Lead Opinion
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 pages 391-92.
Appellant Myron Gray was convicted at trial of one count of robbery,
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
First, after standing by the door for about twenty seconds,
Next, Mr. Gray touched E.S., Rosalba, and Martha, in quick succession, on their foreheads with the palm of his hand,
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.
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,
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,
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,
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 “earned ... away.” Johnson v. United States,
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.
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.
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,
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 395-99, 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,
We are not-persuaded by the government’s argument that the court’s holdings in Ulmer,
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,
The same reasoning serves to distinguish Carey v. United States,
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,
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 assump*388 tions, 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 on the charge of robbery.[19 ]
Because the jury rejected this theory by finding Mr. Gray guilty of robbery, the government argues, a lesser-ineluded-of-fense instruction would have made no difference.
The government’s argument fails to account for the fact that Mr. Gray’s theory would likely have seemed more plausible to the jury had the trial court implicitly acknowledged its viability by instructing the jury on the lesser included offense. It is possible, moreover, that the jury accepted Mr. Gray’s argument in principle but was reluctant to acquit Mr. Gray of robbery, given that he engaged — and concedes he engaged — in indisputably illegal behavior. If so, an instruction on the lesser included offense of theft would have enabled the jury to convict Mr. Gray of a crime it believed was more consistent with the evidence and “eliminate[d] the distortion of the factfinding process that [was] created when the jury [was] forced into an all-or-nothing choice” between guilt of robbery and acquittal. Spaziano v. Florida,
The government relies on Spriggs,
Because the trial court erred in failing to give an instruction on the lesser included offense of theft, and because this error was not harmless, we reverse Mr. Gray’s conviction for robbery.
III.
We next turn to Mr. Gray’s argument that the evidence presented at trial was insufficient to support a conviction for robbery.
Mr. Gray’s only argument is that “[tjhe record lacks evidence that Mr. Gray’s erratic behaviors inside the Ge-Ze Mini Market were purposefully calculated to separate Rosalba Hernandez from her purse.” As discussed above, a reasonable jury could have found that Mr. Gray’s acts of assault and his theft of Rosalba’s $7 were unconnected, random acts. But a reasonable jury could just as well have rejected this theory: A reasonable jury could have inferred from the security video and the complainants’ testimony that Mr. Gray intended to put Rosalba in fear or that he consciously exploited this fear in order to grab Rosalba’s wallet and take her money. The entire sequence of Mr. Gray’s unusual and frightening behavior occurred in less than a minute, and he struck the complainants on their foreheads mere seconds before taking Rosalba’s wallet. Further indication that Mr. Gray intended to accomplish his theft of Rosalba’s $7 by putting her in fear was provided by the testimony that Mr. Gray threatened to kill another of the complainants, Mr. Bedane, mere seconds after the theft.
Mr. Gray argues that his ease is similar to Williams,
IV.
Mr. Gray next claims that the trial court denied him his constitutional right to testify in his own defense by suggesting that evidence that he tested positive for the drug phencyclidine (POP) after his arrest could be used to cast doubt on his reliability as a witness. The trial court made the purportedly coercive comment during an exchange following the court’s denial of Mr. Gray’s motion for a lesser-included-offense instruction, Earlier, at the close of the government’s case, Mr. Gray had stated that he did not intend to testify, and the court had conducted an on-the-record colloquy
[COUNSEL]: Your Honor, I think that Mr. Gray anticipated, but my issue was, that we need to put conflicting testimony into the record. He has changed his mind and now wishes to take the stand in his defense.
THE COURT: That’s his right. Before we go down that road, he needs to—
[COUNSEL]: I’m glad we have an overnight, Judge.
THE COURT: Okay. I’m just saying are there other issues that may come up concerning his perception and his ability to accurately perceive the events that occurred that day. I’m talking about his lock-up test, which was positive for PCP.
The next day, Mr. Gray’s counsel informed the court that Mr. Gray had decided against testifying, and Mr. Gray confirmed that this was his personal choice in another on-the-record colloquy.
Mr. Gray argues that the trial court’s comment about his positive PCP test undermined the validity of his subsequent waiver of his right to testify. Because Mr. Gray did not object to the trial court’s comment, we review for plain error.
We find no error. “Because the right to testify is a fundamental and personal right, it can be waived only by a defendant’s voluntary, knowing, and intentional action.” Arthur v. United States,
Y.
For the foregoing reasons, we reverse Mr. Gray’s conviction for robbery. In all other respects, the judgment of the trial court is affirmed.
So ordered,
Notes
. D.C. Code § 22-2801 (2012 Repl.). All subsequent D.C. Code citations are to the 2012 Replacement volume.
. D.C. Code § 22-407.
. D.C. Code § 22-404 (a)(1).
. D.C. Code §§ 22-3211, -3212 (b).
. We will use first names for clarity as the women, who are sisters-in-law, have the same last name.
. Although Mr. Gray has a long history of psychiatric illness and there is reason to suspect that he was unwell during the incident, he clearly asserted a desire not to pursue a defense based on any psychological infirmity at trial.
. Rosalba testified that Mr. Gray was "kind of keeping other people from coming in.” The surveillance video does not show Mr. Gray actively blocking the door or preventing anybody from entering or leaving,
. The testimony is unclear as to what Mr. Gray was saying. Martha testified that Mr. Gray at some point "was asking for [Rosal-ba’s] children, for [her] baby.”
. Rosalba testified that Mr. Gray also struck R.E., but the surveillance video contradicts this testimony.
. Mr. Bedane described the touches as "punch[es].'’
. Martha testified that Mr. Gray "grabbed” the wallet. Rosalba initially testified that Mr. Gray grabbed the wallet from her hands, but this testimony was contradicted by the surveillance video, as Rosalba later conceded.
.Mr. Bedane testified that Mr. Gray said these words in a "[v]ery strong voice.” Rosal-ba remembered Mr. Gray’s words this way: "[I]t was something like, you’re going to die, you need to die, or something like that.” Martha remembered Mr. Gray ”ma[king] a gesture across his throat” and saying that "that [the owner] was going to die.” The surveillance video does not show Mr. Gray making a throat-cutting gesture.
. The court specifically declined to give this instruction after determining that Mr. Gray’s conduct "was not a sudden and stealthy seizure or snatching.” The court thus instructed the jury that to find Mr. Gray guilty of robbery, it was required to find that "he used force or violence to take the property by using actual physical force or violence by putting Rosalba Hernandez in fear.”
. Mr. Gray also argues that he was entitled to an instruction on the lesser included offense because a reasonable jury could have found that Rosalba’s fear of Mr. Gray was not reasonable. See Williams,
. There was also evidence that Mr. Gray threatened Mr. Bedane as Mr. Gray was walking out the door. Yet a reasonable jury could have found that Mr. Gray uttered this threat after he had "complete and exclusive control” of the property. Jacobs v. United States,
. The Ulmer appellant's argument depended on the premise that he could not be convicted of robbery unless the government proved that he had the intent to steal at the time he attacked the deceased. The court in Ulmer did not resolve the question whether the larcenous mental state and assaultive act must concur, as the court instead relied on the stealthy snatching form of robbery.
. Judge McLeese contends that we fail to adhere to this principle — "that our focus must be on the instructions given to the jury rather than on legal principles not communicated to the jury” — when earlier in our analysis we “rel[y] on the idea that Mr. Gray could be found guilty of robbety only if he either intended or was aware that his use of force or violence would aid in the taking of the victim’s property.” Post at 392-93. But the jury was instructed that it needed to find that Mr. Gray “used force or violence to take the property” (emphasis added). Our analysis relies on what we take to be a reasonable understanding of this instruction — namely, that use of force or violence to take property means the conscious employment of (or conscious taking advantage of) force or violence to take the property. See Webster’s Third New International Dictionary 2524 ("USE is general and indicates any putting to service of a thing, usu. for an intended or fit purpose ....”); see also Castleman,
. Judge McLeese contends that Richardson v. United States,
We recognize that there are passages in opinions other than Leak and Richardson that, divorced from context, could be read as supporting the broad proposition advanced by the dissent that any theft from a person or his or her immediate possession constitutes a robbery. See, e.g., Turner v. United States,
. At another point in the closing argument, the defense contended that "[t]he Government’s theory of this case is that the whole encounter, all the behavior of Mr. Gray leading up to the taking of that purse off the table, is a predicate to a robbery.” The defense asked the jury, "[I]s that what really happened here and can you be convinced beyond a reasonable doubt that all of the behavior that you see on the video leading up to the taking of that purse is actually designed to take the purse”?
. Mr. Gray also argues that his assault convictions should merge with his robbery conviction. The government concedes that one of the assaults would merge with the robbery. Because we reverse Mr. Gray's robbery conviction, we do not reach this issue.
. Although we are reversing Mr. Gray's conviction for robbery, we must still "address his sufficiency argument because ‘[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.’ ” (Alazajuan) Gray v. United States,
. See Boyd v. United States,
. The court in Arthur v. United States noted that the test for plain error is in some ways a strange fit for a case involving allegedly coercive comments by a trial court,
Concurrence Opinion
concurring in the judgment in part and dissenting in part:
Although I otherwise concur in the judgment, I respectfully dissent from the court’s holding that the trial court committed reversible error by declining to instruct the jury on theft as a lesser-included offense of robbery. I agree .with the court’s framing of the issue: Mr. Gray was entitled to a lesser-included-offense ■ instruction if the jury could reasonably have found him guilty of theft but not robbery. Ante at 381-82. I disagree, however, with the court’s conclusion that the jury could reasonably have found Mr. Gray guilty only of theft based on doubt that Mr. Gray
I.
At one point, the court holds that we must address the lesser-included-offense issue in light of the instructions actually given to the jury, rather than in light of legal principles as to which the jury was not instructed. Ante at 385-86. Specifically, the court acknowledges that robbery can be committed “by sudden or stealthy seizure or snatching.” Ante at 385; accord D.C. Code § 22-2801 (2016 Supp.). Because the trial court declined to instruct the jury on that type of robbery, however, the court treats as “immaterial” the question whether a jury that found Mr. Gray guilty of theft would also reasonably have to find Mr. Gray guilty of robbery by sudden or stealthy seizure or snatching. Ante at 382 n.13, 385-86.
In my view, the trial court erred by declining to instruct the jury on the theory of sudden or stealthy seizure or snatching. The trial court’s stated reason was that this case did not involve “a sudden and stealthy seizure or snatching” (emphasis added). Although I agree that Mr. Gray’s actions were not stealthy, the robbery statute applies to “sudden or stealthy” seizures or snatchings. D.C. Code § 22-2801 (emphasis added). Thus, if a reasonable jury could have viewed Mr. Gray’s seizure of the victim’s wallet as sudden, then the trial court ought to have instructed the jury on the theory of sudden or stealthy seizure or snatching. It seems to me that Mr. Gray’s seizure of the victim’s wallet, as depicted in the videotape of the incident, could quite plausibly be viewed as sudden. In fact, I think it very implausible that a reasonable jury would take any other view. For that reason alone, I would conclude that no reasonable jury, properly instructed, could have found Mr. Gray guilty of theft but not guilty of robbery by sudden seizure. See generally Turner v. United States,
The court does not address this question, instead holding that our focus must be limited to the instructions given to the jury. Ante at 385-86. Although the court cites no direct support, that holding seems to me to be correct, at least where (as here) the defendant did not object to the pertinent instructions. We have said that whether a defendant charged with robbery is entitled to a lesser-included-offense instruction turns on “whether the evidence presented limited the rational conclusion of the fact-finder to either acquittal or conviction on robbery.” Leak v. United States,
The court, however, does not consistently apply its holding that our focus must be on the instructions given to the jury rather than on legal principles not communicated to the jury. Specifically, the court relies on the idea that Mr. Gray could be found guilty of robbery only if he either intended or was aware that his use of force or
In pertinent part, the robbery instruction in this case was as follows:
The elements of the offense of robbery, each of which the Government must prove beyond a reasonable doubt, are that: Number one, that the defendant took property from Rosalba Hernandez. Number two, he took the property from the immediate actual possession of Ro-salba Hernandez or from Rosalba Hernandez’s person. [Number three, he] did so against the will of Rosalba Hernandez. Number four, that he used force or violence to take the property by using actual physical force or violence by putting Rosalba Hernandez in fear. Number five, that he carried the property away. Number six, he took the property without right to it and intending to steal it. And, number seven, the property had some value.
[[Image here]]
Putting Rosalba Hernandez in fear without using actual force or physical force can satisfy the requirement of force or violence if the circumstances, such as threats, by words or gestures, would in common experience create a reasonable fear of danger and cause a person to give up his or her money in order to avoid physical harm.
[[Image here]]
The Government must establish that the defendant had no right to take the property and that he intended to steal it.... It is necessary that the defendant intended to deprive Rosalba Hernandez of her property and to take it for his own use.
Under these instructions, the jury could not find Mr. Gray guilty of robbery unless it found that Mr. Gray “used force or violence to take the property.” The instructions also indicate, however, that “putting [the victim] in fear” could meet the “force or violence” requirement if the defendant’s conduct would be sufficiently frightening to a reasonable person. The instructions mention only an intent to steal, and they certainly do not communicate the asserted additional mens rea requirement relied upon by the court: that Mr. Gray must have intended or been aware that his use of force or violence would aid in the taking of the victim’s property.
In a footnote, the court takes the view that the robbery instruction in this case can reasonably be understood to require proof not only that Mr. Gray intentionally used force or violence but also that he intended or was aware that his use of force or violence would aid in the taking of the victim’s property. Ante at 385 n.17. I disagree. In isolation, the phrase “used force or violence” does not indicate whether some form of intent is required beyond the intent to commit the acts that constitute the force and violence at issue. Cf., e.g., United States v. Pena,
The court cites authority for the principle that “use” of physical force “most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” Ante at 384; see Leocal v. Ashcroft,
Similarly unpersuasive is the court’s reliance on Webster’s Third New International Dictionary. Ante at 385 n.17. That dictionary has numerous definitions of the verb “use.” Webster’s Third New International Dictionary 2523-24 (2002). The court, however, cites none of those definitions. Rather, the court cites a postscript discussing “use” and its synonyms. Id. at 2524. The first non-archaic definition of “use” is “to put into action or service,” id. at 2523, which does not indicate that “use” means not only conscious action but also an awareness of the effects of that action. Nor is such an interpretation of “use” clearly supported by the subsequent discussion of “use” and its synonyms upon which the court relies. In the present case, for example, whether he did so consciously or not, Mr. Gray in fact took advantage of his intentionally assaultive acts to take the victim’s property, thereby “putting [his force or violence] to service.” Id. at 2524.
The Supreme Court has described the term “use” as “elastic,” and has emphasized that the term must be understood in context. Leocal,
As I read the instructions in this case, the “force or violence” requirement was satisfied if Mr. Gray used force or violence during the robbery and that use of force in fact aided in the taking of the victim’s property. Given the instructions and the factual circumstances of this case, a jury that found Mr. Gray guilty of theft and assault could not reasonably have acquit
II.
I return now to the issue previously set aside: whether the robbery statute requires that the defendant have intended or been aware that the defendant’s force or violence would aid in the taking of the victim’s property. For the reasons I have explained, I do'not think that we need to resolve that issue in order to decide this case. The court does decide the issue, however, and I therefore address it. I would hold that the robbery statute does not require proof that the defendant have intended or been aware that the use of force or violence would aid in the taking of the victim’s property.
First, the language of the robbery statute points against the court’s holding. That statute provides that “[wjhoever, by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery.” D.C. Code § 22-2801. We have appropriately read into the statute a requirement that the defendant have acted with the specific intent to take the property of another. United States v. Owens,
According to the court, it would be “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.” Ante at 384. I do not agree. Consider again the hypothetical defendant who punches the victim in the face, knocking the victim to the ground, and then takes the victim’s wallet. It
Second, binding authority points against the court’s holding in this case. As the court’s opinion reflects, our prior decisions variously describe the elements of robbery. Ante at 382-83. Focusing on the “force and violence” requirement, we have sometimes used the term “by,” which is the term that appears in the statute, Williams v. United States,
Rather, our cases are to the contrary. For example, it was long ago settled in this jurisdiction that a defendant can be convicted of robbery even if the defendant’s intent to steal arose after the assault on the victim was completed. Carey v, United States,
The court suggests that the decisions just cited are limited to sudden or stealthy seizures or snatchings. Ante at 384-87. I do not agree with the court’s reading of those cases, particularly Richardson, which makes no reference at all to sudden or stealthy seizures or snatchings. The court speculates that Richardson in fact may have involved a stealthy seizure, ante at 386-87 n.18, but I see no basis in Richardson for that speculation. To the contrary, it appears to have been undisputed in Richardson that the defendant took money from the victim’s person openly, and the factual dispute was whether the defendant used a gun to do so. Richardson,
Notwithstanding the foregoing authority, the court states that its “interpretation is more consistent with this court’s case law.” Ante at 384. In support of that statement, the court makes a single point: in articulating the “force or violence” element, some of our cases replace the statutory term “by” with “using” or “accomplished by.” Id. at 384. According to the court, that “suggest[s] that we understood the statute to require proof of some sort of purposeful employment or at least knowing exploitation of the force or violence.” Id. at 384. I see no basis for the court’s speculation. To the contrary, it appears that our shifting terminology, which we have never explained, instead reflects an unexamined assumption that the minor differences in wording have no substantive significance. In that regard, I note that our most recent statement of the elements of robbery uses the statutory term. See Williams,
Third, in light of the prior decisions in this jurisdiction, it should not be surprising that — like the instructions given to the jury in this case — the Standard Jury Instructions for robbery do not reflect the additional mens rea requirement imposed by the court today. Rather, the only mens rea mentioned in the standard robbery instruction is the intent to steal. Criminal Jury Instructions for the District of Columbia, No. 4.300 (5th ed. 2016). As to “force or violence,” the standard instruction requires only that the defendant “used force or violence to take the property,” and the standard instruction further explains that “[u]sing actual force or physical violence ... so as to ... prevent resistance satisfies the requirement of force or violence.” Id.
Fourth, the court does not dispute that a defendant is guilty of robbery, without any further mens rea requirement beyond the intent to steal, if the defendant suddenly or stealthily seizes or snatches property from the victim’s actual possession. (As I have explained, in my view that is what the
Finally, the substantial weight of authority in other jurisdictions appears to contradict the additional mens rea requirement that the court imposes upon our robbery statute. See, e,g., Allen v. State,
The court states that these illustrative out-of-jurisdiction authorities “cannot mean” to impose robbery liability on all defendants whose intentional use of force or violence in fact aids in the taking of the victim’s property. Ante at 384. Rather, according to the court, these authorities must be understood to require that the defendant is at least consciously taking advantage of the force or violence used against the victim. Id. None of the cited authorities explicitly state that whether the defendant “took advantage” of a prior use of force turns on a subjective inquiry into whether the defendant intended or was aware that the use of force operated to aid in the taking of the victim’s property, as opposed to an objective inquiry into whether the defendant’s use of force in fact aided in the taking of the victim’s property. To the contrary, each of the cited decisions analyzes the relevant issue in objective terms. See, e.g., Pickar,
At bottom, this case strikes me as comparable to Dublin v. United States,
The court tries to distinguish Dublin in two ways, ante at 387, but in my view neither proposed distinction is persuasive. First, it is true that the court in Dublin rejected the argument that the government was required to prove that the defendant’s conduct increased the victim’s fear beyond the level of fear that the victim otherwise would have felt.
For the foregoing reasons, I would affirm Mr. Gray’s robbery conviction. I respectfully dissent from the court’s contrary holding.
Concurrence Opinion
concurring:
The surveillance tape at the heart of this prosecution could have exhibited to reasonable jurors a strange, brief spectacle of disjointed actions by appellant supporting the conclusion, in which I concur, that the requested lesser included offense instruction on theft should have been given. In most robbery cases, I dare say in the vast majority of them, there will be no room for reasonable doubt by jurors that, if assaul-tive acts and theft have been proved, the two are linked by the purposeful nature of the assaults or equivalently the defendant’s awareness of the victim’s vulnerability to theft created by the assaults. And that.will be true also where, instead of using force or threats, the defendant took the property by sudden or stealthy seizure: he will be assumed, as a matter of law, to have been aware of the vulnerability of a victim given no opportunity to resist the sudden or stealthy taking. But this case, marked- by the idiosyncratic behavior Judge Beckwith describes, is exceptional, and on its facts I agree that the jury should have been allowed to reject robbery in favor of theft.