Submitted on Briefs: April 4, 2018
FROM: District Court of the Tenth Judicial District, In and
For the County of Fergus, Cause No. DC 12-21 Honorable Jon A.
Oldenburg, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Chad R. Vanisko,
James Reavis, Assistant Appellate Defenders, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Ryan
Aikin, Assistant Attorney General, Helena, Montana Thomas P.
Meissner, Fergus County Attorney, Lewistown, Montana
Barry William Mills appeals from the judgment of conviction
of the Montana Tenth Judicial District Court, Fergus County,
on jury verdicts on the offenses of felony theft and
misdemeanor theft, as defined by § 45-6-301(1), MCA. We
We address the following restated issues:
1. Whether the District Court erroneously denied
Mills's pretrial and post-verdict motions to dismiss
based on the unqualified principle that a claim of right
precludes a purposeful deprivation of property under §
2. Whether the District Court erroneously failed to
instruct the jury on the claim-of-right defense?
3. Whether the District Court erroneously allowed the
State to present expert testimony on matters of law?
AND PROCEDURAL BACKGROUND
Barbara Cozzens lived on a 13-acre property owned by her
mother in Lewistown, Montana. She kept various animals on the
property including 13 horses, 7 cows, 9 cats, and some goats.
In the fall of 2011, after securing a job in Wyoming, Cozzens
needed a caretaker for her animals and property during the
winter months until she could make other arrangements. In
early October, Cozzens posted an internet ad for a caretaker
to perform various animal and property care for an estimated
2-3 hours per day in return for rent-free housing in her
home. Mills responded to the ad from Florida and he and
Cozzens subsequently negotiated an agreement by email. Mills
would drive his motorhome to Montana from Florida and would
then perform various daily, weekly, and monthly tasks
specified on a list that Cozzens would subsequently provide.
In return, Cozzens would allow Mills to live in her home
rent-free, stock-up on necessary supplies, and set up an
expense account with a third-party vendor to allow Mills to
obtain other necessary supplies at Cozzens's expense.
Cozzens would also pay for various utilities, including
electricity and propane, while Mills would pay for desired
internet service. The parties generally discussed the
possibility of Mills performing various handyman projects for
additional payment on a by-job basis if interested, but
reached no agreement about any specific projects.
Over the next two months prior to Mills's arrival in
Montana, he and Cozzens exchanged dozens of emails and text
messages reflecting tension between them about the terms of
their agreement and their respective assumptions and
expectations in regard thereto. Because she was in a bind,
Cozzens stuck to the agreement despite what she later
characterized as "red flags." After some confusion
about a start date, Mills arrived in Lewistown on December
16, 2011. While showing Mills around the property, Cozzens
showed him an office she described as "off limits"
to him which would serve as her room when she periodically
returned to Lewistown over the winter. The office contained
personal property belonging to Cozzens as well as various
items owned by her boyfriend, Deb Greenough. On December 18,
2011, Cozzens left for Wyoming.
Over the following weeks and months, Mills and Cozzens
exchanged emails and text messages almost daily. The messages
were friendly and, at times, flirtatious. Mills provided few
details regarding his work on the property and did not advise
Cozzens of any problem. In turn, Cozzens did not make any
specific inquiry, make any extraordinary request, or give
Mills any additional direction.
However, in February 2012, Mills requested that Cozzens
reimburse him for $1, 387.50 in out-of-pocket expenses
incurred for cat supplies, goat feed, and hay delivery.
Though upset because she had not contemplated that Mills
would incur out-of-pocket expenses for such items, Cozzens
had her mother compensate Mills for those expenses but
directed him to thereafter advise her in advance of any
contemplated out-of-pocket expenses. Cozzens and Mills
exchanged a number of terse emails over the following week
which culminated in Cozzens apologizing to Mills. Cozzens
reminded Mills that, though she liked him and felt that they
could be friends, theirs was a "business relationship
first and foremost" and that they would need to
reevaluate if Mills felt that their arrangement was
inequitable. Mills acknowledged that he understood.
On March 4, 2012, Cozzens returned to Lewistown to check on
her animals and property. Mills became upset when she told
him that she would only be staying for 1-2 days. He asserted
that he had made his intentions about her clear and wanted to
know why she was ignoring him. Cozzens later testified that
she felt that she needed to terminate her dealings with Mills
after he became argumentative when she told him that she
loved her boyfriend. When Cozzens prepared to leave the
following morning, Mills gave her a belated Valentine's
Day gift in a box containing a bow and a sexually suggestive
note. Cozzens testified that she was mortified when she later
opened the box because the gift and note were inappropriate
and unwarranted. Following a subsequent negative downturn in
their communications, Cozzens notified Mills that she was
going to move her animals and directed him to vacate her
property by May 1, 2012.
On April 21, 2012, Mills sent Cozzens a lengthy email and a
48-page document entitled "Quit Notice," which he
also copied to Cozzens's mother, father, and sister. The
email accused Cozzens of dehumanizing and disrespecting Mills
and claimed that Cozzens owed him $12, 353.51 for previously
performed labor, out-of-pocket expenses, and relocation
costs. The email further informed Cozzens that, "[a]s a
result of consultations with both my former wife and a local
attorney, I have removed goods from your mother's
property as security against your unpaid debt."
Inter alia, the attached "Quit Notice"
specified Mills's hourly rates for labor and
"literary efforts" (i.e. time spent corresponding
with Cozzens) and an itemized list of the services and tasks
for which he claimed entitlement to payment. The notice
Because I am informing you of my actions, and because I have
deposited the goods with an attorney to be held for your
collection following full payment or auction pursuant to the
settling of a Civil Court case, my actions do not constitute
theft. . . .
After I have been paid, the return of your held property can
be negotiated with my Montana attorney; you will also have to
pay her fee, and the cost of the storage unit in which the
goods are deposited. If I am not paid, in full, . . . by
close of business April 20, 2012, my attorney will instruct
you formally as to the more time-consuming and costly process
you will be deemed to have insisted upon.
email and attached notice did not identify, or provide
contact information for Mills's purported Montana
attorney. Upon receipt of the email, Cozzens contacted the
Fergus County Sheriff's Office and reported the matter to
Deputy Randy Poser. Deputy Poser subsequently called Mills
and left a voice message request for a return call. Mills did
not return the call.
Upon her return to Lewistown, Cozzens documented in excess of
$28, 000 worth of property missing from her home following
Mills's departure. Upon additional investigation, law
enforcement obtained a warrant for Mills's arrest on
suspicion of theft. Officers were unable to arrest Mills
until they found him in Musselshell County on July 3, 2011.
During a post-arrest interview, Mills admitted to taking
property from Cozzens's home but claimed that he took the
property and placed it in a storage unit "through the
auspice" of an unidentified Montana lawyer. Upon further
investigation, including a report from a Roundup woman who
had hired Mills to perform work and later discovered property
in her rented storage unit that did not belong to her,
investigating officers obtained and executed search warrants
on Mills's motorhome and the Roundup storage unit where
they found most of the property reported missing from
Cozzens's home. A number of items of missing property,
including Cozzens's photo albums and yearbooks, were not
Prior to trial on charges of felony and misdemeanor theft
regarding the separate property of Cozzens and Greenough,
Mills moved for dismissal on the asserted ground that the
State could not prove that he acted with the purpose to
deprive the owners of the property within the meaning of
§ 45-6-301(1)(a), MCA, because, as alleged by the State,
he seized and held the property only for the purpose of
securing a claimed contract debt. The District Court denied
the motion on the ground that the question of whether Mills
acted with the requisite mental state for the charged
offenses was a question of fact for jury determination. The
matter proceeded to trial and the jury found Mills guilty of
both counts of theft as charged.
After the verdicts, Mills again moved for dismissal, or
judgment as a matter of law, on the asserted ground that the
undisputed evidence that he took the property under a claim
of civil right, even if mistaken, precluded proof that he
acted with the requisite purpose to deprive the owners of the
property. Again finding the matter within the province of the
jury, the District Court denied the motion and ultimately
sentenced Mills on the felony to a five-year term of
commitment to the Montana Department of ...