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Lindsey v. Commonwealth

Supreme Court of Virginia

January 19, 2017

JAMES LINDSEY
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

          PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Koontz, S.J.

          OPINION

          DONALD W. LEMONS, CHIEF 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 willful concealment of goods or merchandise while on the premises of a store.

         I. Facts and Proceedings

         James 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.

         Bryan 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.

         Over 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 contrary.

         This 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 read:

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.

         Lindsey 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 States Constitution.

         II. Analysis

         A. Standard of Review

         Whether 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 (1985)).

         B. Due Process Clause

         On 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 otherwise.

         The Due 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.

         The Due 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).

         C. Instruction 16

         Lindsey 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:

[1] 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.
[2] A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but ...

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