James A. Becker v. A.L. Lockhart, Director, Arkansas Department of Correction
971 F.2d 172
8th Cir.
1992
Check Treatment

*2 ARNOLD, S. Chief Before RICHARD HENLEY, Judge, Circuit Judge, Senior MAGILL, Judge. Circuit MAGILL, Judge. Circuit appeals the district A. Becker James corpus of relief. denial court’s1 vagueness” invokes the “void respect to the Arkansas rob- doctrine argues that the evi- bery statute. He also convic- uphold his insufficient to dence was tion. We affirm.

I. Rogers, shopping in the Ar- Becker was kansas, supermarket when Food-4-Less manager saw him store’s assistant into his coat. package of ham stuff a off-duty po- manager alerted assistant security at officer, providing lice who was through the proceeded the store. lane, package purchasing one checkout flints. lighter He package ham ham package of con- pay for the did leaving Becker was in his coat. As cealed Wright, Arkansas. United Susan Webber Honorable 1. The Judge Eastern District for the District States adopted magistrate judge’s trict store, manager and the court the assistant two proposed findings. appeal him. The

police officer confronted This followed. accompany them to Becker to men asked complied. Vagueness

the store office. *3 office, Beck- the officer asked Inside the the Becker claims Arkansas he Becker said was er for identification. robbery unconstitutionally vague. is statute gave false and a carrying identification provides: The statute The then officer. officer name to the if, person robbery A commits with the ham, which Becker asked Becker for the committing felony a or misde- purpose of placed The officer Becker handed to him. resisting apprehension meanor theft or asked him for his coat. under arrest and thereafter, employs he or immediately officer, gave his coat to the who Becker immediately employ physical threatens to weapons. The then searched it for upon force another. place turn around and his asked Becker to (Michie Supp. Ark.Code Ann. 5-12-102 § his head so that the officer hands behind 1991). argues the statute is uncon- pat Becker re- could conduct a search. stitutionally vague it does not de- because fused. “immediately.” argues fine He the term in the three men were still the While “immediately” the statute’s use of the term office, jacket at- grabbed his warning give does not him fair that his tempted grabbed The officer the to leave. outburst, occurring five to fifteen minutes Becker into a chair. jacket and forced theft, robbery. after the would constitute chair, immediately sprang from the up It is to the states to define wall, against the and ran shoved the officer by criminal their conduct that is made laws. leaped on Becker for the door. The officer 79, Pennsylvania, McMillan v. 477 U.S. struggle spilled from the ensuing and the 85, 2411, 2415, 91 L.Ed.2d 67 106 S.Ct. floor. After two office onto the sales (1986). These laws do not offend due damaged, the greeting displays card were process they unless violate some funda officer, manager, and three cus- the store principle justice. Due mental Id. Becker. The entire finally tomers subdued however, require process, does that laws left the episode, from the time Becker ordinary person to the as to notice subdued, he checkout counter until was prohibited activity. what constitutes Unit fifteen minutes. lasted from five to (8th Kaylor, 877 F.2d ed States v. robbery tried for and convict- Becker was Cir.), denied, cert. 493 U.S. S.Ct. jury. He was sen- by ed a state court (1989). assessing L.Ed.2d 152 offender to fifteen tenced as a habitual statute, vagueness look the courts years prison. Supreme The Arkansas in statutory usage the common of the lan Becker v. Court affirmed the conviction. guage, judicial explanations of the lan State, 298 Ark. 768 S.W.2d guage’s meaning, previous applications (1989). petition for a Becker filed a writ or similar con of the statute to the same to 28 corpus pursuant U.S.C. § duct. Id. (1988), robbery stat- alleging the Arkansas may give The courts of Arkansas unconstitutionally vague and over- ute was “immediately” meaning the term whatever broad, insufficient evidence to there was they obliged accept their wish. “We are conviction, and the state failed support the just though interpretation, as it were writ proper in-court to make a identification.2 many ten into the statute so words. Our the stat- magistrate judge3 found that The only the vague task is to decide whether ... unconstitutionally ute was not interpretation of is so suffi- courts’ their own law and that the evidence was overbroad outlandish, unexpected, dis- so that no reason- support the conviction. The cient to Jones, Jr., Henry United appealed identification is- 3. The Honorable L. Becker has not the Judge Magistrate Eastern District States for the sue. of Arkansas. expected Viewing Wel person light able could have it.” the evidence in most Nix, (8th Cir.1983). government, favorable to the ton v. F.2d entire episode, from the time Becker Supreme has defined was con- Court fronted at the door until the time he was “immediately” robbery under its statute as subdued, lasted less than five minutes. particular time in “a reasonable view of Based on the facts and circumstances facts and circumstances of case under con time, present at the a rational trier of fact Wilson sideration.” 262 Ark. could conclude that the outburst occurred (1977). say We cannot S.W.2d “immediately” after the theft under the “immediately” the state’s definition of was definition Wilson. enunciated There- unexpected so or outlandish that it failed to fore, uphold evidence was sufficient to give person notice reasonable that an *4 conviction. arresting attack on an officer within min apprehension robbery utes of constitutes II. under Arkansas laws. reasons, the foregoing judgment For the Moreover, repeatedly courts of the district court is affirmed. applied

have this definition under similar fact situations. Numerous courts have HENLEY, Judge, Senior Circuit persons respond shoplift- that found who dissenting. ing or arrests with violence threats of vio- respectfully I dissent. Wilson, See guilty robbery. lence are majority recognizes, process As the due State, 658; Thompson v. 556 S.W.2d at 284 requires provide that laws notice to the 403, 742, (1985); Jar- Ark. 682 S.W.2d 744 ordinary person pro as to what constitutes State, 662, 460, rett v. 265 Ark. 580 S.W.2d activity. Kaylor, United States v. hibited State, v. (1979) (en banc); Scott 461 27 denied, 658, (8th Cir.), cert. 877 F.2d 661 625, 1, (1989); Ark.App. 764 S.W.2d 627 871, 110 198, 107 493 U.S. S.Ct. L.Ed.2d 152 State, 11, Williams v. Ark.App. 11 665 (1989). if considering ques And while the 299, (1984); White v. 300 271 S.W.2d might tion de novo I reach a different (App.1981). Ark. 610 268 S.W.2d result, reluctantly agree I must that Ar Therefore, Becker had sufficient notice definition kansas’ under the statute in that his conduct violated the Arkansas rob- outlandish, question arbitrary is not so bery statute. unexpected that the statute as construed is unconstitutionally vague. Sufficiency

B. of the Evidence Thus, I turn to consideration of sufficien- cy “immediacy” of the evidence to show in Becker contends evidence was robbery terms of the statute. sufficient to show that his attack on the officer was “immediate” in terms of the process The due clause of the fourteenth reviewing robbery statute. In a sufficien requires prosecution amendment that the cy peti of the evidence claim on a habeas prove beyond every a reasonable doubt es- tion, light we must view the evidence in the charged. sential element of the crime government most favorable to the and de Winship, 397 358, 364, re U.S. S.Ct. “any termine whether rational trier of fact 1068, 1072, (1970). L.Ed.2d 368 Al- found the could have essential elements though a state court’s determination that beyond the crime a reasonable doubt.” support the sufficient a evidence was 307, 319, Virginia, v. Jackson 443 U.S. great by deference conviction is entitled to (1979) (em 61 L.Ed.2d 560 Virginia, court, S.Ct. see Jackson v. this phasis original). appellate a 307, 323, When state U.S. S.Ct. (1979),

court has concluded that the evidence was it is this court’s obli- L.Ed.2d conviction, support sufficient to that find gation habeas relief where a ing given great by must be deference fed secured at the state conviction has been id.; Lockhart, Ward v. expense right. courts. 841 F.2d constitutional eral Lockhart, 841 F.2d (8th (8th Cir.1988). Ward v. that Becker doubt a reasonable beyond majority’s disagree the Cir.1988). I immediately after a misdemean- force to used sufficient evidence was that view force to physical or theft. used prove that immediately after a apprehension resist indicated, I dissent. As therefore, and, I theft, be- misdemeanor relief. he is entitled to lieve fa- light most in the viewed

Even when the evidence prosecution,

vorable to not resist the that Becker did

established manager when assistant and store

officer him at the store’s initially approached

they resist- without them accompanied exit. He America, Appellee, within Once STATES store’s office. UNITED to the ance time; he for some office, cooperated he and took off request ham on produced the WRIGHT, Appellant. Richard officer search agreed to let the his coat and force, eventually use did 91-3309WM. it. When Becker No. it, pushed the but not initiate he did *5 Appeals, Court United States out of coat jerked Becker’s the officer after Eighth Circuit. The him a chair. into hands and shoved his struggle” amounted “ensuing 11, 1992. June Submitted grip and of the officer’s get out trying to Aug. Decided shirt holding until Becker’s on body. ripped off his completely almost was offi- verbally threatened never to take else; tried he never anyone cer or him; and he never gun from

the officer’s as a object to use up an pick

tried

weapon. second-degree instructed on jury, robbery, battery, third-degree

battery, battery charges, and

acquitted Becker robbery instruction. only the left with

was against proceeded had If the state arrest, instead resisting shoplifting faced two might have robbery, Becker convictions, with sen- A misdemeanor Class Beck- year each. one not exceed

tences classified as have been not

er also would sentencing purposes. offender

habitual 5-36-103(4) (1987) Ann. See Ark.Code § 5- theft); Ann.

(misdemeanor § Ark.Code arrest); Ark. (1987)(resisting

54-103(a), (b) (sentence 5-4-401(b)(l) (1987) Ann. Code § misdemeanor); Ann. Ark.Code A

for Class (sentencing for habitual (1987) 5-4-501 § Here the felony).1 offenders convicted my this given choice.

jury was have found could not

view, jury a rational stealing years prison for giving something a man fifteen either may be true that here 1. It well ham. Becker 527, justice system a few slices of criminal wrong our is something wrong with (Ark.1989), 438, 441, 768 S.W.2d Ark. It is unlike this case. is (Purtle, dissenting). J. justice sanction system of would ly fair