PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Koontz,
S.J.

JAMES LINDSEY
                                                               OPINION BY
v. Record No. 151111                                CHIEF JUSTICE DONALD W. LEMONS
                                                            JANUARY 19, 2017
COMMONWEALTH OF VIRGINIA


                       FROM THE COURT OF APPEALS OF VIRGINIA

       In this appeal, we consider whether the Court of Appeals erred in concluding that a

defendant’s due process rights were not violated by a jury instruction concerning willful

concealment of goods or merchandise while on the premises of a store.

                                      I. Facts and Proceedings

       James Lindsey (“Lindsey”) was tried by a jury in the Circuit Court of Arlington County

(“trial court”) upon an indictment charging petit larceny, third or subsequent offense. He was

found guilty and sentenced to seven days in jail.

       Bryan Knott (“Knott”), an employee at a retail store dealing in clothing for hiking and

outdoor wear in Arlington, testified at trial that he observed Lindsey conceal at least two hats

under his jacket while in the store. Knott notified his manager and another employee regarding

what he had witnessed. The manager, Brad Dana, contacted police while the other employee,

Steve Lappat (“Lappat”) confronted Lindsey. When confronted by Lappat, Lindsey denied

concealing the hats and demanded to speak to the manager. After the police arrived, an

altercation occurred between Lindsey and Lappat. Lindsey was subsequently arrested.

       Over Lindsey’s objection, the trial court gave Instruction 16 to the jury, which read:

               Willful concealment of goods or merchandise while still on the
               premises of a store is evidence of an intent to convert and defraud
               the owner of the value of the goods or merchandise, unless there is
               believable evidence to the contrary.
This instruction came from the Virginia Model Jury Instructions. 2 Virginia Model Jury

Instructions – Criminal, No. 36.840 (2011 repl. ed.). Lindsey had proposed an alternate

instruction, Instruction O, which the trial court rejected. Instruction O read:

               You may infer that willful concealment of goods or merchandise
               while still on the premises of a store is evidence of an intent to
               convert and defraud the owner of the value of the goods or
               merchandise.

       Lindsey appealed his conviction to the Court of Appeals and contended, among other

things *, that he suffered a denial of due process resulting from the challenged jury instruction.

The Court of Appeals affirmed the trial court’s judgment in an unpublished per curiam order.

Lindsey v. Commonwealth, Record No. 1558-14-4 (April 16, 2015). The Court of Appeals

determined that Instruction 16 merely suggested to the jury a possible conclusion it could draw

from predicate facts. Accordingly, the Court of Appeals held that the challenged instruction did

not violate Lindsey’s due process rights because it informed the jury only about a permissive

inference, not a mandatory presumption. Lindsey appealed to this Court, and we granted his

appeal on the following assignment of error:

               The Court of Appeals erred in upholding the trial court’s giving of
               Jury Instruction 16, and denying proffered Instruction O, because
               Instruction 16 impermissibly shifted the burden of proof to the
               defense, in violation of the Due Process clause of the Fourteenth
               Amendment to the United States Constitution.

                                               II. Analysis

                                        A. Standard of Review

       Whether a jury instruction accurately reflects the relevant law is itself a question of law,

which we review de novo. Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870


       *
          Lindsey also challenged the sufficiency of the evidence, but that question is not at issue
in this appeal.


                                                  2
(2013); Orthopedic & Sports Physical Therapy Assocs. v. Summit Group Props., 283 Va. 777,

782, 724 S.E.2d 718, 721 (2012). In determining whether this jury instruction violates the

defendant’s due process rights, we must consider whether the instruction creates a mandatory

presumption or merely a permissive inference. Dobson v. Commonwealth, 260 Va. 71, 75, 531

S.E.2d 569, 571 (2000) (citing Francis v. Franklin, 471 U.S. 307, 314 (1985)).

                                        B. Due Process Clause

       On appeal, Lindsey argues that Instruction 16 contained a mandatory, rebuttable

presumption that shifted the burden of proof to him, thereby violating his due process rights.

Relying on Francis v. Franklin, he argues the instruction was constitutionally invalid because the

jury would have understood the instruction to mean that if they found evidence of concealment,

they were required to find intent to defraud unless the defendant convinced them otherwise.

       The Due Process clause protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged. In re Winship, 397 U.S. 358, 364 (1970). Mandatory presumptions violate the Due

Process clause because they instruct the jury that it must infer the presumed fact if the State

proves certain predicate facts, which relieves the State of the burden of persuasion on an element

of an offense. Dobson, 260 Va. at 75, 531 S.E.2d at 572.

       The Due Process Clause, however, does not prohibit the use of a permissive inference.

Id. at 74, 531 S.E.2d at 571. A permissive inference is “a procedural device that shifts to a

defendant the burden of producing some evidence contesting a fact that may otherwise be

inferred, provided that the prosecution retains the ultimate burden of proof beyond a reasonable

doubt.” Id. at 74-75, 531 S.E.2d at 571. “A permissive inference does not relieve the State of its

burden of proof because it still requires the State to convince the jury that the suggested




                                                 3
conclusion should be inferred based on the predicate facts provided.” Id. at 75, 531 S.E.2d at

572 (quoting Francis, 471 U.S. at 314).

                                            C. Instruction 16

        Lindsey maintains that the language in Instruction 16 is similar to the language declared

unconstitutional by the United States Supreme Court in Francis. In Francis, the defendant shot

and killed the victim while attempting to flee from police. 471 U.S. at 309-12. The defendant’s

sole defense was that the shooting was an accident and he lacked the requisite intent to kill. Id.

at 311. The following jury instructions were given at his trial:

                [1] The acts of a person of sound mind and discretion are presumed
                to be the product of the person's will, but the presumption may be
                rebutted.
                [2] A person of sound mind and discretion is presumed to intend
                the natural and probable consequences of his acts but the
                presumption may be rebutted.

Id. at 309.

        The defendant was convicted of murder, and on appeal he challenged these instructions

as unconstitutional. The Supreme Court agreed, holding that the instructions impermissibly

created mandatory rebuttable presumptions. Id. at 318. The Court found that the language “is

presumed” and “are presumed” was “cast in the language of command” and undermined the

factfinder’s responsibility at trial to find the ultimate facts beyond a reasonable doubt. Id. at 316.

Lindsey argues that the language in Instruction 16, “willful concealment … is evidence of an

intent to convert and defraud,” is also “cast in the language of command” and directs the jury to

find intent to defraud if the jury finds willful concealment.

        We find that Instruction 16 is not similar to the instructions at issue in Francis; rather, it

is like language of the jury instruction that was challenged in Dobson. Dobson was charged with

grand larceny of an automobile, and the jury was instructed that:



                                                   4
               Proof of the exclusive personal possession by the defendant of
               recently stolen goods is a circumstance from which you may
               reasonably infer that the defendant was the thief unless the
               defendant offers a reasonable account of possession consistent with
               innocence which the Commonwealth has failed to prove untrue.

260 Va. at 74, 531 S.E.2d at 571. Dobson appealed his conviction, arguing that this instruction

created an unconstitutional mandatory presumption that he was the thief if he was unable to

provide a reasonable explanation for his possession of the vehicle. Id. We rejected his argument

and held that this instruction merely informed the jury that it could draw an inference from

certain facts, if proved, provided the defendant did not reasonably explain his possession of the

recently stolen property. Id. at 76, 531 S.E.2d at 572. The jury was not required to draw any

conclusion from the facts proved by the Commonwealth in the absence of such contrary evidence

from the defendant. Id. We further held that the challenged instruction actually benefitted the

defendant because it effectively informed the jury that it could not infer that the defendant was a

thief if he offered a reasonable explanation of his possession consistent with his innocence. Id.

       In this case, the Commonwealth was required to prove that Lindsey willfully concealed

the merchandise, and did so with the intent to convert the merchandise to his use without having

paid for the merchandise. The relevant portion of Code § 18.2-103 provides:

               Whoever, without authority, with the intention of converting goods
               or merchandise to his own or another’s use without having paid the
               full purchase price thereof, or of defrauding the owner of the value
               of the goods or merchandise, (i) willfully conceals or takes
               possession of the goods or merchandise of any store or other
               mercantile establishment… when the value of the goods or
               merchandise involved in the offense is less than $ 200, shall be
               guilty of petit larceny… The willful concealment of goods or
               merchandise of any store or other mercantile establishment, while
               still on the premises thereof, shall be prima facie evidence of an
               intent to convert and defraud the owner thereof out of the value of
               the goods or merchandise.




                                                 5
       The language of Instruction 16 merely instructed the jury that willful concealment of

goods while on the premises of a store is evidence of intent to convert and defraud. It provided

that the jury could consider the concealment of merchandise as evidence of criminal intent, along

with any other evidence that was presented to it. Under Code § 18.2-103, willful concealment is

prima facie evidence of intent to convert or defraud. This instruction was a proper statement of

the law. Moreover, this instruction did not relieve the Commonwealth of its burden of proving

each element of the offense beyond a reasonable doubt. The remaining language of the

instruction, “unless there is believable evidence to the contrary,” reinforced that the

Commonwealth had the burden of proving each element beyond a reasonable doubt. The

instruction did not state that willful concealment alone satisfies the Commonwealth’s burden of

proof as to the element of intent. Like the instruction in Dobson, this instruction merely created

a permissible inference that the jury was free to reject. Significantly, the instruction did not

indicate or suggest that the jury was required to draw any conclusion from the facts proved by

the Commonwealth. Accordingly, because Instruction 16 contained a permissive inference and

not a mandatory presumption, the trial court did not err in giving it to the jury.

       In addition to Instruction 16, the trial court also instructed the jury that the

Commonwealth had the burden of proving each element of the offense beyond a reasonable

doubt, that the defendant was presumed innocent until proven guilty, that the presumption of

innocence remained with him throughout trial, and that he had no burden to produce any

evidence. (App. 4-7). In particular, the jury was given Instruction M, the “finding instruction.”

(App. 7). This instruction provided that:

               Mr. Lindsey is charged with the crime of petit larceny by willful
               concealment of goods or merchandise third or subsequent offense.
               The Commonwealth must prove beyond a reasonable doubt each
               of the following elements of that crime:



                                                  6
               1. That Mr. Lindsey willfully concealed the merchandise of
               Hudson Trail Outfitters; and
               2. That Mr. Lindsey intended to convert the merchandise to his
               own or another’s use without having paid the full purchase price
               thereof; and
               3. That Mr. Lindsey had no authority to do so; and
               4. That the merchandise was of some value; and
               5. That Mr. Lindsey has a least two (2) prior larceny convictions.

               If you find from the evidence that the Commonwealth has proved
               beyond a reasonable doubt each of the above elements of the crime
               charged, then you shall find Mr. Lindsey guilty, but not fix the
               punishment until further evidence is heard by you.

               If you find from the evidence that the Commonwealth has proved
               beyond a reasonable doubt each of the first four elements of the
               crime charged but has proved only one prior conviction, then you
               shall find Mr. Lindsey guilty of the crime of petit larceny second
               offense, but you shall not fix the punishment until your verdict has
               been returned and further evidence has been heard by you.

               If you find from the evidence that the Commonwealth has proved
               beyond a reasonable doubt each of the first four elements but has
               failed to prove any prior convictions, then you shall find Mr.
               Lindsey guilty of the crime of petit larceny first offense, but you
               shall not fix punishment until your verdict has been returned and
               further evidence has been heard by you.

               If you find that the Commonwealth has failed to prove beyond a
               reasonable doubt any of the first four elements of the crime, then
               you shall find Mr. Lindsey not guilty. (App. 7).

The finding instruction made perfectly clear that the jury was instructed that, notwithstanding the

permissive inference set forth in Instruction 16, the Commonwealth was still required to prove

beyond a reasonable doubt each element of the offense, including the element of intent.

       “When granted instructions fully and fairly cover a principle of law, a trial court does not

abuse its discretion in refusing another instruction relating to the same legal principle.” Daniels

v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008) (quoting Stockton v.



                                                 7
Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984)). In this case, Instruction 16

fully and fairly covered the inferences permitted from evidence presented of willful concealment.

Accordingly, the trial court did not err in refusing to give Instruction O.

                                          III. Conclusion

       For the reasons stated, we will affirm the Court of Appeals’ judgment.



                                                                                           Affirmed.

JUSTICE GOODWYN, with whom SENIOR JUSTICE KOONTZ joins, dissenting.

       I respectfully dissent. The majority’s conclusion that Instruction 16 contains a permissive

inference is belied by the plain language of Instruction 16 and by United States Supreme Court and

Virginia precedent.

       Instruction 16 states,

       Willful concealment of goods or merchandise while still on the premises of a
       store is evidence of an intent to convert and defraud the owner of the value of the
       goods or merchandise, unless there is believable evidence to the contrary.

       “The threshold inquiry in ascertaining the constitutional analysis applicable to this kind

of jury instruction is to determine the nature of the presumption it describes.” Sandstrom v.

Montana, 442 U.S. 510, 514 (1979). As noted by the majority, “In determining if a jury

instruction violates a defendant’s due process rights, a court must consider whether the

instruction creates a mandatory presumption or merely a permissive inference.” Dobson v.

Commonwealth, 260 Va. 71, 75, 531 S.E.2d 569, 571 (2000).

       In making the determination, the “[a]nalysis must focus initially on the specific language

challenged,” but “the potentially offending words must [also] be considered in the context of the




                                                  8
charge as a whole.” Francis v. Franklin, 471 U.S. 307, 315 (1985). The key question is “what a

reasonable juror could have understood the [instruction] as meaning.” Id. at 316.

       The United States Supreme Court has described mandatory presumptions as those that

instruct the jury “that it must infer the presumed fact if the State proves certain predicate facts.”

Id. at 314. A rebuttable mandatory presumption “does not remove the presumed element from

the case but nevertheless requires the jury to find the presumed element unless the defendant

persuades the jury that such a finding is unwarranted.” Id. at 314 n.2. On the other hand, “[a]

permissive inference suggests to the jury a possible conclusion to be drawn if the State proves

predicate facts, but does not require the jury to draw that conclusion.” Id. at 314. For this

reason, a mandatory presumption is a

       far more troublesome evidentiary device. For it may affect not only the strength
       of the “no reasonable doubt” burden but also the placement of that burden; it tells
       the trier that he or they must find the elemental fact upon proof of the basic fact,
       at least unless the defendant has come forward with some evidence to rebut the
       presumed connection between the two facts.
Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 157 (1979).

       Considering the elements of the crime expressed in Code § 18.2-103, * in Instruction 16

the presumed elemental fact is “intent to convert or defraud the owner,” and the basic or

predicate fact is “willful concealment of goods and merchandise.” Instruction 16 is cast in the

language of a command. See Francis, 471 U.S. at 316. It requires the jury to find that willful

concealment is evidence of intent to convert or defraud, unless there is believable evidence to the

contrary. Because the plain language of the Instruction requires the jury to find the elemental

       * The relevant portion of Code § 18.2-103 provides:
       Whoever, without authority, with the intention of converting goods or
       merchandise to his own or another’s use without having paid the full purchase
       price thereof, or of defrauding the owner of the value of the goods or
       merchandise, (i) willfully conceals . . . the goods or merchandise of any store or
       other mercantile establishment . . . when the value of the goods or merchandise
       involved in the offense is less than $200, shall be guilty of petit larceny.


                                                  9
fact of intent upon proof of the predicate fact of concealment, according to United States

Supreme Court precedent, Instruction 16 contains an unconstitutional mandatory presumption.

       Examination of the language used in Instruction 16 against the precedential description of

a permissive inference is conclusive in demonstrating that Instruction 16 does not contain a

permissive inference.

       The most common evidentiary device is the entirely permissive inference or
       presumption, which allows—but does not require—the trier of fact to infer the
       elemental fact from proof by the prosecutor of the basic one and which places no
       burden of any kind on the defendant. . . . Because this permissive presumption
       leaves the trier of fact free to credit or reject the inference and does not shift the
       burden of proof, it affects the application of the “beyond a reasonable doubt”
       standard only if, under the facts of the case, there is no rational way the trier
       could make the connection permitted by the inference.

Allen, 442 U.S. at 157.

       Unlike prior cases in which an instruction was found to contain a permissive inference,

Instruction 16 did not inform the jury that it was allowed to infer that the basic fact

(concealment) was evidence of the elemental fact (intent), but rather informed the jury that it was

required to infer that proof of concealment was evidence of intent. In this instance, the jury

instruction did not permit the jury to weigh the evidence and use its judgment to determine

whether to infer that proof of concealment was evidence of intent to convert and defraud; it

required the jury to make that inference, unless there was evidence presented to the contrary.

Thus, the inference was not permissive, but mandatory. According to the United States Supreme

Court, such an instruction improperly shifts the Commonwealth’s burden of persuasion regarding

whether, upon weighing the evidence, the jury believes willful concealment is evidence of intent

to convert or defraud.




                                                 10
       In Francis, the Supreme Court stated,

       A mandatory rebuttable presumption is perhaps less onerous from the defendant’s
       perspective, but it is no less unconstitutional. Our cases make clear that “[such]
       shifting of the burden of persuasion with respect to a fact which the State deems
       so important that it must be either proved or presumed is impermissible under the
       Due Process Clause.” Patterson v. New York, 432 U.S., at 215. In Mullaney v.
       Wilbur, we explicitly held unconstitutional a mandatory rebuttable presumption
       that shifted to the defendant a burden of persuasion on the question of intent. 421
       U.S. at 698-701. And in Sandstrom we similarly held that instructions that might
       reasonably have been understood by the jury as creating a mandatory rebuttable
       presumption were unconstitutional. 442 U.S. at 524.

Francis, 471 U.S. at 317.

       The reliance of the majority opinion upon Dobson for support of its conclusion that

Instruction 16 contains a permissive inference is misplaced. In its analysis, the majority states

the Instruction in this case is similar to that found to be a permissive inference in Dobson, 260

Va. at 74, 76, 531 S.E.2d at 571-72. However, the majority opinion fails to consider that the

instructions in the two cases are dissimilar in one extremely important manner. In Dobson, we

noted that the jury was not required, by the subject instruction, to draw any conclusion from the

facts proved by the Commonwealth. Instruction 16, on the other hand, requires the jury to draw

a conclusion, unless there is evidence to the contrary.

       The instruction in Dobson specifically informed the jury that it “may reasonably infer”

the elemental fact of the defendant being the thief, unless the defendant offered “a reasonable

account of possession consistent with innocence.” Id. at 74, 531 S.E.2d at 571. Unlike in this

case, the instruction in Dobson did not require that proof of a basic fact (exclusive personal

possession of the stolen property by the defendant) be accepted by the jury as evidence of the

elemental fact (that the defendant was the thief). Thus, I disagree with the majority’s

determination that Dobson supports its conclusion that Instruction 16 contained a permissive

inference.



                                                 11
       A closer examination of our Dobson opinion would seem to make it clear that Instruction

16 does not fit the criteria our Court cited as important in concluding that the instruction given in

Dobson included a permissive inference. In Dobson, we stated that

       [a] mandatory presumption instructs the jury that it must infer the presumed fact if
       the State proves certain predicate facts. A permissive inference suggests to the
       jury a possible conclusion to be drawn if the State proves the predicate facts, but
       does not require the jury to draw that conclusion. . . . Mandatory presumptions . . .
       violate the Due Process Clause if they relieve the State of the burden of
       persuasion on an element of an offense . . . . A permissive inference does not
       relieve the State of its burden of persuasion because it still requires the State to
       convince the jury that the suggested conclusion should be inferred based on the
       predicate facts proved.

Id. at 75, 531 S.E.2d at 572 (quoting Francis, 471 U.S. at 314).

       The instruction in Dobson suggested to the jury a possible conclusion to be drawn (the

defendant was the thief), but did not require the jury to draw that conclusion. Instruction 16

includes a mandatory presumption that informed the jury that it was required to infer the

presumed fact (evidence of intent) if the Commonwealth proved the predicate fact (willful

concealment).

       Instruction 16 violates the Due Process Clause by relieving the Commonwealth of the

burden of persuasion concerning whether concealment was, in this instance, evidence of intent to

convert or defraud the store owner. In contrast, the subject instruction in Dobson did not relieve

the Commonwealth of its burden of persuasion because it still required the Commonwealth to

convince the jury that the suggested conclusion (that the defendant was the thief) should be

inferred based on the predicate facts (defendant was found in possession of the stolen property).

       We explained in Dobson that

       [t]he challenged instruction in the present case . . . informed the jury that it “may”
       reasonably draw an inference from certain facts, if proved, provided that the
       defendant did not reasonably or satisfactorily explain his possession of the
       recently stolen property. Thus, the challenged Instruction here created only a



                                                 12
        permissive inference that the jury was free to reject, irrespective of whether the
        defendant offered a reasonable explanation consistent with his innocence. The
        jury was not required to draw any conclusion from the facts proved by the
        Commonwealth in the absence of such contrary evidence from the defendant.

Id. at 76, 531 S.E.2d at 572.

        Unlike in Dobson, Instruction 16 did not invoke a permissive inference that the jury was

free to reject, irrespective of believable evidence to the contrary. Rather, Instruction 16 required

the jury to draw a conclusion about the evidence from the facts proven by the Commonwealth, in

the absence of the production of contrary evidence.

        The majority opinion’s additional attempts to bolster its conclusion that the language in

Instruction 16 constitutes a permissive inference are also unavailing. The opinion points out that

Instruction 16 does not state that the Commonwealth is relieved of its burden of proving each

element of the offense beyond a reasonable doubt, and that the Instruction did not state that

willful concealment alone satisfies the Commonwealth’s proof. That is true, but similar

arguments could be made in support of the instruction found to be unconstitutional by the United

States Supreme Court in Francis. In Francis, the Supreme Court found the challenged

instruction to be unconstitutional because it contained a rebuttable presumption which could

have misled the jury concerning the applicable burden of persuasion despite other instructions

concerning burden of proof. 471 U.S. at 318. In this instance, as in Francis, the fact that the

Instruction did not facially state that it was relieving the Commonwealth of its burden of proving

each element of the offense beyond a reasonable doubt is not helpful in making the

determination of whether the instruction contains a mandatory presumption that might mislead a

jury.

        As regards the dependent clause included in Instruction 16, the majority opinion claims,

“[t]he remaining language of the instruction, ‘unless there is believable evidence to the contrary,’



                                                 13
reinforced that the Commonwealth had the burden of proving each element beyond a reasonable

doubt.” I disagree. Because the independent clause in Instruction 16 included language in the

nature of a command that required the jury to draw the conclusion that concealment was

evidence of an intent to convert or defraud, unless the jury was presented with evidence to the

contrary, the “remaining language,” rather than reinforcing the Commonwealth’s burden of

proof, indicates that rebuttal evidence was necessary to overcome the stated presumption

regarding intent.

       “The believable evidence to the contrary” referenced in Instruction 16, if indeed such

evidence could have been presented, logically would have been presented by the defendant. It

strains common sense to believe that the Commonwealth would have offered such evidence, as it

had no obligation or incentive to do so. Rather, the jury would have expected such evidence to

be offered by the defendant. The United States Supreme Court noted this issue in deciding that

the instruction offered in Francis was unconstitutional.

       In Francis, the Court explained that when preceded by mandatory language, the

instruction that a presumption may be rebutted could be read as telling the jury that it was

required to make the inference unless the defendant persuaded it otherwise. 471 U.S. at 318.

Such an instruction is unconstitutional because it may be understood as indicating that the

“defendant bore an affirmative burden of persuasion once the State proved the underlying act

giving rise to the presumption.” Id.

       There is no authority for the majority’s implied proposition that proper finding and

burden of proof instructions may render an unconstitutional instruction harmless. In this

instance, the constitutional question is whether “a reasonable juror could have understood [the

instruction] as a mandatory presumption that shifted to the defendant the burden of persuasion on




                                                14
the element of intent once the [Commonwealth] had proved the predicate acts.” Id. at 316.

Instruction 16 contains mandatory language that a jury might reasonably have understood as

creating a mandatory rebuttable presumption that shifted the burden of persuasion to the

defendant. It is therefore unconstitutional. Thus, I would reverse the judgment of the Court of

Appeals and remand the case to the circuit court for a new trial, if the Commonwealth be so

advised.

       For these reasons, I respectfully dissent.




                                                15
