Hixson v. Housewright

• Decision Date: 04 March 1981
• Docket Number: No. 80-1625,80-1625
• Parties: Kenneth HIXSON, Appellant, v. Vernon HOUSEWRIGHT, Commissioner of Corrections, Attorney General of the State of Arkansas and State of Arkansas, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 242

642 F.2d 242

Kenneth HIXSON, Appellant, v. Vernon HOUSEWRIGHT, Commissioner of Corrections, Attorney General of the State of Arkansas and State of Arkansas, Appellees.

No. 80-1625.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 13, 1980.

Decided March 4, 1981.

Robert S. Blatt, Fort Smith, Ark., for appellant.

Dennis R. Molock, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before LAY, Chief Judge, BENNETT, ^* United States Court of Claims Judge, and HENLEY, Circuit Judge.

BENNETT, Judge.

On October 27, 1978, appellant, Kenneth Hixson, was convicted in the Circuit Court, Fort Smith District, Sebastian County, Arkansas, of unlawfully, feloniously, and knowingly obtaining an aggregate sum of money in excess of $2,500 by deception, with the purpose of depriving the owners, the membership of three Baptist churches in Fort Smith (Trinity, Temple, and Eastside) of their funds by promising to deliver church directories to the churches, but not doing so. Appellant had agreed with the churches to take pictures of their membership, and in return for permission to do so and the sale of pictures to individual members, appellant agreed to supply pictorial directories to the churches at no additional charge. He was to provide directories at a rate of 125 for every 100 members of a church who purchased portraits. The jury found appellant guilty of violating Ark.Stat.Ann. § 41-2203(1)(b) (1977), theft by deception, and of an habitual criminal count, Ark.Stat.Ann. § 41-1001 (1977). Punishment was fixed at confinement by the Arkansas Department of Correction for a period of 12 years and a fine of $2,500 was imposed.

Appellant's appeal of his conviction was affirmed by the Arkansas Court of Appeals, with one judge dissenting. Hixson v. State, 266 Ark. 778, 587 S.W.2d 70 (1979). Subsequent review by the Arkansas Supreme Court was denied and the Supreme Court of the United States denied certiorari. Hixson v. Arkansas, 444 U.S. 1079, 100 S.Ct. 1030, 62 L.Ed.2d 762 (1980).

The case is presently before this court on appellant's petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1976), filed February 22, 1980. On June 23, 1980, the United States District Court for the Western District of Arkansas, the Honorable Paul X Williams, Judge, entered a memorandum opinion and an order denying appellant's petition. A certificate of probable cause to appeal was granted and the present appeal followed.

We affirm the district court's denial of the writ. Appellant raises certain constitutional issues which he did not present, as would have been proper, to the Arkansas State courts. We are not therefore compelled to address them but, since the district court said that it found no constitutional infirmities in the Arkansas statute or in the nature and sufficiency of evidence at the trial, we will address these matters for the useful purpose of settling the law pertaining to the subject statute and issues. We do not go beyond the challenges as presented by appellant in his petition for habeas corpus.

The relevant Arkansas statute provides that:

(1) A person commits theft of property if he: * * *

(b) knowingly obtains the property of another by deception or by threat, with the purpose of depriving the owner thereof.

(2)(a) Theft of property is a class B felony if: (i) the value of the property is $2,500.00 or more.

Ark.Stat.Ann. § 41-2203 (1977). Deception is defined as follows:

(3) "Deception" means:

(a) creating or enforcing a false impression, including false impressions of fact, law, value or intention or other state of mind that the actor does not believe to be true;

Deception as to a person's intention to perform a promise shall not be inferred solely from the fact that he did not subsequently perform the promise. Deception does not include falsity as to matters having no pecuniary significance or puffing by statements unlikely to deceive ordinary persons in the group addressed.

Ark.Stat.Ann. § 41-2201 (1977).

When the Sebastian County circuit court jury found the appellant guilty of the charge of theft by deception, that jury necessarily concluded that he had the necessary criminal intent at the time he received the monies from the church members.

On appeal of the State court conviction, the Arkansas Court of Appeals was sharply conscious of the element of criminal intent which the statute requires. In its interpretation of the above-quoted criminal provisions, the court of appeals stated:

We are persuaded that it was incumbent upon the State to establish the following in order to convict the appellant-defendant of the charge brought under the above provisions:

1. That appellant-defendant, at the time he received the monies from the owners, did not intend to carry out his promise to deliver church directories to the churches and the membership thereof in return for the monies received by him.

2. That appellant-defendant knew, at the time he promised to deliver church directories to the churches and the membership thereof that the promise or representation was false and that the promise was made for the purpose of depriving the owners of their property.

Hixson v. Housewright, 266 Ark. 778, 781, 587 S.W.2d 70, 72 (1980). That court went on to conclude:

* * * The evidence is crystal clear that the representations and promises made by appellant to deliver the church directories, which was an intricate part of the entire project and was the sole motivating factor that induced the churches and the membership to participate in the project, were false as a matter of fact and as to the value of the articles that the churches and members were to receive in return for delivering their monies to the appellant. Moreover, it is plain from this record that appellant had no experience or expertise either in photography or in the compilation of church directories; and that at the time that appellant made the promises to deliver the directories, appellant did not possess the facilities to print a directory, nor had he made arrangements with any other firm or source for the preparation of the directories.

Id., 266 Ark. at 786, 587 S.W.2d at 74.

The appellant's habeas corpus petition attacks this finding of criminal intent. In a recent opinion, the Supreme Court of the United States enunciated the standard to be applied in assessing the sufficiency of the evidence for federal habeas corpus relief purposes. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That case held:

* * * an essential of the due process guaranteed by the Fourteenth Amendment (is) that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.

* * * But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established built beyond a reasonable doubt." Woodby v. INS, 385 U.S. (276) at 282 (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. (356) at 362. * * * (Emphasis in original.)

* * * the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. (Footnote omitted.)

443 U.S. at 316, 318-19, 324, 99 S.Ct. at 2788, 2789-90, 2792.

The prosecution's evidence in this case showed that the printer, Photo World of Memphis, Tennessee, upon which petitioner was relying for the printing of the directories, received the lay-out for only one directory, and it was not for one of the three churches to which the criminal charges relate. The petitioner's evidence indicated that six or seven lay-outs were prepared and mailed to Photo World. Thus, an issue of credibility was presented to the jury with regard to the petitioner's efforts to have the directories printed. However, one important fact was clearly established no directories were ever actually printed.

The record establishes that the reason the one lay-out which was delivered to Photo World was not printed was that the petitioner did not put up the funds to pay for the printing. Based on his history of having never delivered the directories and having never paid anyone to print them, which was essential to perform appellant's promise, it would be reasonable for rational triers of fact to conclude that appellant never intended to perform and could not have reasonably believed that he would perform. Further, there was evidence of intent concerning appellant's similar unfortunate contracts with 13 other churches in Arkansas and Oklahoma from whose members in excess of $22,000 was collected by appellant who delivered no directories. The State's bill of particulars had alleged 27 churches were so involved. Evidence was not offered as to all of these churches, although the trial court ruled it would be admissible.

Appellant was not convicted solely because he failed to perform. As we have said, rational triers of fact could conclude that he never even attempted to perform or expected that he could do so. He used some of the monies received for various personal purposes. Delivery of one or more lay-outs for the directories to Photo World in Memphis was not sufficient. He had to pay Photo World to do the work and could not expect that company to do it gratis. The jury could and did reasonably conclude that appellant never intended to deliver the promised directories. Therefore, this court cannot overturn and must accept the jury's finding that the appellant had the requisite criminal intent to deceive.

Appellant next attacks the statute under which he was convicted, charging it is...