THE COURT OF APPEALS OF VIRGINIA
PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and
Kelsey, JJ., and Koontz, S.J.
W. LEMONS, CHIEF JUSTICE.
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 willful concealment
of goods or merchandise while on the premises of a store.
Facts and Proceedings
Lindsey ("Lindsey") was tried by a jury in the
Circuit Court of Arlington County ("trial court")
upon an indictment charging petit larceny, third or
subsequent offense. He was found guilty and sentenced to
seven days in jail.
Knott ("Knott"), an employee at a retail store
dealing in clothing for hiking and outdoor wear in Arlington,
testified at trial that he observed Lindsey conceal at least
two hats under his jacket while in the store. Knott notified
his manager and another employee regarding what he had
witnessed. The manager, Brad Dana, contacted police while the
other employee, Steve Lappat ("Lappat") confronted
Lindsey. When confronted by Lappat, Lindsey denied concealing
the hats and demanded to speak to the manager. After the
police arrived, an altercation occurred between Lindsey and
Lappat. Lindsey was subsequently arrested.
Lindsey's objection, the trial court gave Instruction 16
to the jury, which read:
Willful concealment of goods or merchandise while still on
the premises of a store is evidence of an intent to convert
and defraud the owner of the value of the goods or
merchandise, unless there is believable evidence to the
instruction came from the Virginia Model Jury Instructions. 2
Virginia Model Jury Instructions - Criminal, No. 36.840 (2011
repl. ed.). Lindsey had proposed an alternate instruction,
Instruction O, which the trial court rejected. Instruction O
You may infer that willful concealment of goods or
merchandise while still on the premises of a store is
evidence of an intent to convert and defraud the owner of the
value of the goods or merchandise.
appealed 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
Court of Appeals affirmed the trial court's judgment in
an unpublished per curiam order. Lindsey v.
Commonwealth, Record No. 1558-14-4 (April 16, 2015). The
Court of Appeals determined that Instruction 16 merely
suggested to the jury a possible conclusion it could draw
from predicate facts. Accordingly, the Court of Appeals held
that the challenged instruction did not violate Lindsey's
due process rights because it informed the jury only about a
permissive inference, not a mandatory presumption. Lindsey
appealed to this Court, and we granted his appeal on the
following assignment of error:
The Court of Appeals erred in upholding the trial court's
giving of Jury Instruction 16, and denying proffered
Instruction O, because Instruction 16 impermissibly shifted
the burden of proof to the defense, in violation of the Due
Process clause of the Fourteenth Amendment to the United
Standard of Review
a jury instruction accurately reflects the relevant law is
itself a question of law, which we review de novo. Lawlor
v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870
(2013); Orthopedic & Sports Physical Therapy Assocs.
v. Summit Group Props., 283 Va. 777, 782, 724 S.E.2d
718, 721 (2012). In determining whether this jury instruction
violates the defendant's due process rights, we must
consider whether the instruction creates a mandatory
presumption or merely a permissive inference. Dobson v.
Commonwealth, 260 Va. 71, 75, 531 S.E.2d 569, 571 (2000)
(citing Francis v. Franklin, 471 U.S. 307, 314
appeal, Lindsey argues that Instruction 16 contained a
mandatory, rebuttable presumption that shifted the burden of
proof to him, thereby violating his due process rights.
Relying on Francis v. Franklin, he argues the
instruction was constitutionally invalid because the jury
would have understood the instruction to mean that if they
found evidence of concealment, they were required to find
intent to defraud unless the defendant convinced them
Process clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged. In re
Winship, 397 U.S. 358, 364 (1970). Mandatory
presumptions violate the Due Process clause because they
instruct the jury that it must infer the presumed fact if the
State proves certain predicate facts, which relieves the
State of the burden of persuasion on an element of an
offense. Dobson, 260 Va. at 75, 531 S.E.2d at 572.
Process Clause, however, does not prohibit the use of a
permissive inference. Id. at 74, 531 S.E.2d at 571.
A permissive inference is "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." Id. at 74-75, 531
S.E.2d at 571. "A permissive inference does not relieve
the State of its burden of proof because it still requires
the State to convince the jury that the suggested conclusion
should be inferred based on the predicate facts
provided." Id. at 75, 531 S.E.2d at 572
(quoting Francis, 471 U.S. at 314).
maintains that the language in Instruction 16 is similar to
the language declared unconstitutional by the United States
Supreme Court in Francis. In Francis, the
defendant shot and killed the victim while attempting to flee
from police. 471 U.S. at 309-12. The defendant's sole
defense was that the shooting was an accident and he lacked
the requisite intent to kill. Id. at 311. The
following jury instructions were given at his trial:
 The acts of a person of sound mind and discretion are
presumed to be the product of the person's will, but the
presumption may be rebutted.
 A person of sound mind and discretion is presumed to
intend the natural and probable consequences of his acts but