COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Alston and Senior Judge Annunziata
Argued at Salem, Virginia
FRANK LEO COX, III
MEMORANDUM OPINION * BY
v. Record No. 1527-10-3 CHIEF JUDGE WALTER S. FELTON, JR.
AUGUST 23, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Jason S. Eisner for appellant.
Karen Misbach, Assistant Attorney General (Kenneth T. Cuccinelli,
II, Attorney General; Joshua M. Didlake, Assistant Attorney General,
on brief), for appellee.
Frank Leo Cox, III (“appellant”) was convicted by the Circuit Court of the City of Danville
(“trial court”) of presenting two or more bad checks in return for cash, in violation of Code
§ 18.2-181.1. On appeal, appellant contends that the trial court erred in requiring him to present
evidence in order to be found not guilty. In addition, appellant contends the evidence was
insufficient to prove that he presented the checks with the intent to defraud. For the following
reasons, we affirm appellant’s conviction.
I. BACKGROUND
“When considering a challenge to the sufficiency of the evidence to sustain a conviction,
this Court reviews ‘the evidence in the light most favorable to the prevailing party at trial and
consider[s] all inferences fairly deducible from that evidence.’” Clark v. Commonwealth, 279 Va.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
636, 640, 691 S.E.2d 786, 788 (2010) (alteration in original) (quoting Jones v. Commonwealth,
276 Va. 121, 124, 661 S.E.2d 412, 414 (2008)).
The evidence presented at trial proved that on July 24, 2008, appellant wrote a $350
check payable to Shadowood Mart, a convenience store located in Danville, Virginia, in return
for cash. Appellant’s mother, Patsy Cox, then an employee of Shadowood Mart, cashed the
check for appellant, after first obtaining permission from Abdul Kahn (“Kahn”), the store owner.
Four days later, on July 28, 2008, appellant presented another check payable to Shadowood Mart
in the amount of $150, which his mother also cashed. Kahn first became aware of the second
check when he was making a deposit on the day after it had been cashed. Appellant’s mother
testified that she asked Kahn to hold the checks for one week before he deposited them.
However, Kahn testified that he did not recall being asked to hold the checks.
Shortly after Kahn presented the cashed checks for payment, the bank returned them to
him with the notation that the account on which the checks were drawn did not contain sufficient
funds to pay them. Kahn informed appellant’s mother that the bank returned the checks unpaid
and the reason why. Appellant’s mother promised Kahn she would contact appellant about the
checks. At the time appellant wrote the checks, he lived with his mother in Virginia. However,
by August 2008 appellant had moved to North Carolina. Appellant’s mother testified that she
was unable to contact him. Thereafter, in September 2008, appellant’s mother suffered a stroke
and, as a result, was not able to “fully communicate” with appellant until October 2008. 1
Appellant’s mother testified that she never told appellant that his checks to Shadowood Mart
were returned for insufficient funds.
1
Appellant’s mother testified that she did not return to work at Shadowood Mart after her
stroke.
-2-
On March 11, 2009, Kahn sent appellant two separate letters by certified mail to two
separate addresses demanding full payment of the dishonored checks. The addresses to which
the letters were sent were the address listed for appellant on the face of the checks and
appellant’s mother’s home address. The letter sent to the address on the check was returned to
Kahn with the notation that appellant had moved from that address and left no forwarding
address. The letter sent to appellant’s mother’s address was returned to Kahn as unclaimed.
Appellant was arrested on January 27, 2010, for violating Code § 18.2-181.1. 2 At
appellant’s bench trial, appellant’s mother and Kahn each testified for the Commonwealth. At
the conclusion of the Commonwealth’s evidence, appellant moved to strike the evidence, arguing
that the evidence was insufficient to show that he possessed the requisite intent to defraud when
he presented the checks for payment. The trial court found the Commonwealth’s evidence
sufficient to establish a prima facie case of appellant’s intent to defraud under Code § 18.2-183
and denied appellant’s motion to strike.
Following the trial court’s ruling, appellant presented no evidence and renewed his
motion to strike. The trial court denied appellant’s motion and found him guilty, stating,
[T]he Court found the [statutory] presumption to be applicable in
the case and the defense put on no evidence. . . . I mean the
presumption, I think, does apply here which is the only thing the
Court finds that the Commonwealth . . . because it’s true, the Court
cannot find actual notice based on the evidence the
Commonwealth has presented other than the sending the notice
required by the statute. . . . [The] Court’s having to base its
decision in this case purely on the Commonwealth’s evidence.
Certainly [appellant] has no obligation to testify or provide any
evidence and exercise of that right cannot be held against
[appellant] but I . . . having found that the . . . statute does provide
prima facie evidence of intent and knowledge, I do find that notice
was sent by certified mail, return receipt requested, although it was
unclaimed to the address shown on the check. There were also, I
2
Code § 18.2-181.1 prohibits the issuance of two or more checks with an aggregate value
of $200 or more in a manner that violates Code § 18.2-181 (requiring proof of fraudulent intent
to sustain a conviction for issuing bad checks).
-3-
mean, beyond that, [appellant’s] mother, who accepted the checks,
had some contact with [appellant] after . . . October, she having
suffered a stroke. She did not say that they specifically discussed
these checks, however, based on the . . . the notice, I think I have
to find that the Commonwealth’s witness did comply with the
statute and that that provides prima facie evidence of intent so I
have to find him guilty.
After this statement by the trial court, appellant’s counsel stated that he believed that “the
rationale behind the Court’s finding required [appellant] to put on evidence.” The trial court
responded:
No, no, no, I said I’m relying on the Commonwealth’s evidence
and I said, I found earlier, the Commonwealth’s evidence
established compliance with the statute and that’s how I’ve
overruled the motion to strike. . . . I mean, I’m just simply making
the point that there’s no other evidence that the Court considers in
the case. It’s all the Commonwealth’s evidence. The Court can’t
hold it against [appellant] the fact that he didn’t present evidence
but if the Commonwealth’s . . . evidence provides evidence of guilt
then that’s what the Court has to rely on.
The following exchange then took place:
[APPELLANT]: For the record, Your Honor, we take exception to
the Court’s ruling based on burden shifting, if we would suggest.
THE COURT: Under the statute?
[APPELLANT]: Yes, Your Honor.
The trial court subsequently sentenced appellant to three years’ incarceration with all
three years suspended. This appeal followed.
II. ANALYSIS
A. Burden Shifting
Appellant asserts that the trial court erred in requiring him to present defense evidence to
prove his innocence. 3
3
With all due respect to the concurrence’s analysis, appellant did not raise constitutional
or Due Process Clause arguments to the trial court, explicitly or implicitly. He did not cite any
authority to the trial court to support any constitutional argument regarding the statute or its
-4-
In a prosecution under Code § 18.2-181 (issuing bad checks), the Commonwealth may
rely on the rebuttable presumption of intent to defraud provided by Code § 18.2-183. Code
§ 18.2-183 provides,
In any prosecution or action under [Code § 18.2-181 and Code
§ 18.2-181.1], the making or drawing or uttering or delivery of a
check . . . which is refused by the drawee because of lack of funds
or credit shall be prima facie evidence of intent to defraud or of
knowledge of insufficient funds in, or credit with, such bank,
banking institution, trust company or other depository unless such
maker or drawer, or someone for him, shall have paid the holder
thereof the amount due thereon, together with interest, and protest
fees (if any), within five days after receiving written notice that
such check . . . has not been paid to the holder thereof. Notice
mailed by certified or registered mail, evidenced by return receipt,
to the last known address of the maker or drawer shall be deemed
sufficient and equivalent to notice having been received by the
maker or drawer.
application to the evidence presented at trial. We will not consider an alternative argument
raised for the first time on appeal. See Rule 5A:18. Rule 5A:18 “applies even to [appellant’s]
constitutional claims.” Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900
(1992).
The laudatory purpose behind Rule 5A:18, and its equivalent
Supreme Court Rule 5:25, frequently referred to as the
contemporaneous objection rules, is to require that objections be
promptly brought to the attention of the trial court with sufficient
specificity that the alleged error can be dealt with and timely
addressed and corrected when necessary. The rules promote
orderly and efficient justice and are to be strictly enforced except
where the error has resulted in manifest injustice. Errors can
usually be corrected in the trial court, particularly in a bench trial,
without the necessity of appeal. Because our function is to review
the rulings of the trial court, rather than superintend the
proceedings, we will notice error for which there has been no
timely objection only when necessary to satisfy the ends of justice.
Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989). Appellant does not
argue that we should invoke either the good cause or ends of justice exceptions to Rule 5A:18.
See Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). The Court
will not consider Rule 5A:18 exceptions sua sponte. See Edwards v. Commonwealth, 41
Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
-5-
(Emphasis added). In other words, Code § 18.2-183 provides “a rule of evidence upon which the
Commonwealth may rely in facilitating proof of the fraudulent intent of the drawer.” Bray v.
Commonwealth, 9 Va. App. 417, 423, 388 S.E.2d 837, 840 (1990).
Once the Commonwealth presents prima facie evidence as required by Code § 18.2-183,
that evidence permits, but does not require, a reasonable trier of fact to find that at the time the
dishonored check was presented, the accused intended to defraud his victim. Stated differently,
if the trier of fact accepts the Commonwealth’s evidence as credible, a rebuttable presumption
that the accused possessed the intent to defraud is established, “thereby shifting the burden of
producing evidence to the defendant.” Charles E. Friend, The Law of Evidence in Virginia § 9-5
(6th ed. 2003) (noting that Code § 18.2-183 is “usually construed to create a rebuttable
presumption, thereby shifting the burden of producing evidence to the defendant”). At no time
during appellant’s trial, however, did the trial court require appellant to produce evidence. 4
While a defendant may rely upon the Commonwealth’s evidence to rebut the presumption,
Hodge v. Commonwealth, 217 Va. 338, 343, 228 S.E.2d 692, 696 (1976), and is not required to
“prove anything,” he “[runs] the risk of not producing some evidence to rebut the presumption,”
Wilson v. Commonwealth, 225 Va. 33, 43, 301 S.E.2d 1, 6 (1983).
Nor did the court relieve the Commonwealth from its burden of persuasion. “‘A
permissive inference does not relieve the [Commonwealth] of its burden of persuasion because it
still requires the [Commonwealth] to convince the [trier of fact] that the suggested conclusion
should be inferred based on the predicate facts proved.’” Dobson v. Commonwealth, 260 Va.
71, 75, 531 S.E.2d 569, 572 (2000) (emphasis added) (quoting Francis v. Franklin, 471 U.S. 307,
314 (1985)). See Ronald J. Bacigal, Virginia Criminal Procedure § 17:8 (2010-2011) (“What is
4
The trial court repeatedly informed appellant that he was not required to produce
evidence. When appellant once again raised the issue during his sentencing hearing, the trial
court reiterated that “[appellant] certainly has no obligation whatsoever to present evidence.”
-6-
often referred to as a presumption is in reality a permissible inference. While a presumption
requires the trier of fact to make a certain finding, a permissible inference merely permits, but
does not require, the trier of fact to come to a certain conclusion.”).
We conclude that from the evidence presented, the trial court did not require appellant to
present evidence to find him not guilty. Instead, the trial court properly relied on the statutory
rebuttable presumption from which it could find, but was not required to find, that appellant had
the intent to defraud when he presented the worthless checks for payment to the store owner and
properly imposed on the Commonwealth the ultimate burden of persuasion.
B. Sufficiency of the Evidence
Appellant also contends that the trial court erred by finding the evidence was sufficient to
prove that he issued the checks with the intent to defraud. Appellant asserts on appeal that the
Commonwealth’s own evidence rebuts the presumption created by Code § 18.2-183. He argues
that the Commonwealth’s evidence shows that he did not pay the checks after receipt of notice
that Kahn had not been paid because he never received actual notice that the checks had not been
paid, and not because he intended to defraud Kahn. 5
In reviewing the sufficiency of the evidence,
“we presume the judgment of the trial court to be correct,” Broom
v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94 (1992), and
“will not set it aside unless it is plainly wrong or without evidence
to support it.” Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d
363, 365 (1986).
Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). “[T]he relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution,
5
Appellant does not contest that the manner in which the certified letters were sent failed
to meet the requirements of Code § 18.2-183.
-7-
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
To sustain appellant’s conviction for violating Code § 18.2-181.1, the Commonwealth
was required to prove that appellant issued the checks with the intent to defraud. “Intent to
defraud means that the defendant intends to ‘deceive another person, and to induce such other
person, in reliance upon such deception, to assume, create, transfer, alter, or terminate a right,
obligation or power with reference to property.’” Bray, 9 Va. App. at 422, 388 S.E.2d at 839
(quoting Black’s Law Dictionary 381 (5th ed. 1979)).
Appellant argues that the statutory presumption created by Code § 18.2-183 was
successfully rebutted by the Commonwealth’s own evidence, which established that appellant
never received actual notice that the checks had not been paid. Appellant’s argument ignores the
plain language of Code § 18.2-183, which provides, in pertinent part,
If such check . . . shows on its face a printed or written address,
home, office, or otherwise, of the maker or drawer, then the
foregoing notice, when sent by certified or registered mail to such
address, with or without return receipt requested, shall be deemed
sufficient and equivalent to notice having been received by the
maker or drawer, whether such notice shall be returned
undelivered or not.
(Emphasis added).
Appellant additionally argues that the Commonwealth’s evidence rebutted the
presumption of intent to defraud under Code § 18.2-183 because Kahn sent the letters to him
approximately seven months after he moved from Virginia to North Carolina. Whether the
evidence is sufficient to rebut the presumption is a question for the fact finder to determine. See
Moffit v. Commonwealth, 16 Va. App. 983, 987, 434 S.E.2d 684, 687 (1993). The record on
appeal reflects that appellant gave the bad checks to his mother, to cash at her place of
employment. Appellant left Virginia shortly after presenting the checks for payment, left no
-8-
forwarding address, and could not be contacted by Kahn or his mother. From the evidence
presented at trial, the trial court was entitled to infer that appellant was aware that at the time he
presented the checks to Shadowood Mart to cash, there were insufficient funds in his checking
account to pay those checks when presented for payment.
Because the Commonwealth proved that Kahn sent, by certified mail, two letters to
appellant at the address printed on the checks notifying appellant that the checks had not been
paid and that thereafter appellant did not pay the amount due on the checks within five days as
required by Code § 18.2-183, the evidence was sufficient to prove that appellant had the requisite
intent to defraud. Appellant’s conviction is affirmed.
Affirmed.
-9-
Alston, J., concurring.
I agree with the majority that the trial court did not require appellant to present evidence
in order to be found not guilty and that the evidence was sufficient to prove that appellant
presented the checks with the intent to defraud. However, I write separately to address the Due
Process Clause issue I believe was appropriately raised by appellant’s first assignment of error.
On appeal, appellant alleges that the trial court erred in “finding that [appellant] had to
present evidence in his case in order to be found not guilty under the presumption created in”
Code § 18.2-183. Through this argument, appellant raises the constitutional question of whether
Code § 18.2-183 impermissibly shifts the burden of proof to a defendant. 6 I write separately
here to expand upon the majority’s implicit constitutional analysis and to clarify both the existing
terminology regarding presumptions and their constitutional validity under the Due Process
Clause. It is my view that the majority’s failure to adequately set forth its reasoning in reaching
6
Appellant’s citation on brief to Hodge v. Commonwealth, 217 Va. 338, 342, 228 S.E.2d
692, 695 (1976), and his assertion that the shifting of the burden of persuasion to the accused is
“constitutionally infirm” sufficiently raises the due process issue such that, in my view, the
constitutional question must be thoroughly addressed by this Court.
In addition, I believe appellant adequately presented this constitutional question to the
trial court. Rule 5A:18, as in effect at the time of appellant’s trial, see Fails v. Va. State Bar, 265
Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of Court in effect at the time of
the proceedings below), simply stated that to satisfy the rule, an objection be stated “with the
grounds therefor.” Appellant fulfilled this requirement through his specific objection to the
“burden shifting” of the trial court’s ruling and his related objection to what appellant viewed as
the trial court’s requirement that appellant present evidence. Furthermore, appellant’s failure to
cite authority in support of his objection at trial is not fatal to consideration of his argument on
appeal, as Rule 5A:18 “does not prohibit reliance on statutes or cases not presented to the trial
court to support, on appeal, a position otherwise adequately presented at trial.” Lash v. County
of Henrico, 14 Va. App. 926, 929, 421 S.E.2d 851, 853 (1992) (en banc). In my view,
appellant’s statements at trial adequately presented appellant’s belief that the trial court was
interpreting Code § 18.2-183 in a manner that unconstitutionally shifted the burden of proof to
appellant. Because appellant’s objection fulfilled the main purpose of Rule 5A:18, “to afford the
trial court an opportunity to rule intelligently on the issues presented,” Weidman v. Babcock, 241
Va. 40, 44, 400 S.E.2d 164, 167 (1991), I believe Rule 5A:18 does not bar appellate
consideration of the constitutional issue in this case.
- 10 -
its determination of this issue may unintentionally suggest a constitutionally incomplete
methodology for resolution of the issue presented.
“[T]he Due Process Clause requires the prosecution to ‘prove beyond a reasonable doubt
every fact necessary to constitute the crime charged.’” Hodge v. Commonwealth, 217 Va. 338,
341, 228 S.E.2d 692, 695 (1976) (quoting Mullaney v. Wilbur, 421 U.S. 684, 685 (1975)).
However, statutory presumptions do not necessarily unconstitutionally shift the burden of proof
from the Commonwealth to a criminal defendant. See Cnty. Court of Ulster v. Allen, 442 U.S.
140, 156 (1979) (stating that “[i]nferences and presumptions are a staple of our adversary system
of factfinding”).
To understand the legal significance of the various “presumptions” which may exist in a
statute purporting to establish prima facie evidence of an element of a crime, one must
understand the terminology advanced in the caselaw defining the diverse sets and subsets of
statutory presumptions. At the outset, it must be recognized that a statutory presumption may be
mandatory or permissive. Mandatory presumptions instruct the trier of fact that it “must infer the
presumed fact if the [Commonwealth] proves certain predicate facts.” Francis v. Franklin, 471
U.S. 307, 314 (1985) (emphasis added). In contrast, permissive presumptions 7 “suggest[] to the
[trier of fact] a possible conclusion to be drawn if the [Commonwealth] proves predicate facts,
but do[] not require the [trier of fact] to draw that conclusion.” Id. The United States Supreme
7
I recognize that “[w]hat is often referred to as a presumption is in reality a permissible
inference.” Ronald J. Bacigal, Virginia Criminal Procedure § 17:8 (2010-2011). As Professor
Bacigal explains, some courts and commentators interpret a “presumption” to place upon the
opponent of the presumption “the burden of disproving the presumed fact.” Id. Thus, some
courts prefer the term “permissible inference,” which makes clear that the burden of proof on an
element of the crime is not unconstitutionally shifted to a criminal defendant. Id. To further
highlight the journey through the terminology maze in this area of the law, I note that other
courts have used the terms “permissive inference” and “permissive presumption”
interchangeably. In the instant concurrence, I adopt the term “permissive presumption”; in doing
so, I do not intend to imply that all permissive presumptions necessarily shift the burden of proof
on an element of the crime to a criminal defendant.
- 11 -
Court has developed subsets of both the mandatory and permissive presumptions by recognizing
that these presumptions can be rebuttable or irrebuttable. 8 See id. at 314 n.2. A rebuttable
presumption allows (in the case of a permissive rebuttable presumption) or requires (in the case
of a mandatory rebuttable presumption) the trier of fact “to find the presumed element unless the
defendant persuades the [trier of fact] that such a finding is unwarranted.” Id. In contrast, an
irrebuttable “presumption removes the presumed element from the case once the
[Commonwealth] has proved the predicate facts giving rise to the presumption.” Id.; see also
Black’s Law Dictionary 1305 (9th ed. 2009) (defining “irrebuttable presumption” as “[a]
presumption that cannot be overcome by any additional evidence or argument”). 9
I agree with the majority that Code § 18.2-183 creates a rebuttable presumption. See
Huntt v. Commonwealth, 212 Va. 737, 739, 187 S.E.2d 183, 186 (1972) (interpreting Code
§ 6.1-117, the predecessor statute to Code § 18.2-183); Sykes v. Commonwealth, 42 Va. App.
581, 588, 593 S.E.2d 545, 548 (2004). However, the constitutionality of the rebuttable
presumption created by Code § 18.2-183 also turns upon the classification of the presumption as
8
Although the Francis Court uses the term “conclusive” presumption, 471 U.S. at 314 n.2,
to avoid confusion, I use the term “irrebuttable” presumption. See Black’s Law Dictionary 1305
(9th ed. 2009) (stating that “conclusive presumption” is also termed “irrebuttable presumption”).
9
For the sake of clarity, I emphasize that there are four recognized types of statutory
presumptions: (1) mandatory rebuttable presumptions, which instruct the trier of fact that it must
infer the presumed element if the Commonwealth proves certain predicate facts, but the
presumption remains subject to rebuttal; (2) mandatory irrebuttable presumptions, which instruct
the trier of fact that it must infer the presumed element if the Commonwealth proves certain
predicate facts, regardless of any evidence tending to rebut the presumption; (3) permissive
rebuttable presumptions, which allow but do not require the trier of fact to infer the presumed
element if the Commonwealth proves certain predicate facts, but the presumption remains
subject to rebuttal; or (4) permissive irrebuttable presumptions, which allow but do not require
the trier of fact to infer the presumed element if the Commonwealth proves certain predicate
facts, regardless of any evidence tending to rebut the presumption.
The test for the constitutionality of each type of presumption differs, and in the instant
case I address the constitutionality of only the permissive rebuttable presumption created by
Code § 18.2-183.
- 12 -
mandatory or permissive. The majority implicitly holds that Code § 18.2-183 creates a
permissive presumption when it states that the presumption in the instant case “‘still requires the
[Commonwealth] to convince the [trier of fact] that the suggested conclusion should be inferred
based on the predicate facts proved,’” Dobson v. Commonwealth, 260 Va. 71, 75, 531 S.E.2d
569, 572 (2000) (emphasis added) (quoting Francis, 471 U.S. at 314), and when it states that “the
trial court properly relied on the statutory rebuttable presumption from which it could find, but
was not required to find, that appellant had the intent to defraud . . . .” However, I write
separately not to challenge the result reached by the majority but in order to provide an
explanation and rationale for this holding, and to explicate the test for the constitutionality of
permissive rebuttable presumptions. Simply implying that the code section creates a permissive
presumption without articulating why or how the Court has made this determination, and without
explaining the constitutional ramifications of this classification, neither explains the analytical
framework used to reach this conclusion nor adequately speaks to appellant’s assignment of error
in the instant case.
I would hold explicitly that Code § 18.2-183 creates a permissive presumption. While
not all rebuttable presumptions are permissive presumptions, see Francis, 471 U.S. at 314 n.2,
“our general rule is to give rebuttable presumptions permissive or burden-of-production-shifting
effect only,” Wilson v. Commonwealth, 225 Va. 33, 41, 301 S.E.2d 1, 5 (1983). This general
rule applies even when the presumption “is construed to require the defendant[] to produce some
evidence.” Wilson, 225 Va. at 42, 301 S.E.2d at 5. As a result, I would hold that Code
§ 18.2-183 creates a permissive rebuttable presumption.
After classifying the presumption created by Code § 18.2-183 as a permissive rebuttable
presumption, it is incumbent upon the Court in the instant case to determine whether the
presumption satisfies the requirements of the Due Process Clause. The constitutional test for
- 13 -
rebuttable presumptions and the constitutional test for permissive presumptions are two separate
lines of inquiry. A rebuttable presumption is constitutional “provided that the prosecution retains
the ultimate burden of proof beyond a reasonable doubt.” Dobson, 260 Va. at 75, 531 S.E.2d at
571. Permissive presumptions are constitutional as long as “the suggested conclusion is . . . one
that reason and common sense justify in light of the proven facts before the [trier of fact].”
Francis, 471 U.S. at 314-15. This standard for permissive presumptions is not satisfied if the
Court determines that “there is no rational way the trier could make the connection permitted by
the inference.” Allen, 442 U.S. at 157.
The majority addresses the former test, but not the latter. I agree with the majority that
the rebuttable nature of the permissive presumption created by Code § 18.2-183 does not render
the statute unconstitutional by relieving the Commonwealth of the ultimate burden of proof
beyond a reasonable doubt or requiring the defendant to present evidence. In this regard, a
defendant may rely upon the Commonwealth’s evidence to rebut the presumption, Hodge, 217
Va. at 343, 228 S.E.2d at 696, even though he “[runs] the risk of not producing some evidence to
rebut the presumption,” Wilson, 225 Va. at 43, 301 S.E.2d at 6.
However, the majority’s analysis of the burden-shifting effect of Code § 18.2-183 ends
here. In my view, the majority must next address whether the presumption created by Code
§ 18.2-183 satisfies the separate constitutional test for permissive presumptions. I would hold
that the presumption created by Code § 18.2-183 satisfies the test for permissive presumptions
under the Due Process Clause because it provides a rational mechanism to allow the trier of fact
to make the connection permitted by the inference. Code § 18.2-183 allows the trier of fact to
infer intent to defraud when a defendant does not pay the amount due on a check within five days
of receiving actual or, under certain circumstances, constructive written notice that the check has
not been paid to the holder. The connection between a defendant’s failure to pay, despite actual
- 14 -
notice that his or her check has been dishonored, and a defendant’s intent to defraud at the time
of issuing the check is rational. In addition, the connection between a defendant’s failure to
provide the drawee with his or her correct address on the face of the check, or a defendant’s
refusal to accept notice that his or her check has not been paid, and a defendant’s intent to
defraud at the time of issuing the check is rational.
In sum, because the permissive rebuttable presumption created by Code § 18.2-183 is
rational and does not relieve the Commonwealth of the ultimate burden of proof beyond a
reasonable doubt, I would hold that it does not violate the Due Process Clause. Because the
majority does not fully address this constitutional question, and because I believe appellant
particularly raised this issue on brief in his appeal and before the trial court, I would hold
explicitly that Code § 18.2-183 creates a permissive rebuttable presumption that does not violate
the Due Process Clause and that the trial court did not err in its conclusion that it was not
imposing an impermissible burden-shifting requirement under Code § 18.2-183.
- 15 -