# State v. Janssen > Supreme Court of Iowa · March 17, 1976 · 239 N.W.2d 564 URL: https://www.frixlaw.com/law-library/cases/9572863 ## Case - **Full name:** STATE of Iowa, Appellee, v. Marvin A. JANSSEN, Appellant - **Court:** Supreme Court of Iowa - **Decided:** March 17, 1976 - **Citations:** 239 N.W.2d 564; 1976 Iowa Sup. LEXIS 1158 - **Precedential status:** Published - **Opinion:** Dissent by McCORMICK - **Judges:** LeGRAND, McCORMICK, Rawlings, Uhlenhopp - **Cited by:** 6 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/9572863 ## How later opinions describe it (automated extraction) - noting that a change in the uniform instruction might avoid future appeals ## Opinion text McCORMICK, Justice (dissenting from Division I). I am unable to distinguish instruction 11 from the instructions disapproved by this court in State v. Hansen, 203 N.W.2d 216 (1972), and its progeny. The vice in the instruction in Hansen was its third paragraph which provided: “However, such inference is not conclusive, but is rebuttable. It may be overcome or rebutted by evidence to the contrary.” Instruction 11 in the present ease contained the first but not the second sentence of this disapproved paragraph. The remaining *570 language in instruction 11 is not substantially different from that held inadequate in State v. Hutton, 207 N.W.2d 581 (Iowa 1973), to cure the deficiency in the disapproved paragraph in the Hansen instruction. The question here is whether the vice in the Hansen instruction is cured by elimination of the second sentence of the two-sentenced disapproved paragraph. In the first sentence the jury is told, “However, such inference is not conclusive, but is rebuttable.” The second sentence tells the jury how the inference can be rebutted: “It may be overcome or rebutted by evidence to the contrary”. In Hansen we said this paragraph converts the inference to a conclusive inference if evidence is not produced to rebut it: “This is the same as instructing the jury that the presumption is conclusive unless rebutted by evidence to the contrary; and we say this is error.” 203 N.W.2d at 220 . The majority opinion here finds a difference between the message conveyed in the offensive paragraph of the Hansen instruction and the message conveyed in the challenged paragraph of instruction 11. I do not. I do not believe any substantive difference in meaning exists between the portion of the first sentence which says “but is rebuttable” and the second sentence in the Hansen instruction which told the jury, “It may be overcome or rebutted by evidence to the contrary”. How else would a rebut-table inference be rebutted? The problem here, as in Hansen , originates in the implication from the use of the word “conclusive” in the first sentence. In its haste to tell the jury the inference is not conclusive the court qualifies it only by pointing out it is rebuttable, i. e., it may be overcome by evidence. The implication is that if it is not rebutted, it is conclusive. However, at the core of the holding in Hansen and its progeny is the concept that the jury must not be led to believe the inference is conclusive unless rebutted. Even in the absence of rebutting evidence, the inference is not conclusive. The jury is free to refuse to give any weight to the inference. It is only when the jury does choose to give it weight that the fact it is rebuttable has significance. The vice of the Hansen instruction was overcome in the instruction approved by this court in State v. Berch, 222 N.W.2d 741 (Iowa 1974). The Berch instruction was substantially the same as Uniform Bar Instruction 520.8, which is as follows: “A statute of this State provides that if there is evidence that a person operating a motor vehicle upon a public highway, had at the time of said operation, more than ten one-hundredths of one percen-tum by weight of alcohol in his or her blood, the same shall be presumptive evidence that such person was then under the influence of an alcoholic beverage. “The rule established by the foregoing statute permits, but does not require, the jury to infer that the defendant was under the influence of an alcoholic beverage if it is found by the jury that at the time defendant was driving an automobile on the public highway his blood contained more than ten one-hundredths of one per-centum by weight of alcohol.” Compare II Uniform Jury Instructions, Criminal, No. 520.8 (1973) with State v. Berch, supra, at 745-746 . In Berch this court held the trial court properly refused a requested instruction which included the first sentence of the paragraph disapproved in Hansen. 222 N.W.2d at 746 . State v. Thornburgh, 220 N.W.2d 579 (Iowa 1974), relied on in the majority opinion, is distinguishable. There the instruction did not say an inference could avoid being conclusive if rebutted. The instruction did not attempt to explain the inference in negative terms. It did not include either sentence of the offensive paragraph in Hansen . Instead it informed the jury that if the State proved the defendant was in recent possession of stolen property, “then you may, but are not required to, infer that defendant stole it”. It is true the *571 instruction also told the jury, “The inference of theft may be rebutted.” However, this was not part of a statement like the first sentence of the Hansen paragraph and did not suggest a failure of rebuttal evidence would make the inference conclusive. It was in a context in which emphasis was given to the mere permissive nature of the inference in the first place. Nevertheless, to avoid the possibility of misunderstanding, we suggested the statement be omitted on retrial. I would hold the instruction here comes within the Hansen case rather than the Thornburgh case and would reverse and remand for new trial. RAWLINGS and LeGRAND, JJ., join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9572863. Public record. Not legal advice.