Gray v. United States, 14–CF–1051

• Decision Date: 16 March 2017
• Docket Number: No. 14–CF–1051,14–CF–1051
• Court: D.C. Court of Appeals
• Parties: Myron O. GRAY, Appellant, v. UNITED STATES, Appellee.

155 A.3d 377

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

No. 14–CF–1051

District of Columbia Court of Appeals.

Submitted November 6, 2015
Decided March 16, 2017

Sydney J. Hoffmann, for appellant.

155 A.3d 380

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.

Opinion for the court by Associate Judge Beckwith.

Opinion by Senior Judge Farrell, concurring, at page 391.

Opinion by Associate Judge McLeese, concurring in the judgment in part and dissenting in part, at page 391–92.

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 theft⁴ (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's⁵ 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 acts⁶ 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

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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

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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.

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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,...