State v. Rainey

• Decision Date: 08 January 1985
• Citation: 693 P.2d 635,298 Or. 459
• Parties: STATE of Oregon, Petitioner on Review, v. Rodney Joel RAINEY, Respondent on Review. TC C80-10-33816, CA A20105, SC 29154.
• Court: Oregon Supreme Court

Page 635

693 P.2d 635

298 Or. 459

STATE of Oregon, Petitioner on Review, v. Rodney Joel RAINEY, Respondent on Review.

TC C80-10-33816, CA A20105, SC 29154.

Supreme Court of Oregon In Banc.

Argued and Submitted April 7, 1983.

Decided Jan. 8, 1985.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the brief was Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for respondent on review. With him on the brief was Gary D. Babcock, Public Defender, Salem.

CARSON, Justice.

The state petitioned for review from a judgment of the Court of Appeals which reversed a criminal conviction. The issue is the propriety of the trial court's jury instructions explaining prima facie evidence and stating that proof of unlawful delivery of a controlled substance is prima facie evidence of knowledge of its character.

FACTS

Defendant was convicted of knowingly delivering a controlled substance in violation of ORS 475.992. ¹ Defendant admitted the delivery, but argued that he did not know the delivered boxes contained marijuana. The trial judge instructed the jury, in relevant part, as follows:

" * * * I'm sure you know the fact that I'm instructing you in regard to any of these areas is not intended by me to be a suggestion of how I think you should decide this case or any part of this case. You people are the sole and exclusive judges of the facts. Your findings as to the facts are binding and final.

"However, you are not to exercise this power arbitrarily, and when I instruct you as to a rule of law, it's your duty, so you will arrive at a just and lawful decision, to apply the Court's instructions. Your verdict, as I say, should be based only upon these instructions and the evidence in the case.

" * * *

"Count I in this case involves the delivery of a controlled substance. It's unlawful for any person to deliver a controlled substance. To prove this charge the State must prove each of the material elements of the crime beyond a reasonable doubt.

"The elements of the crime are * * * that * * * the defendant, Rodney Joel Rainey, or his accomplice or accomplices did unlawfully and knowingly deliver a controlled substance in Schedule 1, to-wit: Marijuana for a consideration. This conduct must be knowing.

"Knowing, when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that his conduct is of a nature so described or that a circumstance so described exists.

"There must have been delivery. Deliver or delivery means the actual or attempted transfer from one person to another of a controlled substance. Proof of unlawful delivery of a controlled substance is prima facie evidence of knowledge of its character.

"The term prima facie evidence means evidence good and sufficient on its face, such evidence as in the judgment of the law is sufficient to establish a given fact and which if not rebutted or contradicted will remain sufficient."

The Court of Appeals reversed defendant's conviction and remanded for a new trial. The majority held that there was no rational connection in the instant case between the fact of delivery and the fact of knowledge of what was delivered. Therefore, the Court of Appeals concluded that the instruction was error. State v. Rainey, 60 Or.App. 302, 653 P.2d 584 (1982) (in banc).

PRESUMPTIONS AND INFERENCES

In order to understand the narrow area of the law in which resides the central issue in this case, tracking the transformation of some of the pivotal terms may prove helpful. The transformation is from prima facie evidence to presumption to inference when these evidentiary devices are applied to the accused in the context of a criminal case. Although the new Oregon Evidence Code (OEC) was not in effect when this case was tried, we shall refer to OEC where appropriate. ²

A number of Oregon statutes provide that proof of one fact constitutes prima facie evidence of another fact. One such statute, ORS 167.238(1), provides:

"Proof of unlawful manufacture, cultivation, transportation or possession of a controlled substance is prima facie evidence of knowledge of its character."

Although the record is not clear on this point, it is probable that this statute served as a basis for the trial judge's instruction in the instant case. ³

As noted in Lampos v. Bazar, Inc., 270 Or. 256, 279, 527 P.2d 376 (1974), citing McCormick, Evidence 803, § 342 (2d ed 1972), ⁴ the words "prima facie " are often used in two senses: "It [prima facie case] may mean evidence that is simply sufficient to get to the jury, or it may mean evidence that is sufficient to shift the burden of producing evidence." McCormick, supra, at 803 n. 26.

In Oregon, the words "prima facie " have been used in both senses. See, e.g., Millar v. Semler, 137 Or. 610, 613, 2 P.2d 233, 3 P.2d 987 (1931). In the second sense, many years ago this court defined prima facie evidence to be "that degree of proof which, unexplained or uncontradicted, is alone sufficient to establish the truth of a legal principle asserted by a party." State v. Kline, 50 Or. 426, 432, 93 P. 237 (1907). Although the transition from prima facie evidence to presumption is not always clear, the second sense more recently is referred to as a "presumption." See U.S. National Bank v. Lloyd's, 239 Or. 298, 324-25, 382 P.2d 851, 396 P.2d 765 (1964). This transition is now made explicit and "prima facie evidence * * * establishes a presumption." OEC 311(2). ⁵

In criminal cases, however, discussion of the transition is not yet complete. Whatever validity a presumption has to avoid a motion for judgment of acquittal (see discussion below), the word "presumption" cannot be used in a jury instruction on the element of intent when the presumption was contrary to the burden of proof. ⁶ State v. Stilling, 285 Or. 293, 297, 590 P.2d 1223,cert. den. 444 U.S. 880, 100 S.Ct. 169, 62 L.Ed.2d 110 (1979). On the other hand, an inference remains available. State v. Stilling, supra, 285 Or. at 298, 590 P.2d 1223. To deal with presumptions in criminal cases, the legislature enacted OEC 309:

"(1) The judge is not authorized to direct the jury to find a presumed fact against the accused.

"(2) When the presumed fact establishes guilt or is an element of the offense or negates a defense, the judge may submit the question of guilt or the existence of the presumed fact to the jury only if:

"(a) A reasonable juror on the evidence as a whole could find that the facts giving rise to the presumed fact have been established beyond a reasonable doubt; and

"(b) The presumed fact follows more likely than not from the facts giving rise to the presumed fact."

OEC 309 has been said to have the effect of reducing presumptions in criminal cases "to nothing more than permissible inferences when they are used against the accused." Kirkpatrick, Oregon Evidence 62 (1982) (Legislative Commentary to OEC 309). ⁷

It thus becomes apparent that it is not the label given to the evidentiary device, but the effect upon the burden of proof that is significant. The evidentiary device is not permitted to relieve the state of the burden of proving all elements of the crime. State v. Harris, 288 Or. 703, 721, 609 P.2d 798 (1980).

We shall now turn to the issue of the quantum of proof required to use these evidentiary devices.

PROOF BEYOND A REASONABLE DOUBT

In light of the issues raised by the parties in this case, it is not necessary to base a decision on the federal due process rights of defendant. It is also unnecessary to discuss the rights of defendant under the Oregon Constitution. That is so because the right not to be convicted of a crime except upon proof of guilt beyond a reasonable doubt is statutorily protected in Oregon. ORS 136.415 provides:

"A defendant in a criminal action is presumed to be innocent until the contrary is proved. In case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to be acquitted." ⁸

The reasonable doubt standard requires that the prosecution prove each element of the crime beyond a reasonable doubt. In order to do so, the prosecution may not rely on a rebuttable presumption, because a presumption places the burden of persuasion on the criminal defendant in a manner inconsistent with the presumption of innocence and proof of guilt beyond a reasonable doubt. See State v. Stilling, supra; see also Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

From the foregoing discussion, it is clear that significant constraints emerge when the prosecution seeks to rely on what has been labeled a statutory presumption against a criminal defendant.

First, the trial court may not direct the jury to find a fact that is an element of the crime, even in the absence of rebutting evidence. See OEC 309(1). As earlier noted, the effect of this restriction is that statutory presumptions can be no more than inferences in a criminal case.

A second restraint on the use of presumptions in criminal cases (more properly denominated as "inferences," see footnote 7, supra) is now incorporated in OEC 309(2). When, on a motion for judgment of acquittal, an inferred fact is used to establish an element of the offense or negate a defense, the jury may be left free to infer that fact only when two requirements are satisfied: (1) sufficient evidence has been offered of the existence of the fact(s) giving rise to the inference to allow a rational factfinder to find the underlying fact(s) beyond a reasonable doubt; and (2) a rational factfinder could find that the Upon a motion for judgment of acquittal it is the duty of the trial court to determine, ⁹ as a matter of law, whether the prosecution has met the foregoing tests.

inferred fact follows more likely than not from the fact(s) giving rise to the inference. When, however, the inferred fact...