Whitescarver v. State

• Decision Date: 19 June 1998
• Docket Number: No. A-6428,A-6428
• Citation: 962 P.2d 192
• Parties: Jeffrey Scott WHITESCARVER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 192

962 P.2d 192

Jeffrey Scott WHITESCARVER, Appellant, v. STATE of Alaska, Appellee.

No. A-6428.

Court of Appeals of Alaska.

June 19, 1998.

James A. Wendt, Assistant Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for Appellant.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

OPINION

MANNHEIMER, Judge.

This case requires us to decide whether a person may defeat a charge of robbery by showing (or, more precisely, by establishing a reasonable possibility) that they assaulted the victim in an attempt to recover property that rightfully belonged to them. We hold that the answer is "no": a defendant's claim of ownership does not justify or excuse an attempt to recover property by assault.

On November 29, 1995, at around 1:30 in the morning, 18-year-old Jeffrey Scott Whitescarver and four of his friends paid a visit to the home of his 64-year-old grandmother, Thelma Whitescarver. Thelma Whitescarver had adopted Jeffrey, and in her capacity as Jeffrey's adoptive mother, she had applied for and received his Alaska Permanent Fund dividend check. Jeffrey Whitescarver came to his grandmother's house in the middle of the night because he wished to take personal possession of this dividend money.

Whitescarver's teenage cousin, Brian Leigh, answered the door. Whitescarver falsely told Leigh that he had locked himself out of his apartment; he asked if he could come in and warm up. Whitescarver entered the house, followed by his companions. One of these companions was holding a shotgun. After they were inside the house, Whitescarver's companion cocked the shotgun, and then Whitescarver announced that he wanted his Permanent Fund dividend money. Leigh told Whitescarver that he did not have Whitescarver's money.

Whitescarver and his friends then accompanied Leigh downstairs, so that Leigh could awaken Whitescarver's grandmother. When Thelma Whitescarver had been roused, Whitescarver repeated his demand for his Permanent Fund dividend money. During the ensuing argument, Whitescarver's grandmother told him that she did not have access to his money in the middle of the night; she urged Whitescarver to return the next day, during business hours. Whitescarver would not be put off; he told his grandmother that he had waited long enough for his money, and he wanted the money then and there. During this entire argument, one of Whitescarver's friends stood watch at the door to the room, holding the shotgun.

Whitescarver broke off arguing with his grandmother and conferred with his friends in the hallway. Following this conference, Whitescarver decided he would look for his money in an unlocked safe in the closet. However, he found only papers in the safe.

Whitescarver and his companions conferred again about whether they should "rip off what they could get" from his grandmother's house. Whitescarver and his friends also discussed what should be done with Whitescarver's grandmother and cousin. Eventually, Whitescarver and his friends decided to leave his grandmother's house. As they backed out of the room, Whitescarver's friend kept the shotgun pointed at Thelma Whitescarver and Brian Leigh. On their way out of the house, Whitescarver or one of his friends stole Thelma Whitescarver's purse. The purse was later recovered with nothing missing from it.

Whitescarver was indicted on two counts of first-degree robbery (robbery committed while armed with a deadly weapon), AS 11.41.500(a)(1). One count named Thelma Whitescarver as the victim; the other count named Brian Leigh. At his trial, Whitescarver was convicted as charged on the count involving his grandmother. With regard to the count involving his cousin, the jury convicted Whitescarver of the lesser included offense of third-degree assault, AS 11.41.220(a)(1)(A).

Whitescarver's primary contention on appeal is that the trial judge should have instructed the jury to acquit Whitescarver if they found a reasonable possibility that his act of robbing his grandmother and assaulting his cousin was done for the purpose of recovering property that he honestly believed belonged to him (the money from his Alaska Permanent Fund dividend). ¹

In support of this argument, Whitescarver's opening brief cites various common-law authorities and a few Alaska cases that discuss issues of peripheral relevance. It is obvious that Whitescarver's appellate attorney studiously avoided discussing (or even citing) the Alaska case most directly on point, Woodward v. State, 855 P.2d 423 (Alaska App.1993). ²

In Woodward, this court held that a defendant's good-faith claim of ownership or entitlement to property is not a defense to the crime of extortion committed by threatening future physical injury, AS 11.41.520(a)(1). Id. at 427. Although the Model Penal Code advocated a view of extortion that emphasized its theft-like aspect (the fact that someone is being deprived of property), the Alaska Legislature adopted the majority view that the gravamen of extortion is its assaultive aspect. The gist of the crime is that the defendant has threatened to inflict injury upon someone if the property is not yielded. Id. at 425-26.

The legislature did enact a limited "claim of right" defense to three types of extortion: extortion committed by threatening to accuse someone of a crime, by threatening to expose secret information that would harm another person's standing in the community, or by threatening to have a public servant take action (unfavorable to another person) or withhold action (favorable to that person). ³ However,

[b]y electing to extend the claim-of-right defense to only three of the seven types of threat in the extortion statute, the legislature made unmistakably clear its intent to withhold the defense as to the remaining four types.... [T]he claim-of-right [defense] set out in subsection (c) of the extortion statute does not extend to [extortion by] threats of physical injury....

Woodward, 855 P.2d at 427.

For purposes of analyzing Whitescarver's case, robbery is essentially an aggravated form of the type of extortion discussed in Woodward--extortion committed by a threat to inflict physical injury. Both offenses involve an attempt, by threat of injury, to induce another person to part with property. If the defendant's intent is to take property from the victim's immediate presence and control, and if the threat is of imminent injury, then the defendant's conduct will constitute robbery. If these two aggravating factors are not present (for instance, if the threat is to inflict injury at some future time), then the defendant's conduct will constitute extortion. ⁴

Viewed in this light, it is evident that there is no "claim of right" defense to robbery--for if, as we recognized in Woodward, the legislature affirmatively manifested its intention to prohibit this defense in cases of extortion by threat of future injury, it is inconceivable that the legislature intended to allow the defense in the more aggravated circumstances of robbery.

Whitescarver attempts to avoid this result by arguing that he had a good-faith belief that his Permanent Fund dividend check was not "property of another"--that he should not be deemed guilty of robbery because he honestly believed that he alone was entitled to the check. However, the crime of robbery does not require proof that the property taken from the victim was "property of another". As we noted in Woodward, the statutory definition of robbery, AS 11.41.510(a), "[does] not require the taking of 'property of another', but only the taking of 'property'." Id. at 428.

The legislature's decision to define robbery in terms of "property" rather than the more restrictive "property of another" appears to stem from an explicit policy decision made by the drafters of the Criminal Code. They rejected the common-law view that robbery was "an aggravated form of theft", and they instead decided to place primary emphasis on "the physical danger to the victim and his difficulty protecting himself from sudden attacks against his...