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Gray v. United States, 155 A.3d 377

Facts

On November 9, 2013, Myron Gray entered the Ge–Ze Mini Market where Rosalba Hernandez and her children were present. Gray engaged in bizarre behavior, including touching the complainants and removing a baby bottle from one child’s mouth. He then took Rosalba's wallet, removing $7 before threatening the store owner. The trial court convicted him of robbery, but Gray appealed, claiming errors in jury instructions and insufficient evidence for robbery.

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 four month-old child.

Issue

Did the trial court err in failing to instruct the jury on second-degree theft as a lesser included offense of robbery, and was the evidence sufficient to support a conviction for robbery?

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.

Rule

A trial court must grant a defendant's request for a lesser included offense instruction if the lesser offense consists of some, but not every, element of the greater offense and if the evidence is sufficient to support the lesser charge.

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.'

Analysis

The court found that the evidence presented at trial could allow a reasonable jury to conclude that Gray's actions constituted theft rather than robbery. The bizarre nature of Gray's behavior suggested that the assaults and the theft were separate acts, and the jury could have rationally doubted that Gray intended to exploit the fear he created to commit the theft.

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.

Conclusion

The Court of Appeals reversed Gray's conviction for robbery, determining that the trial court's failure to instruct the jury on the lesser included offense of theft was not harmless error.

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.

Who won?

Myron Gray prevailed in the appeal because the court found that the trial court's error in jury instructions warranted a reversal of his robbery conviction.

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.

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