Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice
ERIC LEE DOBSON, A/K/A
DAVID LEE BROWN
v. Record No. 991582 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 9, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
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 his exclusive
possession of recently stolen property.
Eric Lee Dobson, also known as David Lee Brown (the
defendant), was tried by a jury in the Circuit Court of the City
of Richmond and found guilty of grand larceny of a motor vehicle
owned by Hertz Corporation (Hertz), in violation of Code § 18.2-
95. The jury fixed the defendant's punishment at two years'
imprisonment, and the trial court sentenced him in accordance
with the jury's recommendation.
The defendant appealed from his conviction to the Court of
Appeals and contended, among other things, that he suffered a
denial of due process resulting from the challenged jury
instruction. The instruction told the jury that it may infer
from proof that the defendant was in exclusive possession of
recently stolen property that he was the thief, unless he
offered a reasonable explanation that was not disproved by the
Commonwealth.
The Court of Appeals affirmed the trial court's judgment in
an unpublished opinion. Dobson v. Commonwealth, Record No.
2802-97-2 (June 15, 1999). The Court held that the challenged
instruction did not violate the defendant's due process rights
because it did not establish a mandatory presumption, but
allowed only a permissive inference that the jury was free to
reject. Id. We awarded the defendant an appeal limited to this
issue.
We will state the evidence in the light most favorable to
the Commonwealth, the prevailing party in the trial court.
Commonwealth v. Taylor, 256 Va. 514, 516, 506 S.E.2d 312, 313
(1998); Guill v. Commonwealth, 255 Va. 134, 137, 495 S.E.2d 489,
490 (1998). On March 28, 1997, Trooper Jeffery Carter Bradford
of the Virginia State Police stopped a red, 1997 Ford Contour
vehicle operated by the defendant for speeding. The defendant
told Trooper Bradford that he did not have his driver's license,
and he gave the officer a false name, address, social security
number, and date of birth.
When Trooper Bradford obtained a computer listing for the
vehicle's license plate number, he learned that the vehicle had
been reported stolen. The defendant told the officer that the
Contour was a rental car that he had borrowed that day from his
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friend, "Billy," who lived in Room 412 of the Diamond Lodge
Suites hotel on Sherwood Avenue in Richmond. Trooper Bradford
went to the hotel later that day and learned that Room 412 had
not been occupied for two months.
Richard Lemenzo, manager of Hertz's car rental facility at
the Richmond International Airport, testified that the stolen
vehicle was rented by a Hertz customer on March 4, 1997, and was
returned there two days later. Lemenzo explained that after a
customer returns a car, the vehicle is parked in the "ready-
return" area, with the key inside the vehicle and the door
unlocked, until a Hertz employee is available to drive the
vehicle to a storage lot.
According to Hertz's business records, the 1997 Ford
Contour that the defendant was driving had not been rented after
it was returned on March 6, 1997. On March 28, 1997, the date
of the defendant's arrest, Lemenzo reported to the Henrico
County Police Department that the vehicle had been stolen. When
a tow truck driver recovered the car for Hertz, he found a
wallet containing the defendant's driver's license lodged
between one of the seats and the console.
Over the defendant's objection, the trial court instructed
the jury, in relevant part:
Proof of the exclusive personal possession by the
defendant of recently stolen goods is a circumstance
from which you may reasonably infer that the defendant
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was the thief unless the defendant offers a reasonable
account of possession consistent with innocence which
the Commonwealth has failed to prove untrue.
The term "recently" is a relative term. The
longer the period of time since the theft the more
doubtful becomes the inference which may reasonably be
drawn from unexplained possession.
On appeal, the defendant argues that the challenged jury
instruction violated his due process rights because it shifted
to him the burden of proving that he was not the thief and
relieved the Commonwealth of its burden of proving beyond a
reasonable doubt every element of the offense charged. Relying
on Mullaney v. Wilbur, 421 U.S. 684 (1975), the defendant
contends that the instruction was constitutionally invalid
because it established a mandatory presumption that he was the
thief if he was unable to provide a reasonable explanation of
his possession of the vehicle consistent with his innocence. We
disagree with the defendant's arguments.
The Due Process Clause requires the prosecution to prove
beyond a reasonable doubt every element necessary to establish
the crime charged. Victor v. Nebraska, 511 U.S. 1, 5 (1994);
Sandstrom v. Montana, 442 U.S. 510, 520 (1979); Mullaney, 421
U.S. at 685; In re Winship, 397 U.S. 358, 364 (1970); Stokes v.
Warden, 226 Va. 111, 117, 306 S.E.2d 882, 885 (1983); Hodge v.
Commonwealth, 217 Va. 338, 341, 228 S.E.2d 692, 695 (1976).
However, the Due Process Clause does not prohibit the use of a
permissive inference as a procedural device that shifts to a
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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. County Court v. Allen, 442 U.S. 140, 156
(1979); Mullaney, 421 U.S. at 702 n.31; Stillwell v.
Commonwealth, 219 Va. 214, 223, 247 S.E.2d 360, 366 (1978);
Hodge, 217 Va. at 341, 228 S.E.2d at 695; see Francis v.
Franklin, 471 U.S. 307, 313 (1985); Sandstrom, 442 U.S. at 521.
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. Francis v. Franklin, 471 U.S. at 314.
A mandatory presumption instructs the jury that it
must infer the presumed fact if the State proves
certain predicate facts. A permissive inference
suggests to the jury a possible conclusion to be drawn
if the State proves the predicate facts, but does not
require the jury to draw that conclusion. . . .
Mandatory presumptions . . . violate the Due Process
Clause if they relieve the State of the burden of
persuasion on an element of an offense . . . . A
permissive inference does not relieve the State of its
burden of persuasion because it still requires the
State to convince the jury that the suggested
conclusion should be inferred based on the predicate
facts proved.
Id. at 314 (citations omitted).
The jury in Mullaney received an instruction containing a
mandatory presumption. Under that instruction, once the
prosecution established that a homicide was both intentional and
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unlawful, the jury was required to conclude that the act was
committed with malice, unless the defendant proved by a
preponderance of the evidence that he acted in the heat of
passion on sudden provocation. 421 U.S. at 686. The Supreme
Court held that the instruction denied the defendant due process
because it affirmatively shifted the burden of proof to the
defendant on a critical fact in dispute. Id. at 701; see also
Carella v. California, 491 U.S. 263, 266 (1989) (declaring
unconstitutional jury instructions imposing conclusive,
statutory presumptions concerning failure to return rented
property within specified time).
In Barnes v. United States, 412 U.S. 837 (1973), the
Supreme Court considered the constitutionality of a jury
instruction similar to the instruction before us. There, the
defendant was charged, among other things, with possession of
United States Treasury checks stolen from the mails, knowing
them to be stolen. The trial court instructed the jury that
"[p]ossession of recently stolen property, if not satisfactorily
explained, is ordinarily a circumstance from which you may
reasonably draw the inference and find, in the light of the
surrounding circumstances in the case, that the person in
possession knew the property had been stolen." Id. at 839-40.
In rejecting a due process challenge made on grounds not
raised here, the Court observed that the instruction "only
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permitted [an] inference of guilt from unexplained possession of
recently stolen property." Id. at 845. In Mullaney, the Court
specifically cited this instruction from Barnes as an example of
an instruction that satisfies due process requirements because
"the ultimate burden of persuasion by proof beyond a reasonable
doubt remain[s] on the prosecution." Mullaney, 421 U.S. at 702
n.31.
The challenged instruction in the present case, like the
instruction at issue in Barnes, informed the jury that it "may"
reasonably draw an inference from certain facts, if proved,
provided that the defendant did not reasonably or satisfactorily
explain his possession of the recently stolen property. Thus,
the challenged instruction here created only a permissive
inference that the jury was free to reject, irrespective of
whether the defendant offered a reasonable explanation
consistent with his innocence. The jury was not required to
draw any conclusion from the facts proved by the Commonwealth in
the absence of such contrary evidence from the defendant. The
challenged instruction also benefited the defendant by
effectively informing the jury that it could not infer that the
defendant was the thief if he offered a reasonable explanation
of possession consistent with his innocence.
In addition, the trial court instructed the jury that the
Commonwealth had the burden of proving each element of the
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offense beyond a reasonable doubt, that the defendant was
presumed to be innocent, and that he had no burden to produce
any evidence. Thus, the jury was plainly instructed that,
notwithstanding the permissive inference set forth in the
challenged instruction, the Commonwealth still was required to
prove beyond a reasonable doubt each element of the offense,
including the element that the defendant was the criminal agent.
For these reasons, we will affirm the Court of Appeals'
judgment.
Affirmed.
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