State v. Self, 7453-2-II

• Citation: 42 Wn.App. 654,713 P.2d 142
• Decision Date: 27 January 1986
• Docket Number: No. 7453-2-II,7453-2-II
• Parties: The STATE of Washington, Respondent, v. Harold A. SELF, Appellant.
• Court: Court of Appeals of Washington

Page 654

42 Wn.App. 654

713 P.2d 142

The STATE of Washington, Respondent, v. Harold A. SELF, Appellant.

No. 7453-2-II.

Court of Appeals of Washington Division 2.

Jan. 27, 1986.

Review Denied March 21, 1986.

Dan M. Albertson (Court-appointed) Albertson & Smith, Tacoma, for appellant.

Barbara L. Corey-Boulet, Deputy Pros. Atty., Tacoma, for respondent.

ALEXANDER, Judge.

Harold Self appeals his conviction by jury verdict of first degree robbery. We affirm.

Mark Sinclair, a self-employed landscaper, periodically employed Gary Lewis as a casual laborer. Sinclair and Lewis had an arrangement in which Sinclair paid Lewis in cash for his services as soon as he received payment on a contract.

In May, 1983, Lewis worked for Sinclair on a landscaping job, but Sinclair did not pay Lewis promptly because he was experiencing trouble collecting from the customer.

In July, 1983, Sinclair still owed Lewis $200. Lewis apparently called Sinclair several times requesting payment. A few days after such a telephone call, a "Jim West" called Sinclair and said he was interested in hiring Sinclair to do some landscaping work for him. Sinclair arranged to meet the caller on July 23, 1983, at an apartment in downtown Tacoma.

At the appointed time and place, Sinclair met a man identifying himself as "Jim West." In fact, he was meeting the defendant, Harold Self. Self ushered Sinclair into the apartment whereupon Gary Lewis appeared and demanded his money. Suddenly and without provocation, Self began striking Sinclair in the face, splitting Sinclair's lip and bruising his face. Self then produced a knife and held it to Sinclair's throat forcing him to turn over his wallet. Self and Lewis went through the wallet, scattering its contents and taking between $32 and $37 in cash from it. Self then demanded that Sinclair write a check for $200. Sinclair indicated that he was unable to comply because he did not have his checkbook with him. Enraged by the response, Self, still holding the knife, went through Sinclair's pockets taking the victim's car keys. Self then demanded that Sinclair sign over title to his truck. Sinclair responded that title to the truck was not in his name. This answer prompted Self to put away the knife and produce a .22 caliber rifle, which he proceeded to point at Sinclair while threatening to kill him.

A struggle then ensued between Sinclair and Self during which Self's girlfriend came out of a bathroom in the apartment and told Self to give Sinclair the keys to his truck. Sinclair managed to escape and called the police. At some point during the encounter between Self and Sinclair, Self stated that Lewis had paid him $500 to collect the money for him. Sinclair never recovered his cash or his wallet, which contained several credit cards, identification and a stack of receipts.

Self was charged with first degree robbery. At trial, he did not testify. The trial court refused to give two jury instructions proposed by Self, as follows:

Instruction No. 12

It is a defense to a charge of theft that the property or service was appropriated openly and avowedly under a good faith claim of title, even though the claim be untenable. ¹

Instruction No. 13

If you find from the evidence that defendant took property from the person of Mark Calvin Sinclair in the honest belief that the property so taken was as payment for an indebtedness, you must return a verdict of not guilty.

The jury returned a verdict of guilty to the charge of robbery in the first degree and Self appeals.

The sole issue on appeal is whether the court erred in refusing to give the instructions proposed by Self. We hold that Self was not entitled to instructions on the defense of good faith claim of title.

Intent to steal is an essential element of the crime of robbery. State v. Hicks, 102 Wash.2d 182, 683 P.2d 186 (1984); State v. Steele, 150 Wash. 466, 273 P. 742 (1929). Therefore, a person cannot be guilty of robbery in forcibly taking property from another if he does so under the good faith belief that he is the owner, or entitled to possession of the property. This good faith belief negates the requisite intent to steal. State v. Steele, supra.

However, the defense of good faith claim of title is available only where self-help is used to recover specific property. State v. Brown, 36 Wash.App. 549, 676 P.2d 525, review denied, 101 Wash.2d 1024 (1984). Thus, where a person uses force to collect a debt with no claim of ownership in the specific property acquired, the requisite intent to steal is present and the defense is unavailable. State v. Larsen, 23 Wash.App. 218, 596 P.2d 1089 (1979); State v. Brown, supra.

Here, the record is totally devoid of any evidence that Self or Lewis had a claim of title to the specific cash, wallet, keys, credit cards and other property that were taken by force. Defendant contends that State v. Austin, 60 Wash.2d 227, 373 P.2d 137 (1962), dictates that the defense be given in a case such as this. We disagree. That case stands for the proposition that the defense is not available when a debt is unliquidated. Self's reasoning that the defense is, therefore, always available if the debt is certain distorts the Austin holding. His argument is further defeated by the recent case of State v. Hicks, supra. In Hicks, the court held that the trial court erred in not giving an instruction modeled on RCW 9A.56.020(2). However, the reason the court believed the defendant was entitled to that instruction was that Hicks testified that he believed the bills and coins he took from the victim were his specific property. The court cited State v. Larsen, supra, with apparent approval, and emphasized that Hicks' testimony posed "a different factual scenario from the debt collection cases ..." Hicks, 102 Wash.2d at 185, 683 P.2d 186. The clear thrust of Hicks is that the Larsen and Brown cases have continuing vitality and, therefore the good faith claim of title defense is unavailable in debt collection cases.

Self cites decisions from other jurisdictions in support of his position that the defense should be sanctioned even though no claim has been made that the specific property or money taken was the defendants. See People v. Butler, 65 Cal.2d 569, 55 Cal.Rptr. 511, 421 P.2d 703 (1967) (wages for labor owed; defendant took victim's wallet); Commonwealth v. White, 5 Mass.App. 483, 363 N.E.2d 1365 (1977) ($50 in wages owed, $50 in cash taken). ²

Even if we were not constrained by decisions in this jurisdiction clearly contrary to Self's position, the cases cited by Self do not strike us as sensible policy in light of the purposes behind Washington's criminal code. RCW 9A.04.020(1) provides that a general purpose of the code is "to forbid and prevent conduct that inflicts or threatens substantial harm to...