State v. Gates

• Decision Date: 17 June 1981
• Docket Number: No. 64010,64010
• Citation: 306 N.W.2d 720
• Parties: STATE of Iowa, Appellee, v. David Webster GATES, Appellant.
• Court: Iowa Supreme Court

Page 720

306 N.W.2d 720

STATE of Iowa, Appellee, v. David Webster GATES, Appellant.

No. 64010.

Supreme Court of Iowa.

June 17, 1981.

As Corrected June 30, 1981.

W. H. Gilliam, Waterloo, for appellant.

Thomas J. Miller, Atty. Gen., Thomas N. Martin, Asst. Atty. Gen., David H. Correll, Black Hawk County Atty., and Larry L. Anfinson, Asst. Black Hawk County Atty., for appellee.

Considered by LeGRAND, P. J., and UHLENHOPP, McCORMICK, ALLBEE and SCHULTZ, JJ.

ALLBEE, Justice.

Defendant David Webster Gates appeals his conviction of theft in the second degree. He raises two questions: (1) whether trial court erred in instructing the jury with respect to the presumption of misappropriation created by subsection 714.1(2), Supplement to the Code 1977; and (2) whether he was effectively denied an opportunity for pretrial discovery. We consider each of these issues in turn, and affirm trial court.

I. The instruction.

Defendant was charged by trial information with theft in the second degree, in violation of sections 714.1(2) and 714.2(2), Supplement to the Code 1977. The charges stemmed from defendant's failure to return by the date required in his lease two U-Haul trailers rented in Waterloo. One of the trailers was located in defendant's possession in Colorado nearly a month later; the other was retrieved in Stuart, Iowa. Thus, neither trailer was returned within seventy-two hours after the time specified for return in the rental agreement.

The gravamen of defendant's assertion of error concerns instruction twelve, which was predicated on subsection 714.1(2). The latter provides in pertinent part:

A person commits theft when the person does any of the following:

2. Misappropriates property which the person has in trust, or property of another which the person has in his or her possession or control, whether such possession or control is lawful or unlawful, by using or disposing of it in a manner which is inconsistent with or a denial of the trust or of the owner's rights in such property, or conceals found property, or appropriates such property to his or her own use, when the owner of such property is known to him or her. Failure by a bailee or lessee of personal property to return the property within seventy-two hours after a time specified in a written agreement of lease or bailment shall be evidence of misappropriation.

(Emphasis added.)

Instruction twelve informed the jury as follows:

The law provides that failure by a bailee or lessee of personal property to return the property within seventy-two (72) hours after a time specified in a written agreement of lease or bailment shall be evidence of misappropriation.

The failure to return the property is not conclusive evidence, but it may be considered by you in connection with all other evidence in determining whether the State has proved beyond a reasonable doubt the defendant is guilty of Theft.

In essence, defendant contends subsection 714.1(2), as implemented by this instruction, creates a mandatory presumption which impermissibly shifted to defendant the burden of persuasion on this element of the crime charged, thus violating the due process clauses of the United States and Iowa Constitutions. ¹

We note initially that neither party has addressed the question of defendant's standing to assert this constitutional challenge. Although not raised by the litigants, this issue is nonethelesss present, as it inheres in every case in which the constitutionality of a statute is attacked. See State v. Price, 237 N.W.2d 813, 816 (Iowa), appeal dismissed, 426 U.S. 916, 96 S.Ct. 2619, 49 L.Ed.2d 370 (1976). Ordinarily, where there is no constitutional defect in the application of a statute to a litigant, he has no standing to contend that it may conceivably be applied unconstitutionally to others in hypothetical situations. County Court of Ulster County v. Allen, 442 U.S. 140, 154-55, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777, 790 (1979); Price, 237 N.W.2d at 816. Because defendant challenges the constitutionality of subsection 714.1(2) only as applied to him, and because the statute impacts adversely on his rights, defendant has the requisite standing in this case. See id.; State v. Pierce, 287 N.W.2d 570, 573 (Iowa 1980).

Much has been written recently concerning the use of presumptions in criminal trials. E.g., Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777; State v. Rinehart, 283 N.W.2d 319 (Iowa 1979), cert. denied, 444 U.S. 1088, 100 S.Ct. 1049, 62 L.Ed.2d 775 (1980). The validity of these evidentiary devices is dependent upon the satisfaction of a two-test inquiry. At the threshold, the characterization of the presumption must be determined. See Sandstrom, 442 U.S. at 514, 99 S.Ct. 2454, 61 L.Ed.2d at 45; Rinehart, 283 N.W.2d at 322; State v. Hansen, 203 N.W.2d 216, 218 (Iowa 1972). The focus then centers upon the rationality of the relationship between the elemental fact to be presumed and the fact proved. Allen, 442 U.S. at 165, 99 S.Ct. at 2228, 60 L.Ed.2d at 797; Rinehart, 283 N.W.2d at 323; Hansen, 203 N.W.2d at 218.

Our first inquiry concerns the nature of the evidentiary device, authorized by subsection 714.1(2), as employed in the instruction given by trial court. Rinehart, 283 N.W.2d at 322. This entails a determination of whether the device acts as a mandatory or permissive presumption. Because a mandatory presumption requires the jury to find the presumed fact upon proof of the basic fact, at least where the defendant has not adduced some evidence to rebut the presumed connection between the two facts, it "may affect not only the strength of the 'no reasonable doubt' burden but also the placement of the burden." Id. (quoting Allen, 442 U.S. at 157, 99 S.Ct. at 2224, 60 L.Ed.2d at 792). As such, it may run afoul of constitutional guarantees. A permissive presumption, on the other hand, "leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof." It therefore "affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference." Id. at 321.

In characterizing the presumption utilized in the instant case, our focus is upon the wording and context of the instructions as presented to the jury. Id. at 322. Reading the instructions as a whole, see Hansen, 203 N.W.2d at 222, we are convinced the jury was fully apprised of its option to reject the application of the challenged presumption.

The challenged instruction itself clearly indicated the jury was not required to find the presumed fact upon proof of the basic fact. As noted previously, after reciting the language of section 714.1(2), the instruction stated: "The failure to return the property is not conclusive evidence, but it may be considered by you in connection with all other evidence in determining whether the State has proved beyond a reasonable doubt the Defendant is guilty of Theft." This instruction clearly informed the jury it was not bound to find the presumed fact.

Examination of the remaining instructions leads inescapably to the same conclusion. The jury was instructed seven times, including in the challenged instruction, that the State had the burden to prove defendant guilty beyond a reasonable doubt. Moreover, the jury was instructed that it was the sole judge "of the weight of the evidence, the credibility of the witnesses, and the conclusions to be drawn from the facts and circumstances proved." Additionally, an instruction on the presumption of defendant's innocence was given. Also of significance, the instructions in no way stated or implied that any elemental fact presumed from the proved facts would stand as established absent the introduction of rebuttal evidence by defendant. Rinehart, 283 N.W.2d at 322. Thus, no shifting of the "reasonable doubt" standard resulted. We believe the instructions here, when read as a whole, clearly apprised the jury of the permissive nature of the misappropriation presumption.

The second prong of our analysis concerns the rationality of the relationship between the basic facts proved by the State and the ultimate fact to be presumed. Allen, 442 U.S. at 165, 99 S.Ct. at 2228, 60 L.Ed.2d at 797; Rinehart, 283 N.W.2d at 323. Due process requires that a "rational connection" exist between the basic and presumed facts, and that it is more likely than not that the latter flow from the former. Id. This inquiry is judged by history, common sense and experience. Rinehart, 283 N.W.2d at 323. We believe the statute and instructions challenged here possess the requisite rationality. Both provide that a bailee's or lessee's failure to return personal property within seventy-two hours after a time specified in a written lease agreement "shall be evidence" of misappropriation. This inference is certainly supported by common sense and experience. As such, it is clearly rational.

The presumption created by section 714.1(2), as applied in the instant case, comports with due process. We find no error here.

II. The discovery issue.

In his second assignment of error, defendant asserts trial court denied him the opportunity for pretrial discovery of certain of the State's witnesses. Following filing of the trial information, defendant, pursuant to local court rule, requested an order permitting defendant to depose an unnamed officer of U-Haul International, Inc. in Phoenix, Arizona, at state expense. This motion, resisted by the State, was denied; the major premise for this ruling consisted of defendant's failure to utilize other, less expensive discovery tools available. Following the addition of certain out-of-state witnesses to the State's minutes of testimony, defendant filed a motion seeking the production of those persons some days in advance of trial so that they might be deposed to enable the...