convicted of criminal mischief, a felony, and two counts of trespassing, both misdemeanors, in a jury trial last week in district court.

Kevin Brent Funk, 54, was found guilty after he plowed furrows on a 2.5-acre property along Flathead Lake and had some boulders placed on a lakefront property in the 73700 block of Highway 93.

During closing arguments on Tuesday, Dec. 20, Lake County Attorney Steve Eschenbacher said Funk was playing a game because he didn’t want the land to be sold (as part of a divorce). Defense attorney Ben Darrow argued that Funk did not know that the property had been sold when he plowed part of it and paid for the rocks to be put there in February and April of 2016.

Divorce attorney Kay Lynn Lee testified on Dec. 19 that she had mailed Funk documents in April and July 2016 after the sale of the 2.5-acre property to Jim Moerkerke closed on April 30, 2015. Lee said the documents were sent to Funk at general delivery to the Big Arm post office because that’s what Funk had requested. However under questioning from Darrow, Lee said she was aware that Funk was in jail during those times. “I’m required to serve at the address I have,” she said.

Lee testified that some of Funk’s neighbors were picking up his mail for him. “I know he gets his mail,” she said.

Funk also put a sign up on the property that referred to the land being in an “irrevocable trust,” Lee said. She noted that Funk had filed two appeals of the property settlement in his divorce but that the Montana Supreme Court didn’t consider the “irrevocable trust” argument because it wasn’t raised in the first appeal.

When Funk put the sign up, the property had already been put into the hands of a receiver, Steven Stahlberg, and was ordered sold by Judge Deborah Kim Christopher, Lee said.

On Dec. 19, Stahlberg testified that he was on the property in question in late April 2015 with Moerkerke. The men were removing fencing when they met Funk, who was given papers by a Lake County Sheriff ’s deputy, Stahlberg said.

Sgt. Mike Carlson testified on Dec. 19 that he was called to the property on April 25, 2015 because he was told Funk was causing problems.

Carlson said he showed Funk paperwork about the land in question being in receivership and told him that he would be charged with trespassing if he interfered.

Carlson testified that Funk had a hammer with him that day, and Carlson said he considered it to be a weapon.

Upon questioning from Darrow, Carlson said he never told Funk that he needed to stay off the property after the sale closed (five days later).

In thanking the jury of four men and eight women, Judge James A. Manley said, “This wasn’t the easiest case.”

He set Funk’s sentencing for Feb. 8 and denied a request by Darrow to release Funk on his own recognizance after Eschenbacher spoke against it. Eschenbacher said he had offered to release Funk on his own recognizance earlier if he would agree to not go to his former property, but he refused. “Now he has no reason to comply,” Eschenbacher said.

Funk’s bond remains at $100,000. He can be sentenced to up to 10 years in prison for criminal mischief and six months for each trespassing charge.

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