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Gray v. United States

Court of Appeals of Columbia District

March 16, 2017

MYRON O. GRAY, Appellant,
v.
UNITED STATES, Appellee.

          Submitted November 6, 2015

         Appeal from the Superior Court of the District of Columbia (CF2-19898-13) (Hon. William M. Jackson, Trial Judge)

          Sydney J. Hoffmann, for appellant.

          Vincent H. Cohen, Acting United States Attorney, Elizabeth Trosman, Suzanne Grealy Curt and John Cummings, Assistant United States Attorneys, for appellee.

          BEFORE: BECKWITH and MCLEESE, Associate Judges; and FARRELL, Senior Judge.

         JUDGMENT

         This case was submitted to the court on the transcript of record and the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that appellant's robbery conviction is reversed. In all other respects, the judgment of the trial court is affirmed.

          OPINION

          Corinne Beckwith, Associate Judge

         Appellant Myron Gray was convicted at trial of one count of robbery, [1] one count of threats to do bodily harm, [2] and three counts of simple assault.[3] He now appeals his convictions, arguing that the trial court erred in refusing to instruct the jury on second-degree theft[4] (a lesser included offense of robbery), that his conviction for robbery was not supported by sufficient evidence, and that the trial court improperly interfered with his constitutional right to testify in his own defense. For the reasons explained below, we conclude that the trial court should have given the lesser-included-offense instruction and that its failure to do so requires reversal of Mr. Gray's robbery conviction. We reject Mr. Gray's remaining claims of error.

         I.

         The evidence at trial showed that at about 9 p.m. on November 9, 2013, Rosalba Hernandez and her two children, seven-year-old E.S. and one-year-old M.M., were at the Ge-Ze Mini Market on Georgia Avenue, along with Martha Hernandez and R.E., Martha's[5] four month-old child. The two youngest children were in strollers. While Rosalba was checking out at the counter, Mr. Gray entered the store. As security-camera footage played at trial showed, Mr. Gray proceeded to engage in a series of bizarre acts[6] before leaving the store about a minute later.

         First, after standing by the door for about twenty seconds, [7] apparently observing the two women and their children, Mr. Gray took a couple of steps towards them and reached into R.E.'s stroller. He then pulled his hand out of the stroller and began gesturing and speaking.[8] Next, Mr. Gray, who was wearing a hooded sweatshirt, took off his hood and nodded several times. He held his hands out in front of his body, forming a diamond shape with his thumbs and forefingers, and walked toward E.S. Rosalba pulled E.S. toward her, away from Mr. Gray.

          Next, Mr. Gray touched E.S., Rosalba, and Martha, in quick succession, on their foreheads with the palm of his hand, [9] and he then pointed at the store's owner, Wondeson Bedane, who was behind the counter. In the surveillance video, the touches appear forceful enough to cause Rosalba and Martha's heads to move back slightly. Martha, in her testimony about the touch, said that Mr. Gray "hit [her] hard, " but that he "didn't hit [Rosalba] very hard."[10]

         Mr. Gray next reached into M.M.'s stroller. Although the surveillance video does not show the inside of the stroller, both Rosalba and Martha testified that Mr. Gray removed a baby bottle from M.M.'s mouth. Martha testified that Mr. Gray "said not to give the bottle back because if [Rosalba] did [M.M.] would die." Rosalba testified that when she tried to put the bottle back in M.M.'s mouth, Mr. Gray gestured "with his fingers and . . . indicated towards the bottle as if to not put it back in his mouth again."

         After Mr. Gray took the bottle out of M.M.'s mouth, he reached over to the counter and picked up Rosalba's wallet.[11] Mr. Gray sat down on a cooler and proceeded to rifle through the wallet. After removing some cash-$7, according to Rosalba's testimony at trial-Mr. Gray tossed the wallet back onto the counter, stood up, and walked towards the door. Before exiting the store, Mr. Gray turned around, pointed at the owner, Mr. Bedane, and said something. Mr. Bedane, who said he had seen Mr. Gray in the store before as a customer, testified that Mr. Gray said he would kill Mr. Bedane.[12]

         II.

         We begin with Mr. Gray's argument that the trial court erred in refusing to instruct the jury on the lesser included offense of second-degree theft. A trial court is required to grant a defendant's request that the jury be instructed on a lesser included offense of a charged offense "as long as (1) the lesser included offense consists of some, but not every[, ] element of the greater offense[] and (2) the evidence is sufficient to support the lesser charge." (Cedrick) Shuler v. United States, 98 A.3d 200, 206 (D.C. 2014) (quoting Jennings v. United States, 993 A.2d 1077, 1079 (D.C. 2010)); see also Price v. United States, 602 A.2d 641, 644 (D.C. 1992); Wright v. United States, 505 A.2d 470, 472 (D.C. 1986) ("When counsel ask for a lesser-included offense instruction, it should be freely given."). Here, as it is well-established that second-degree theft is a lesser included offense of robbery, Leak v. United States, 757 A.2d 739, 741 (D.C. 2000) (citing Ulmer v. United States, 649 A.2d 295, 297 (D.C. 1994)), we turn to the question whether the second condition was satisfied-that is, whether the evidence was sufficient to support the lesser included offense of theft.

         Evidence is sufficient to support a lesser included offense when a reasonable jury might, after weighing the evidence, conclude that the defendant is only guilty of the lesser offense and not of the greater offense. See (Anthony) Shuler v. United States, 677 A.2d 1014, 1017 (D.C. 1996). "[T]he weight of the evidence supporting the instruction is immaterial; as long as a jury could rationally convict on the lesser-included offense after crediting the evidence, the court must give the instruction no matter how inclined it might be to discount that evidence." Id. The court is not, however, required to give a lesser-included-offense instruction where only a "bizarre reconstruction" of the evidence would permit the jury to find the defendant guilty of the lesser offense without finding him or her guilty of the greater offense. Id. (quoting West v. United States, 499 A.2d 860, 865 (D.C. 1985)).

         The parties agree that sufficient evidence was introduced at trial to support a conviction of theft: There was evidence from which a reasonable jury could infer that Mr. Gray took Rosalba's $7 against her will, that "at the time he obtained [the $7], he specifically intended 'either to deprive [Rosalba] of a right to the [$7] or a benefit of the [$7] or to take or make use of the'" $7 for himself "without authority or right, " and that the $7 had value. Nowlin v. United States, 782 A.2d 288, 291 (D.C. 2001) (quoting Criminal Jury Instructions for the District of Columbia, No. 4.38 (4th ed. 1993)).

         The parties disagree, however, over whether a reasonable jury could have found Mr. Gray guilty of theft without also finding him guilty of robbery. Proof of robbery requires proof of the elements of theft plus several aggravating circumstances: (1) the property was taken "from the actual possession of the complainant, " (2) the taking was accomplished "using force or violence, " and (3) the property was "carried . . . away." Johnson v. United States, 756 A.2d 458, 462 (D.C. 2000); see also Williams v. United States, 113 A.3d 554, 560-61 (D.C. 2015) ("The elements of robbery are: '(1) a felonious taking, (2) accompanied by an asportation [or carrying away], of (3) personal property of value, (4) from the person of another or in his presence, (5) against his will, (6) by violence or by putting him in fear, (7) animo furandi [the intention to steal].'" (quoting Lattimore v. United States, 684 A.2d 357, 359 (D.C. 1996)) (alterations in original)). A defendant takes property by force or violence when he or she does so "against resistance or by sudden or stealthy seizure or snatching, or by putting in fear." D.C. Code § 22-2801. In the present case, the jury was not instructed on the "sudden or stealthy seizure or snatching" form of force or violence.[13]

         Mr. Gray argued at trial, and argues now on appeal, that a reasonable jury could have found that Mr. Gray assaulted Rosalba, Martha, and E.S. by touching them on the head and placing them in fear and that he committed a theft by taking Rosalba's money, but that the theft-the taking of the $7-was not accomplished by means of Mr. Gray's assaultive conduct. Mr. Gray argues that a reasonable jury could have found that the assaults and the theft were independent acts and that Mr. Gray did not form the specific intent to take Rosalba's property until after completing his assaults.[14]

         We agree that, on the unusual facts revealed chiefly by the surveillance video, the jury rationally could have doubted that Mr. Gray assaulted the women intending to effectuate the theft or that, in taking Rosalba's money, he was conscious of any fear (and lowered resistance) she might have experienced from the assaults. The record reflects several strange actions and omissions by Mr. Gray from which a jury, relying on common sense and everyday experience, could have inferred that the assaults and the theft were not connected but rather resulted from a series of separate, erratic impulses. Mr. Gray signaled cryptically to E.S., removed a bottle from M.M.'s mouth, and used his open palm to strike the complainants on their foreheads without great force. When he finally grabbed the wallet, he did so not immediately after assaulting the complainants, but after reaching into M.M.'s stroller.[15] The jury could think that these actions were such a strange means of effectuating a theft that they were not a means of effectuating the theft, and that the subsequent theft of the $7 was instead a spontaneous and unconnected crime of opportunity. This theory is bolstered by the fact that Mr. Gray failed to take anything from the store besides the $7 and that he made no effort to conceal his identity-indeed, he exposed his face by removing his hood- before engaging in illegal conduct in a small store in which he had previously shopped. This theory is not the "bizarre reconstruction" of events that our case law warns us against. (Anthony) Shuler, 677 A.2d at 1017; West, 499 A.2d at 865. Rather, this is one permissible construction of what were actual bizarre events.

         Our dissenting colleague cites as favoring his contrary position cases that hold that "the defendant's violence-or-intimidation acts [need not] be done for the very purpose of the taking of the victim's property, " but rather "it is enough that the defendant takes advantage of a situation which he created" by the use of force. Allen v. State, 857 A.2d 101, 129 (Md. Ct. Spec. App. 2004) (brackets, internal quotation marks, and citation omitted); see also 3 Wayne R. LaFave, Substantive Criminal Law § 20.3 (e), at 191-93 (2d ed. 2016). "Taking advantage of, " in this context, naturally means exploiting or seizing the opportunity of a victim's vulnerability created by the violence or intimidation. But as a matter of ordinary language, it is hard to see how that is done without some awareness of the opportunity being exploited. These authorities, in recognizing the equivalency of purposeful use of force and taking advantage of force applied for another (or no) purpose, cannot mean the latter to entail no consciousness by the defendant of the vulnerability he takes advantage of.

         Although Judge McLeese sets forth some persuasive arguments for interpreting the "by force or violence" element in D.C. Code § 22-2801 as not including any mental component, post at 38-48, our interpretation is more consistent with this court's case law and with the ordinary meaning of the language. Our earlier opinions glossed "by force or violence" as "using force or violence" or "accomplished by force or by putting the victim in fear, " Johnson, 756 A.2d at 462; United States v. Bradford, 482 A.2d 430, 432 (D.C. 1984), suggesting that we understood the statute to require proof of some sort of purposeful employment or at least knowing exploitation of the force or violence, see United States v. Castleman, 134 S.Ct. 1405, 1415 (2014) ("[T]he word 'use' 'conveys the idea that the thing used (here, "physical force") has been made the user's instrument.'" (citation omitted)); Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) ("'[U]se' requires active employment. . . . '[U]se . . . of physical force against the person or property of another'[ ]most naturally suggests a higher degree of intent than negligent or merely accidental conduct.'" (citations omitted) (second ellipsis in original)); People v. Anderson, 252 P.3d 968, 971-72 (Cal. 2011) (stating that proof of a defendant's "felonious taking of personal property [from another], . . . accomplished by means of force or fear, " requires proof of a purposive connection between the force or fear and the taking (quoting Cal. Penal Code § 211)). And it seems unusual to say that a person took something "by force or violence" if that person had no awareness that the force or violence facilitated the taking. See Webster's Third New International Dictionary 307 (2002) (defining "by" as "through the means or instrumentality of"); but see id. (defining "by" as "in consequence of" or "as a result of"). This point is apparently so uncontroversial that the government has not argued otherwise in this appeal. Instead, the government implicitly accepts this understanding of "by force or violence" and simply argues that no reasonable jury could fail to find that Mr. Gray purposefully took advantage of Rosalba's fear to take her property: "[I]t would have required a bizarre reconstruction of the evidence for the jury to find that [Mr. Gray's] decision to grab [Rosalba's] wallet off of the counter, within seconds of hitting her in the head and reaching for her infant, was a mere afterthought."

         We are not persuaded by the government's argument that the court's holdings in Ulmer, 649 A.2d 295, and Leak, 757 A.2d 739, control the present case. In Ulmer, the appellant was convicted of armed robbery and felony murder based on evidence that he stabbed the deceased, killing him, and stole the deceased's jewelry. 649 A.2d at 296. The appellant testified at trial that he stabbed the deceased in self-defense and only later decided to steal his property, and he argued that this testimony entitled him to an instruction on the lesser included offense of theft. Id. at 296-97. The court rejected the Ulmer appellant's argument, explaining that "[e]ven if we accept[ed] appellant's version of the facts . . ., his conduct following the stabbing would still be viewed as a robbery" because the act of removing property from a person's body after killing or incapacitating him or her constitutes a "stealthy seizure."[16] Id. at 297-98. In Leak, the government presented evidence that the appellant took the complainant's bicycle while the complainant struggled with a third individual who had "attacked [the complainant] from behind and pulled [him] off his bicycle." 757 A.2d at 741. The appellant, who was charged with robbery, argued that he was entitled to an instruction on theft. Id. at 742. He claimed that a reasonable jury could have found that he was not acting jointly with the third individual but instead opportunistically took the bicycle when he saw that the complainant was caught up in the fight. Id. The court rejected this argument, explaining that any theft of the bicycle would have constituted a "stealthy snatching." Id. at 742-43.

         Both Ulmer and Leak are plainly distinguishable on the ground that they involved the "sudden or stealthy seizure or snatching" form of robbery. The trial court in the present case ruled that the evidence did not support the giving of an instruction on sudden or stealthy seizure or snatching. Thus, even if it were true that the jury could not have found Mr. Gray guilty of theft without also finding him guilty of robbery by stealthy seizure or snatching, this would be immaterial. Cf. Smith v. United States, 601 A.2d 1080, 1082 (D.C. 1992) (rejecting the government's argument that there was sufficient evidence of an intent-to-frighten assault where the trial court only instructed the jury on attempted-battery assault).[17]Also, both Ulmer and Leak are cases in which the defendant, if he committed a theft, must necessarily have consciously chosen to at least take advantage of the deceased or complainant's incapacitation, which had been effected through force, in order to take the property. In the present case, by contrast, a reasonable jury could have found that Mr. Gray was not conscious of Rosalba and the others' fear as something that he could exploit to deprive Rosalba of her money.

          The same reasoning serves to distinguish Carey v. United States, 296 F.2d 422 (D.C. Cir. 1961), cited by our dissenting colleague. Post at 42. We are also unpersuaded by the dissent's argument that Leak stands for the proposition that "'any taking' from the 'immediate actual possession' of the victim 'is a robbery- not simply larceny.'" Post at 42 (quoting Leak, 757 A.2d at 742-43). Such a principle would completely nullify the "by force or violence" element of robbery. And the Leak court never held anything to that effect. We must construe the language quoted from Leak based on its context in that opinion. See Woods v. District of Columbia, 63 A.3d 551, 555 (D.C. 2013) ("It is well to remember that significance is given to broad and general statements of law only by comparing the facts from which they arise with those facts to which they supposedly apply." (citation omitted)). In context, it is clear that the Leak court was merely explaining that a defendant can commit a robbery by sudden or stealthy seizure or snatching "even if the victim is not actually holding, or otherwise attached to[, ] the object, " and emphasizing the broad contours of this principle-not holding that any larcenous taking from the immediate possession of another constitutes a robbery.[18] See Leak, 757 A.2d at 742-43.

         The government's reliance on Dublin v. United States, 388 A.2d 461 (D.C. 1978), is similarly misplaced. In Dublin, the defendant, who was sitting at a bar, "suddenly tried to reach over the counter and demanded that [the complainant, a waitress, ] give him the money which was in the cash register. He also commanded her not to look at him." Id. at 462. The court affirmed the trial court's decision not to instruct the jury on the lesser included offense of theft, explaining that "larceny (rather than robbery) was not fairly inferable from the evidence." Id. at 464. Dublin is distinguishable from the present case in two respects. First, the Dublin defendant's acts in committing the theft were threatening in and of themselves: The "demand" for money and the "command" not to look at him-the immediate acts by which the taking was effectuated-were implied threats. Thus, no reasonable jury could have found theft without also finding robbery. In contrast, Mr. Gray's aggressive and threatening conduct all occurred before or after the theft-the act of theft itself did not contain the same implied threat as the Dublin defendant's did. Second, the Dublin defendant's argument for a lesser-included-offense instruction was completely different from Mr. Gray's. He "concede[d] . . . that he never introduced any evidence to create a factual dispute as to" the force or violence element, and instead contended that "because [the complainant] was usually in a state of fear when only a few customers were" present in the restaurant, as was the case when the defendant committed the offense, "the government was required to prove that his actions at the time the offense was committed put her more in fear." Id. Mr. Gray's argument-that on the unusual facts of his case a reasonable jury could find he was not conscious of the connection between his assaultive conduct and theft-was not raised in Dublin, nor could it have been fairly raised in that case, and Dublin thus is not controlling.

         We now turn to the question whether the trial court's error in failing to instruct the jury on the lesser included offense requires reversal. We will reverse Mr. Gray's conviction if we cannot say "with fair assurance . . . that the judgment was not substantially swayed by the error." Kotteakos v. United States, 328 U.S. 750, 765 (1946); see Spriggs v. United States, 52 A.3d 878, 886 n.6 (D.C. 2012).

         The government argues that the court's denial of Mr. Gray's request for a lesser-included-offense instruction was harmless because Mr. Gray's counsel argued the theory that the assaults and the theft were not connected-the very theory underlying his request for the instruction-to the jury:

Can you eliminate in your mind the notion that what we're seeing here are two separate, closely related in time events. The touching. The hand gestures. The laying on of the hands followed by the taking of a purse.
Can you eliminate the possibility that the behavior you're seeing from Mr. Gray leading up to the point where he takes the purse off the counter is designed [sic] to put Rosalba Hernandez in such fear that a robbery has taken place?
If you cannot eliminate in your mind that there is a different way to look at these events, one that is not driven by fear, one that is not driven by assumptions, one that is just driven by what you can see with your own eyes.
If you can see that there is another way of looking at this, then you have reasonable doubt. And if you have reasonable doubt, you cannot convict ...

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