Dobson v. Com.

• Decision Date: 09 June 2000
• Docket Number: Record No. 991582.
• Citation: 260 Va. 71,531 S.E.2d 569
• Parties: Eric Lee DOBSON, a/k/a David Lee Brown v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

531 S.E.2d 569

260 Va. 71

Eric Lee DOBSON, a/k/a David Lee Brown v. COMMONWEALTH of Virginia.

Record No. 991582.

Supreme Court of Virginia.

June 9, 2000.

Patricia P. Nagel, Assistant Public Defender (David Johnson, Public Defender, on brief), for appellant.

John H. McLees, Jr., Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: CARRICO, C.J., LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ., and WHITING, Senior Justice.

KEENAN, 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 Commonwealth.

The Court of Appeals affirmed the trial court's judgment in an unpublished opinion. Dobson v. Commonwealth, Record No. 2802-97-2, 1999 WL 1129978 (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); Guilt 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 possession.

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, 95 S.Ct. 1881, 44 L.Ed.2d 508 (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, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994); Sandstrom v. Montana, 442 U.S. 510, 520, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Mullaney, 421 U.S. at 685, 95 S.Ct. 1881; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (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, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Mullaney, 421 U.S. at 702 n. 31, 95 S.Ct. 1881; 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, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom, 442 U.S. at 521, 99 S.Ct. 2450.

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, 105 S.Ct. 1965.

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

...