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June 9, 2000

Record No. 991582






Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice


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

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unpublished opinion.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
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 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

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
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
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

In rejecting a due process challenge made on grounds not
raised here, the Court observed that the instruction "only
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
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’