No. 86-211 

IF THE SUPREME COURT OF THE STATE OF PONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRAY MILlHOAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R.D. McPhillips, Judge presid.ing. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Stephen C. Moses, Rilli-ngs, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

James Y. Scheier, Asst. Atty. General, Helena 

James C. Nelson, County Attorney, Cut Rank, Montana 

Filed : 

- - - - - - - 

Submitted on Briefs: Oct. 9, 1986 

Decided : December 31, 1986 

DEC 31 1986 

Clerk 
Mr. Justice John C. Sheehy delivered. the Opinion of the 

Court. 

Defendant Ray Milhoan appeals his conviction for two 

counts of felony theft and one count of misdemeanor theft 

following a jury trial in the District Court, Ninth Judicial 

District, Glacier County. We affirm his conviction. 

The issues raised on appeal are: 

1. Was there sufficient evidence to support the jury's 

findings that defendant acted purposely or knowingly in 

committing the offenses of felony and misdemeanor theft when 

he "exchanged" two motor vehicle engine blocks for others and 

the school district received nothing as a result of the 

trade? 

2. Was there sufficient evidence to support the jury's 

findings that the value of the 427 engine block justified a 

felony theft conviction and the value of the 366 engine block 

justified a misdemeanor theft conviction. 

3. Did the District Court properly deny defendant's 

motions to dismiss and motion for a directed verdict on the 

common scheme felony theft charge relating to the 18 

transactions involving unauthorized use of school property? 

4. Did the District Court err by giving State's jury 

instruction 12 defining knowingly and State's instruction 18 

defining common scheme and by refusing to give defendant's 

offered instruction 6 on reasonable doubt, instruction 10 on 

conviction on conjecture, instruction 16 on the requisite 

mental state, instruction 29 defining larceny and instruction 

31 defining taking? 

In April, 1985, the Glacier County Attorney filed a 

seven count information against Ray Milhoan alleging a series 
of felony thefts from 1980 to 1985. In October, 1985, the 

information was amended down to three counts of felony theft. 

Milhoan was convicted by a jury in November of two counts of 

felony theft and one count of misdemeanor theft. He was 

sentenced to four years for the felonies and six months for 

the misdemeanor. These sentences were suspended on the 

condition that defendant pay $300 in restitution and $550 in 

fines. 

From July, 1980, until April, 1985, Milhoan was employed 

in three capacities. He was a minister at the First Baptist 

Church in Cutbank, he operated an automobile repair business 

called Milhoan Automotive, and he was employed by School 

District No. 15 in Cut Bank as the transportation supervisor. 

As transportation supervisor, Milhoan was responsible for 

maintenance of the school district buses. He had unlimited 

access to the school district bus repair shop, or "bus barn," 

and the Cut Bank High automotive shop. Milhoan used his own 

tools in his job as transportation supervisor because the 

school did not own the necessary equipment. Milhoan' s 

convictions arise from his unauthorized use of the bus barn 

and appropriation of school district property. 

The first felony conviction concerned Milhoan's 

unauthorized effort to trade a school district GMC 427 school 

bus engine to his friend and fellow church official, Midge 

Lorash. In exchange, Lorash was to give the school district 

a rebuildable Chevrolet GMC 350 engine. Not only was this 

"trade" made without the school superintendent's approval, 

but the school never received the Chevrolet engine. 

Nonetheless, the 427 school bus engine was rebuilt in the bus 

barn, and the school district was charged $72 for a water 

pump used in rebuilding it. Several people testifies that 
Milhoan told them the engine belonged to him. The school's 

auto mechanics and welding inst-ructor testified that the 

"core" value (or trade-in value), of the enaine before it was 

rebuilt was $350 to $400. 

The second felony conviction involved another 

unauthorized trade--Milhoan agreed to swap a 366 Chevrolet 

school bus engine for the same type of engine in similar 

condition. However, the other party in the "trade1' was 

unaware of any obligation to pay or give anything back to the 

school district. Accordingly, the school district did not 

receive an engine or anything of value. School authorities 

were unaware of their participation in this trade. The 

schoolls auto mechanics inst.ructor testified that the engine 

was worth $350. The intended recipient of the engine 

believed the engine to be worth $75 to $100. 

Milhoan argues that there was insufficient evidence to 

support the jury's finding that he possessed the requisite 

intent to be convicted of theft. He claims that he was 

authorized, as transportation supervisor, to trade vehicle 

parts belonging to the school district, and that there was no 

written policy prohibiting barter of parts. Further, he 

claims that there was no intent on his part to deprive the 

school of its property. Instead, he argued that it was his 

intent to provide the school with more usable property, as 

the school had no use for the traded engines. 

"A person acts knowingly with respect to the result of 

conduct described by a statute defining an offense when he is 

aware that it is highly probable that such result will be 

caused by his conduct. " Section 45-2-1.01 (33) , MCA. A person 

acts purposely "if it is his conscious object to engage In 
that conduct or to cause that result.'Vection 45-2-101(58), 

MCA . 

Milhoan claims that he arranged the trades motivated 

solely by good intentions. The jury, as the finders of fact, 

did not believe him. Milhoan's response is that there was 

insufficient evidence to support the jury's conclusion. 

Hence, we must address the issue of whether there was 

sufficient evidence to show that Milhoan purposely or 

knowingly exerted unauthorized control over the engine blocks 

and whether the evidence supported a finding that he had the 

purpose of depriving the school district of its property. 

The test this Court uses to judge the sufficiency of the 

evidence is whether there is substantial. evidence supporting 

the conviction when that evidence is viewed in the light most 

favorable to the State. State v. Austad (1982), 197 Mont. 

70, 99, 641 P.2d 1373, 1.389. Substantial evidence is such 

relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion. - Id. The credibility and 

weight to be given to conflicting evidence is solely within 

the province of the jury. - Id. State v. Harvey (19791, 184 

Mont. 423, 428, 603 P.2d 661, 665. 

A review of the evidence presented to the jury firmly 

establishes that the conviction was supported by the 

evidence. First, there is the testimony of the recipients of 

the trade that they did not know of their obligations to give 

the school district engine blocks in exchange for the bus 

engines they received. Second, these same recipients 

testified that they were under the impression that the blocks 

were Milhoan's. Third, Milhoan had twice been personally 

instructed by the Superintendent of Schools that it was 

against school policy to permit its equipment to he used by, 
or loaned out to people who were not employees of the school. 

This instruction was communicated both oral-ly and in writing. 

Fourth, Milhoan also knew that it was the school district's 

policy to auction unneeded equipment and supplies, and in 

fact, testimony revealed that Milhoan had participated in at 

least one school district surplus equipment auction. 

Finally, Milhoan charged the school district $72 for a water 

pump used to rebuild the 427 engine, a task completed in the 

school's bus barn, which was both against explicit school 

policy and for which the school was not compensated. 

Clearly, this evidence is sufficient to support the jury's 

finding that Milhoan acted with knowledge or purpose and 

without authority when he deprived the school district of the 

two school bus engines. 

The next issue raised concerns the value of the engine 

blocks. Milhoan contends that there was insufficient 

evidence to support the jury's conclusion that the 427 

engine's value justified a felony theft conviction and the 

value of the 366 engjne justified a misdemeanor theft 

conviction. 

Section 45-2-101(69), MCA, defines "value" as the market 

value of the property at the time and place of the crimes, or 

if such cost cannot be satisfactorily ascertained, the cost 

of replacement of the property within a reasonable time after 

the crime. 

Milhoan argues that the State presented no evidence of 

the market value of the property at the time of the offense. 

He asserts that the only evidence regarding value was 

evidence about the "core value" of the engines. He maintains 

that this is a notable distinction, explaining that the core 

value is the trade-in value a dealer will discount on a new 
item in exchange for the old part, where market value is the 

item's purchase price in the open market. Defendant ' s 

argument fails to create a notable distinction between the 

values. If core value is the value of a rebuildable engine 

normally determined by a commercial automotive engine 

rebuilder, and the market for a rebuildable engine is with an 

engine rebuilder, then core value is, by logic, identical to 

market value. 

Defendant Milhoan asserts that the market value of both 

engine blocks was $50, citing the testimony given by Midge 

Lorach, recipient of the 427 bus engine. The State's 

witness, Mick Laden, the high school auto mechanics 

instructor, testified that the core value of the 427 engine 

was $350 to $400. Laden later testified that the value of 

the 366 engine was $350. Fill Barnard, the intended 

recipient of this engine, testi-fied that the engine was worth 

$75 to $100. 

It was solely within the province of the jury to weigh 

the testimony of each of the experts. Here, the jury weighed 

the credibility of the testimony of Milhoan's experts, 

against the State1 s expert. Milhoan's experts were the 

intended recipients of the school's property, and neither 

knew they had any obligation to repay the school. The 

State's expert was the high school auto mechanics instructor. 

The jury was more than fair in corcluding that the theft of 

the 366 engine was a mi-sdemeanor and the theft of the 427 

engine block was a felony. 

The second felony conviction, which was the third count 

in the information, was for a common scheme felony theft. 

Milhoan argues that the evidence was not sufficient to 

support his conviction of theft by common scheme, claiming 
that the crimes were unrelated misdemeanors which the State 

bootstrapped into a felony charge. For these reasons, 

Eilhoan motioned both for a dismissal and for a directed 

verdict on this charge. These motions were denied by the 

District Court. We affirm its action. 

There were nineteen related incidents making up the 

common scheme. The incidents began in the fall of 19€!0, and 

continued through April, 1985, and all involved improper use 

of school district equipment and resources. 

Milhoan argues that the evidence was insufficient to 

support his conviction of theft by common scheme. However, 

the record is replete with evidence of Milhoan's thefts from 

the school district. In the fall of 1980, Milhoan used 

school district paint and facilities to repaint the First 

Southern Baptist van. From August, 1980, to April, 1981, he 

helped himself to the school's janitorial cleaning supplies 

and a case of fluorescent light bulbs which he used at his 

church. When asked by church members how these items were 

purchased, Milhoan explained that he had the school district 

take the cost out of his paycheck. School authorities were 

unaware of this arrangement and never deducted any amount 

from Milhoan's check. In November, 1980, approximately five 

cases of tuna fish disappeared from the school's supply. 

Within the same period, the church had a supper for about 40 

people at which the main course was tuna fish sandwiches. 

When Milhoan was asked by church members where he got the 

food he replied, "The Lord provides fish." Throughout 1980, 

Milhoan stocked the church's "poor pantry" with school 

district foodstuffs. One church member testified that he 

estimated there was $800 of school district food in the 

pantrv. Milhoan denied that it was school district property, 
though evidence indicating it was from any other source was 

never produced. Throughout the five year period Milhoan 

regularly fueled his personal and church vehicles with 

gasoline from the school district's pump. He apparently 

considered the gasoline a fringe bene'fit to which he was 

entitled because of the amount of his salary. He explained 

to one former church member that this was his arrangement 

with the school administrators. Use of the gas pumps was one 

of the subjects raised in an August, 1983, memo from the 

school superintendent to Milhoan explicitly prohibiting his 

use of the gas for non-school vehicles. In November, 1980, 

Milhoan borrowed (but never returned) 16 to 20 sheets of 

plywood from the school district when an addition was built 

onto his church. Around that time he also used the school's 

lumber and equipment to rebuild a friend's tow trailer. 

From 1980 to 1985, Milhoan used school equipment and 

facilities to repair private automobiles for profit. During 

this period, he assisted in overhauling or completely 

rebuilding 5 non-school vehicles in the bus barn. In the 

interim he occupied himself with general repairs to several 

other private, non-school vehicles, including an Eddy's Bread 

delivery truck. He had two crankshafts reground at a 

transmission shop in Cut Bank and charged the $120 job to the 

school district although the crankshafts were for non-school 

vehicles. Finally, in 1985, he "borrowed" approximately 

$2,000 in school district tools and equipment, including four 

banquet tables and a 24 foot extension ladder. 

Common scheme means "a series of acts or omissions 

motivated by a . . . common purpose or plan which results in 

the repeated commission of the same offense or affects the 
same person or . . . persons or the property thereof." 

Section 45-2-101 (7) , MCA. 

For 5 years, Milhoan appropriated goods and services 

from his employer. He was warned, both orally and in 

writing, that his activities were unauthorized and 

prohibited. He knew that what he was doing was totally 

unacceptable. In sum, the requirements of the common scheme 

statute were met: there was the repeated commission of the 

same offense, theft, affecting the school district's 

property, and the theft was motivated by a plan to use that 

property for personal gain. The trial court acted within its 

discretion when it denied Milhoan's motion for a directed 

verdict and refused his motion for dismissal. Substantial 

evidence supports the District Court's actions. 

Milhoan also raises the issue of whether the State 

submitted sufficient evidence of value to prove the thefts 

involved in the common scheme warranted felony status. Both 

§§ 45-2-101 (69) (c) , and 45-6-301 (6) , MCA, provide that 

"amounts involved in thefts committed pursuant to a common 

scheme or the same transaction . . . may be aggregated in 

determining the value of the property." While this Court 

will not take judicial notice of the fact that the aggregate 

value of the personalty involved is greater than $300, it is 

clear in this case that the State produced sufficient 

uncontradicted evidence to establish this fact. Invoices, 

business records and direct testimony were presented at trial 

proving the value of the property taken in the common scheme 

was far in excess of $300. Milhoan's claim that the charges 

for his time be deducted is absurd and petty in light of the 

substantial evidence presented by the State. Therefore, we 

again affirm the District Court's rulings. 
Finally, Milhoan claims the District Court erred by 

giving two of the State's proposed jury instructions and 

refusing to give five instructions offered by Milhoan. 

Milhoan first challenges the court's instruction 17, 

which was the State's proposed instruction 12. This 

instruction was based on the statutory definition of 

"knowingly," S 45-2-101(33), MCA, although the exact 

statutory definition was not used, stating: 

A person acts knowingly 

(1) When he is aware of his conduct; or 

(2) When he is aware under the circumstances, that 

his conduct constitutes a crime; or 

(3) When he is aware there exists the high 

probability that his conduct will cause a specific 

result; or 

(4) With respect to a specific fact when he is 

aware of a high probability of that fact's 

existence. 

Milhoan's objection is that this instruction gave the jury 

four options to use in determining whether Milhoan acted 

knowingly. This, Milhoan argues, left the District Court in 

the dark as to the definition used by the jury to convict 

Milhoan. To support this objection, Milhoan cites State v. 

Ferrel (Mont. 1984), 679 P.2d 224, 41 St.Rep. 463, a case 

easily distinguishable as precedent. In Ferrel, the 

alternate definitions of the word "deprive" were used in an 

instruction. This Court ruled that the instruction should 

have been more focused because of the failure of the 

information to disclose the charges against Mrs. Ferrel. In 

the case against Milhoan it is clear that the amended 

information sufficiently detailed the charges against 

Milhoan . Hence this Court's concern in Ferrel is not a 

concern in this case. Further, we note that Milhoan ' s 
argument is not logical in light of our holding in State v. 

Canon (Mont. 1984), 687 P.2d 705, 41 St.Rep. 1659. In Canon, 

this Court rejected the argument that the jury should have 

been instructed to indicate which alternative mental state, 

purposely or knowingly, it relied on in convicting the 

defendant. Milhoan ' s argument is merely a refinement of 

defendant's assertion in Canon. The District Court's actions 

were proper in so instructing the jury. 

Milhoan next maintains that the District Court erred by 

giving an instruction on common scheme, and further erred 

because the instruction was incomplete. As to the first 

contention, Milhoan's activities were properly found by the 

District Court to have been within a common scheme, as 

discussed above. As to the second, we note that the alleged 

"incomplete" instruction given by the District Court was in 

fact merely a statement of the common scheme statutory 

definition, $ 45-2-101(7), MCA, and wonder at the lack of 

thought with which Milhoan's attorney prepared this argument. 

Milhoan complains that his proposed instructions 29 and 

31 were improperly refused by the District Court. We hold 

that the District Court was correct in its refusal as Milhoan 

was advocating the use of incorrect statements of law. 

Milhoan's proposed instruction 29 was based on Montana's 

former larceny statute, S 94-2701, R.C.M. (1947), and was 

archaic in light of the current state of the law. The trial 

court gave, without objection, instructions 15 and 16, which 

set forth the elements of theft to be proven by the 

prosecution. Milhoan's proposed instruction 31 was an 

attempt to set out the mental state required for proof of the 

offense of theft. However, the language of the proposed 

instruction is archaic, as the classic "taking" of property 
was not carried over into the new criminal code. State v. 

McCartney (1978), 179 Mont. 49, 51-52, 585 P.2d 1321, 1323. 

Further, the District Court adequately instructed the jury on 

the required mental state in instructions 11, 13, 14, 17 and 

18. 

Defendant further argues that the court improperly 

denied his proposed instruction 16, stating that both act and 

mental state must be proven to convict the defendant. 

However, the court properly instructed the jury concerning 

the issue of act with accompanying intent in its instruction 

11, stating "two essential elements in all criminal offenses 

are a voluntary act and a mental state." We find that 

Milhoan's instruction was cumulative and was properly denied. 

Milhoan argues that the court improperly denied his 

proposed instruction 6, an archaic and improper statement on 

reasonable doubt. Milhoan's attorney cites the 1940 case of 

State v. Cassill (1924), 71 Mont. 274, 229 P. 716, to support 

his claim, apparently oblivious of State v. Lucero (Mont. 

1984), 693 P.2d 511, 516, 41 St.Rep. 2509, 2515, where this 

Court disapproved an instruction similar to the one offered 

by Milhoan and adopted the language that was used by the 

District Court instructing Milhoan's jury. 

Milhoan's final argument is that the ~istrict Court 

erred when it denied his proposed instruction 10, which he 

claims would have instructed the jury not to convict on the 

basis of suspicion or speculation. The District Court gave 

as its first instruction the following pertinent admonition: 

The function of the jury is to decide the issues of 

fact resulting from the charge or charges filed in 

this Court by - the State and the defendant's lea of 

"not quilty" to 

should- p . -. &rf orm 

prejudice. - You 

defendant because 

Lthose charges. This duty you 

uninfluenced b~ passion - or 

--- must not be biased against a 

he has been arrested for this 
offense, or because charges have been filed against 

him, or because he has been brought before the 

Court to stand trial. None of these facts is 

evidence of his guilt, and you -- are not permitted to 

infer or to speculate from any or all of them that 

he is more-likely to be guilty than innocent. 

You are to be governed solely by the evidence 

introduced in this trial and the law as stated to 

you by me. The law forbids you to be qoverned 

mere sentiment, conjecture, sympathy, passion, 

rejudice, public opinion or public feeling. Both 

:he State and the defendant-have a right to demand, 

and they do demand and expect, that you will act 

conscientiously and dispassionately in considering 

and weighing the evidence and applying the law of 

the case. (Emphasis added. ) 

This instruction was given without objection. Milhoan ' s 

proposed instruction 10 was repetitive and hence unnecessary. 

For the reasons stated herein, defendant Milhoan's 

conviction is affirmed. 

We Concur: /