# People v. Housby

> Appellate Court of Illinois · March 28, 1980 · 82 Ill. App. 3d 537

URL: https://www.frixlaw.com/law-library/cases/7018556

## Case

- **Full name:** THE PEOPLE OF THE STATE OF ILLINOIS v. ROBERT HOUSBY
- **Court:** Appellate Court of Illinois
- **Decided:** March 28, 1980
- **Citations:** 82 Ill. App. 3d 537; 38 Ill. Dec. 47; 403 N.E.2d 62; 1980 Ill. App. LEXIS 2565
- **Precedential status:** Published
- **Opinion:** Dissent by Stouder
- **Judges:** Stengel, Stouder
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7018556

## Opinion text

Mr. PRESIDING JUSTICE STOUDER, dissenting:
I must respectfully dissent from the opinion of my colleagues. This is the companion case to People v. King (1979), 78 Ill. App. 3d 879 , 397 N.E.2d 905 , in which I dissented because I felt that the presumption regarding the burglary charge should not have been given to the jury. Since the offense is the same and the evidence is similar, it is not necessary to repeat the analysis in King. However, at the time King was decided, County Court v. Allen (1979), 442 U.S. 140 , 60 L. Ed. 2d 777 , 99 S. Ct. 2213 , was not brought to my attention nor did my research uncover it, and I feel it is necessary to discuss it in relation to the instant case.
In Ulster County, the court held that a New York statute, which provided that, with certain exceptions, the presence of a firearm in an auto is presumptive of its illegal possession by all persons then occupying the vehicle, was a permissive presumption. The court distinguished between a “mandatory presumption which a jury must accept,” and a “permissive presumption on which the prosecution is entitled to rely as one not-necessarily-sufficient part of its proof.” The court ruled that a permissive presumption is acceptable if there is a “rational connection” between the proved fact and the presumed fact, and the presumed fact is “more likely than not to flow from” the proved fact.
On that basis the majority, in the instant case, holding that the challenged jury instruction described a permissive presumption, rules that it need only satisfy the “rational connection” test. However, Ulster County merely states that the permissive presumption, as used in that case, need only satisfy the Leary test, i.e., a “rational connection” test. The court qualifies the use of the “rational connection” test by saying, “As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.” 442 U.S. 140, 167 , 60 L. Ed. 2d 777, 798 , 99 S. Ct. 2213, 2230 .
In the instant case, the defendant, Housby, is charged with burglary, which requires the prosecutor to prove beyond a reasonable doubt that the defendant (1) without authority (2) knowingly entered a building (3) with intent to commit therein a felony or theft. The State was unable to directly prove any of these elements in that there was no evidence which placed the defendant at the scene of the crime. Instead the State proved that the defendant was in possession of the stolen goods and relied on a common law inference to prove the case. Thus, it is clearly seen that unlike Ulster County, in the instant case the presumption is the sole basis for a finding of guilt. It is the only evidence introduced on the offense. “Of course, if a permissive presumption is the only evidence introduced on an element of the offense or on some other issue where the prosecution must satisfy the beyond a reasonable doubt standard, the basic fact must prove the ultimate fact beyond a reasonable doubt.” (Hammontree v. Phelps (5th Cir. 1979), 605 F.2d 1371 , 1374 n.2.) Since the offense must be proven beyond a reasonable doubt, and the presumption is the sole evidence of the burglary, then it is clear that in this case, if any presumption should be given, it must satisfy the reasonable doubt standard.
Assuming, however, that the relation between the proved fact and the presumed fact need only satisfy a “rational connection” test, I believe the presumption in the instant case fails even this test. To meet the rational connection test, the presumed fact must be “more likely than not to flow from” the proved fact. Where the application of a presumption is in dispute, it is extremely difficult to say a rational connection exists. In Ulster County, for example, the justices were split four to four as to whether or not the presumption embodied a rational connection. In the case at hand I believe that the possession of stolen goods by itself does not make it more likely than not that the possessor committed the crime. In the absence of any evidence placing the possessor at the scene of the crime, it is difficult to see how mere possession makes it more likely than not that the possessor knowingly entered a building without authority with the intent to commit a theft or felony within.
This is not to say that, in connection with other evidence in the case, the jury cannot draw an inference of burglary from the possession of the stolen goods. Any circumstantial evidence has probative value which the jury is free to accept or reject. However, this probative value need not be more likely than not. Without the presumption the jury will simply be measuring the evidence the prosecution presents (possession) against the evidence that the defendant presents (an explanation). This inference should not be given undue weight in the form of an instruction to the jury creating a presumption.
The use of presumptions in criminal proceedings has long been a source of constitutional problems, and they should be used sparingly, if at all. This is so because presumptions, even permissive ones, can shift the burden of persuasion from the prosecution to the defendant, which is constitutionally impermissible. The Supreme Court recognized this problem in Sandstrom v. Montana (1979), 442 U.S. 510 , 61 L. Ed. 2d 39 , 99 S. Ct. 2450 . There the Supreme Court held that an instruction to the jury that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts” was unconstitutional because the jury could have interpreted it so as to place the burden of persuasion on the defendant.
First, the jury might have interpreted it as a conclusive presumption. Since the presumption could only be overcome by a preponderance of evidence contrary to the presumption, this had the effect of shifting the burden of persuasion to the defendant, which is constitutionally impermissible. Second, the jury might have interpreted it as a direction to find intent upon proof of the defendant’s voluntary actions unless the defendant proved the contrary by some quantum of proof which may well have been greater than “some” evidence — thus effectively shifting the burden of persuasion on the element of intent.
It is this second possibility that concerns us in the instant case. The instruction given reads “If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by burglary.” This instruction had the effect of reducing the burden of the State in that it no longer had to prove the three elements of burglary. The jury may very well have determined that the defendant had to produce more than “some” evidence to reasonably explain his possession and overcome the presumption. This shift denies the defendant his right to due process.
There are several other problems with the instruction in this case.
The instruction does not provide a guideline for the degree of proof with which the possession is to be established. Need the jury find that the defendant possessed the goods beyond a reasonable doubt or merely by a preponderance of the evidence. Neither does the instruction provide the jury with a standard for ascertaining the amount of proof necessary to rebut the presumption. Is the amount of proof necessarily a preponderance of the evidence or simply enough to raise a question as to the presumption’s proof beyond a reasonable doubt.
The instruction contains no guideline as to who bears the burden of proving the lack of a reasonable explanation for the possession. Must the State affirmatively prove the lack of a reasonable explanation as part of its case or must the defendant provide the reasonable explanation. Still another problem with the instruction given is that it is not neutral. It informs the jury that they may utilize the inference but nowhere is the jury informed that they need not utilize it. This lack of neutrality adds undue weight to the presumption to the defendant’s detriment. The result is a shift in the burden of persuasion to the defendant and this is impermissible, Sandstrom v. Montana.
These problems have been noted by other jurisdictions, which have struck down similar presumptions. For example in State v. Searle (La. 1976), 339 So.2d 1194, 1202 , a statute declaring “a person in the unexplained possession of property recently stolen at the time of a burglary is presumed to have committed the burglary” was declared unconstitutional on the basis that this presumption relieved the prosecution of its burden of proving every element beyond a reasonable doubt and that a State could not shift the burden of ultimate persuasion on an essential element to the defendant. While the presumption in Searle is slightly more forceful than in the instant case, the presumption in the instant case has precisely the same effect.
The Colorado Supreme Court, in Wells v. People (Colo. 1979), 592 P.2d 1321 , rejected an instruction containing an inference quite similar to the one in the instant case. In its analysis, the court explained the role of inferences and presumptions.
“Untóte a presumption of law, which mandates a conclusion on the part of the jury, an inference merely affords the evidence its natural probative force, which the jury is free to accept or reject. The weight or force to be given the inference rests entirely with the jury. ” ° Therefore, an instruction on unexplained and exclusive possession of recently stolen property should make the foregoing emphatically clear so as not to confuse the jury as to its function.” 592 P.2d 1321, 1325 .
As I have previously explained, the instruction in the present case falls far short of so informing the jury.
For this and the previously mentioned reasons, I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7018556. Public record. Not legal advice.