A Cobb County jury found Donald Earl Richards guilty of aggravated assault, OCGA § 16-5-21 a 2, and robbery by intimidation,1 OCGA § 16-8-40 a 2. Following the grant of an out-of-time appeal, Richards contends the trial court erred in refusing to charge the jury that the “claim of right” affirmative defense, OCGA § 16-8-10 2, could be considered as a defense to a charge of robbery. The “claim of right” defense applies only to prosecutions for theft crimes in violation “of Code Sections 16-8-2 through 16-8-7″ when a defendant “acted under an honest claim of right to the property or service involved or under a right to acquire or dispose of it as he did.” OCGA § 16-8-10 2. Therefore, robbery by intimidation, which is defined in and proscribed by OCGA § 16-8-40 a 2, is not included in those crimes for which the “claim of right” defense is available. In refusing to extend the defense to crimes other than traditional theft cases, we explained that “to allow a ‘claim of right’ defense to an offense, such as robbery by sudden snatching, within which the use of force is implicit would sanction the use of force to claim the property.” Westmoreland v. State , 245 Ga. App. 482, 484 1 538 SE2d 119 2000. “In such an instance, the ends do not justify the means, regardless of whether the defendant thinks he has a right to the property.” Crowder v. State , 241 Ga. App. 818, 820 2 b 527 SE2d 49 1996 claim of right defense not available for armed robbery.
Robbery by intimidation, unlike armed robbery, robbery by force, or robbery by sudden snatching, may be accomplished without a weapon or an overt act of physical force. That distinction does not make it a less heinous crime, however. Implicit in robbery by intimidation is the threat of violence. At common law, robbery, including robbery by intimidation, “was classified as a species of aggravated larceny which violated the social interest in the safety and security of the person as well as the social interest in the protection of property rights.” Moore v. State , 140 Ga. App. 824, 827 2 232 SE2d 264 1976. This distinction is preserved in the codified law, where robbery is treated separately from traditional theft cases. OCGA § § 16-8-40 and 16-8-41 Article 2, Robbery.
