                                       No. 86-211
                 IF THE SUPREME COURT OF THE STATE OF PONTANA

                                           1986




STATE OF MONTANA,
                  P l a i n t i f f a n d Respondent,

          -vs-
RAY 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



                                           -- -   -   -   -   -




                                           Submitted on Briefs: Oct. 9, 1986
                                              Decided : December 31, 1 9 8 6



Filed :    DEC 3 1 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 State1s 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
                   -                                   L   -

      "not quilty" to those charges.       This duty you
      should- p &rf orm
          . -.
                         uninfluenced   b~   passion   or
                                                       -
      prejudice.     You - -not be biased against a
                     -   must   -
      defendant because 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 - - permitted to
                                    are not
     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:         /
