Becker v. State

• Decision Date: 24 April 1989
• Docket Number: No. CR,CR
• Citation: 298 Ark. 438,768 S.W.2d 527
• Parties: James Allen BECKER, Appellant, v. STATE of Arkansas, Appellee. 89-19.
• Court: Arkansas Supreme Court

Page 527

768 S.W.2d 527

298 Ark. 438

James Allen BECKER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-19.

Supreme Court of Arkansas.

April 24, 1989.

Norman Douglas Norwood, Rogers, for appellant.

R.B. Friedlander, Little Rock, for appellee.

DUDLEY, Justice.

The appellant, an habitual offender, was convicted of robbery pursuant to Ark.Code Ann. § 5-12-102 (Supp.1987). That section 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.

According to Ark.Code Ann. § 5-12-101 (1987), physical force is defined as "any bodily impact, restraint, or confinement or the threat thereof." The appellant argues that the trial court erred in refusing to direct a verdict in his favor because there was no proof that he used force to resist apprehension immediately after a misdemeanor theft. The argument is without merit.

The robbery statute has been followed in a number of cases similar to the one now before us. See Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985); Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979); Wilson v. State, 262 Ark. 339, 556 S.W.2d 657 (1977); Williams v. State, 11 Ark.App. 11, 665 S.W.2d 299 (1984); and White v. State, 271 Ark. 692, 610 S.W.2d 266 (Ark.App.1981). In all of these cases the appellant was caught shoplifting and then used force to prevent apprehension.

In this case the evidence, viewed most favorably to the appellee, the State, as we must do, is as follows: A supermarket employee saw the appellant hiding some ham in his coat. The employee notified an off-duty police officer who helped with security in the store, and the officer watched the appellant leave without paying for the ham. The officer asked the appellant to follow him to the store office. After entering the office, the officer asked the appellant for some identification. The appellant said he had none and gave a false name. The policeman asked the appellant for the ham, and he gave it to him. The appellant was told he was under arrest for shoplifting. Appellant then took off his coat and gave it to the officer, as requested. The officer asked appellant to turn around and place his hands behind his head. The appellant refused. Appellant grabbed his coat and started for the office door. The officer grabbed the coat and forced appellant into a chair. The appellant jumped up, struck the officer in the chest, and once again started for the door. The two then struggled for some time before appellant was finally subdued. The officer testified that the time between the initial approach of the appellant and the time he was finally handcuffed was five minutes or less.

In Wilson v. State, 262 Ark. 339, 556 S.W.2d 657 (1977), a similar case, we defined "immediate" as "a reasonable time in view of particular facts and circumstances of the case under consideration." Here, the evidence was sufficient to establish a theft and the employment of force immediately after the theft to resist apprehension or arrest.

The appellant next argues that the robbery statute at issue should be declared unconstitutionally vague. The argument has no merit. In Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984), we said that a law will be held to be vague when it leaves the police or the fact finder free to decide, without a fixed standard, what is prohibited.

The appellant contends that the statute is vague in that it refers to physical force upon another, while our cases refer to physical force upon the victim. Our cases do not change the wording of the statute, which clearly states that a defendant is responsible for the use of force on anyone either before, during or after the theft. The statute is not vague.

In his final argument the appellant contends that the trial court should have granted a directed verdict because he was not identified in court as the robber. This argument is also without merit. In Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988), the same argument for a directed verdict was made, and we stated that "an element to be proved in every case is that the person who stands before the court in the position of the defendant is the one whom the indictment or information accuses and to whom the evidence is supposed to relate." Still, we declined to dismiss the case on that basis.

The reason is that identification can be inferred from all the facts and circumstances that are in evidence. United States v. Weed, 689 F.2d 752 (7th Cir.1982); Delegal v. United States, 329 F.2d 494 (5th Cir.), cert. denied, 379 U.S. 821, 85 S.Ct. 44, 13 L.Ed.2d 32 (1964); State v. Watts, 72 N.C.App. 661, 325 S.E.2d 505 (1985); Dillon v. State, 508 P.2d 652 (Okla.Crim.App.1973); State v. Hill, 83 Wash.2d 558, 520 P.2d 618 (1974).

Here, there were no co-defendants; the defendant was tried alone. He was specifically identified at as "Mr. Becker" and "the defendant" throughout the trial. The witnesses were eyewitnesses to the robbery, and the fact that none of them pointed out that the wrong man had been brought to trial was eloquent and sufficient proof of identity.

Affirmed.

HICKMAN and PURTLE, JJ., dissent.

PURTLE, Justice, dissenting.

Either something is wrong with our criminal justice system or something is wrong with this case. No fair system of justice could sanction giving a man fifteen years in prison for stealing a few slices of ham. The prophecy made in the dissent in Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979), has now been fulfilled. Although the ham slices in this case, which were in the appellant's jacket pocket, may have been worth more than the fifteen cents referred to in the Jarrett dissent, the principle is still the same. There it was stated: "In practical application the majority view here would allow a robbery conviction for a person who took a 15-cent item and ran and, while running, accidentally bumped into someone in a crowd of people."

The food store manager noticed the appellant putting the ham slices in his pocket and followed him to the cash register; observing that the appellant did not pay for the ham slices, the manager asked him to come to the office. An off-duty policeman, serving as a security guard for the store, assisted, and the appellant accompanied them to the store office. When asked for the ham, the appellant took it out of his coat pocket and laid it on the desk. The officer then took his coat. The coat, I am sure, was worth considerably more than the eighty-nine cent package of ham. Af...