OPINION BY CHIEF JUSTICE DONALD W. LEMONS.
In this appeal, we consider whether the Court of Appeals erred in concluding that a defendant's due process rights were not violated by a jury instruction concerning willful concealment of goods or merchandise while on the premises of a store.
I. Facts and Proceedings
James Lindsey ("Lindsey") was tried by a jury in the Circuit Court of Arlington County ("trial court") upon an indictment charging petit larceny, third or subsequent offense. He was found guilty and sentenced to seven days in jail.
Bryan Knott ("Knott"), an employee at a retail store dealing in clothing for hiking and outdoor wear in Arlington, testified at trial that he observed Lindsey conceal at least two hats under his jacket while in the store. Knott notified his manager and another employee regarding what he had witnessed. The manager, Brad Dana, contacted police while the other employee, Steve Lappat ("Lappat") confronted Lindsey. When confronted by Lappat, Lindsey denied concealing the hats and demanded to speak to the manager. After the police arrived, an altercation occurred between Lindsey and Lappat. Lindsey was subsequently arrested.
Over Lindsey's objection, the trial court gave Instruction 16 to the jury, which read:
This instruction came from the Virginia Model Jury Instructions. 2 Virginia Model Jury Instructions — Criminal, No. 36.840 (2011 repl. ed.). Lindsey had proposed an alternate instruction, Instruction O, which the trial court rejected. Instruction O read:
Lindsey appealed his conviction to the Court of Appeals and contended, among other things
A. Standard of Review
Whether a jury instruction accurately reflects the relevant law is itself a question of law, which we review de novo. Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870 (2013); Orthopedic & Sports Physical Therapy Assocs. v. Summit Group Props., 283 Va. 777, 782, 724 S.E.2d 718, 721 (2012). In determining whether this jury instruction violates the defendant's due process rights, we must consider whether the instruction creates a mandatory presumption or merely a permissive inference. Dobson v. Commonwealth, 260 Va. 71, 75, 531 S.E.2d 569,
B. Due Process Clause
On appeal, Lindsey argues that Instruction 16 contained a mandatory, rebuttable presumption that shifted the burden of proof to him, thereby violating his due process rights. Relying on Francis v. Franklin, he argues the instruction was constitutionally invalid because the jury would have understood the instruction to mean that if they found evidence of concealment, they were required to find intent to defraud unless the defendant convinced them otherwise.
The Due Process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Mandatory presumptions violate the Due Process clause because they instruct the jury that it must infer the presumed fact if the State proves certain predicate facts, which relieves the State of the burden of persuasion on an element of an offense. Dobson, 260 Va. at 75, 531 S.E.2d at 572.
The Due Process Clause, however, does not prohibit the use of a permissive inference. Id. at 74, 531 S.E.2d at 571. A permissive inference is "a procedural device that shifts to a defendant the burden of producing some evidence contesting a fact that may otherwise be inferred, provided that the prosecution retains the ultimate burden of proof beyond a reasonable doubt." Id. at 74-75, 531 S.E.2d at 571. "A permissive inference does not relieve the State of its burden of proof because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts provided." Id. at 75, 531 S.E.2d at 572 (quoting Francis, 471 U.S. at 314, 105 S.Ct. 1965).
C. Instruction 16
Lindsey maintains that the language in Instruction 16 is similar to the language declared unconstitutional by the United States Supreme Court in Francis. In Francis, the defendant shot and killed the victim while attempting to flee from police. 471 U.S. at 309-12, 105 S.Ct. 1965. The defendant's sole defense was that the shooting was an accident and he lacked the requisite intent to kill. Id. at 311, 105 S.Ct. 1965. The following jury instructions were given at his trial:
Id. at 309, 105 S.Ct. 1965.
The defendant was convicted of murder, and on appeal he challenged these instructions as unconstitutional. The Supreme Court agreed, holding that the instructions impermissibly created mandatory rebuttable presumptions. Id. at 318, 105 S.Ct. 1965. The Court found that the language "is presumed" and "are presumed" was "cast in the language of command" and undermined the factfinder's responsibility at trial to find the ultimate facts beyond a reasonable doubt. Id. at 316, 105 S.Ct. 1965. Lindsey argues that the language in Instruction 16, "willful concealment... is evidence of an intent to convert and defraud," is also "cast in the language of command" and directs the jury to find intent to defraud if the jury finds willful concealment.
We find that Instruction 16 is not similar to the instructions at issue in Francis; rather, it is like language of the jury instruction that was challenged in Dobson. Dobson was charged with grand larceny of an automobile, and the jury was instructed that:
260 Va. at 74, 531 S.E.2d at 571. Dobson appealed his conviction, arguing that this instruction
In this case, the Commonwealth was required to prove that Lindsey willfully concealed the merchandise, and did so with the intent to convert the merchandise to his use without having paid for the merchandise. The relevant portion of Code § 18.2-103 provides:
The language of Instruction 16 merely instructed the jury that willful concealment of goods while on the premises of a store is evidence of intent to convert and defraud. It provided that the jury could consider the concealment of merchandise as evidence of criminal intent, along with any other evidence that was presented to it. Under Code § 18.2-103, willful concealment is prima facie evidence of intent to convert or defraud. This instruction was a proper statement of the law. Moreover, this instruction did not relieve the Commonwealth of its burden of proving each element of the offense beyond a reasonable doubt. The remaining language of the instruction, "unless there is believable evidence to the contrary," reinforced that the Commonwealth had the burden of proving each element beyond a reasonable doubt. The instruction did not state that willful concealment alone satisfies the Commonwealth's burden of proof as to the element of intent. Like the instruction in Dobson, this instruction merely created a permissible inference that the jury was free to reject. Significantly, the instruction did not indicate or suggest that the jury was required to draw any conclusion from the facts proved by the Commonwealth. Accordingly, because Instruction 16 contained a permissive inference and not a mandatory presumption, the trial court did not err in giving it to the jury.
In addition to Instruction 16, the trial court also instructed the jury that the Commonwealth had the burden of proving each element of the offense beyond a reasonable doubt, that the defendant was presumed innocent until proven guilty, that the presumption of innocence remained with him throughout trial, and that he had no burden to produce any evidence. (App. 4-7). In particular, the jury was given Instruction M, the "finding instruction." (App. 7). This instruction provided that:
The finding instruction made perfectly clear that the jury was instructed that, notwithstanding the permissive inference set forth in Instruction 16, the Commonwealth was still required to prove beyond a reasonable doubt each element of the offense, including the element of intent.
"When granted instructions fully and fairly cover a principle of law, a trial court does not abuse its discretion in refusing another instruction relating to the same legal principle." Daniels v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008) (quoting Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984)). In this case, Instruction 16 fully and fairly covered the inferences permitted from evidence presented of willful concealment. Accordingly, the trial court did not err in refusing to give Instruction O.
For the reasons stated, we will affirm the Court of Appeals' judgment.
JUSTICE GOODWYN, with whom SENIOR JUSTICE KOONTZ joins, dissenting.
I respectfully dissent. The majority's conclusion that Instruction 16 contains a permissive inference is belied by the plain language of Instruction 16 and by United States Supreme Court and Virginia precedent.
Instruction 16 states,
"The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes." Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). As noted by the majority, "In determining if a jury instruction violates a defendant's due process rights, a court must consider whether the instruction creates a mandatory presumption or merely a permissive inference." Dobson v. Commonwealth, 260 Va. 71, 75, 531 S.E.2d 569, 571 (2000).
In making the determination, the "[a]nalysis must focus initially on the specific language challenged," but "the potentially offending words must [also] be considered in the context of the charge as a whole." Francis v. Franklin, 471 U.S. 307, 315, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). The key question is "what a reasonable juror could have understood the [instruction] as meaning." Id. at 316, 105 S.Ct. 1965.
The United States Supreme Court has described mandatory presumptions as those that instruct the jury "that it must infer the
Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).
Considering the elements of the crime expressed in Code § 18.2-103,
Examination of the language used in Instruction 16 against the precedential description of a permissive inference is conclusive in demonstrating that Instruction 16 does not contain a permissive inference.
Allen, 442 U.S. at 157, 99 S.Ct. 2213.
Unlike prior cases in which an instruction was found to contain a permissive inference, Instruction 16 did not inform the jury that it was allowed to infer that the basic fact (concealment) was evidence of the elemental fact (intent), but rather informed the jury that it was required to infer that proof of concealment was evidence of intent. In this instance, the jury instruction did not permit the jury to weigh the evidence and use its judgment to determine whether to infer that proof of concealment was evidence of intent to convert and defraud; it required the jury to make that inference, unless there was evidence presented to the contrary. Thus, the inference was not permissive, but mandatory. According to the United States Supreme Court, such an instruction improperly shifts the Commonwealth's burden of persuasion regarding whether, upon weighing the evidence, the jury believes willful concealment is evidence of intent to convert or defraud.
In Francis, the Supreme Court stated,
Francis, 471 U.S. at 317, 105 S.Ct. 1965.
The reliance of the majority opinion upon Dobson for support of its conclusion that Instruction 16 contains a permissive inference is misplaced. In its analysis, the majority states the Instruction in this case is similar to that found to be a permissive inference in Dobson, 260 Va. at 74, 76, 531 S.E.2d at 571-72. However, the majority opinion fails to consider that the instructions in the two cases are dissimilar in one extremely important manner. In Dobson, we noted that the jury was not required, by the subject instruction, to draw any conclusion from the facts proved by the Commonwealth. Instruction 16, on the other hand, requires the jury to draw a conclusion, unless there is evidence to the contrary.
The instruction in Dobson specifically informed the jury that it "may reasonably infer" the elemental fact of the defendant being the thief, unless the defendant offered "a reasonable account of possession consistent with innocence." Id. at 74, 531 S.E.2d at 571. Unlike in this case, the instruction in Dobson did not require that proof of a basic fact (exclusive personal possession of the stolen property by the defendant) be accepted by the jury as evidence of the elemental fact (that the defendant was the thief). Thus, I disagree with the majority's determination that Dobson supports its conclusion that Instruction 16 contained a permissive inference.
A closer examination of our Dobson opinion would seem to make it clear that Instruction 16 does not fit the criteria our Court cited as important in concluding that the instruction given in Dobson included a permissive inference. In Dobson, we stated that
Id. at 75, 531 S.E.2d at 572 (quoting Francis, 471 U.S. at 314, 105 S.Ct. 1965).
The instruction in Dobson suggested to the jury a possible conclusion to be drawn (the defendant was the thief), but did not require the jury to draw that conclusion. Instruction 16 includes a mandatory presumption that informed the jury that it was required to infer the presumed fact (evidence of intent) if the Commonwealth proved the predicate fact (willful concealment).
Instruction 16 violates the Due Process Clause by relieving the Commonwealth of the burden of persuasion concerning whether concealment was, in this instance, evidence of intent to convert or defraud the store owner. In contrast, the subject instruction in Dobson did not relieve the Commonwealth of its burden of persuasion because it still required the Commonwealth to convince the jury that the suggested conclusion (that the defendant was the thief) should be inferred based on the predicate facts (defendant was found in possession of the stolen property).
We explained in Dobson that
Id. at 76, 531 S.E.2d at 572.
Unlike in Dobson, Instruction 16 did not invoke a permissive inference that the jury was free to reject, irrespective of believable evidence to the contrary. Rather, Instruction 16 required the jury to draw a conclusion about the evidence from the facts proven by the Commonwealth, in the absence of the production of contrary evidence.
The majority opinion's additional attempts to bolster its conclusion that the language in Instruction 16 constitutes a permissive inference are also unavailing. The opinion points out that Instruction 16 does not state that the Commonwealth is relieved of its burden of proving each element of the offense beyond a reasonable doubt, and that the Instruction did not state that willful concealment alone satisfies the Commonwealth's proof. That is true, but similar arguments could be made in support of the instruction found to be unconstitutional by the United States Supreme Court in Francis. In Francis, the Supreme Court found the challenged instruction to be unconstitutional because it contained a rebuttable presumption which could have misled the jury concerning the applicable burden of persuasion despite other instructions concerning burden of proof. 471 U.S. at 318, 105 S.Ct. 1965. In this instance, as in Francis, the fact that the Instruction did not facially state that it was relieving the Commonwealth of its burden of proving each element of the offense beyond a reasonable doubt is not helpful in making the determination of whether the instruction contains a mandatory presumption that might mislead a jury.
As regards the dependent clause included in Instruction 16, the majority opinion claims, "[t]he remaining language of the instruction, `unless there is believable evidence to the contrary,' reinforced that the Commonwealth had the burden of proving each element beyond a reasonable doubt." I disagree. Because the independent clause in Instruction 16 included language in the nature of a command that required the jury to draw the conclusion that concealment was evidence of an intent to convert or defraud, unless the jury was presented with evidence to the contrary, the "remaining language," rather than reinforcing the Commonwealth's burden of proof, indicates that rebuttal evidence was necessary to overcome the stated presumption regarding intent.
"The believable evidence to the contrary" referenced in Instruction 16, if indeed such evidence could have been presented, logically would have been presented by the defendant. It strains common sense to believe that the Commonwealth would have offered such evidence, as it had no obligation or incentive to do so. Rather, the jury would have expected such evidence to be offered by the defendant. The United States Supreme Court noted this issue in deciding that the instruction offered in Francis was unconstitutional.
In Francis, the Court explained that when preceded by mandatory language, the instruction that a presumption may be rebutted could be read as telling the jury that it was required to make the inference unless the defendant persuaded it otherwise. 471 U.S. at 318, 105 S.Ct. 1965. Such an instruction is unconstitutional because it may be understood as indicating that the "defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption." Id.
There is no authority for the majority's implied proposition that proper finding and burden of proof instructions may render an unconstitutional instruction harmless. In this instance, the constitutional question is whether "a reasonable juror could have understood [the instruction] as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the [Commonwealth] had proved the predicate acts." Id. at 316, 105 S.Ct. 1965. Instruction
For these reasons, I respectfully dissent.