MISDEMEANOR EXTORTION - ELEMENTS
No person may be convicted of extortion unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Second, property/(a signature to a writing transferring property)/(a signature to a writing creating a debt/demand/charge/[right of action]);
Third, of another;
Fourth, with the consent of the other person;
Fifth, under color of official right by an official misusing his/her office.
Statutory Authority: 21 O.S. 1991, §§ 1484, 1485.
Felony extortion and misdemeanor extortion have identical elements except for the means by which the property is obtained as set forth in the fifth element. Because the crimes are committed by different means, as stated in the fifth element, misdemeanor extortion is not a lesser included offense of felony extortion. Cases which have construed the other elements of extortion, however, are authoritative for the crimes of both felony and misdemeanor extortion
The first element makes it clear that the defendant must obtain property or signatures before the crimes defined by sections 1481 and 1484 are committed. Hill v. State, 50 Okl. Cr. 59, 296 P. 508 (1931). If the other elements of extortion exist but the victim has failed to deliver the property or signature, a conviction for extortion must be reversed, although a conviction for attempted extortion under section 1483 would be valid. See Yoder v. State, 493 P.2d 1141 (Okl. Cr. 1972) (decided under § 1487 (repealed 1991).
The second element indicates that property or signatures to certain documents are the subject matter meant to be protected by the extortion statutes. No cases have defined "property," although the definition should certainly encompass personal property. Where an issue is raised in a case concerning whether the subject matter of the alleged extortion constitutes "property" in statutory terms, the court should define "property" for the jurors.
Whether the word "property" in section 1481 would encompass real property is, in the opinion of the Commission, a moot question because of the protection accorded certain written documents by section 1485. The second element takes into account the language of section 1485 in the alternate language concerning signatures. Two cases have dealt with situations falling within the coverage of section 1485. McKeown v. State, 34 Okl. Cr. 381, 246 P. 659 (1926) (check); Pendleton v. Greever, 80 Okl. 35, 193 P. 885 (1920) (promissory note). The Commission has concluded that the word "property" does not encompass personal services or services from a business. See 21 O.S. 1991, § 1541.1 (false pretense statute with language "valuable thing"); compare Stokes v. State, 366 P.2d 425 (Okl. Cr. 1961), with Ex parte Finney, 7 Okl. Cr. 562, 124 P. 764 (1912).
The fourth element indicates that the victim must give consent, even though the consent is given under duress. The fourth element is important because it serves in certain instances to distinguish extortion from robbery. Robbery does not involve any consent of the victim, not even coerced consent. Connard v. State, 56 Okl. Cr. 134, 35 P.2d 278 (1934); McKeown, supra.
The fifth element is the element which distinguishes felony extortion from misdemeanor extortion. In the commission of felony extortion, the defendant must have wrongfully used either force or threats. Although the statutory language of section 1481 uses the word "fear," the Commission has concluded that the word "threat" is a better word to use in the fifth element because threat can then be defined in accordance with section 1482. A definitional instruction on "threat" is set forth by the Commission for the use of the trial judge.
A threat to accuse one of crime falls within section 1482(2) whether or not a crime has actually been committed. Pendleton, supra. Other kinds of threats which would seemingly be sufficient are illustrated by Yoder, supra, (threat to distribute lewd photographs of a woman), and McKeown, supra, (threat to injure). Moreover, a threat that comes within section 1482 is not excused simply because the threat is used to collect a valid debt. Traxler v. State, 96 Okl. Cr. 231, 251 P.2d 815 (1952).
Extortion in Oklahoma overlaps robbery, to a limited extent, when the means used is either force or threat as defined in section 1482(1). This occurs because the definitions of "threat," section 1482, and "fear," section 794, overlap. When property is obtained by force or threat under section 1482(1), the distinguishing element between robbery and extortion is the fourth element, the consent of the victim. "Threat" is defined, however, much more broadly under section 1482, for purposes of extortion, than is "fear" under 21 O.S. 1991, § 794, for purposes of robbery. Hence, when property is obtained by threats as defined by sections 1482(2), (3), and (4), the expanded definitions, the distinguishing element between robbery and extortion is primarily the means used to obtain the property, although the consent of the victim must also be proved. W. LaFave & A. Scott, Criminal Law § 95, at 704-07 (1972). It should also be noted that felony extortion requires fear induced by threats, whereas false pretense requires lies, not threats.
For the misdemeanor extortion crime, the fifth element indicates that the means used to obtain the property or signatures must be under color of official right. The defendant must be a public officer to be convicted of misdemeanor extortion. Extortion has not been committed if the defendant lies to another that the defendant is an officer of the State. Drake v. State, 2 Okl. Cr. 643, 103 P. 878 (1909) (correct charge would have been false pretense). Nor has the defendant committed extortion if the defendant is an employee of the State, as opposed to being an officer of the State. Ray v. Stevenson, 71 Okl. Cr. 339, 111 P.2d 824 (1941). See also Lawhorn v. Robertson, 266 P.2d 1008 (Okl. Cr. 1954); State v. Sowards, 64 Okl. Cr. 430, 82 P.2d 324 (1938), overruled on other grounds, Parker v. State, 917 P.2d 980, 986 n.4 (Okl.Cr. 1996). The correct charge when a State employee gains or obtains property by lies relating to State business would be either larceny or false pretense.
A public officer is acting under color of official right when the officer collects (1) a fee for a purpose not authorized by law; (2) a fee in an amount larger than the authorized fee; or, (3) a fee when none is due although the fee is authorized. Cox v. State, 33 Okl. Cr. 436, 244 P. 206 (1926); R. Perkins, Criminal Law 367-68 (2d ed. 1969). Cf. Finley v. State, 84 Okl. Cr. 309, 181 P.2d 849 (1947) (comparison of the crimes of bribery and extortion).