James A. Becker v. A.L. Lockhart, Director, Arkansas Department of Correction

971 F.2d 172

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 23, 1992
• Docket: 91-2317
• Status: Published

Opinions

MAGILL, Circuit Judge.

James A. Becker appeals the district court’s¹ denial of habeas corpus relief. Becker invokes the “void for vagueness” doctrine with respect to the Arkansas robbery statute. He also argues that the evidence was insufficient to uphold his conviction. We affirm.

I.

Becker was shopping in the Rogers, Arkansas, Food-4-Less supermarket when the store’s assistant manager saw him stuff a package of ham into his coat. The assistant manager alerted an off-duty police officer, who was providing security at the store. Becker proceeded through the checkout lane, purchasing one package of ham and a package of lighter flints. He did not pay for the package of ham concealed in his coat. As Becker was leaving the store, the assistant manager and the police officer confronted him. The two men asked Becker to accompany them to the store office. Becker complied.

Inside the office, the officer asked Becker for identification. Becker said he was not carrying identification and gave a false name to the officer. The officer then asked Becker for the ham, which Becker handed to him. The officer placed Becker under arrest and asked him for his coat. Becker gave his coat to the officer, who searched it for weapons. The officer then asked Becker to turn around and place his hands behind his head so that the officer could conduct a pat search. Becker refused.

While the three men were still in the office, Becker grabbed his jacket and attempted to leave. The officer grabbed the jacket and forced Becker into a chair. Becker immediately sprang from the chair, shoved the officer against the wall, and ran for the door. The officer leaped on Becker and the ensuing struggle spilled from the office onto the sales floor. After two greeting card displays were damaged, the officer, the store manager, and three customers finally subdued Becker. The entire episode, from the time Becker left the checkout counter until he was subdued, lasted from five to fifteen minutes.

Becker was tried for robbery and convicted by a state court jury. He was sentenced as a habitual offender to fifteen years in prison. The Arkansas Supreme Court affirmed the conviction. Becker v. State, 298 Ark. 438, 768 S.W.2d 527, 529 (1989). Becker filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988), alleging the Arkansas robbery statute was unconstitutionally vague and over-broad, there was insufficient evidence to support the conviction, and the state failed to make a proper in-court identification.² The magistrate judge³ found that the statute was not unconstitutionally vague or overbroad and that the evidence was sufficient to support the conviction. The district court adopted the magistrate judge’s proposed findings. This appeal followed.

A. Vagueness

Becker claims that the Arkansas robbery statute is unconstitutionally vague. The statute provides:

A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

Ark.Code Ann. § 5-12-102 (Michie Supp. 1991). Becker argues the statute is unconstitutionally vague because it does not define the term “immediately.” He argues the statute’s use of the term “immediately” does not give him fair warning that his outburst, occurring five to fifteen minutes after the theft, would constitute robbery.

It is up to the states to define conduct that is made criminal by their laws. McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986). These laws do not offend due process unless they violate some fundamental principle of justice. Id. Due process, however, does require that laws provide notice to the ordinary person as to what constitutes prohibited activity. United States v. Kaylor, 877 F.2d 658, 661 (8th Cir.), cert. denied, 493 U.S. 871, 110 S.Ct. 198, 107 L.Ed.2d 152 (1989). In assessing the vagueness of a statute, courts look to the common usage of the statutory language, judicial explanations of the language’s meaning, and previous applications of the statute to the same or similar conduct. Id.

The courts of Arkansas may give the term “immediately” whatever meaning they wish. “We are obliged to accept their interpretation, just as though it were written into the statute in so many words. Our task is only to decide whether the ... courts’ interpretation of their own law is so unexpected, so outlandish, that no reasonable person could have expected it.” Welton v. Nix, 719 F.2d 969, 970 (8th Cir.1983). The Arkansas Supreme Court has defined “immediately” under its robbery statute as “a reasonable time in view of particular facts and circumstances of case under consideration.” Wilson v. State, 262 Ark. 339, 556 S.W.2d 657, 658 (1977). We cannot say the state’s definition of “immediately” was so unexpected or outlandish that it failed to give a reasonable person notice that an attack on an arresting officer within minutes of apprehension constitutes robbery under Arkansas laws.

Moreover, Arkansas courts repeatedly have applied this definition under similar fact situations. Numerous courts have found that persons who respond to shoplifting arrests with violence or threats of violence are guilty of robbery. See Wilson, 556 S.W.2d at 658; Thompson v. State, 284 Ark. 403, 682 S.W.2d 742, 744 (1985); Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460, 461 (1979) (en banc); Scott v. State, 27 Ark.App. 1, 764 S.W.2d 625, 627 (1989); Williams v. State, 11 Ark.App. 11, 665 S.W.2d 299, 300 (1984); White v. State, 271 Ark. 692, 610 S.W.2d 266, 268 (App.1981). Therefore, Becker had sufficient notice that his conduct violated the Arkansas robbery statute.

B. Sufficiency of the Evidence

Becker contends evidence was insufficient to show that his attack on the officer was “immediate” in terms of the robbery statute. In reviewing a sufficiency of the evidence claim on a habeas petition, we must view the evidence in the light most favorable to the government and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). When a state appellate court has concluded that the evidence was sufficient to support a conviction, that finding must be given great deference by federal courts. Ward v. Lockhart, 841 F.2d 844, 846 (8th Cir.1988).

Viewing the evidence in the light most favorable to the government, the entire episode, from the time Becker was confronted at the door until the time he was subdued, lasted less than five minutes. Based on the facts and circumstances present at the time, a rational trier of fact could conclude that the outburst occurred “immediately” after the theft under the definition enunciated in Wilson. Therefore, evidence was sufficient to uphold the conviction.

II.

For the foregoing reasons, the judgment of the district court is affirmed.

1 . The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

2 . Becker has not appealed the identification issue.

3 . The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District of Arkansas.