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.

Misdemeanor threats to do bodily harm need not be “serious”

Mark E. Lewis v. United States (decided May 12, 2016)

Players: Associate Judges Blackburne-Rigsby and Thompson and Senior Judge Reid. Opinion by Judge Blackburne-Rigsby. Charles Burnham for Mr. Lewis. Trial Judge: Jennifer M. Anderson.

Facts: Following a bench trial, Mr. Lewis was convicted of second-degree theft and attempted misdemeanor threats to do bodily harm. The complaining witness testified that Mr. Lewis spent the night at her home and took money out of her wallet when she left the bedroom to answer the door. The complaining witness reported the money stolen when she returned to the bedroom to find Mr. Lewis gone and her wallet empty and displaced. The complaining witness testified that in a later phone call, Mr. Lewis denied the theft and demanded, “Stop playing with me, b****. I’ll smack the s*** out of you [and] get you f***ed up.”

Issue 1: Whether the evidence was sufficient to sustain a conviction for attempted misdemeanor threats to do bodily harm?/Whether the crime of misdemeanor threats requires a threat to do “serious bodily harm”?

Holding 1: Yes/No. Although the Court has sometimes stated that the crime of misdemeanor threats requires uttered words that “convey fear of serious bodily harm or injury,” the Court has never confronted the issue squarely. The statute itself does not use “serious” to qualify the type of harm that is punishable if threatened. The “serious bodily harm” language from the cases appears to be an artifact of the Redbook and an inversion of jurisprudence requiring that the promise of bodily harm be serious for a true threat to occur. Requiring “seriousness” in the context of verbally threatened, as opposed to completed, bodily harm would be unworkable in practice. Cf. D.C. Code § 22-3001(7) (defining “serious bodily injury” for purposes of aggravated assault).

Issue 2: Whether the evidence was sufficient to sustain a conviction for second-degree theft, in light of the fact that no one witnessed the alleged theft?

Holding 2: Yes. The circumstantial evidence presented was sufficient.

Of note:

• It is troubling that the Court’s reasons for declining to read “seriousness” into misdemeanor “threats to do bodily harm” apply with equal force to its felony counterpart, which is punishable by up to 20 years imprisonment. See D.C. Code § 22-1810. The DCCA has traditionally “interpreted the elements of this misdemeanor to be the same as those of its subsequently enacted felony counterpart.” United States v. Baish, 460 A.2d 38, 41 (D.C. 1983), abrogated by Carrell v. United States, 80 A.3d 163 (D.C. 2013), reh’g en banc granted, No. 12-CM-523, 2015 WL 5725539 (D.C. June 15, 2015). The implications of this opinion figure to extend beyond the misdemeanor statute.

• Following Joiner-Die v. United States, 899 A.2d 762 (D.C. 2006), and In re Z.B., 131 A.3d 351 (D.C. 2016), this case deepens the divide in how the statutes for threats and assault are interpreted, despite conceptual overlap between the two offenses. While the Court posits that it would be unworkable to require proof that the harm contemplated by uttered words is “serious” in the same sense that aggravated assault requires, it is conceivable that the government would face this exact burden in prosecuting attempted aggravated assault. The Court opined that it was “unclear and possibly unknowable” that a threat to “smack the s*** out of” someone or “get [him or her] f***ed up” would threaten “serious bodily injury.” This opinion may raise interesting sufficiency questions in the future.  WC

Read full opinion here.

Attempted Second-Degree Theft by Deception Is a Lesser Included Offense of Second-Degree Fraud

Michael J. Warner v. United States (September 17, 2015)

The players: Judges Glickman and Fisher, Senior Judge Farrell.  Opinion by Judge Glickman.  Regina Michaels for the Mr. Warner.  Trial Judge:  Patricia A. Wynn.

The Facts: The appellant was charged with misdemeanor second-degree fraud. In a bench trial, the judge acquitted him of that offense but convicted him of what she believed was a lesser-included offense, attempted second-degree theft. Appellant was leasing an apartment in the American University area and had no money to pay his rent or security deposit. He decided to make some money by advertising for a roommate on Craigslist. He accepted $800 from one woman, with an oral agreement that she would move in in December on a month to month basis to see if it worked out, and if it did, she would stay on the whole semester. Simultaneously, he was trying to sublease to another woman. After the first woman realized there was something fishy, she asked for her money back, but she never got it back. He testified that he intended to return the money as soon as he earned some.

The trial judge accepted the appellant’s testimony that he intended to permit the first woman to move in and live in the apartment in December and January, and thus rejected the government’s theory that he meant to scam her and never let her move in. Thus, she had doubt about the fraud charge, but questioned whether theft was a lesser included offense, that would permit conviction on the ground that he took the money and never gave it back. Without explaining her basis, or which statutory variant of theft she was relying upon, the judge ultimately convicted of attempted second-degree theft.

Issue 1: Is attempted second-degree theft a lesser-included offense (“LIO”) of second-degree fraud?

Holding 1:  While not every type of attempted second-degree theft is an LIO of second-degree fraud, one type is: attempted second-degree theft by deception. The elements of attempted second-degree theft by deception are: an overt act in furtherance of the offense, committed with the intent to obtain the property of another by deception. The mens rea for attempted theft by deception (though articulated in different words) is the same as for second-degree fraud, and the extended conduct required for fraud will always include an act sufficient for attempted theft by deception. Thus one is an LIO of the other. Further, that there are alternative means of committing attempted second-degree theft that would not be LIOs of second-degree fraud does not matter.

Issue 2:  Was the evidence sufficient to support a conviction for attempted second-degree theft?

Holding 2:  The evidence was sufficient to permit a finding beyond a reasonable doubt that that appellant induced the first woman to give him 800 dollars by implicitly promising that she could stay on in the apartment past January if she wanted, but he had intended from the inception to look for other roommates and kick her out sooner than she might have wanted. The woman who sent the 800 dollars was deceived because she sent the money laboring under a material misrepresentation.

However, a remand was required because although the evidence permitted the above inferences, the judge did not make clear that she actually found the facts in this manner, and may have relied on a different form of theft that is not an LIO of second-degree fraud. Because appellant had asked for the judge to make findings on this question and she did not, he was entitled to a remand.  SF

Read full opinion here.