James gives his friend Angela some money to purchase drugs. Angela doesn’t get the drugs and doesn’t return the money. James then comes to Angela’s house to confront her and get his money back, barging into the house and threatening her with a gun. James ultimately leaves without any money but is soon charged with attempted armed robbery. He testifies at trial that he had no intent to commit robbery; he was simply trying to get his property back. Angela admits on the stand that she had the money and never returned it or bought the drugs. James moves to dismiss, arguing that the State’s evidence is insufficient to establish any felonious intent—because he had a legitimate claim to the property, he couldn’t have committed robbery.
Cast your vote, and read on for the answer.
The question is roughly based on the facts in State v. Cox, ___ N.C. App. ___, ___ S.E.2d ___ (March 5, 2019). According to the Cox court, the answer is c): where the uncontroverted evidence showed that the defendant had no intent to steal, he could not be found guilty of robbery. The court therefore reversed the defendant’s conviction for conspiracy to commit armed robbery based on a lack of evidence of the defendant’s wrongful intent. Let’s unpack that a bit.
Robbery is a specific intent crime. Robbery requires an unlawful taking. See G.S. 14-87; State v. Lawrence, 262 N.C. 162 (1964). Whether a taking is unlawful depends on the defendant’s intent—if the defendant takes property that belongs to him and that he is entitled to possess, it is not an “unlawful” taking and no larceny or robbery can result. This rule applies even where the defendant takes the property under the mistaken (but honest) belief that it was his. State v. Booker, 250 N.C. 272 (1959).
Self-help, robbery, and the claim of right defense. Jurisdictions have split on the issue of whether a bona fide claim of right can serve as a defense to robbery. The rationale for not allowing the defense is that allowing such potentially violent “self-help” is contrary to public policy. See, e.g., People v. English, 32 Ill. App. 3d 691 (1975) (“[I]t is the law and policy of this State that a creditor may not employ violence . . . to collect the debt but should pursue his remedies in the normal channels of peaceful and legal redress.”). However, North Carolina and a number of other jurisdictions allow the defense, at least on the right facts. Under State v. Spratt, 265 N.C. 524 (1965):
A defendant is not guilty of robbery if he forcibly takes the personal property from the actual possession of another under a bona fide claim of right or title to the property, or for the personal protection of the defendant and others, or as a frolic, prank or practical joke, or under color of official authority. Id. at 526-27.
So, where the defendant has a legitimate claim to the property at issue (or even merely mistakenly believes he does), his acts in trying to accomplish recovery of his property might constitute other crimes (assault comes to mind), but a claim of right is a defense to robbery, including armed robbery, in North Carolina.
The same rule would apply to a burglary or felony breaking and entering where the pleading alleges intent to commit robbery inside—if the defendant had no intent to commit robbery, he also had no intent to commit that felony inside and could not be found guilty of those charges either. Indeed, in Cox, the court also reversed the conviction for felony breaking and entering for this reason (but remanded for sentencing on misdemeanor breaking and entering, which has no felonious intent requirement).
Further, as the above language from Spratt indicates, the defense covers more than just a claim of possessory right to the property—any other legitimate, or possibly even mischievous (but non-felonious), purpose may suffice. See State v. Lunsford, 229 N.C. 229 (1948) (error to not to instruct jury on felonious intent where evidence supported defendant’s claim that he took a pistol from the victim to protect himself and others); State v. Curtis, 71 N.C. 56 (1874) (jury should have been instructed on whether the defendant’s “purpose [was] to steal, or was it a Christmas frolic”).
It might be easy to miss. As the Cox court observed, the defense is explicitly recognized in footnote 4 to N.C.P.I Crim. 217.10 (June 2016) for common law robbery: “In the event that a defendant relies on a claim of right, the jury should be told that if the defendant honestly believed he was entitled to take the property, he cannot be guilty of robbery.” The language is absent from N.C.P.I. Crim. 217.20 (June 2018) on armed robbery, but the defendant is entitled to the instruction when the evidence supports it. See Cox, Slip Op. at 8 n.3 (finding that felonious intent is required for common law and armed robbery). If a defendant’s intent is at issue in an armed robbery case, defense counsel should be sure to request the language from footnote 4 in N.C.P.I 217.10 be included in the instructions. There are, however, a couple of caveats.
The defense likely applies only when there’s evidence of a “liquidated” claim. Many jurisdictions that allow a claim of right defense to robbery require the claim to be “liquidated”—that is, it must involve a specific item of property or specific, settled sum. If the debt is vague or uncertain, the defense does not apply. See, e.g., State v. Austin, 60 Wash. 2d 227 (1962). Two earlier North Carolina decisions refused to apply the defense where evidence of the debt was unclear or lacking altogether. In State v. Oxner, 37 N.C. App. 600, 604 (1978), judgment aff’d without precedential value, 297 N.C. 44 (1979), the court rejected the defense in part because the “alleged debt or claim was an unliquidated amount of money.” Oxner at 604. In State v. Willis, 127 N.C. App. 549 (1997), no evidence of the defendant’s interest in the property was presented. In Cox, by contrast, the debt was for a specific amount of money and “all of the evidence proffered at trial support[ed] Defendant’s claim . . .” Cox Slip op. at 10.
The defense doesn’t apply where the defendant denies all involvement. There’s no need to specifically instruct the jury on the issue of the defendant’s wrongful intent where the defendant denies any participation in the taking at all. “The comprehensiveness and specificality of the definition and explanation of ‘felonious intent’ required in a [jury] charge depends on the facts in the particular case.” Spratt at 527. The defendant in Spratt asserted alibi and did not contest the intent element. Under those circumstances, with no evidence of the defendant’s lawful claim presented, the trial judge had no duty to instruct the jury on the issue of the defendant’s intent with any particularity (beyond the more general description of the elements of the crime). So a defendant doesn’t get it both ways—he can’t simultaneously deny being present for the taking and also receive an instruction on claim of right about his intent during the taking.
What if the defendant admits to being involved, but denies the taking? The defendant in Oxner denied the taking (although apparently admitted to being present during the encounter with the victim), and the court relied on that fact in part to deny relief. I’m not sure that’s correct. It’s easy to imagine factual scenarios where the defendant has a claim of right to the property, admits to confronting the victim, but denies taking the property or other element of robbery (he changed his mind, he didn’t use a weapon or force, etc.). In that situation, my feeling is that the instruction should probably be given, notwithstanding the (non-binding) Oxner decision. Disputing the circumstances of the encounter seems fundamentally different than denying being present at all.
The defendant can’t take more than what’s owed. The defense does not apply where the defendant takes more than what he is rightfully owed. See, e.g., Smith v. United States, 330 A.2d 519 (1974) (claim of right defense denied where defendant claimed $30 debt but took over $500). This seems obvious—for the defendant to have a legitimate purpose, he can only recover as much as is legitimately owed. This was a potential issue in the O.J. Simpson robbery case, according to some sources—even if O.J. was entitled to recover his allegedly stolen items under Nevada law, any such defense was negated by his taking additional items beyond those that he plausibly believed belonged to him. But that’s a longer (and stranger) story for another post.