Denton v. State
| Decision Date | 11 June 1980 |
| Docket Number | No. 59265,59265 |
| Citation | 268 S.E.2d 725,154 Ga.App. 427 |
| Parties | DENTON v. The STATE. |
| Court | Georgia Court of Appeals |
Glenn Zell, Atlanta, for appellant.
Hinson McAuliffe, Sol., Leonard W. Rhodes, Asst. Sol., for appellee.
Defendants were convicted of possessing obscene devices with intent to sell, in violation of Code Ann. § 26-2101(c). We affirm.
1. Appellant asserts error in the trial court's instruction that "every person is assumed to intend the natural and necessary consequences of his act" on the grounds that such charge is impermissibly burden shifting under the rationale of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.
Although the better practice would be for the trial court to expressly advise the jury that the presumption of intent is rebuttable, the court's charge in this case, when read as a whole, created merely a permissible presumption of criminal intention, and did not create a mandatory presumption of such intent. Therefore, it was neither conclusive nor burden-shifting. Whisenhunt v. State, 152 Ga.App. 829, 264 S.E.2d 271. See also Skrine v. State, 244 Ga. 520, 260 S.E.2d 900. We consequently find no error in the charge as given.
2. This appeal was originally filed in the Supreme Court, but was transferred to this court without an opinion. The Supreme Court's refusal to review defendant's constitutional challenges to Code Ann. § 26-2101(c) mandates the finding that appellant's contentions of error on constitutional grounds are without merit. See Wadley Sou. R. Co. v. Faglee, 42 Ga.App. 80(1), 155 S.E. 65, revd. on other grounds, 173 Ga. 814, 161 S.E. 847.
3. Appellant complains of the charge on scienter. "The charge given here was in the exact language of the Code section and did not place a greater burden on appellant than 'knowledge of the . . . materials he (sought to distribute).' " Sewell v. State, 238 Ga. 495, 496, 233 S.E.2d 187.
Judgment affirmed.
I concur in the result reached by the majority and agree with all that is said in the majority opinion. However, because state appellate courts are still treading uncertain ground in applying the rulings of the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), I think it important to enunciate why we believe that the charge in this case passes Sandstrom muster. Since Sandstrom, most of the cases in this court or the Supreme Court of Georgia involving an attack upon a trial court's instructions concerning presumption of intent have been affirmed because in addition to the "presumption language" the jury has been told that such presumption could be rebutted. See Skrine v. State, 244 Ga. 520, 521, 260 S.E.2d 900 (1979); Whisenhunt v. State, 152 Ga.App. 829, 264 S.E.2d 271 (1979); Maxwell v. State, 152 Ga.App. 776, 264 S.E.2d 254 (1980); and Dix v. State, 153 Ga.App. 868, 267 S.E.2d 293 (1979). However, in Duffie v. State, 154 Ga.App. 61, 267 S.E.2d 501 (1980), this court affirmed the conviction notwithstanding the absence of the court's express instruction that the "presumption" was rebuttable. See the special concurrence of this writer in Duffie pointing out that the language of the charge in that case was not so similar to the instruction triggering criticism in Sandstrom is to require that the jury be expressly instructed in specific language that the presumption may be rebutted.
In this case the language used by the trial court was more analogous to the Sandstrom disapproved charge than that utilized in Duffie. However, as Judge Shulman states, "the court's charge in this case, when read as a whole, created merely a permissible presumption of criminal intention, and did not create a...
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Wallace v. State
...Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980). See Denton v. State, 154 Ga.App. 427, 268 S.E.2d 725 (1980), concurring opinion, Carley, 10. During the sentencing phase of the trial, the defense called Aretha Jenkins, the appell......
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George v. State, 70355
...den., --- U.S. ----, 104 S.C. 712, 79 L.Ed.2d 175; Cassells v. Bradlee Mgt. Svcs., 161 Ga.App. 325(1), 291 S.E.2d 48; Denton v. State, 154 Ga.App. 427(2), 268 S.E.2d 725. 2. It is contended that the trial court erred in refusing to grant defendant's motion for directed verdict on the basis ......
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Edwards v. State, 69629
...without opinion for disposition, thus eliminating and resolving any constitutional issues raised by appellant. See Denton v. State, 154 Ga.App. 427(2), 268 S.E.2d 725 (1980). See also Howard v. Atlanta Cardio Pulmonary Assn., 173 Ga.App. 437, 327 S.E.2d 230 (1985); Cassells v. Bradlee Mgt. ......
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