Woodward v. State, 1300

• Decision Date: 25 June 1993
• Docket Number: No. 1300,1300
• Citation: 855 P.2d 423
• Parties: Michael G. WOODWARD, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 423

855 P.2d 423

Michael G. WOODWARD, Appellant, v. STATE of Alaska, Appellee.

No. 1300.

Court of Appeals of Alaska.

June 25, 1993.

Arthur Lyle Robson, Fairbanks, for appellant.

Eric A. Johnson, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.

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

OPINION

BRYNER, Chief Judge.

Michael G. Woodward was convicted of extortion, in violation of AS 11.41.520, following a jury trial presided over by Superior Court Judge Jay Hodges. Woodward appeals, contending that Judge Hodges erred in refusing to instruct the jury on Woodward's claim-of-right defense and in precluding Woodward from presenting evidence of selective prosecution to the jury. We affirm.

Woodward was convicted of extortion for threatening to physically injure George Cooper unless Cooper paid Woodward $8,000. Woodward's wife had loaned $8,000 to a man named Mike Lyle. When Lyle was ready to pay the loan back, he went to a Fairbanks bar called the Lonely Lady, where Woodward's wife worked. Woodward's wife was not there, so Lyle left the money with Cooper, who also worked at the Lonely Lady; Cooper agreed to give the money to Woodward's wife. Instead of giving the money to Woodward's wife, however, Cooper evidently spent it himself. After Woodward learned that Lyle had paid Cooper the money but that Cooper had failed to give it to Woodward's wife, Woodward demanded $8,000 from Cooper, threatening to break Cooper's legs if he failed to pay. Cooper reported the threat to the police. The following day, Cooper made a partial payment to Woodward. The transaction was monitored by the police, who arrested Woodward immediately afterward.

Woodward was charged with extortion in violation of AS 11.41.520(a)(1), which reads, in relevant part:

(a) A person commits the crime of extortion if the person obtains the property of another by threatening or suggesting that either that person or another may

(1) inflict physical injury on anyone[.]

At trial, Woodward unsuccessfully sought to have the jury instructed to acquit him if it found that Cooper actually owed Woodward the money Woodward demanded. Woodward argued that if Cooper actually owed Woodward $8,000, Woodward had not "obtain[ed] the property of another," as required under AS 11.41.520(a)(1). Judge Hodges found this argument unpersuasive and instructed the jury that Woodward's claim of right to money from Cooper was not a defense to the extortion charge. The jury convicted Woodward.

Woodward renews his argument on appeal, insisting that he could not properly be convicted of using threats to obtain the property of another, since he was merely trying to regain his own money. Woodward likens his case to one in which use of force is permitted in defense of property. See AS 11.81.350(a) (allowing use of nondeadly force when necessary to terminate the commission or attempted commission of an unlawful taking).

Woodward's argument is not persuasive. Although the Model Penal Code proposed, some time ago, that a person who obtained property by threatening physical injury be allowed to defend against a charge of extortion by establishing a claim of right to the property, ¹ the Code's proposal has failed to gain broad acceptance, and it represents the minority view. ²

The Model Penal Code's proposed claim-of-right defense to extortion appears integral to the Code's view of extortion as a crime against property. The Code named the offense of extortion "theft by extortion" and classed it as one of several forms of theft included in its consolidated theft provision. ³ All forms of theft were governed by the Code's general claim-of-right defense. ⁴ In the Code's view, a good faith claim of right negates the intent to steal, thereby precluding conviction of any form of theft, including theft by extortion. When the conduct involved in a theft by extortion is itself offensive, the Code would punish it separately, under provisions governing assault, reckless endangerment, or criminal coercion. ⁵

The majority view, in contrast, is that extortion is a crime against the person, not against property. Under the law of most states, and under federal law as interpreted by all but one of the circuit courts that have considered the issue, a person accused of extortion by threats of physical injury may not assert, as a defense to the charge, a claim of right to the property that was the subject of the extortion. See United States v. Castor, 937 F.2d 293, 299 (7th Cir.1991) (citing federal cases); United States v. Zappola, 677 F.2d 264, 268-69 (2d Cir.1982).

The majority view reflects the traditional view of extortion. United States v. Zappola, 677 F.2d at 268. It is a view founded on sound policy:

A person whose property has been stolen cannot claim the right to punish the thief himself without process of law, and to make him compensate him for the loss of his property by maliciously threatening to ... do an injury to his person or property, with intent to extort property from him.

State v. Bruce, 24 Me. 71 (1844), quoted in United States v. Zappola, 677 F.2d at 268; accord People v. Serrano, 11 Cal.App.4th 1672, 15 Cal.Rptr.2d 305, 307-08 (1992); cf. Jurco v. State, 825 P.2d 909, 911-15 (Alaska App.1992).

In adopting Alaska's current extortion statute, the legislature adhered to the majority view of the offense. ⁶ The current extortion statute was adopted by the legislature in 1978, as part of the Alaska Revised Criminal Code. ⁷ The Revised Code's forerunner, the Tentative Draft of the Revised Alaska Criminal Code, followed the Model Penal Code's approach and classified extortion as an offense against property, grouping it with theft offenses. ⁸ Like the Model Penal Code, the Tentative Draft also included a claim-of-right defense that was generally applicable to all forms of theft. ⁹ Nevertheless, unlike the Model Penal Code, the Tentative Draft regarded extortion as a distinct offense from theft. Analogizing extortion to robbery, the Tentative Draft specifically excluded it from the general claim-of-right defense to theft. ¹⁰

When the Alaska Legislature adopted the Revised Code, it made the Tentative Draft's intent even clearer, by reclassifying extortion as an offense against the person and grouping it with robbery and coercion rather than with theft offenses. ¹¹ No claim-of-right provision exists for this group of offenses. The extortion statute itself builds in a claim-of-right provision, but a narrow one. Subsection (a) of AS 11.41.520 describes seven distinct types of threat that will support an extortion charge:

(a) A person commits the crime of extortion if the person obtains the property of another by threatening or suggesting that either that person or another may

(1) inflict physical injury on anyone, except under circumstances constituting robbery in any degree, or commit any other crime;

(2) accuse anyone of a crime;

(3) expose confidential information or a secret, whether true or false, tending to subject a person to hatred, contempt, or ridicule or to impair the person's credit or business repute;

(4) take or withhold action as a public servant or cause a public servant to take or withhold action;

(5) bring about or continue a strike, boycott, or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the person making the threat or suggestion purports to act;

(6) testify or provide information or withhold testimony or information with respect to a person's legal claim or defense; or

(7) inflict any other harm which would not benefit the person making the threat or suggestion.

Subsection (c) of AS 11.41.520 sets forth a claim-of-right defense for three of these types of threat:

(c) It is a defense to a prosecution based on (a)(2), (3), or (4) of this section that the property obtained by threat of accusation, exposure, lawsuit, or other invocation of official action was honestly claimed as restitution or indemnification for harm done in the circumstances to which the accusation, exposure, lawsuit, or other official action relates, or as compensation for property or lawful services.

By 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. As adopted, and as it now stands, the claim-of-right provision set out in subsection (c) of the extortion statute does not extend to threats of physical injury charged under subparagraph (a)(1). Since this is the type of threat Woodward was charged with (and convicted of) making, we conclude that he was not entitled to assert his claim of right to Cooper's money as a defense to the extortion charge.

Woodward nevertheless maintains that, since he was only seeking to recover money that Cooper had unlawfully appropriated from him, the money was his own (Woodward's), and was not "the property of another," as required under AS 11.41.520(a). However, in threatening physical injury to Cooper if Cooper refused to pay, Woodward was not attempting to recover particular, identifiable property; he was merely seeking to collect a debt. In addressing the viability of a claim-of-right defense, courts have held that "the interest which the accused asserts under a claim of right must be to specific property and ... must be in complete derogation of the victim's rights in and to the property." State v. Brighter, 62 Haw. 25, 608 P.2d 855, 859 (1980) (emphasis in original) (citations omitted). "[W]here, as here, the claim is to money owed, and in order to satisfy the claim, the creditor takes money or other fungible property to which he has no title or right of possession, then the intent to steal is present." State v. Martin, 15 Or.App. 498, 516 P.2d 753, 755 (1973).

This comports with the broad reading Alaska...