COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
ERIC LEE DOBSON, A/K/A
DAVID LEE BROWN
MEMORANDUM OPINION * BY
v. Record No. 2802-97-2 JUDGE RICHARD S. BRAY
JUNE 15, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Eric Lee Dobson (defendant) was convicted in a bench trial
for obstruction of justice and by a jury for grand larceny,
violations of Code §§ 18.2-460(A) and 18.2-95, respectively. He
complains on appeal that (1) the evidence was insufficient to
prove the offenses, (2) the obstruction of justice prosecution
placed him twice in jeopardy for the same act, 1 and (3) the trial
court erroneously instructed the jury “regarding the exclusive
possession of recently stolen property.” We agree that the
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Because we reverse the obstruction of justice conviction
on other grounds, we decline to address the double jeopardy
issue.
obstruction of justice conviction is not supported by the record
and reverse but find the grand larceny conviction free of error
and affirm.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
On March 28, 1997, Virginia State Trooper Jeffrey Carter
Bradford “pulled a vehicle for speeding.” Carter approached the
car and requested the operator, defendant, to produce his license
and registration documents. Defendant stated “that he didn’t have
any ID on him at the time,” and Bradford asked that he “come back
to [his] vehicle, so [Bradford] could obtain some information, run
a license check on him.” Defendant then falsely identified
himself as David Lee Brown and provided the trooper with an
address, birth date, and incorrect Social Security number.
When Bradford questioned ownership of the vehicle, defendant
answered that, “it was a rental,” and “[h]is friend Billy owned
the vehicle.” Although unable to provide Billy’s surname,
defendant advised Bradford that Billy “was in room 412 at the
Diamond Lodge off of Sherwood Road” and described him as “a 31- to
32-year old male,” “black male, light skin,” “approximately 5’9”
to 10”, . . . 170 pounds,” a student at “Union University.”
However, further investigation by Bradford disclosed that the car
had been stolen, and he arrested defendant at the scene. Bradford
later pursued the information provided by defendant and, within
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ten minutes, determined that “[n]o one occupied” room 412 at the
Diamond Lodge.
OBSTRUCTION OF JUSTICE
Defendant first contends that the evidence was insufficient
to prove obstruction of justice in violation of Code
§ 18.2-460(A). When the sufficiency of the evidence is challenged
on appeal, we view the record in the light most favorable to the
Commonwealth, granting it all reasonable inferences fairly
deducible therefrom, and the decision will not be disturbed unless
plainly wrong or without evidence to support it. See Code
§ 8.01-680; Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975).
Code § 18.2-460(A) provides, in pertinent part, that “[i]f
any person without just cause knowingly obstructs . . . any
law-enforcement officer in the performance of his duties as such
. . ., he shall be guilty of a Class 2 misdemeanor.” A conviction
for violation of the statute requires proof of
“‘acts clearly indicating an intention on the
part of the accused to prevent the officer
from performing his duty, as to “obstruct”
ordinarily implies opposition or resistance
by direct action. It means to obstruct the
officer himself not merely to oppose or
impede the process with which the officer is
armed.’”
Ruckman v. Commonwealth, 28 Va. App. 428, 429, 505 S.E.2d 388, 389
(1998) (quoting Jones v. Commonwealth, 141 Va. 471, 478-79, 126
S.E. 74, 77 (1925)).
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Thus, like the statute considered by the Virginia Supreme
Court in Jones, Code § 18.2-460(A) requires “actual hindrance or
obstruction of the officer,” “opposition or resistance by direct
action.” Polk v. Commonwealth, 4 Va. App. 590, 594, 358 S.E.2d
770, 772-73 (1987). 2 “[O]bstruction of justice does not occur
when a person fails to cooperate fully with an officer or when the
person’s conduct merely renders the officer’s task more difficult”
or “frustrate[s] [his or her] investigation.” Ruckman, 28 Va.
App. at 429, 430, 505 S.E.2d at 389, 390.
Here, defendant’s false statements doubtlessly burdened
Trooper Bradford with a brief, but unnecessary, visit to the
Diamond Lodge. However, such conduct by defendant did not
“prevent the officer from performing his duty” in a fashion which
“impli[ed] opposition or resistance by direct action and forcible
or threatened means.” Jones, 141 Va. at 479, 126 S.E. at 77.
Accordingly, the evidence was insufficient to support conviction
of defendant for a violation of Code § 18.2-460(A).
GRAND LARCENY
Upon completion of the trial for obstruction of justice,
prosecution of the grand larceny indictment commenced before a
jury. Trooper Bradford’s evidence was substantially consistent
2
In contrast to both the instant appeal and Ruckman, Polk
addressed a violation of former Code § 18.2-460(A), which
proscribed an “attempt to intimidate or impede by threats,” not
the “actual ‘obstruction’” contemplated by the present statute.
Id. at 594-95, 358 S.E.2d at 773 (emphasis added).
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with his earlier testimony, although he added that defendant
possessed a key to the car.
Richard Lemenzo, manager of the Hertz Rental Car facility
located at the Richmond airport, testified that the stolen vehicle
had been “rented on March 4th, . . . out of Newark, New Jersey”
and returned to the Richmond airport facility on March 6, “by the
same person who rented the car.” Lemenzo explained that, upon
return of cars by customers, “[t]he keys are just usually left on
the front seat and the trunks are open.” A “nonrental report”
generated internally by Hertz reported “no movement on the
[subject] car,” for eight days, and the ensuing investigation
resulted in a “stolen car report” to police on March 28, 1997.
Commonwealth witnesses Deborah Barnes and Phillip Bailey
testified that a man identifying himself as Eric Dobson
(defendant) telephoned Barnes “back in March.” 3 Later that day,
pursuant to an invitation received during the earlier phone
conversation, defendant visited Barnes’ home, driving “a car
exactly like” the stolen vehicle.
Following defendant’s arrest, Billy Fowlkes, a tow truck
operator, recovered the car for Hertz and noticed “a very vile
smell.” Cleaning the car, Fowlkes discovered a wallet containing
defendant’s driver’s license, “stuck down between the seat and the
console.” Fowlkes also found an envelope in the trunk, addressed
3
The substance of this telephone conversation was not
allowed into evidence.
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to “Lynnett T. Jones” and postmarked March 14, 1997, a rotten
“hunk of meat,” “some clothes,” bedding, tapes, and a book.
At the close of the Commonwealth’s case and, again, at the
conclusion of all the evidence, the court denied defendant’s
motions to strike. Additionally, the trial court overruled
defendant’s objections to a jury instruction that embraced the
inference arising from the exclusive possession of recently stolen
goods. The jury convicted defendant of grand larceny, resulting
in this appeal.
It is well established that,
“[i]f . . . property be stolen, and recently
thereafter be found in the exclusive
possession of the prisoner, then such
possession of itself affords sufficient
ground for a presumption of fact that he was
the thief; and, in order to repel the
presumption, makes it incumbent on him, on
being called on for the purpose, to account
for such possession consistently with his
innocence. If he give a reasonable account
of it, then it devolves on the Commonwealth
to prove that such account is untrue. If he
give an unreasonable account of it, then it
devolves on the prisoner to sustain such
account by other evidence.”
Castle v. Commonwealth, 196 Va. 222, 226, 83 S.E.2d 360, 363
(1954) (citations omitted); see Hackney v. Commonwealth,
26 Va. App. 159, 168, 493 S.E.2d 679, 684 (1997). Thus, “[f]or
the ‘larceny inference’ to arise, the Commonwealth must establish
that the accused was in exclusive possession of recently stolen
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4
property.” Winston v. Commonwealth, 26 Va. App. 746, 757, 497
S.E.2d 141, 147 (1998) (citation omitted).
Defendant contends that the evidence was insufficient to
establish that he exclusively possessed the stolen car. However,
he was clearly found operating the vehicle, with the attendant
keys, and then asserted a right of possession, albeit falsely.
His wallet was found hidden in the vehicle, and he had been seen
in exclusive possession of a car “exactly like” the stolen vehicle
after the theft but prior to his arrest. Although evidence
suggests that others may have once occupied the vehicle, nothing
indicates that these persons exercised dominion and control over
the car or were in possession of it. Under such circumstances,
the jury properly concluded that defendant exclusively possessed
the stolen car.
Lastly, defendant complains that the court erroneously
instructed the jury that: “Proof of the exclusive personal
possession by the defendant of recently stolen goods is a
circumstance [for] which you may reasonably infer that the
defendant was the thief, unless the defendant offers a reasonable
account of the possession consistent with innocence, which the
Commonwealth has failed to prove untrue.” 2 Virginia Model Jury
Instructions, Criminal, No. 36.300 (1998 Repl. Vol.). Relying on
Mullaney v. Wilbur, 421 U.S. 684 (1975), defendant argues that the
4
Defendant does not dispute that the car was “recently
stolen.”
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instruction unconstitutionally denied him due process because “it
impermissibly shifted the burden of proof to the defendant of a
fact, the identity of the thief, necessary to convict him of grand
larceny.”
However, “neither the Due Process Clause nor Mullaney
prohibits the use of presumptions or inferences as procedural
devices to shift to the accused the burden of producing some
evidence contesting the otherwise presumed or inferred fact.”
Hodge v. Commonwealth, 217 Va. 338, 341, 228 S.E.2d 692, 695
(1976). “These devices . . . must satisfy certain due process
requirements, and the ultimate burden of proof beyond a reasonable
doubt must remain upon the prosecution.” Id. (citing Mullaney,
421 U.S. at 702-03 n.31). Thus, in analyzing the
constitutionality of a jury instruction, “[t]he court must
determine whether [it] creates a mandatory presumption, or merely
a permissive inference.” Francis v. Franklin, 471 U.S. 307, 314
(1985) (citations omitted).
“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 predicate facts, but does not require
the jury to draw that conclusion.
. . . A permissive inference violates
the Due Process Clause only if the suggested
conclusion is not one that reason and common
sense justify in light of the proven facts
before the jury.”
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Kelly v. Commonwealth, 8 Va. App. 359, 374, 382 S.E.2d 270, 278
(1989) (quoting Francis, 471 U.S. at 314-15). The instruction in
Mullaney created an unconstitutional, mandatory presumption
because it relieved the prosecution of its burden of persuasion on
an element of the offense. See 421 U.S. at 686.
Here, the trial court instructed the jury that it “may” infer
that defendant had stolen the car from proof of several
indispensable circumstances, including a recent theft and
exclusive possession without a reasonable, truthful explanation.
Thus, the jurors were not directed to draw any inference. Other
instructions properly admonished that the Commonwealth had the
burden of proving all elements of the offense, including proof
that defendant’s explanation was untrue, that defendant was
presumed innocent, and that he had no burden to produce any
evidence. Accordingly, the challenged instruction created a
constitutional, permissive inference, which the jury was free to
reject.
We, therefore, affirm the grand larceny conviction and
reverse the conviction of obstruction of justice.
Affirmed in part,
reversed in part,
and final judgment.
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