NOTICE: This opinion is subject to formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JEFFREY SCOTT WHITESCARVER, )
) Court of Appeals No. A-6428
Appellant, ) Trial Court No. 3AN-95-9206 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1594 - June 19, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Elaine M. Andrews, Judge.
Appearances: 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, Chief Judge, and Mannheimer and
Stewart, Judges.
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). [Fn. 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 White-
scarver'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). [Fn. 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). [Fn. 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. [Fn. 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 person". The drafters of the Code specifically stated
that their definition of robbery was intended to "emphasize[] the
person, rather than the property, aspects of the offense". [Fn. 5]
In other words, even if Whitescarver honestly believed
that his grandmother was unlawfully withholding his dividend check
from him, Alaska law would not allow Whitescarver to enter his
grandmother's home with a firearm, threaten her with injury unless
she surrendered the dividend check, then hold her at bay with the
weapon while he examined the contents of her safe and carried off
her purse for later inspection. These acts constituted robbery,
regardless of who was entitled to possession of the dividend check.
Judge Andrews properly refused to instruct the jury on
Whitescarver's proposed "claim of right" defense.
Whitescarver raises one other point on appeal, related to
his sentencing. Whitescarver was a first felony offender. For the
class A felony offense of first-degree robbery, Whitescarver faced
a presumptive term of 5 years' imprisonment. [Fn. 6]
Prior to sentencing, Whitescarver proposed various
mitigating factors under AS 12.55.155(d). One of these mitigating
factors was (d)(9) that his conduct was among the least serious
within the definition of the offense. In support of this mitigating
factor, Whitescarver reiterated his claim that he had merely been
attempting to recover property that was rightfully his. White-
scarver also pointed out that he had harmed no one and that the only
property actually removed from his grandmother's house was her
purse, which was eventually recovered with all of its contents
intact.
Notwithstanding the above, Judge Andrews found that
Whitescarver had failed to prove this mitigating factor. The judge
noted that Whitescarver had committed armed robbery against a family
member in the middle of the night. Although Judge Andrews
acknowledged that the crime might have been worse, she concluded
that Whitescarver had failed to demonstrate that his offense was
among the least serious armed robberies. On appeal, we are to
reverse Judge Andrews's finding only if we are convinced that it is
clearly erroneous. Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska
App. 1991).
As noted above, robbery is primarily an assaultive crime,
a crime against the person, rather than a theft crime. For this
reason, even though Whitescarver's victims lost no property, Judge
Andrews could properly emphasize the fact that Whitescarver
participated in an armed nighttime assault on his grandmother and
cousin. The potential for physical harm is a more important factor
in determining the seriousness of a robbery than is the amount of
property taken. See Degler v. State, 741 P.2d 659, 662 (Alaska App.
1987).
In addition, Whitescarver was the principal actor in the
robbery. Even though he was not the one who held the shotgun, his
desire to obtain his Permanent Fund dividend check was apparently
the driving force behind the robbery. See Hale v. State, 764 P.2d
313, 316 (Alaska App. 1988) (a sentencing judge could properly
reject the contention that the defendant's conduct was among the
least serious when the evidence showed that the defendant was the
principal actor involved in the offense); accord, Abdulbaqui v.
State, 728 P.2d 1211, 1215 (Alaska App. 1986).
Given the circumstances of Whitescarver's offense, Judge
Andrews was justified in rejecting the proposed mitigating factor.
Whitescarver has failed to show that the judge's decision was
clearly erroneous. We therefore uphold Judge Andrews's decision.
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
The pertinent part of Whitescarver's proposed jury
instruction read:
Evidence has been introduced that the defendant
believed that he had a right to take the property he is alleged to
have attempted to [forcibly] obtain. If a person takes, or attempts
to take, ... property from the presence of another, but does so in
the good faith belief that he has a right to take the property,
[then] the specific intent essential to the crime of robbery is
lacking.
The prosecution must prove beyond a reasonable doubt
that the defendant acted with the specific intent to take property
that he had no right to possess.
Footnote 2:
Superior Court Judge Elaine M. Andrews explicitly relied on
Woodward when she denied Whitescarver's request for a jury
instruction on his proposed "claim of right" defense.
Footnote 3:
See AS 11.41.520(c) and AS 11.41.520(a)(2), (a)(3), and
(a)(4).
Footnote 4:
Robbery is defined in AS 11.41.510(a): "A person commits the
crime of robbery ... if, in the course of taking or attempting to
take property from the immediate presence and control of another,
the person uses or threatens the immediate use of force upon any
person with intent to (1) prevent or overcome resistance to the
taking of the property or the retention of the property after
taking; or (2) compel any person to deliver the property or engage
in other conduct which might aid in the taking of the property."
Extortion is defined (in relevant part) in AS 11.41.520(a)(1):
"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 ... inflict physical injury on anyone, except
under circumstances constituting robbery[.]"
Footnote 5:
Alaska Criminal Code Revision, Tentative Draft, Part 2, pp.
81-82.
Footnote 6:
First-degree robbery is a class A felony: AS 11.41.500(b).
The presumptive term for a first felony offender convicted of this
crime under AS 11.41.500(a)(1) is 5 years' imprisonment if they did
not personally use or possess a firearm. AS 12.55.125(c)(1); see
Dailey v. State, 675 P.2d 657, 661-62 (Alaska App. 1984) (holding
that even though a defendant can be convicted of armed robbery based
on an accomplice's use or possession of a firearm, the defendant
will not face the enhanced presumptive term for robbery committed
by firearm unless the defendant personally used or possessed a
firearm).
