(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 alsoPrice 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 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, e.g., Carey v. United States, 111 U.S.App. D.C. 300, 304-305, 296 F.2d 422, 426-427 (1961). However, the cases that involve robbing a dead person are not applicable here, regardless of whether the intent to steal was formed after the victim was killed, because in those cases force was used to take property after the victim was either dead or unconscious, See, e.g., Ulmer v. United States, 649 A.2d 295, 298 (D.C. 1994); Smothers v. United States, 403 A.2d 306, 313 n. 6 (D.C. 1979). Here no force was used against Mr. Carpenter after he was shot.

Further, even if the jury believed that Harris did not take the wallet out of Kirkwood's pocket, but rather picked it up from the ground during their struggle, the evidence would be sufficient for robbery. "To satisfy the `force' requirement in a charge of robbery by stealthy seizure, the government need only demonstrate the `actual physical taking of the property from the person of another, even though without his knowledge and consent, and though the property be unattached to his person.'" Ulmer v. United States, 649 A.2d 295, 298 (D.C. 1994) (quoting Turner v. United States, 57 U.S. App. D.C. 39, 40, 16 F.2d 535, 536 (1926)). Thus, taking Kirkwood's wallet from the ground, as opposed to Kirkwood's person, does not defeat the robbery charge under the facts presented here. As the jury was instructed on an aiding and abetting theory, all of the acts committed by Harris could be imputed to Johnson.

In D.C., it is possible to rob a dead person, as Gomez asserts—but only if the requisite intent was formed prior to the victim's death. If the defendant formed the intent to rob prior to the victim's death, a jury could find that the defendant had the requisite intent to "deprive the owner of the rights and benefits of ownership." See Ulmer v. United States, 649 A.2d 295, 299 (D.C. 1994) ("appellant intended to steal before he killed the victim and therefore clearly [the jury] would have found appellant guilty of intending also to rob the victim before his death"); Smothers v. United States, 403 A.2d 306, 313 n.6 (D.C. 1979) ("a dead person can be a robbery victim, at least where the taking and the death occur in close proximity"). Third, D.C. robbery also requires that the property be taken "against the will" of the victim, thus evincing lack of consent.

The only issue for us to decide is whether the trial court may give a lesser included offense instruction without a request from either of the parties — a somewhat unusual issue, since normally we are asked to decide whether the trial court erred by refusing to give a lesser included offense instruction. See, e.g., Ulmer v. United States, 649 A.2d 295, 297 (D.C. 1994). A defendant in a criminal case does not have "a unilateral right [to pursue] a risk-all strategy" by opposing a request for a lesser included offense instruction.

There is no dispute here that theft is a lesser included offense of robbery. Ulmer v. United States, 649 A.2d 295, 297 (D.C. 1994). Moreover, the appellant does not contest the sufficiency of the evidence for conviction of the greater charge of robbery. Under these conditions, the exclusion of a theft instruction would only be justified if "a verdict on the [theft] offense would be irrational, or require the jury to undertake a bizarre reconstruction of the evidence."

Robbery by stealthy seizure also includes the situation where a victim is incapacitated by the perpetrator, and the victim's property is then taken. See, e.g., Ulmer v. United States, 649 A .2d 295 (D.C.Ct.App.1994). In New York, robbery is defined as “forcible stealing” and requires the use or threatened use of force to sustain a conviction.