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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL G. WOODWARD, )
) Court of Appeals No. A-4487
Appellant, ) Trial Court No. 4FA-S91-
3498CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1300 - June 25, 1993]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Jay Hodges, Judge.
Appearances: Arthur Lyle Robson, Fairbanks,
for Appellant. Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecu
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
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, 15 Cal. Rptr.
2d 305, 307-08 (Cal. App. 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 11.56.520 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, 608 P.2d 855, 859 (Haw.
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, 516 P.2d 753, 755 (Or. App.
1973).
This comports with the broad reading Alaska courts have
given to the term "property of another" in the context of theft
cases. In Pulakis v. State, 476 P.2d 474 (Alaska 1970), for
example, the court rejected the notion "that the state must
prove, as an essential element of the crime of larceny, ownership
of the property allegedly stolen." Id. at 475. Instead, the
court held that "[t]he `property of another' phrase in larceny
statutes ordinarily refers to possession, not title." Id.
The phrase "property of another" is not expressly
defined for purposes of Alaska's extortion statute. The phrase
is defined in the chapter of the criminal code that deals with
offenses against property, but only as to offenses included in
that chapter. AS 11.46.990(12). Because extortion is now classi
fied as an offense against the person rather than an offense
against property, the statutory definition is not directly
applicable to it.
We nevertheless find the statutory definition of
"property of another" illuminating in reference to the extortion
statute. Alaska Statute 11.46.990(12) broadly defines the phrase
to include "property in which a person has an interest which the
defendant is not privileged to infringe, whether or not the
defendant also has an interest in the property and whether or not
the person from whom the property was obtained or withheld also
obtained the property unlawfully[.]" This definition echoes the
expansive definition of "property of another" that Pulakis articu
lated as a matter of common law, and it is fully consistent with
the traditional view that a claim-of-right defense cannot be
asserted as to debt, but must instead involve discrete, identifi
able property.
Moreover, we can glean nothing particularly significant
from the legislature's failure to define "property of another"
for purposes of the extortion statute. As we have previously
noted, the Tentative Draft of the Alaska Revised Criminal Code
classified extortion as an offense against property and grouped
it with theft offenses. Even though the Tentative Draft
recognized extortion as a crime separate from theft and not
subject to the claim-of-right provision that applied to various
forms of theft, extortion, by virtue of being classified as an
offense against property, remained within the scope of the
Tentative Draft's general provisions governing property offenses;
these general provisions, in turn, included a definition of
"property of another" identical to that currently found in AS
11.46.990(12).12 As with the definitions ultimately enacted as
AS 11.46.990, however, the definitions in the Tentative Draft's
11.46.990 applied only to property offenses.13
When the legislature decided to reclassify extortion as
an offense against the person and to group it with robbery -- the
crime it deemed most analogous -- it evidently lost sight of the
fact that the reclassification would remove extortion from the
definitional provisions governing property offenses. In the
criminal code's chapter on offenses against the person, no other
provision used the phrase "property of another", so there had
simply been no need to define it. In particular, the code's
definition of robbery did not require the taking of "property of
another", but only the taking of "property". See AS
11.41.510(a).
Although reclassifying the extortion statute
technically left its reference to "property of another"
undefined, nothing in the legislative commentary suggests that
this omission was intentional; apparently, the omission was the
result of oversight.
On the one hand, assuming the legislature actually
wanted to abandon the property crimes definition of "property of
another" in favor of an approach similar to the one it used for
the offense of robbery -- with which it now grouped extortion --
then presumably it would have abandoned the "property of another"
requirement altogether, making extortion, like robbery, apply to
the taking of any "property." On the other hand, assuming the
legislature did not want to treat extortion like robbery by
abandoning the "property of another" requirement altogether, yet
still thought it necessary to adopt a different definition of the
phrase than the definition stated for property crimes in AS
11.46.990, then presumably the legislature would have specified
the new definition it wanted: AS 11.46.990 already stated the
commonly accepted definition; failing to specify an alternative
definition would leave no clue as to how the extortion statute's
use of the phrase was meant to differ.
For present purposes, we need observe only that, when
Woodward uttered his threats against Cooper, Cooper
unquestionably had at least a possessory interest in the money
Woodward demanded. This interest was sufficient to meet the
"property of another" requirement of the extortion statute.
Accordingly, the trial court did not err in declining to instruct
Woodward's jury on the claim-of-right defense.14
Woodward lastly makes a conclusory argument that the
trial court erred in precluding him from presenting evidence to
the jury suggesting that he was the victim of selective
prosecution. We agree with the state, however, that the issue of
selective prosecution is generally one of law for the court, not
one of fact for the jury. See United States v. Washington, 705
F.2d 489, 495-96 (D.C. Cir. 1983); cf. Grossman v. State, 457
P.2d 226 (Alaska 1969). See generally 2 Wayne R. LaFave & Jerald
H. Israel, Criminal Procedure 13.4(a), at 187 (1984). Woodward
cites no authority to convince us otherwise. We find no error in
the preclusion of this issue from the jury.
The judgment is AFFIRMED.
_______________________________
1. See Model Penal Code 223.4, commentary at 211 (1980).
2. See Model Penal Code 223.4, commentary at 212 & n.32
(1980).
3. See Model Penal Code 223.4, and commentary (1980).
4. The Code's claim-of-right provision for theft offenses
is set forth as follows:
(3) Claim of Right. It is an affirma
tive defense to prosecution for theft that
the actor:
(a) was unaware that the property
or service was that of another; or
(b) acted under an honest claim of
right to the property or service
involved or that he had a right to
acquire or dispose of it as he did; or
(c) took property exposed for
sale, intending to purchase and pay for
it promptly, or reasonably believing
that the owner, if present, would have
consented.
Model Penal Code 223.1(3) (1980).
5. See Model Penal Code 223.4, commentary at 211-12
(1980):
Some recent enactments and proposals have
excluded claim-of-right situations from
threats to do personal injury or commit a
crime, on the ground that such conduct is
never to be tolerated. The view of the
Model Code, however, is that statutes dealing
with improper acquisitive behavior should be
inapplicable to cases where the actor's
method of obtaining property is objectionable
but his objective is not. Thus, for example,
a person who believes himself entitled to
money or other property from another, such as
unpaid wages, should not be guilty of
extortion if he uses threat of bodily injury
or other crime to collect the money believed
to be due and if he honestly believes that he
has a right to acquire the property by the
method employed. Instead, such conduct
should be dealt with under the provisions of
Articles 211 and 212. Thus, an actor who
commits the offense of assault, reckless
endangerment, or criminal coercion is not
immunized because he sought to employ such
techniques to enforce an honest claim to
property, even though he may have a claim-of-
right defense to extortion.
Id. (footnote omitted).
6. Alaska's previous extortion statute, former AS
11.20.345, also seems to have been consistent with the majority
view. Former AS 11.20.345(d) included a limited claim-of-right
defense -- similar to that currently contained in AS 11.41.520(c)
-- which applied to certain types of threat but did not extend to
threats of physical injury.
7. See ch. 166, 3, SLA 1978.
8. See Alaska Criminal Code Revision Part III, at 36-38
(Tent. Draft 1977).
9. See Alaska Criminal Code Revision Part III, at 23-24
(Tent. Draft 1977).
10. As stated in the Tentative Draft:
While some recent code revisions have
included theft by extortion within a
consolidated theft statute, extortion, by
reason of its closer analogy to robbery, is
subject to a higher penalty than other forms
of theft. Consequently, though technically
part of a consolidated theft statute,
exemptions are made which have the effect of
removing it from the statute . . . .
Because extortion carries a heavier
penalty than theft, and because defenses
which apply to theft are inapplicable to
extortion (i.e., claim of right), the Revised
Code treats extortion as a separate crime.
Alaska Criminal Code Revision Part III, at 37 (Tent.
Draft 1977).
11. See AS 11.41.500 - 530. In its commentary to the
extortion statute, the legislature made clear its view that
extortion was a crime against the person and not one against
property, expressly noting:
Extortion is a class B felony regardless
of the value of the property that was
obtained. In this regard, extortion differs
from the theft provisions by not making the
classification dependent on the value of the
property.
Commentary on the Alaska Revised Criminal Code, Senate Journal
Supp. No. 47 at 28-29, 1978 Senate Journal 1414.
12. See Alaska Criminal Code Revision Part III, at 104
(Tent. Draft 1977).
13. Id.
14. Woodward also appears to argue that he was entitled
under Alaska's defense-of-property statute, AS 11.81.350, to use
or threaten the use of force in defense of his own property. We
find the argument meritless for much the same reason that led us
to reject Woodward's claim that he did not extort the "property
of another": Woodward sought to collect money he thought was
owed him; he was not trying to prevent the taking of specific and
identifiable property. Although AS 11.81.350(a) justifies use of
nondeadly force to "terminate . . . the commission or attempted
commission . . . of an unlawful taking[,]" by its plain terms,
the statute applies only to offenses that are about to be
committed or are actually being committed. This is in keeping
with the traditional view allowing force to be used in
recapturing property only when a person "act[ed] immediately
after the dispossession or upon hot pursuit." 1 Wayne R. LaFave
& Austin W. Scott, Jr., Substantive Criminal Law 5.9(d), at 672
(1986). The crime of theft is not a continuing offense; an act
of theft is complete once the thief appropriates the property of
another. See Coleman v. State, 846 P.2d 141, 142-43 (Alaska App.
1993). Here, assuming Cooper's retention of the money given to
him by Mike Lyle to repay Woodward's wife amounted to a theft
from Woodward, that theft had already been committed when
Woodward's threats were made.
