Ward v. State

¶1Adrian Ward appeals his conviction for theft by taking a motor vehicle,1 challenging, among other things, the sufficiency of the evidence and the constitutionality of the court’s charge to the jury. We find that the jury charge had the effect of shifting the burden of persuasion to Ward, in violation of his rights under the Due Process Clause, and that this error was not harmless. We therefore reverse. Because the evidence was sufficient to support his conviction, however, Ward may be retried.2

¶21. When an appellant challenges the sufficiency of the evidence to support his conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, *610any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”3

¶3So viewed, the evidence showed that on either March 21, 2008 or the morning of March 22, 2008, a pickup truck was stolen from its owner’s residence. The owner initially thought that an acquaintance or relative might have borrowed the truck, and did not immediately report the theft.

¶4The morning of March 22, a police officer stopped Ward for speeding. Ward was driving a pickup truck with a dealer’s drive-out tag. He told the officer that his name was “Anthony Ward,” that he did not have a driver’s license or other identification, and that he did not know his Social Security number. The officer noted the truck’s vehicle identification number and issued Ward two traffic citations.

¶5Later that day, the truck’s owner reported the theft, and information about the truck was entered into the Georgia Crime Information Center database. The vehicle identification number of the stolen truck matched that of the truck driven by Ward. A warrant was issued for Ward’s arrest, and he was apprehended in May 2008. Ward admitted to one of the arresting officers that he had been in the truck on March 22, 2008; he told the officer that he did not steal the truck but that it had been parked at his house by a man who had come to see his mother.

¶6Ward contends that this evidence did not show that he was the person who stole the truck. But evidence of recent unexplained or unsatisfactorily explained possession of stolen property may be sufficient to give rise to an inference that the defendant committed theft by taking, if the jury finds beyond a reasonable doubt that the inferred fact (the accused’s commission of the crime) follows from the proved facts (proof of a theft and recent, unexplained possession of stolen goods).4 The evidence showed that Ward was in possession of a stolen truck the day after its theft. Whether Ward’s explanation for his recent possession of the stolen truck was satisfactory was a question for the jury.5 Viewed most favorably to the prosecution, the evidence was sufficient to authorize Ward’s conviction for theft by *611taking.6

¶72. Ward argues that the court’s instruction to the jury regarding an inference arising from his recent possession of the stolen truck was unconstitutional.7 The Due Process Clause of the Fourteenth Amendment “prohibits the [s]tate from using evidentiary presumptions in a jury charge that have the effect of relieving the [s]tate of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.”8 The threshold inquiry is whether the challenged portion of the instruction created a mandatory presumption or a permissive inference.9 “A mandatory presumption instructs the jury that it must infer the presumed fact if the [s]tate proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the [sítate proves predicate facts, but does not require the jury to draw that conclusion.”10 A mandatory presumption that shifts the burden of proof to the defendant is impermissible in a criminal case.11 Likewise, a mandatory rebuttable presumption that shifts the burden of persuasion to the defendant is impermissible.12

¶8Significant to the determination of the nature of the presumption or inference in a challenged instruction is “the way in which a rational trier of fact might have perceived the instruction,”13 which “requires careful attention to the words actually spoken to the jury.”14 In this case, Ward challenges the following instruction, which the court gave after first instructing on the elements of theft by taking:

The recent unexplained or inadequately explained possession of stolen property by a Defendant creates an inference *612or presumption of fact sufficient to convict. This is true without direct proof or other circumstantial evidence that the Defendant committed the theft. However, recent possession of stolen goods will not automatically support a conviction of theft; you as jurors honestly seeking the truth still must judge the case on the totality of the circumstances under the reasonable-doubt standard that I have previously charged you. That is, recent possession is to be viewed as probative evidence of the crime and reviewed along with all of the evidence in the case to determine whether the State has proved the Defendant’s guilt beyond a reasonable doubt.

¶9The first sentence of this instruction was cast in commanding language. It told the jury that proof of certain facts created an inference or presumption sufficient to convict Ward, not that such proof may be sufficient to give rise to an inference that Ward committed theft by taking.15 This commanding language was buttressed by the following sentence that the inference or presumption is created without any evidence that Ward committed the theft. As a result, there was a reasonable likelihood that the jury viewed the first two sentences of the instruction as setting forth a mandatory presumption.16 The first sentence’s instruction that the presumption was created if the recent possession of stolen property was “unexplained or inadequately explained” provided a means for rebutting the presumption (evidence of an adequate explanation for the recent possession). Nevertheless, a mandatory rebuttable presumption improperly “relieves the [s]tate of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding.”17 The first sentence of the instruction, which was reinforced by the second sentence, created an unconstitutional burden-shifting presumption.18

¶10Moreover, the jury charge taken as a whole failed to “explainf ] the proper allocation of burdens with sufficient clarity that any ambiguity in the particular language challenged could not have been *613understood by a reasonable juror as shifting the burden of persuasion.”19 General instructions as to the prosecution’s burden and the defendant’s presumption of innocence did not dissipate the error in the first sentence of the challenged instruction.20 Later sentences in the challenged instruction, which stated that recent possession of stolen goods would not automatically support a conviction of theft and that the jurors were required to apply the reasonable doubt standard to the totality of circumstances, arguably conflicted with the instruction on the presumption in the first sentence.

¶11Contrary to the position taken by the dissent, the later sentences did not dissipate the error in the first sentence of the instruction,21 nor did they make clear that it was within the jury’s discretion whether to draw an inference from proof of recent possession of stolen property.22 The jury was initially instructed that the recent unexplained or inadequately explained possession of stolen property automatically creates an inference or presumption of fact sufficient to convict; the jury was next instructed that recent possession of stolen goods will not automatically support a conviction. Yet the final charge did not, even when viewed as a whole, reconcile this obvious conflict. Consequently, nothing in the charge served to “make[ ] clear” that the inference or presumption is permissive and not mandatory, as is argued by the dissent. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.”23 Thus, a “reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption” in the first sentence.24

¶12In contrast, the applicable Suggested Pattern Jury Instruction provides:

If you should find beyond a reasonable doubt that the crime [ ] of [theft by taking] has . . . been committed as charged in this indictment and that certain personal property (as set forth in this indictment) was stolen as a result of such crime, and if recently thereafter, the defendant should be found in possession of (any of) the stolen property, *614that would be a circumstance, along with all of the other evidence, from which you may infer guilt as to the charge of [theft by taking] as set forth in this indictment. If you find the evidence merits such an inference, you may not draw an inference of guilt if, from the evidence, there is a reasonable explanation of the possession of such property consistent with a plea of innocence, which is a question solely for you, the jury, to determine.25

¶13This language constitutes a permissive instruction that allows the jury to make the inference as opposed to a mandatory instruction that requires the jury to do so.26 The trial court in this case, however, strayed from the pattern instruction by using language that improperly gave rise to a mandatory presumption.

¶14Because a reasonable juror could have understood the challenged portion of the jury instruction as creating a mandatory presumption that shifted to Ward the burden of persuasion on whether he stole the truck which was found in his possession shortly after its theft, and because the charge read as a whole does not explain or cure the error, the jury charge does not comport with the requirements of the Due Process Clause.27 Moreover, this error was not harmless, as it applied to an element of the crime that was at issue in the trial — whether Ward was the person who stole the truck.28 Consequently, this error requires that the judgment of conviction be reversed.

¶153. In light of our reversal of the judgment of conviction, we need not address Ward’s argument that the prosecutor improperly commented during closing argument on his failure to testify at trial.

¶16Judgment reversed.