                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0199n.06

                                            No. 08-5609                                     FILED
                                                                                         Mar 29, 2010
                           UNITED STATES COURT OF APPEALS                          LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


JEANNIE LONGWELL,                                          )
                                                           )
       Petitioner-Appellant,                               )        ON APPEAL FROM THE
                                                           )        UNITED STATES DISTRICT
               v.                                          )        COURT FOR THE EASTERN
                                                           )        DISTRICT OF KENTUCKY
JOYCE ARNOLD, Warden,                                      )
                                                           )
       Respondent-Appellee.                                )
                                                           )



BEFORE: MERRITT, GIBBONS, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. Jeannie Longwell, convicted by a Kentucky jury of complicity

to commit first degree robbery, appeals the district court’s denial of her application for a writ of

habeas corpus. Longwell argues that she was denied the right to a trial by jury because the trial judge

failed to include the element of intent in the instruction on the complicity offense, thus precluding

the jury from finding every element of the offense beyond a reasonable doubt. Longwell also

contends that, in any event, the evidence was not sufficient to sustain her conviction. She

emphasizes the fact that the jury acquitted her co-defendant of the same complicity offense.

       The Supreme Court of Kentucky determined, consistent with clearly established federal law,

that although the element of intent was missing from the challenged complicity instruction, the

charge as a whole had sufficiently apprised the jury regarding Longwell’s intent. Moreover, the

Supreme Court of Kentucky reasonably applied clearly established federal law in concluding that,
No. 08-5609
Longwell v. Arnold


despite her co-defendant’s acquittal, the evidence was sufficient to convict Longwell. Accordingly,

Longwell is not entitled to the habeas relief she seeks.

                                                 I.

        Longwell does not dispute the facts as found by the Supreme Court of Kentucky:

                On December 5, 2001, [Longwell] and her boyfriend, Ray Shively, drove
        from Louisville to Proffitt’s Department Store in Elizabethtown, Kentucky. While
        Shively waited in the car, [Longwell] entered the store and proceeded to hide
        numerous articles of clothing in her pants. Jonathon Goldsburg, the store’s Loss
        Prevention Manager, observed [Longwell] shoplifting items from several areas of the
        store. Goldsburg called another Loss Prevention Manager, Chad Harrod, and both
        men confronted [Longwell] after she exited the store. While [Longwell] was arguing
        with Goldsburg and Harrod, Shively approached, armed with two knives. Shively
        ordered both men back into the store as [Longwell] ran to the car. Shively thereafter
        got into the passenger side of the car and [Longwell] sped away. After a lengthy car
        chase during which [Longwell] ran numerous traffic lights and ignored police sirens,
        six police cruisers blocked the car and she and Shively were apprehended. When
        police approached the vehicle, Shively was in the passenger seat holding the stolen
        clothing.
                [Longwell] and Shively were indicted in the Hardin Circuit Court for first-
        degree robbery ([Longwell] as an accomplice) and first-degree fleeing or evading
        police.

Longwell v. Commonwealth, No. 2003-SC-0623-TG, 2004 WL 1365995, at *1 (Ky. June 17, 2004).

        Longwell and Shively’s cases were tried together before a jury. Under Kentucky law, a

“person is guilty of robbery in the first degree when, in the course of committing theft, he uses or

threatens the immediate use of physical force upon another person with intent to accomplish the

theft” and is “armed with a deadly weapon.” K.R.S. § 515.020(1)(b). With regard to accomplice

liability, or complicity, a

        person is guilty of an offense committed by another person when, with the intention
        of promoting or facilitating the commission of the offense, he:

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       (a) Solicits, commands, or engages in a conspiracy with such other person to commit the
       offense; or
       (b) Aids, counsels, or attempts to aid such person in planning or committing the offense . .
       ..

Id. § 502.020(1)(a)-(b) (emphasis added). Longwell admitted at trial that she had intended to

shoplift; her defense was based on her lack of intent as to the use or threatened use of physical force.

       During a conference on proposed jury instructions, counsel for the two defendants, the

prosecutor, and the trial judge discussed at length the appropriate mental state for the complicity

instruction in Longwell’s case. Longwell’s counsel objected to the proposed instruction on the

ground that “it’s not in here that she intended to use force.” Longwell’s counsel further objected,

“I don’t think acquiesced is the correct term to show intent.” The trial judge noted this objection,

but declined to modify the instruction. As to Longwell, the trial judge charged the jury in relevant

part as follows:

                                          Instruction No. 1
                                             Definitions
               ....
               Complicity—Means that a person is guilty of an offense committed by
       another person when, with the intention of promoting or facilitating the commission
       of the offense, he solicits, commands, or engages in a conspiracy with such other
       person to commit the offense, or aids, counsels, or attempts to aid such person in
       planning or committing the offense.
                Intentionally—A person acts intentionally with respect to a result or to
       conduct when his conscious objective is to cause that result or to engage in that
       conduct.
               ....
                                       Authorized Verdicts
               You shall find the Defendant not guilty under these Instructions unless you
       believe from the evidence beyond a reasonable doubt that she is guilty of one of the
       following offenses:
               A. Complicity to Commit First-Degree Robbery

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               ....
                                          Instruction No. 2
                            Complicity to Commit First-Degree Robbery
                You will find the Defendant guilty of Complicity to Commit First-Degree
       Robbery under this Instruction if, and only if, you believe from the evidence beyond
       a reasonable doubt, the Defendant, alone or in complicity with another, committed
       all of the following:
                A. That in this county on or about December 5, 2001, and before the finding
       of the Indictment herein, she stole items of clothing from Proffitt’s at Towne Mall,
       Elizabethtown, Kentucky;
                B. That in the course of so doing and with intent to accomplish the theft, she
       by herself or with the aid of Ray Shively used or threatened the immediate use of
       physical force upon Chad Harrod and Jonathon Goldsburg and that she acquiesced
       in his actions;1
                AND
                C. That when she did so, Ray Shively was armed with two knives.



       1
          The trial court derived the acquiescence language from Commonwealth v. Smith, 5 S.W.3d
126 (Ky. 1999), where the Supreme Court of Kentucky reversed a court of appeals decision that had
itself reversed a defendant’s first degree robbery conviction on sufficiency of the evidence grounds.
Id. at 128, 130. In reversing the defendant’s conviction, the court of appeals had explained that there
was no evidence the defendant had acted “in the course of committing a theft.” Id. at 128. Indeed,
the defendant had “merely held a gun on the victim”—it was the defendant’s cohort who had
attempted the actual theft. Id. But according to the Supreme Court of Kentucky:
         [A] mere division of labor between robbers in the commission of the crime does not
         preclude conviction of each as a principal. In so holding, we adhere to the common
         view that
                 Generally, all who are present at the commission of a robbery,
                 rendering it countenance and encouragement, and ready to assist if
                 needed, are liable as principal actors. To be liable, the accused need
                 not to have taken any money from the victim with his own hands, or
                 actually participated in any other act of force or violence; it is
                 sufficient that he came and went with the robbers, was present when
                 the robbery was committed, and acquiesced therein.
Id. at 129 (quoting 67 Am. Jur. 2d Robbery § 9) (first and third emphases added).
         It is unclear why the trial court relied on Smith, which involved a first degree robbery
conviction, in formulating the complicity instruction for Longwell’s case. Indeed, Smith suggests
that Longwell could have been charged with first degree robbery instead of complicity.

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       During closing argument, both Longwell’s counsel and the prosecutor addressed the issue

of Longwell’s intent. Specifically, Longwell’s counsel asserted that, “[t]o determine that . . .

complicity to commit robbery i[s] intentional, we have to find that [Longwell] had a conscious

objective . . . to know that Mr. Shively was going to come up there with his knives against those two

officers who had not even identified themselves.” Longwell’s counsel also argued that, although

Longwell had intended to shoplift, she had not known that Shively would brandish the knives, nor

had she “go[ne] in to intentionally rob the store.”

       After repeating the statutory definition of complicity, the prosecutor argued:

       [A]cquiesced [in part B of the challenged instruction] means [Longwell] took
       advantage of Ray Shively’s use of force to commit or to accomplish the robbery.
       Shively used the deadly weapons. If it weren’t for the deadly weapons, she wouldn’t
       have been able to make it to the car. That’s where the robbery is. You can conclude
       from the evidence that Defendant Longwell formed the intent to commit the robbery
       when she saw the deadly weapons. . . . When Defendant Longwell was caught, she
       saw the deadly weapons, she formed the intent, and acquiesced to Ray Shively’s
       conduct.

Moreover, while explaining the instructions in Shively’s case, the prosecutor stated:

       To find the intent in the case from the evidence you can conclude that both
       defendants formulated the plan before she went into the store to commit the robbery.
       Or when defendant Longwell exited the store, she formed the intent to commit the
       robbery when she was caught and then acquiesced in [Shively]’s actions of pulling
       the two knives and threatening the lives of [the loss prevention managers].

       The jury convicted Longwell of the complicity offense. Shively, by contrast, was acquitted

of the complicity offense but convicted of the lesser included offense of terroristic threatening.2


       2
        With regard to Shively, the trial judge had instructed the jury:
       [Y]ou will find the defendant, Ray Shively, guilty of Complicity to Commit First

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Longwell appealed her conviction to the Supreme Court of Kentucky, arguing that (1) she was

denied the right to a trial by jury because the trial judge had not instructed the jury on the requisite

intent for the complicity offense, i.e., the trial judge had not explained to the jury that they had to

find beyond a reasonable doubt that Longwell had intended Shively to use or threaten the immediate

use of force to accomplish the theft; and (2) the evidence was not sufficient to sustain her conviction

because the Commonwealth had not proven that she had used force or intended Shively to use force

to accomplish the theft.

       The Supreme Court of Kentucky determined that the element of intent was in fact missing

from the challenged complicity instruction. Longwell, 2004 WL 1365995, at *1-2. But because the

charge elsewhere defined complicity, the charge as a whole had sufficiently apprised the jury that

intent was an element of Longwell’s offense. Id. at *2. Moreover, after “[v]iewing the evidence in

the light most favorable to the Commonwealth,” the court concluded that the evidence was sufficient

to sustain Longwell’s conviction, even though the jury had acquitted Shively. Id. at *2-4. The

Supreme Court of Kentucky therefore affirmed Longwell’s conviction and sentence. Id. at *4.



       Degree Robbery under this instruction[] if and only if you believe from the evidence
       beyond a reasonable [doubt] all of the following:
                A. That in this county, on or about December 5, 2001, and before the finding
       of the indictment herein[,] Jeannie Longwell stole clothing from Proffit’s [sic] store;
                B. [T]hat the defendant, Ray Shively[,] aided and assisted Jeannie Longwell
       in so doing by using or threatening the immediate use of physical force upon Chad
       Harrod and Jonathan Goldsberg [sic];
                C. [T]hat in aiding or assisting Jeannie Longwell, it was Ray Shively’s
       intention that Jeannie Longwell commit theft from Proffit’s [sic] store; and
                D. That when he did so he was armed with two knives.

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       Longwell then applied for habeas relief in federal district court, advancing the same two

claims the Supreme Court of Kentucky had reviewed on direct appeal. After the magistrate judge

issued a report and recommendations, the district court held a hearing to consider Longwell’s

objections and then allowed the parties to submit post-hearing briefs. Ultimately, the district court

concluded that the Supreme Court of Kentucky’s decision as to the challenged complicity instruction

was not contrary to clearly established federal law. Longwell v. Arnold, 559 F. Supp. 2d 759, 763-64

(E.D. Ky. 2008). According to the district court, “the Supreme Court of Kentucky was following

[United States] Supreme Court precedent when it looked to the instructions as a whole to determine

whether the instructions were adequate.” Id. at 763. Indeed, “a reading of the instruction[s] as a

whole demonstrates that the jury had the intent element before it.” Id. The district court also put the

instructions in the context of the trial, and the court noted that closing arguments had also

emphasized the issue of Longwell’s intent. Id. at 763-64.

       The district court next determined that the Supreme Court of Kentucky had reasonably

applied clearly established federal law in concluding that the evidence was sufficient to convict

Longwell. Id. at 767-69. The district court deemed a review of the trial transcripts unnecessary

because “Longwell has not contested the facts in this matter.” Id. at 769 n.1. Accordingly, the

district court declined “to examine whether or not the Supreme Court of Kentucky’s recitation of the

facts is accurate,” but rather “accept[ed] them without review.” Id. (citing 28 U.S.C. § 2254(e)(1)

and Loveday v. Davis, 697 F.2d 135, 139-40 (6th Cir. 1983)). The district court also concluded that

any inconsistency in the verdict was not a sufficient basis for an award of habeas relief. Id. at 769.


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       After denying relief, the district court issued a certificate of appealability as to both issues

in Longwell’s habeas application. See id. at 770. Longwell now appeals.

                                                  II.

       The Supreme Court of Kentucky’s review of Longwell’s conviction neither resulted in a

decision contrary to nor involved an unreasonable application of clearly established federal law. See

28 U.S.C. § 2254(d)(1). Thus the district court properly determined that Longwell was not entitled

to the habeas relief she seeks.

       The Kentucky courts could reasonably conclude, considering the charge as a whole, that the

trial judge made the jury sufficiently aware that they had to decide whether Longwell had formed

the intent to commit the complicity offense. Before giving the challenged instruction, the trial judge

defined complicity as requiring action taken “with the intention of promoting or facilitating the

commission of” the underlying offense. The trial judge then explained what it means for a person

to act intentionally. After defining a few more terms, the trial judge gave the challenged instruction,

which itself directed the jurors to find Longwell guilty of complicity to commit first degree robbery

“if and only if [they] believe[d] from the evidence[,] beyond a reasonable doubt, [that Longwell]

alone or in complicity with another” had engaged in a series of acts that, when taken together,

comprise robbery under Kentucky law. See K.R.S. § 515.020(1)(b). Assuming the jury followed

the instructions, before they could conclude that Longwell had acted “in complicity with another,”

they would have had to conclude that Longwell had acted “with the intention of promoting or




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facilitating the commission of the” robbery. Thus the charge as a whole sufficiently apprised the jury

that intent was an element of the complicity offense.

       The Supreme Court of Kentucky’s conclusion that the jury received sufficient instruction on

the element of intent conforms with clearly established federal law. It is a “well established

proposition that a single instruction to a jury may not be judged in artificial isolation, but must be

viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47 (1973) (citing

Boyd v. United States, 271 U.S. 104, 107 (1926)); see also Estelle v. McGuire, 502 U.S. 62, 72

(1991). Indeed, the challenged instruction in this case “did not stand alone, but was to be taken in

connection with what preceded it and also with what followed.” Boyd, 271 U.S. at 107. Viewing

the challenged instruction in the context of the overall charge, the Supreme Court of Kentucky’s

conclusion is not contrary to clearly established federal law.

       Although not discussed by the Supreme Court of Kentucky, a review of the parties’ closing

arguments reinforces the conclusion that the issue of Longwell’s intent was sufficiently put to the

jury. When reviewing jury instructions, this court not only views a challenged instruction in the

context of the charge, but “our task is also to view the charge itself as part of the whole trial.”

United States v. Park, 421 U.S. 658, 674 (1975); see also Cupp, 414 U.S. at 146-47. Indeed, “a

judgment of conviction is commonly the culmination of a trial which includes testimony of

witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the

judge.” Cupp, 414 U.S. at 147. In the instant case, both Longwell’s counsel and the prosecutor

emphasized the issue of Longwell’s intent during their closing arguments. Thus, viewing the charge


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in the context of the trial, it is even more evident that the Supreme Court of Kentucky’s conclusion

is not contrary to clearly established federal law.

        Longwell argues that the reference to “acquiescence” in the challenged instruction implies

that the jury could have convicted her based on a finding of mere acquiescence rather than intent.

A careful reading, however, shows that acquiescence was required in addition to the use or

threatened use of physical force, to which the intent requirement, previously set forth in the

definition of complicity, applied. Moreover, the challenged instruction itself required the jury to find

that when Longwell, “by herself or with the aid of Ray Shively[,] used or threatened the immediate

use of physical force,” she acted with the “intent to accomplish the theft.”

        Because the jury received sufficient instruction on the element of intent, Longwell’s

argument premised on In re Winship, 397 U.S. 358 (1970), fails. Longwell argues that the

government must “prove every element of the offense beyond a reasonable doubt in order to convict

a defendant.” Longwell’s Br. 9 (citing Winship, 397 U.S. at 364). Her argument continues, “If the

court did not instruct the jury on every element of the offense, then it follows that the defendant

could not properly be convicted.” Id. (citing Cabana v. Bullock, 474 U.S. 376, 384 (1986) and

Sandstrom v. Montana, 442 U.S. 510, 524 (1979)) (emphasis omitted). As explained, the Supreme

Court of Kentucky reasonably found that the jury in this case was adequately instructed on every

element.

        Longwell also challenges the sufficiency of the evidence to sustain her conviction. She

argues, more specifically, that the evidence was insufficient to prove beyond a reasonable doubt that


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Longwell v. Arnold


she had formed the requisite intent. Her challenge fails, however, because the Supreme Court of

Kentucky reasonably applied clearly established federal law in deciding her sufficiency of the

evidence claim. “[E]ven were we to conclude that a rational trier of fact could not have found

[Longwell] guilty beyond a reasonable doubt, on habeas review, we must still defer to the state

appellate court’s sufficiency determination as long as it is not unreasonable.” Brown v. Konteh, 567

F.3d 191, 205 (6th Cir. 2009) (emphasis omitted); see White v. Steele, No. 08-5498, 2009 WL

4893144, at *2 (6th Cir. Dec. 21, 2009).

       Neither trial transcripts nor evidentiary exhibits were included in the record below; the

district court instead relied exclusively upon the Supreme Court of Kentucky’s recitation of the

relevant facts. See Longwell, 559 F. Supp. 2d at 768-69 & n.1. The evidence summarized by the

Supreme Court of Kentucky, however, is sufficient in this case to conclude that the court reasonably

applied clearly established federal law in deciding the sufficiency of the evidence claim. After

noting that “a person’s state of mind may be inferred from actions preceding and following the

charged offense,” Longwell, 2004 WL 1365995, at *3 (quoting Parker v. Commonwealth, 952

S.W.2d 209, 212 (Ky. 1997)), the Supreme Court of Kentucky provided this summary of the

Commonwealth’s evidence:

       (1) [Longwell] and Shively drove from Louisville to Proffitt’s in Elizabethtown; (2)
       [Longwell] entered the store with the intention of shoplifting items to sell for money
       to support her drug habit; (2) [sic] Shively waited in the driver’s seat of the car with
       the door open; (4) Shively, armed with two knives, approached Goldsburg and
       Harrod when they attempted to confront [Longwell]; (5) [Longwell] immediately
       thereafter ran to the car with the stolen items; (6) [Longwell] and Shively fled from
       the scene and were only apprehended after a lengthy police chase; and (7) police
       found Shively sitting in the car holding the stolen merchandise.

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Id. According to the Supreme Court of Kentucky, “the jury could have reasonably concluded that

[Longwell] and Shively had planned to commit the robbery before [Longwell] ever entered the

store.” Id. In the alternative, the jury may have concluded that Longwell’s “acquiescence in

Shively’s use of force and their subsequent flight from the store was [sic] indicia of her intent that

the robbery be committed.” Id. Although Longwell emphasizes on appeal that Shively did not

intend her to shoplift, and that she did not intend Shively to brandish the knives, the jury was not

required to credit the co-defendants’ testimony. Taking into account the Commonwealth’s evidence,

which the Supreme Court of Kentucky viewed in the light most favorable to the Commonwealth, id.,

it was not unreasonable for the Supreme Court of Kentucky to conclude that the evidence was

sufficient to sustain Longwell’s conviction.

        Longwell bases her primary challenge to the sufficiency of the evidence on the fact that the

jury acquitted Shively of the complicity offense. But it is not clear that Longwell’s conviction and

Shively’s acquittal add up to an inconsistent verdict. Rather, the jury may have concluded that,

although Shively did not intend Longwell to shoplift, Longwell developed the intent that Shively use

force to help her accomplish the theft.

        Even if the verdict were inconsistent, United States Supreme Court precedent disposes of

Longwell’s challenge. “[T]he Supreme Court has repeatedly held that a jury may announce logically

inconsistent verdicts in a criminal case.” United States v. Lawrence, 555 F.3d 254, 261 (6th Cir.

2009) (quoting United States v. Clemmer, 918 F.2d 570, 573 (6th Cir. 1990)) (emphasis omitted).

Indeed, “where truly inconsistent verdicts have been reached, ‘[t]he most that can be said . . . is that


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the verdict shows that either in the acquittal or the conviction the jury did not speak their real

conclusions, but that does not show that they were not convinced of the defendant’s guilt.’” United

States v. Powell, 469 U.S. 57, 64-65 (1984) (quoting Dunn v. United States, 284 U.S. 390, 393

(1932)) (alteration in original); see United States v. Crayton, 357 F.3d 560, 565 (6th Cir. 2004).

Thus “[i]nconsistency in a verdict is not a sufficient reason for setting it aside.” Harris v. Rivera,

454 U.S. 339, 345 (1981).

                                                  III.

        Because the Supreme Court of Kentucky’s review of Longwell’s conviction was neither

contrary to nor involved an unreasonable application of clearly established federal law, we affirm

the district court’s denial of her application for habeas relief.




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