That Seems Like a Strange Way to Commit a Robbery…

Gray v. United States (decided March 16, 2017)

The Players: Associate Judges Beckwith and McLeese, and Senior Judge Farrell.  Opinion by J. Beckwith, concurrence by J. Farrell, and dissent by J. McLeese. Sydney J. Hoffmann for Mr. Gray. Trial Judge: William M. Jackson.

Facts: Security-camera footage showed a man, identified by the complaining witnesses as Mr. Gray, enter a convenience store one evening and “engage in a series of bizarre acts.”

According to the footage and witness testimony, he approached two women and their children (two of whom were in strollers), first reaching into one of the strollers, and then gesturing towards the group, holding his hands in front of his body while forming a diamond shape with his thumbs and forefingers.  He next touched the two women and one of the children on the forehead with his palm. Then, he reached into the second stroller, pulled a bottle out of the mouth of the baby in the stroller, and told the mother not to give the baby the bottle because the baby would die.

After this strange sequence of events, he then picked up a wallet the one of the mothers had left on it. He then sat down, rummaged through the wallet and removed $7. He tossed the wallet back on the counter, stood up, and walked out of the store. As he left, he pointed to the owner, and said something like “you’re going to die.”

Mr. Gray was convicted at trial of one count of robbery, one count of threats to do bodily harm, and three counts of simple assault. The defense’s request that the jury be instructed on the lesser-included offense of second-degree theft was denied.

Issue 1: Did the trial court err in not giving an instruction on the lesser included offense of second-degree theft because the evidence would have supported a finding by the jury that the assaults and taking of the complainant’s money were distinct from one another.

Answer: Yes. On the “unusual facts of this case,” the DCCA held that the evidence supported a rational conclusion that Mr. Gray neither assaulted the complainants with the intent of effectuating a subsequent taking, nor consciously exploited the fear created by the assaults when taking the money.

The DCCA found that based on the evidence presented—particularly the camera footage—the jury could rationally have concluded that “the assaults and the theft were not connected but rather resulted from a series of separate, erratic impulses.”  In other words, Mr. Gray’s behavior was so strange that the jury could well have believed that the theft of the $7 dollars was spontaneous and unconnected to this touching the complainants with the palm of his hand.

Note: The majority opinion draws two important legal conclusions about the robbery statute in the course of its analysis on this point. First, while case law makes clear a defendant can commit a robbery when she takes advantage of the fear created by assaultive acts that were committed with no robbery in mind, the defendant must purposefully take advantage of that fear, not simply coincidentally benefit from it.  The second is that simply taking something from a victim’s “immediate actual possession” (as opposed to the victim’s person) does not constitute robbery because “such a principle would completely nullify the ‘by force or violence’ element of robbery.”

Judge Farrell’s concurrence also stresses the unique facts of this case, and the unlikelihood that a similar scenario would present itself.

Issue 2: Was the failure to give the lesser-included offense harmless?

Answer: No. The error was not harmless for two reasons. First, the instruction would have lent credence to the defense’s claim in closing that the assaults were not intended to effectuate a robbery. Second, by giving the jury a middle ground between robbery and acquittal, the instruction would have prevented the jury from making the decision to convict simply because it was all or nothing—either convict for robbery or allow obviously illegal behavior to go unpunished.

Other Issues: Mr. Gray also challenged the sufficiency of the evidence on the robbery charge, as well as the voluntariness of his waiver of his Fifth Amendment privilege not to testify. The DCCA denied both challenges.  CP

Read the full opinion here.

Data from ankle monitor and treatment for a concussion were sufficient to establish robbery and assault with significant bodily injury.

Stephon Brown v. United States (decided September 1, 2016).

Players: Associate Judges Thompson and Beckwith, Senior Judge King. Opinion by Thompson. Sicilia Englert for Mr. Brown.  Trial judge: Todd E. Edelman

Facts: On December 15, 2014, while he was attempting to make a food delivery for a restaurant, two men attacked Gregory Dowell by repeatedly punching and kicking him in the head and body. They then took his phone, wallet, and vest, and one man rode away on Mr. Dowell’s bicycle. After Mr. Dowell reported the incident, police ran a check to determine if anyone’s GPS monitoring device was in the area at the time of the incident. Through that check, police learned that Stephon Brown had been in the area. Police then went to his house, where they located Mr. Dowell’s bicycle. 

Due to the attack, Mr. Dowell experienced headaches but declined to go to the hospital despite being urged to go by both the paramedics who responded to the scene and a friend, who was a nurse. Mr. Dowell did not want to go because he did not have insurance. But five days later, when he was still experiencing pain, he went and was diagnosed with a concussion and underwent a CAT scan. 

The jury convicted Mr. Brown of robbery and assault with significant bodily injury. 

Issue 1:  Was the evidence sufficient to establish Mr. Brown committed the robbery?

Holding: Yes. Mr. Brown admitted there was evidence to place him in the area of the robbery close to the time it occurred and he admitted that the stolen bicycle was found at his house only a few hours after the robbery, but claimed he found an abandoned bike and rode it home. The court ruled there was sufficient evidence to connect him to the robbery. Mr. Dowell testified that two men walked past him around 8:50 pm on North Capitol Street, SE, between T Street and Seaton Place. The two men then returned, attacked him, and fled north on North Capitol before making a right turn. 

Mr. Brown’s main contention was that the GPS data was inconsistent with the complainant’s testimony. The court disagreed. One, the complainant testified he did not see anyone else in the area at the time. Two, though the tracking data showed that he moved farther south down North Capitol than the complainant had said, “the [complainant’s] testimony did not eliminate the possibility that the attackers did precisely that while [the complainant] was distracted” trying to make the food delivery. And three, testimony established that the GPS monitoring data generally are accurate within a fifty-foot radius of each point plotted on a map, allowing the jury to conclude that Mr. Brown was even closer to the location of the assault than the plotted points indicated. Those facts, plus the bike being found at his house shortly after the robbery, established sufficient evidence to support the jury’s verdict for robbery. 

Issue 2: Was the evidence sufficient to establish that Dowell suffered significant bodily injury?

Holding: Yes. To prove significant bodily injury there must be an injury “that requires hospitalization or immediate medical attention.” The complainant sustained “a lot of rapid blows” to the head, and suffered a laceration on his forehead and ears, and multiple bright red areas on his scalp, neck, and ears. He testified that afterwards, he felt “loopy” and “dazed,” that his head hurt, and that the pain lasted for several days. He finally went to the hospital after several days, even though he did not have insurance, because a friend offered to pay for his medical expenses. At the hospital, he described his pain as “unacceptable” and a “constant headache.” He was diagnosed with a concussion. The treating doctor testified that it is “important for people with concussions to seek medical treatment” and that doctors “want anyone who has a head injury to come in and be evaluated[.]” Also, the doctor testified she ordered a CAT scan, which is the typical test for anyone complaining of a head injury. The doctor admitted, however, that some people who do not follow the recommended course of treatment for a concussion “may do okay on their own.”

Referring to this case as “perhaps a closer one than we have seen in some previous cases,” the Court nonetheless concluded the evidence was sufficient to establish significant bodily injury. The Court cited the number of blows to the head, the amount of pain in the moment, the amount of lingering pain, and the recommendations that Mr. Dowell seek medical treatment immediately. Further, when he did go to the hospital, he did not receive a “mere diagnosis,” but underwent treatment, including a CAT scan and was prescribed limitations on his activities to avoid worsening his symptoms. Lastly, the Court noted that the doctor testifying someone might have “do[ne] okay” on his own” does not undermine the seriousness of the injury when it is one that otherwise would typically require “immediate medical attention” by a professional with “true medical expertise.” BM

Read full opinion here.

Sticks and stones may break my bones . . . but words will be punished more severely . . . when used in lieu of sticks or stones . . . to complete a robbery in D.C.

In re Z.B. (decided February 4, 2016).

The Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Pryor.  Opinion by Senior Judge Pryor.  PDS for Z.B.  Trial Judge: Florence Y. Pan.

Facts:  The complaining witness flagged down a police officer to report the robbery of his cell phone moments earlier.  Ensuing radio broadcasts described “three young black male” suspects, including one six-foot-two-inches-tall seventeen-year-old, wearing a black jacket and blue gloves.  Following these broadcasts (which failed to mention the cell phone), two officers stopped Z.B., who was shorter than 6’2”, wearing one aqua and blue glove and a black ski mask that exposed his face, and carrying a cell phone that he put in his pocket upon seeing the police.  

The police brought the complaining witness to Z.B.’s location for show-up identification.  Upon positive identification, police placed Z.B. under arrest, at which point he asked: “How you going to say I robbed somebody?”  Subsequent search of Z.B.’s person revealed a cell phone that the complaining witness identified as his own. 

The trial court denied Z.B.’s motion to suppress the identification, his rhetorical question, and the cell phone recovered from him, as the fruits of an illegal stop under the Fourth Amendment.  It further adjudicated Z.B. involved with robbery, receiving stolen property, and two counts of misdemeanor threats to do bodily harm. 

Issue 1: Whether the trial court erred in denying Z.B.’s motion to suppress.

Holding 1: No.  “Applying the familiar Terry measure of total circumstances, we conclude that the evidence supports the trial judge’s finding of reasonable articulable suspicion of criminal activity afoot to justify a temporary stop.”

Issue 2: Whether Z.B.’s adjudications for robbery and misdemeanor threats to do bodily harm merge.

Holding 2: No.  Threats and robbery do not merge under Blockburger because each includes an element that the other does not.  Z.B.’s argument that it is an “absurd result” to punish the robber who uses threats more severely than the robber who uses force “misses the mark” because it fails to appreciate that the former has “not only committed an assault but also committed threats.”  WC

Read full opinion here.