State v. Mills, DA 15-0470

Docket NºDA 15-0470
Citation393 Mont. 121, 2018 MT 254, 428 P.3d 834
Case DateOctober 16, 2018
CourtUnited States State Supreme Court of Montana

393 Mont. 121
428 P.3d 834
2018 MT 254

STATE of Montana, Plaintiff and Appellee,
Barry William MILLS, Defendant and Appellant.

DA 15-0470

Supreme Court of Montana.

Submitted on Briefs: April 4, 2018
Decided: October 16, 2018

For Appellant: Chad Wright, Appellate Defender, Chad R. Vanisko, James Reavis, Assistant Appellate Defenders, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Ryan Aikin, Assistant Attorney General, Helena, Montana, Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

393 Mont. 124

¶ 1 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 affirm.

¶ 2 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 § 45-6-301(1), MCA ?

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?
393 Mont. 125


¶ 3 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

428 P.3d 837

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.

¶ 4 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.

¶ 5 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.

¶ 6 However, in February 2012, Mills requested that Cozzens

393 Mont. 126

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.

¶ 7 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.

¶ 8 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

428 P.3d 838

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

393 Mont. 127

tasks for which he claimed entitlement to payment.1 The notice further declared:

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.

The 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.

¶ 9 Upon her return to Lewistown, Cozzens documented in excess of $28,000 worth of property missing from her home following Mills’s departure.2 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

393 Mont. 128

of missing property, including Cozzens’s photo albums and yearbooks, were not recovered.

¶ 10 Prior to trial on charges of felony and misdemeanor theft regarding the separate property of Cozzens and Greenough, Mills moved for...

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6 cases
  • State v. Lake, DA 19-0648
    • United States
    • Montana United States State Supreme Court of Montana
    • February 8, 2022
    ...strained or eager attention"-"having the mind or attention closely or fixed directly on something"). [16] See similarly State v. Mills, 2018 MT 254, ¶¶ 18-19, 393 Mont. 121, 428 P.3d 834 (noting 1973 Criminal Code displacement of prior common law-based offenses requiring proof of "specific ......
  • State v. Lake, DA 19-0648
    • United States
    • Montana United States State Supreme Court of Montana
    • February 8, 2022
    ...with strained or eager attention"—"having the mind or attention closely or fixed directly on something").16 See similarly State v. Mills , 2018 MT 254, ¶¶ 18-19, 393 Mont. 121, 428 P.3d 834 (noting 1973 Criminal Code displacement of prior common law-based offenses requiring proof of "specif......
  • City of Bozeman v. McCarthy, DA 17-0080
    • United States
    • Montana United States State Supreme Court of Montana
    • September 3, 2019
    ...arbitrarily, without conscientious judgment or in excess of the bounds of reason, resulting in substantial injustice. State v. Mills , 2018 MT 254, ¶ 12, 393 Mont. 121, 428 P.3d 834. A challenge of the sufficiency of the evidence to sustain a conviction is a question 447 P.3d 1055 of law re......
  • In re J. W., DA 20-0580
    • United States
    • Montana United States State Supreme Court of Montana
    • November 9, 2021
    ...sufficient to allow a defendant to fairly present asserted defense theories supported by applicable law and the evidence. State v. Mills , 2018 MT 254, ¶ 34, 393 Mont. 121, 428 P.3d 834. Given J.W.’s theory of defense and the trial evidence, I would conclude it was error for the District Co......
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