WPIC 19.08 Theft—Defense

If the statutory defense is in issue, use this instruction with a to-convict instruction from WPIC Chapter 70 (Theft). In the case of robbery or taking a motor vehicle, the wording of the instruction must be modified to fit the charge.

RCW 9A.56.020(2).

When evidence supports giving an instruction on the defense of good faith claim of title, failure to give such an instruction is reversible error. State v. Hicks, 102 Wn.2d 182, 683 P.2d 186 (1984). A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party that presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851–52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).

When the theft is brought about by patently deceptive means, the defense is unavailable. See State v. Pestrin, 43 Wn.App. 705, 719 P.2d 137 (1986); State v. Wellington, 34 Wn.App. 607, 663 P.2d 496 (1983).

The Supreme Court has held that this defense is available if the defendant was attempting to recover specific money or other property that he thought belonged to him. State v. Hicks, 102 Wn.2d 182, 683 P.2d 186 (1984). The court implied that the defense would be unavailable if the defendant was attempting to take undifferentiated money from a debtor to satisfy a debt. This implication was later applied, with approval, in State v. Self, 42 Wn.App. 654, 713 P.2d 142 (1986).

In Self, the court also stated, as an alternative basis for its holding, that the defense is only available to a defendant who is attempting to recover his or her own property. The defense is not available to a defendant who is acting on behalf of a third party creditor.

The defendant's mere assertion that he or she was entitled to the property is not sufficient to raise this defense. There must be evidence that (1) the property was taken openly and avowedly and (2) there was some legal or factual basis upon which the defendant, in good faith, based a claim of title to the property taken, even though the claim of title may prove to be untenable. State v. Ager, 128 Wn.2d 85, 904 P.2d 715 (1995).

When the crime submitted to the jury was theft by deception, the trial court was not required to give this instruction, because conviction would necessarily include a finding of obtaining property “by color or aid of deception,” which would necessarily obviate a finding that the defendant obtained the property “openly and avowedly under a good faith claim of title.” State v. Stanton, 68 Wn.App. 855, 868, 845 P.2d 1365 (1993). See also State v. Casey, 81 Wn.App. 524, 915 P.2d 587 (1996); State v. Hull, 83 Wn.App. 786, 924 P.2d 375 (1996) (fraudulent claim for benefits).

When the defendant was charged with burglary, the court was not required to give this defense instruction to the underlying crime of theft. State v. Pollnow, 69 Wn.App. 160, 848 P.2d 1265 (1993).

The phrase “claim of title” means a right of ownership or entitlement to possession. State v. Ager, 128 Wn.2d at 92; State v. Mora, 110 Wn.App. 850, 855–56, 43 P.3d 38 (2002).

The instruction complies with State v. Hicks, 102 Wn.2d 182, 683 P.2d 186 (1984). In Hicks, the court held that the jury should be instructed that the prosecutor must prove the absence of this defense, at least when the defendant is charged with robbery. The court reasoned that the defense negates the requisite intent to steal, which the prosecutor must prove as an element of the offense.