DA 06-0387 

 IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2008 MT 40 

STATE OF MONTANA, 

 Plaintiff and Appellee, 

 v. 

CHAD E. MEEKS, 

 Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and For the County of Missoula, Cause No. DC-05-0297 

Honorable Douglas G. Harkin, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

Martin W. Judnich, Attorney at Law, Missoula, Montana 

For Appellee: 

Hon. Mike McGrath, Attorney General; Sheri K. Sprigg, Assistant Attorney 

General, Helena, Montana 

Fred Van Valkenburg, Missoula County Attorney; Dale Mrkich, Deputy 

County Attorney, Missoula, Montana 

Submitted on Briefs: August 9, 2007 

Decided: February 5, 2008 

Filed: 

__________________________________________ 

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

¶1 A jury found Chad Meeks guilty of theft by common scheme, and the Fourth Judicial 

District Court, Missoula County, entered judgment against him. Meeks appeals and we 

affirm. 

¶2 The issue is whether the District Court erred in denying Meeks’ motion for directed 

verdict on grounds the State of Montana failed to present evidence that he exerted or 

obtained unauthorized control over property of another. 

BACKGROUND 

¶3 The State of Montana charged Meeks with felony theft by common scheme in 

violation of §§ 45-2-101(7) and 45-6-301, MCA (2003). At trial, a police detective for the 

City of Missoula and loss prevention employees from three Missoula “big box” stores 

testified Meeks had been involved in three different methods of stealing property from the 

stores. In the first method, Meeks would walk into a store, load a shopping cart with 

merchandise, and then take it to the return counter and “return” the items without a receipt, 

usually in exchange for a store gift card. The second method involved price-switching by 

Meeks—taking bar code stickers from less expensive items and putting them onto more 

expensive items, then purchasing the more expensive items at the lesser price. In the third 

method, Meeks would bring a receipt into a store, pick up the items listed on that receipt 

from store shelves, and then take the items to the return counter for a cash refund. Using 

videotape evidence and testimony by the store loss prevention employees, the State’s 

witnesses identified specific incidents in which Meeks took control of more than $1,000 in 
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merchandise, store gift cards and cash refunds. 

¶4 Meeks moved for a directed verdict following the State’s presentation of its case at 

trial, but the District Court denied his motion. Meeks did not put on any witnesses or offer 

other evidence. His counsel argued to the jury that the State had failed to prove all of the 

elements of the offense of theft as charged. The jury found Meeks guilty, and he appeals. 

STANDARD OF REVIEW 

¶5 We recently clarified that, because it involves analysis and application of the law to 

the facts, we will review the denial of a motion for a directed verdict de novo. See State v. 

Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, ¶ 19, 160 P.3d 511, ¶ 19. A directed verdict of 

acquittal should be granted in a criminal case only when no rational trier of fact, viewing the 

evidence in the light most favorable to the prosecution, could find the defendant guilty 

beyond a reasonable doubt. Swann, ¶ 16 (citations omitted). 

DISCUSSION 

¶6 Did the District Court err in denying Meeks’ motion for directed verdict on 

grounds that the State of Montana failed to present evidence that he exerted or 

obtained unauthorized control over property of another?

¶7 Section 45-6-301, MCA (2003), sets forth the elements of some of Montana’s theft 

offenses. The statute contains seven subsections, each of which contains the basic premise of 

a theft offense with language such as obtaining or exerting unauthorized control over 

property of the owner, obtaining by threat or deception control over property of the owner, 

obtaining control over stolen property knowing it to have been stolen by another, and the 

like. See e.g. §§ 45-6-301(1), (2) and (3), MCA (2003). In turn, each of the subsections 
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contains sub-subsections, none of which are at issue here. Other statutes define other theft 

offenses and related offenses. 

¶8 Section 45-6-301(1)(a), MCA (2003), under which Meeks was prosecuted, provides 

that a person “commits the offense of theft when the person purposely or knowingly obtains 

or exerts unauthorized control over property of the owner . . . and has the purpose of 

depriving the owner of the property[.]” Meeks contends that, while his actions may have 

constituted a different offense, they did not constitute the theft charged because he possessed 

the stores’ property only as authorized by store personnel. Consequently, according to 

Meeks, he could not be convicted under § 45-6-301(1)(a), MCA (2003), as a matter of law. 

¶9 A county attorney has broad discretion in determining when to prosecute a case and 

what crime will be charged. When the facts would support more than one charge, the crime 

to be charged is a matter of prosecutorial discretion. State v. Smith, 2004 MT 191, ¶ 19, 322 

Mont. 206, ¶ 19, 95 P.3d 137, ¶ 19 (citations omitted). Moreover, and despite Meeks’ claims 

to the contrary, we conclude the charge against him reflects the intent behind the statute. The 

Criminal Law Commission comments to § 45-6-301, MCA, which was enacted as § 94-6-

302, RCM (1947), include the following: 

While the method by which unauthorized control is obtained or exerted is 

immaterial in subsection (1), and probably, in conjunction with one of the 

subdivisions (a), (b), or (c), would cover all forms of theft the commission felt 

that such an approach might be too concise, and might create problems of 

application, in view of the large body of statutory material and the large 

number of offenses it is intended to replace. Therefore, subsections (2) and (3) 

were added, to cover the specific offenses of theft by threat or deceit and 

receipt of stolen property, although the commission intends that all forms of 

theft could be charged and proved under subsection (1). 
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(Emphasis supplied.) 

¶10 Meeks argued in his motion for directed verdict of acquittal—and argues on appeal—

that he was not guilty of the charged offense as a matter of law because the State presented 

no evidence of his “unauthorized” control over the property at issue. The argument is based 

on the existence of store procedures for returns of merchandise in exchange for a store gift 

card and the like, and that store employees authorized his obtaining control over the property. 

At the bottom line, Meeks contends the State should have charged him with theft by 

deception under § 46-5-301(2), MCA (2003), or deceptive practices pursuant to § 45-6-317, 

MCA (2003). We disagree. 

¶11 With regard to Meeks’ argument that the State presented no evidence of “unauthorized 

control,” the record reflects otherwise. A loss prevention associate for Walmart testified that 

Meeks took items off store shelves, put them into a cart, walked up to the customer service 

desk and asked for a refund for the items he had not paid for. The loss prevention associate 

testified Meeks was not authorized to do that. An assets protection associate at a second 

Missoula Walmart store testified about—and showed the jury store surveillance videotapes 

of—Meeks making purchases of various items with price stickers switched from lowerpriced items. An assets protection manager for Target showed the jury a store videotape 

which showed Meeks selecting merchandise off store shelves from a receipt which he had 

brought into the store, and then taking the merchandise to the front of the store, where he told 

the cashier he had already purchased the merchandise and was returning it. The assets 

protection manager testified Target had not authorized Meeks to do that.
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¶12 Viewing the evidence in the light most favorable to the prosecution, a rational trier of 

fact could have found Meeks guilty of the charged theft beyond a reasonable doubt. We 

conclude, therefore, the District Court did not err in denying Meeks’ motion for a directed 

verdict of acquittal as a matter of law.

¶13 Affirmed. 

 /S/ KARLA M. GRAY 

We concur: 

/S/ PATRICIA COTTER 

/S/ W. WILLIAM LEAPHART 

/S/ JAMES C. NELSON 

/S/ BRIAN MORRIS