dissenting.
I respectfully dissent.
As the majority recognizes, due process requires 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). And while if considering the question de novo I might reach a different result, reluctantly I must agree that Arkansas’ definition under the statute in question is not so outlandish, arbitrary or unexpected that the statute as construed is unconstitutionally vague.
Thus, I turn to consideration of sufficiency of the evidence to show “immediacy” in terms of the robbery statute.
The due process clause of the fourteenth amendment requires that the prosecution prove beyond a reasonable doubt every essential element of the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Although a state court’s determination that the evidence was sufficient to support a conviction is entitled to great deference by this court, see Jackson v. Virginia, 443 U.S. 307, 323, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979), it is this court’s obligation to provide habeas relief where a state conviction has been secured at the expense of a constitutional right. See id.; Ward v. Lockhart, 841 F.2d 844, 846 (8th *176Cir.1988). I disagree with the majority’s view that the evidence was sufficient to prove that Becker used physical force to resist apprehension immediately after a misdemeanor theft, and, therefore, I believe that he is entitled to habeas relief.
Even when viewed in the light most favorable to the prosecution, the evidence established that Becker did not resist the officer and store assistant manager when they initially approached him at the store’s exit. He accompanied them without resistance to the store’s office. Once within the office, he cooperated for some time; he produced the ham on request and took off his coat and agreed to let the officer search it. When Becker eventually did use force, he did not initiate it, but pushed the officer after the officer jerked Becker’s coat out of his hands and shoved him into a chair. The “ensuing struggle” amounted to Becker trying to get out of the officer’s grip and the officer holding on until Becker’s shirt was almost completely ripped off his body. Becker never verbally threatened the officer or anyone else; he never tried to take the officer’s gun from him; and he never tried to pick up an object to use as a weapon.
The jury, instructed on second-degree battery, third-degree battery, and robbery, acquitted Becker of battery charges, and was left with only the robbery instruction. If the state had proceeded against Becker for shoplifting and resisting arrest, instead of robbery, Becker might have faced two Class A misdemeanor convictions, with sentences not to exceed one year each. Becker also would not have been classified as an habitual offender for sentencing purposes. See Ark.Code Ann. § 5-36-103(4) (1987) (misdemeanor theft); Ark.Code Ann. § 5-54-103(a), (b) (1987) (resisting arrest); Ark. Code Ann. § 5-4-401(b)(l) (1987) (sentence for Class A misdemeanor); Ark.Code Ann. § 5-4-501 (1987) (sentencing for habitual offenders convicted of a felony).1 Here the jury was not given this choice. In my view, a rational jury could not have found beyond a reasonable doubt that Becker used force immediately after a misdemean- or theft.
As indicated, I dissent.
. It may well be true that here either something is wrong with our criminal justice system or something is wrong with this case. It is unlikely that a fair system of justice would sanction giving a man fifteen years in prison for stealing a few slices of ham. See Becker v. State, 298 Ark. 438, 441, 768 S.W.2d 527, 529 (Ark.1989), (Purtle, J. dissenting).