holding that “a presumption is not unconstitutional if, as applied in this case, there was a rational connection between the proved and presumed facts”
How later courts described this case
- holding that “a presumption is not unconstitutional if, as applied in this case, there was a rational connection between the proved and presumed facts”
- where the defendants first raised the issue of a prior encounter with the game warden, they "will not be heard to complain when the Commonwealth pursued the matter further to complete the inquiry"
- “[O]ur general rule is to give rebuttable presumptions permissive or burden-of-production-shifting effect only.”
Written by the judges who cited it.
The opinion
STEPHENSON, J.,
dissenting.
I agree with the majority’s conclusion that under County Court of Ulster County, New York v. Allen, 442 U.S. 140 (1979), we must identify the type of presumption involved in the present case before passing on its constitutionality. However, my reading of Ulster and of Sandstrom v. Montana, 442 U.S. 510 (1979), leads me to the conclusion that the statute in question creates a *45 mandatory presumption violative of the due process clause of the United States Constitution.
As stated in Sandstrom and in Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976), one must look at the entire charge to the jury to determine the type of presumption involved. 442 U.S. at 514; 217 Va. at 347 , 228 S.E.2d at 698 . The test to be applied is whether a reasonable jury could have believed it was required to apply the presumption, or that the defense was required to present evidence to rebut it. Sandstrom, 442 U.S. at 516-17 .
The majority concludes the trial court’s instructions on the presumption of innocence and on the Commonwealth’s burden of proving each element of the offense beyond a reasonable doubt were sufficient to overcome the mandatory presumptive language of Code § 29-144.2. However, in Sandstrom , the Supreme Court held that general instructions on the presumption of innocence and on the Commonwealth’s burden of proof, similar to the ones given in the instant case, were not sufficient to overcome the infirmity of a jury instruction stating that, “the law presumes that a person intends the ordinary consequences of his voluntary acts.” Id. at 513, 518, n.7 .
The jury charge in Sandstrom may be compared to that in Ulster. The Ulster court concluded that:
The trial judge’s instructions make it clear that the presumption was merely a part of the prosecution’s case, that it gave rise to a permissive inference available only in certain circumstances, rather than a mandatory conclusion of possession, and that it could be ignored by the jury even if there was no affirmative proof offered by defendants in rebuttal.
Ulster, 442 U.S. at 160-61 . It therefore held the presumption involved was a permissible inference not subject to a facial attack. Id. at 162-63 .
I conclude the jury in the instant case could have believed it was required to follow the presumption, or that the defendants were required to produce more than “some evidence” in order to rebut it. Therefore, it is necessary to apply a facial test in analyzing the constitutionality of the presumptions contained in Code § 29-144.2. Applying this test, I find the first presumption impermissibly shifts the burden of proof to the defendant and does not *46 require the Commonwealth to prove every element of the offense beyond a reasonable doubt. Further, I do not find a rational connection between the basic facts outlined in the statute and the inferred fact that the occupants of the car had the specific intent to attempt to kill deer. I would therefore reverse the convictions and dismiss the indictments.
POFF, J., joins in dissent.