dissenting.
I dissent from the majority opinion because I conclude that (1) defendant’s contention on appeal was not raised below; (2) giving the challenged instruction was not error; (3) the instructions taken as a whole were not erroneous; and (4) the error, if any, was harmless.
At trial defendant objected to the challenged instruction as follows:
“ * * * I would except to the instruction about delivery as a prima facie evidence and knowledge. This is not a sdbject for instruction which is limited to matters of law, and it is incorrect since the delivery does not prima facie show knowledge in that knowledge must be shown.”
Defendant’s sole contention on appeal is that an instruction which tells the jury that proof of one fact is prima facie evidence of another fact unconstitutionally shifts the burden of proof to the defendant in a criminal case. That contention was not raised below, and it may not be raised for the first time on appeal. State v. Davis, 56 Or App 535, 538, 642 P2d 350 (1982); State v. LeBrun, 37 Or App 411, 418, 587 P2d 1044 (1978); State v. Easton, 35 Or App 603, 607, 582 P2d 37, rev den 284 Or 521 (1978).
The trial court instructed the jury, in relevant part:
*308«* * * proof of unlawful delivery of a controlled substance is prima facie evidence of knowledge of its character.1
“The term prima facie evidence means evidence good and sufficient on its face, such evidence as in the judgment of the law is sufficient to establish a given fact and which if not rebutted or contradicted will remain sufficient.”
Defendant contends that this instruction unconstitutionally shifts the burden of proof. His argument is based on precedent that has held certain presumptions unconstitutional on the ground that they shift the burden of proof. The state contends that the challenged instruction merely informed the jury of a permissible inference that the jury could, but was not required, to make from other evidence in the case, i.e., that it could infer guilty knowledge from the fact of unlawful delivery. The state argues that there is a rational connection between possessing something and having knowledge of the nature of the thing possessed.
Prima facie evidence is different from either a conclusive or a disputable presumption. It does not require the jury to find one fact from the establishment of another; nor does it require the jury to find a specific fact unless the evidence thereof is overcome, thereby arguably putting some burden on defendant. Prima facie evidence is merely evidence that is sufficient to enable the jury to find a fact established, without requiring it to do so. It is evidence that gives rise to a permissible inference rather than to a directory presumption. See State v. Kohlasch, 11 Or App 459, 464 n 5, 502 P2d 1158 (1972).
The distinction between prima facie evidence and an arguably unconstitutional presumption is explained in Ulster County Court v. Allen, 442 US 140, 156-57, 99 S Ct 2213, 60 L Ed 2d 777 (1979):
*309“Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime — that is, an ‘ultimate’ or ‘elemental’ fact — from the existence of one or more ‘evidentiary’ or ‘basic’ facts * * *. The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the fact-finder’s freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt
“The most common evidentiary device is the entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant * * *. In that situation the basic fact may constitute prima facie evidence of the elemental fact. * * * When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. * * * Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Citations omitted.)
The instruction complained of here is clearly of the kind discussed above. The trial court’s instruction says only that prima facie evidence is evidence sufficient on its face to establish a given fact. Contrary to defendant’s contention, the portion of the court’s instruction stating that prima facie evidence “will remain sufficient” to establish a fact, “if not rebutted or contradicted,” does not direct the jury to find a fact established unless it was rebutted or contradicted.
*310In State v. Offord, 14 Or App 195, 512 P2d 1375 (1973), where, as here, the only disputed issue was guilty knowledge, we held that it was error for the trial court to instruct the jury that prima facie evidence is a fact or facts presumed to be true unless disproved by some evidence to the contrary. In Offord, however, we also said that if ORS 167.238
“* * * merely states a rule that the jury may infer guilty knowledge from the fact of possession, the statute is valid because there is a rational .connection between possessing something and having knowledge of the nature of the thing possessed.” 14 Or App at 201. (Citations omitted.)
Offord held that ORS 167.238 is constitutional but that the instruction given in Offord was bad, because it told the jury that it must find against the defendant on a material element of the crime unless his evidence disproved the state’s case.
Here, the challenged instruction did not tell the jury that it must do anything or that defendant had any burden of proof whatever. Rather, it informed the jury that certain evidence would warrant an inference that á certain fact existed. In the light of human experience, the inference makes sense. There is a rational connection between possessing something and having knowledge of the nature of the thing possessed. State v. Offord, supra, 14 Or App at 201.
Defendant’s contention that the inference is invalid because it shifts the burden of proof lacks merit. The ultimate burden of proof beyond a reasonable doubt with respect to all the elements of the crime charged always remains on the state. The inference does not shift the burden to defendant to prove lack of knowledge. The state must prove knowledge; however, it is not required to prove knowledge by direct evidence. It may seek to prove knowledge by indirect or circumstantial evidence, just as it may ordinarily prove any element of a crime by indirect or circumstantial evidence.
In a criminal case, the ultimate test of any instruction’s constitutional validity remains constant: the instruction must not undermine the factfinder’s responsibility at trial, on the basis of evidence adduced by the state, to find *311the ultimate facts beyond a reasonable doubt. Ulster County Court v. Allen, 442 US 140, 156, 99 S Ct 2213, 60 L Ed 2d 777 (1969); see also Sandstrom v. Montana, 442 US 510, 99 S Ct 2450, 61 L Ed 2d 39 (1979). I conclude that the challenged instruction was not error.
The instructions taken as a whole, State v. Flack, 58 Or App 330, 336, 648 P2d 857 (1982), clearly informed the jury that it had the sole responsibility to decide the case, that defendant was presumed innocent, that the entire burden of proof was on the state to prove the ultimate facts beyond a reasonable doubt and that it was not incumbent on defendant to prove or disprove anything.2 I conclude that the instructions taken as a whole were not erroneous.
*312Assuming arguendo that giving the challenged instruction was error that was not cured by the instructions as a whole, I conclude that there is substantial and convincing evidence in the record of defendant’s knowledge of the character of the 130 pounds of marijuana contained in five boxes (which he admittedly helped deliver and which his long-time friends Bickle and Poston admitted trying to sell to an undercover police officer for $54,000). I conclude that any error was harmless. Chapman v. California, 386 US 18, 87 S Ct 824, 17 L Ed 2d 705 (1967); State v. Davis, supra, 56 Or App at 538 n 2.
I would affirm defendant’s conviction.
Thornton, J., joins in this dissenting opinion.
ORS 167.238(1) provides:
“Proof of unlawful manufacture, cultivation, transportation or possession of a controlled substance is prima facie evidence of knowledge of its character.”
The legislature has the power to provide by statute that proof of one fact constitutes prima facie evidence of another fact. State v. Randolph, 85 Or 172, 166 P 555 (1917); 1 Wharton’s Criminal Evidence, 13th Ed, § 93-94 (1972).
The trial court instructed the jury in relevant part:
“* * * I’m sure you know the fact that I’m instructing you in regard to any of these areas is not intended by me to be a suggestion of how I think you should decide this case or any part of this case. You people are the sole and exclusive judges of the facts. Your findings as to the facts are binding and final.
Ct* ‡ ‡ ‡ ‡
“In connection with this instruction you must bear in mind that the burden of proof is entirely upon the State of Oregon. It is not incumbent upon the defendant to prove or disprove any of the charges against him.
a* * * * *
“To the charge which I’ve just read to you the defendant has entred a plea of not guilty. The plea of not guilty is a denial of every material allegation contained in the charges that I called to your attention.
<(* * * * *
“You will recall at the outset I told you that the law presumes that the defendant is innocent of these charges, and that presumption follows the defendant until his guilt, if ever, is proved beyond a reasonable doubt. A reasonable doubt means an honest uncertainty as to the guilt of the defendant.
“A reasonable doubt exists when after careful and impartial consideration of all the evidence in the case, you do not feel convinced to a moral certainty that the defendant is in fact guilty: Proof beyond a reasonable doubt is the type of proof that you would be willing to act upon when you made the most important decisions in your own lives.
“Count I in this case involves the delivery of a controlled substance. It’s unlawful for any person to deliver a controlled substance. To prove this charge the State must prove each of the material elements of the crime beyond a reasonable doubt.
*312“The elements of the crime are, first of all, that the conduct must have occurred in Multnomah County, Oregon, and it must have occurred on or about October 25th, 1980, at which time the defendant, Rodney Joel Rainey, or his accomplice or accomplices did unlawfully and knowingly deliver a controlled substance in Schedule 1, to-wit: Marijuana for a consideration. This conduct must be knowing.
“Knowing when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that his conduct is of a nature so described or that a circumstance so described exists.
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