Single-Count Charging of Felony Theft by Common Scheme Permissible; Rowe Distinguished and Limited to Non-Cognizable “Common Scheme” Charges

Single-Count Charging of Felony Theft by Common Scheme Permissible; Rowe Distinguished and Limited to Non-Cognizable “Common Scheme” Charges

Introduction

In State v. Wolfchild, 2025 MT 234N, the Montana Supreme Court affirmed a bench-trial conviction for felony theft by common scheme under § 45-6-301(1)(a), MCA (2019), arising from a series of thefts at a Scheels store over several days in June 2022. The appeal raised two principal questions:

  • Whether sufficient evidence supported the District Court’s finding that the aggregated value of the stolen property met the felony threshold via a “common scheme.”
  • Whether, under plain error review, the State violated due process by charging a single count of felony theft by common scheme rather than separately pleading each underlying theft as individual misdemeanor counts.

The Court rejected both challenges. First, it held that circumstantial and video evidence—paired with testimony and pawn records—permitted a rational factfinder to conclude beyond a reasonable doubt that the June 7 theft occurred and that the aggregate value exceeded $1,500. Second, the Court declined to apply plain error review to a due process claim premised on an asserted universal requirement to plead each predicate theft in separate counts; distinguishing State v. Rowe, 2024 MT 37, the Court explained that felony theft by common scheme is a cognizable offense that may be charged in a single count, consistent with longstanding Montana practice and the aggregation statute.

Notably, the Court issued a memorandum opinion pursuant to Section I, Paragraph 3(c) of the Montana Supreme Court Internal Operating Rules, designating the decision noncitable and nonprecedential. Even so, the opinion is instructive on sufficiency standards for circumstantial evidence in retail theft prosecutions and on the limited reach of Rowe in the “common scheme” context.

Summary of the Opinion

  • The Court affirmed the conviction for felony theft by common scheme, concluding that:
    • Surveillance videos, loss-prevention testimony, and pawn shop evidence supported findings that the defendant stole merchandise on June 6, June 7, and June 9, 2022.
    • As to June 7, although concealment was not captured, circumstantial evidence (movement of items off-camera, return without items, search yielding no items, and immediate pawning of a matching arrow rest by an accomplice) sufficed to prove the theft beyond a reasonable doubt.
    • Aggregating the values under § 45-6-301(8), MCA (2019), yielded a total exceeding the $1,500 threshold, supporting felony liability by common scheme under §§ 45-6-301(7)(b)(ii) and 45-2-101(8), MCA (2019).
  • The Court declined plain error review of the due process challenge to single-count charging:
    • Due process requires proof beyond a reasonable doubt of each element, but it does not universally require separate counts for each predicate offense when charging “common scheme” theft.
    • Rowe’s admonition about separate counts addressed a non-cognizable “common scheme” sexual assault charge and improper joinder; it does not extend to cognizable “common scheme” property crimes that statutes explicitly authorize and permit to be aggregated.
    • Montana has a longstanding practice of charging “common scheme” theft as a single count.
  • The judgment was affirmed.

Detailed Analysis

Factual Background and Procedural Posture

Over the period June 6–10, 2022, the defendant, Chad Jerome Wolfchild, repeatedly stole merchandise from Scheels in Great Falls, Montana. Loss prevention identified him on video taking multiple boxes of fishing line and arrow rests. On June 10, a co-actor, Carla Cree Medicine, attempted to return similar items; police were called, and after waiving Miranda, Wolfchild admitted to taking items to retrieve his vehicle from impound.

The State charged one count of felony theft by common scheme, relying on three clusters of thefts:

  • June 6: two boxes of fishing line and two arrow rests (valued at $736.92).
  • June 7: one box of fishing line and one arrow rest (valued at $408.99 per the court’s finding; charging documents used $409.98).
  • June 9: two arrow rests (valued at $529.98).

At the October 2, 2023 bench trial, the State introduced video footage for June 6 and June 9 showing concealment and exit without payment. For June 7, video showed Wolfchild carry items to an off-camera food prep area, return empty-handed, and leave; employees later found no items in that area. Exterior videos showed Wolfchild with Cree Medicine going to a pawn shop; just before she entered alone, he handed her an object; the pawn shop recorded her pawning a Mathews arrow rest packaged in a white box similar to that observed on video. The court found the total value to be $1,675.89 and convicted him of felony theft by common scheme.

Precedents and Authorities Cited

  • State v. Christensen, 2020 MT 237, 401 Mont. 247, 472 P.3d 622:
    • Sets the sufficiency-of-evidence standard: view the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could find the essential elements beyond a reasonable doubt.
  • State v. Daniels, 2019 MT 214, 397 Mont. 204, 448 P.3d 511:
    • Quoted in Christensen for the “any rational trier of fact” standard.
  • State v. Burnett, 2022 MT 10, 407 Mont. 189, 502 P.3d 703, and State v. Bekemans, 2013 MT 11, 368 Mont. 235, 293 P.3d 843:
    • Reinforce that credibility determinations and weighing of evidence are the factfinder’s province; appellate courts do not reweigh but examine for sufficiency.
  • State v. Weigand, 2005 MT 201, 328 Mont. 198, 119 P.3d 74:
    • Confirms that the question is whether the evidence supports the verdict, not whether it could support a different one.
  • State v. George, 2020 MT 56, 399 Mont. 173, 459 P.3d 854; State v. Akers, 2017 MT 311, 389 Mont. 531, 408 P.3d 142; State v. Favel, 2015 MT 336, 381 Mont. 472, 362 P.3d 1126:
    • Articulate the plain error doctrine: discretionary review of unpreserved claims involving fundamental rights, upon a strong showing that failure to review would cause a manifest miscarriage of justice, undermine fundamental fairness, or compromise the integrity of the process.
  • State v. Laird, 2019 MT 198, 397 Mont. 29, 447 P.3d 416; Addington v. Texas, 441 U.S. 418 (1979):
    • Due process requires proof beyond a reasonable doubt of each element in a criminal case.
  • State v. Rowe, 2024 MT 37, 415 Mont. 280, 543 P.3d 614:
    • Held that a “common scheme” sexual assault charge was non-cognizable, and that charging it as a single count contravened joinder rules and produced prejudicial evidentiary spillover; observed that each predicate offense for a purported “common scheme” must generally be pled in separate counts under § 46-11-404, MCA.
  • State v. Milhoan, 224 Mont. 505, 730 P.2d 1170 (1986); Stilson v. State, 278 Mont. 20, 924 P.2d 238 (1996); State v. Deshazer, 2016 MT 8, 382 Mont. 97, 365 P.3d 475:
    • Representative of Montana’s longstanding acceptance of single-count charging for “common scheme” property offenses, including aggregated theft/bad checks.
  • State v. Partain, 2025 MT 83, 421 Mont. 375, 567 P.3d 932:
    • Recognizes prosecutorial discretion to select among charges supported by the facts when multiple potential crimes are implicated.
  • Statutes (2019 versions applicable to 2022 conduct):
    • § 45-6-301(1)(a), MCA: defines theft.
    • § 45-6-301(7)(b)(ii), MCA: elevates theft to felony when committed as part of a “common scheme” meeting statutory value thresholds.
    • § 45-2-101(8), MCA: defines “common scheme” (a series of acts resulting in at least $1,500 loss, motivated by a single criminal objective or common plan affecting the same person/property).
    • § 45-6-301(8), MCA: permits aggregation of amounts in “common scheme” thefts to determine value.
    • Note: The 2025 Legislature revised and restructured § 45-6-301(7) (2025 Mont. Laws ch. 583, § 2), but the 2019 versions governed the 2022 conduct.

Legal Reasoning

1) Sufficiency of the Evidence

Applying Christensen and related authority, the Court reviewed de novo whether—viewing the evidence in the light most favorable to the State—any rational factfinder could find each element beyond a reasonable doubt. The core dispute involved the June 7 incident because concealment was not captured on in-store video.

The trial court found beyond a reasonable doubt that Wolfchild took a box of fishing line and a Mathews arrow rest on June 7, based on:

  • Video showing him carrying those items to an off-camera area and returning without them; employees later found no items in the area.
  • Exterior video showing him walking with Cree Medicine to a pawn shop, holding an object resembling the arrow rest box, and handing her an item before she entered the pawn shop alone.
  • Pawn shop testimony and photos establishing that she pawned a Mathews arrow rest in a white box consistent with the item seen on video.
  • Pattern evidence from June 6 and June 9 videos showing his rapid, efficient concealment techniques.

The Supreme Court emphasized that it would not reweigh the evidence or second-guess credibility determinations (Burnett). Because the circumstantial record was sufficient for a rational factfinder to infer theft on June 7, the aggregated amount—$1,675.89—cleared the $1,500 threshold for felony theft by common scheme. A 99-cent discrepancy between charging documents and judicial findings was immaterial to the outcome.

2) Plain Error and Due Process Challenge to Single-Count Charging

The Court declined to exercise plain error review because the appellant did not demonstrate that charging one count of “common scheme” theft implicated a fundamental right. While due process requires proof beyond a reasonable doubt for each element, the argument that due process requires separate counts for each predicate offense was unsupported.

The Court distinguished Rowe:

  • Rowe addressed a non-cognizable “common scheme” sexual assault charge; here, “felony theft by common scheme” is a cognizable, statutorily defined offense.
  • Rowe’s joinder concerns and prejudice from bad-acts evidence do not arise when the offense itself is lawfully defined as “common scheme” and aggregation is expressly permitted by statute.
  • Montana has a long record of upholding single-count charging for “common scheme” property crimes (Milhoan, Stilson, Deshazer), undermining the purported universal separate-count requirement.

Nor did the record show any practical prejudice from the single-count structure. At the bench trial, the judge individually identified each date-specific theft and found each beyond a reasonable doubt. The single count did not reduce the State’s burden or foreclose a more lenient outcome; rather, aggregation is expressly authorized by § 45-6-301(8), MCA, and the State had discretion to pursue a felony “common scheme” charge instead of multiple misdemeanors (Partain).

Impact and Significance

Although designated a noncitable memorandum opinion, Wolfchild carries several practical implications:

  • Scope of Rowe: Defense attempts to expand Rowe’s “separate counts” language into a universal rule face headwinds. Wolfchild cabins Rowe to its context—non-cognizable offenses and joinder misuse—rather than dismantling established single-count charging for statutorily defined “common scheme” property crimes.
  • Charging strategy: Prosecutors may continue to charge felony theft by common scheme in a single count and aggregate values across incidents affecting the same victim or property, provided the evidence supports a common plan or objective under § 45-2-101(8), MCA.
  • Circumstantial proof: Retail theft prosecutions leveraging surveillance footage, loss-prevention testimony, and related financial records (e.g., pawn documentation) can meet the beyond-a-reasonable-doubt standard even when the concealment moment is not captured on camera, so long as the totality of circumstances strongly supports the inference of theft.
  • Bench trials: The opinion illustrates that in bench trials the court can, and should, make date-specific findings on each predicate act within a common scheme count, ensuring clarity that the State met its burden as to each incident.
  • Statutory continuity despite restructuring: The Court’s reliance on the 2019 statutes, paired with its note about the 2025 restructuring of § 45-6-301, signals that the underlying concepts of “common scheme” and aggregation remain vital analytical tools notwithstanding legislative reorganization.

Complex Concepts Simplified

  • Common scheme: A series of acts or omissions, motivated by a single criminal objective or common plan, that causes a cumulative pecuniary loss (here, at least $1,500). It ties multiple related thefts together into one felony offense.
  • Aggregation: Adding up the values of items stolen in multiple incidents as part of a common scheme to determine whether the total meets the felony threshold.
  • Cognizable offense: An offense recognized and defined by law. A “non-cognizable” charge is one the law does not authorize (as in Rowe’s “common scheme” sexual assault).
  • Sufficiency of the evidence: On appeal, courts ask whether, viewing the evidence in favor of the prosecution, any rational factfinder could find the elements beyond a reasonable doubt; they do not reweigh evidence or reassess witness credibility.
  • Plain error review: An appellate safety valve for unpreserved errors that implicate fundamental rights and would otherwise cause manifest injustice or undermine the fairness/integrity of proceedings. It is discretionary and applied sparingly.
  • Joinder rules: Procedural rules (e.g., § 46-11-404, MCA) governing how multiple offenses may be charged together. Misuse can cause prejudicial “spillover” when unrelated or improperly joined offenses are tried together.
  • Bench trial: Trial to a judge rather than a jury. The judge acts as factfinder, assessing credibility and making findings on each element.

Conclusion

State v. Wolfchild underscores two enduring themes in Montana criminal law. First, circumstantial evidence—especially when coherently assembled from surveillance footage, witness testimony, and transactional records—can satisfy the State’s burden beyond a reasonable doubt, even where a particular act of concealment is not directly recorded. Applying established sufficiency standards, the Court found ample support for the June 7 theft and, by aggregation, the felony threshold for a “common scheme.”

Second, the Court limits the reach of Rowe to its specific context. Felony theft by common scheme is a cognizable statutory offense, and nothing in due process or joinder doctrine mandates subdividing it into separate misdemeanor counts. Montana’s statutory framework expressly authorizes aggregation in common scheme thefts, and long-settled practice supports single-count charging in such property cases. Absent demonstrable prejudice or an erosion of the State’s burden of proof, a single-count “common scheme” charge does not implicate fundamental due process concerns.

While this memorandum opinion is nonprecedential, it provides clear guidance: prosecutors may continue to pursue single-count “common scheme” theft charges with aggregated values, and courts will uphold convictions supported by robust circumstantial evidence evaluated under the familiar, deferential sufficiency standard. Defense challenges premised on a universal separate-count requirement are unlikely to prevail where the charged offense is statutorily recognized and properly supported by the evidence.

Case Details

Year: 2025
Court: Supreme Court of Montana

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