COMMONWEALTH of Pennsylvania, Appellee v. Reginald Anthony HALL, Appellant.
Supreme Court of Pennsylvania.
Decided Aug. 18, 2003.
830 A.2d 537
Argued March 6, 2002.
The order of dismissal of the post-conviction court dated December 29, 1998, is vacated, the post-conviction petition and its amendments are reinstated, and the matter is remanded to the common pleas court for disposition in accordance with applicable rules and decisional law. Appellant‘s application to file a post-submission communication is dismissed as moot.
Michael Wayne Streily, Kevin Francis McCarthy, Pittsburgh, for the Com. of PA, Appellee.
Before: ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.
OPINION
Justice CASTILLE.
Two questions are presented on this appeal: (1) the sufficiency of the evidence to prove the intent to inflict serious bodily injury necessary to sustain appellant‘s conviction for aggravated assault under
At trial, Susan Sullivan testified that, at approximately 4:00 p.m. on April 29, 1996, she was driving her car near the intersection of Flagler and Grant Streets in McKeesport, Pennsylvania, when she saw appellant, whom she knew, walking along the street. Sullivan stopped her car to say hello. After a brief conversation, appellant asked Sullivan for a ride up the street. Sullivan allowed appellant to ride on the hood of her car, with his back toward her, for the short distance she was taking him. As she proceeded up the street, Sullivan saw a police car coming toward her. At the same time, Sullivan heard one or two gunshots. Sullivan testified that she did not see who fired the gunshots and that she was not looking at appellant when the shots were fired. Sullivan then saw appellant jump from the hood of her car, flee on foot, and disappear over a fence as a police officer chased him. After
Sergeant Mark Haltzman of the McKeesport Police Department testified that, at approximately 4:05 p.m. on April 29, 1996, he was in a marked police cruiser and responding to a radio broadcast of a man pointing a gun out of a car window. When Haltzman approached the intersection of Flagler and Grant Streets, he saw appellant sitting on the hood of Sullivan‘s car. Haltzman saw appellant fire three gunshots down Flagler Street. These shots were not fired toward Haltzman. Haltzman stopped his patrol car and made eye contact with appellant, whom he knew. As Haltzman exited his cruiser, appellant jumped from Sullivan‘s car and began to run. As appellant fled, he fired two more shots, this time in the direction of Haltzman, who was a mere 60-70 feet away. The officer was not struck.
Haltzman took cover, radioed a description of appellant to other officers, and then began to pursue appellant. Shortly thereafter, police officers found appellant hiding between two houses, wearing only one shoe, his right. No weapon was found on appellant, but a search revealed a .25 caliber semiautomatic handgun in the grass near the fence appellant had jumped. Appellant‘s left shoe was found on the other side of the fence. Appellant had no license to carry the handgun.
Appellant testified at trial and admitted that the .25 caliber handgun was his and that he had no permit to carry it. He also admitted that he fired the two sets of gunshots witnessed by Sullivan and Haltzman. In attempting to explain the shootings, appellant claimed that, earlier that day, a man named Ivan Wocoward, with whom appellant had argued months before, had fired two shots at him. Appellant stated that he retrieved a handgun he had stashed in an alley and began searching for Wocoward, intending to shoot him. At this point, he encountered Sullivan. Appellant further claimed that, as he was riding on Sullivan‘s car hood, he spotted Wocoward on Flagler Street, aimed his gun at him, and fired at him three times. Appellant then fled when he saw the police cruiser coming towards him, his thought being, “How
On March 12, 1997, the jury convicted appellant of aggravated assault under
Appellant, who did not file a timely direct appeal, sought and was granted reinstatement of his appeal rights nunc pro tunc via a petition he filed under the Post Conviction Relief Act (PCRA),
- Whether an instruction which connects intent to inflict serious bodily injury with use of an unlicensed firearm is violative of the due process clauses of the Pennsylvania and United States Constitutions.
- Whether the evidence was sufficient to demonstrate specific intent to inflict serious bodily injury.
The questions for review are related. Since Sergeant Haltzman was not struck by the gunshots and was not otherwise injured, the Commonwealth was required to prove that appellant attempted to cause the officer serious bodily injury, in order to sustain the conviction for aggravated assault as a felony of the first-degree.
1) A person acts intentionally with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
Appellant now contests both the legal sufficiency of the evidence to prove his intent and the trial court‘s jury charge, which was premised upon
The standard for reviewing sufficiency claims is settled. Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, and taking all reasonable inferences in favor of the Commonwealth, the reviewing court must determine whether the evidence supports the factfinder‘s determination of all of the elements of the crime beyond a reasonable doubt. E.g., Commonwealth v. Harvey, 571 Pa. 533, 812 A.2d 1190, 1194 (2002). The intent to cause serious bodily injury—the only element of aggravated assault at issue here—may be proven by direct or circumstantial evidence. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887, 889 (1978) (“Criminal intent may be proved by direct or circumstantial evidence.“).
Where one does not verbalize the reasons for his actions, we are forced to look to the act itself to glean the intentions of the actor. Where the intention of the actor is obvious from the act itself, the finder of fact is justified in assigning the intention that is suggested by the conduct.
Commonwealth v. Meredith, 490 Pa. 303, 416 A.2d 481, 485 (1980). Moreover, “[i]n instances where there is conflicting testimony, it is for the jury to determine the weight to be given the testimony. The credibility of a witness is a question for the fact-finder.” Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 224 (1999).
Relying upon his own testimony, appellant maintains that his gun accidentally discharged while he was fleeing from Sergeant Haltzman and that it was not aimed at the officer. Appellant also emphasizes what he views as deficiencies in the Commonwealth‘s evidence on intent, having to do with the
Appellant‘s reliance upon his own testimony is unavailing since the jury, of course, was not obliged to believe his testimony that he accidentally fired the gun—two times, no less—as he was fleeing from Sergeant Haltzman and that he was not aiming the gun at the officer. Viewed in the light most favorable to the Commonwealth, there was more than adequate circumstantial evidence that appellant intended to inflict serious bodily injury or worse upon the officer. A gun is a lethal weapon; pointing it toward a person, and then
It is also notable that appellant admitted on cross-examination that he realized, as he was fleeing, that it was Sergeant Haltzman, whom he knew, who was in the police cruiser. N.T. 137. Since this particular police officer knew appellant, the jury could infer that appellant intended to seriously injure or kill the officer to better ensure an effective escape. Furthermore, appellant also admitted that the very reason he retrieved his unlicensed firearm from its hiding place in the alley that day was because he intended to shoot someone with it, namely, Ivan Wocoward. He also admitted that he acted upon that premeditated intention: i.e., he admitted that the first three shots witnessed by Sergeant Haltzman and Sullivan were fired deliberately, not accidentally, at Wocoward. Appellant‘s admitted willingness to shoot another human being that day, and his admitted acting upon that decision, was further evidence tending to prove that he intended to injure or kill the officer when he twice fired the gun at him while attempting to escape. Finally, the fact that appellant had no license for the gun, combined with the court‘s permissive inference instruction, provided the jury with further reason to reject appellant‘s claim of accidental shooting. The fortuity that Sergeant Haltzman was not struck does not alter the fact that the evidence, viewed in the light most favorable to the Common-
We now turn to appellant‘s due process claim premised upon the court‘s jury instruction on the inference the jury could draw from the fact of appellant‘s use of an unlicensed firearm. The Uniform Firearms Act, which is part of the Crimes Code, includes Section 6104, entitled “Evidence of intent.” That section provides as follows:
In the trial of a person for committing or attempting to commit a crime enumerated in section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms), the fact that that person was armed with a firearm, used or attempted to be used, and had no license to carry the same, shall be evidence of that person‘s intention to commit the offense.
If you find that the Defendant used a firearm in the commission of either of the counts of aggravated assault and that he had no license to carry that firearm, you may regard that as an item of circumstantial evidence from which you may, if you choose, infer that the defendant intended to commit the crime.
N.T. 180.3 On appeal, the Superior Court approved the charge, noting that it did not set forth a mandatory presumption, but rather a permissive inference arising from the use of an unlicensed firearm, and that, under Superior Court precedent, such an instruction is proper. Slip op. at 6-7, citing Commonwealth v. Sattazahn, 428 Pa.Super. 413, 631 A.2d 597, 606 (1993). On the question of constitutionality, the Court
We likewise find a rational connection between the licensing or failure to license a firearm and the intent with which a person acts in using that firearm.
The legislature has recognized a distinction between prohibited offensive weapons which have no peaceful purpose and “shall not be allowed to exist in our society“, Commonwealth v. Adams, 245 Pa.Super. 431, 436, 369 A.2d 479, 482 (1976); and those which have peaceful as well as lethal potentialities. Cf. Commonwealth v. Stewart, 343 Pa.Super. 514, 532, 495 A.2d 584, 593 (1985). The former are banned absolutely because criminal usage is conclusively presumed, while the latter are allowed, if licensed. The obtaining of a license is tantamount to an acknowledgment that the possession is for lawful purposes; the failure to obtain a license suggests the opposite. One who envisions no criminal purpose for the firearm is unlikely to refuse, if required, to declare his ownership of that weapon to the proper authorities, while one who harbors criminal intentions will. This is not to say that in every instance the lack of a license suggests criminal intent, but rather that a lack of required license is simply another piece of circumstantial evidence from which the true intent of the user of a firearm might be ascertained in a given situation.
Evidentiary tools such as Section 6104 “are commonly and often interchangeably known as ‘inferences’ or ‘presumptions‘” and, “[a]s recognized by the United States Supreme Court, ‘[i]nferences and presumptions are staples of our adversary system of factfinding.‘” Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 389 (2000), quoting County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). “These evidentiary tools are of two types: permissive and mandatory.” MacPherson, 752 A.2d at 389. A mandatory presumption “tells the trier of
A permissive inference allows, but does not require, the factfinder to infer the elemental fact from proof of the basic fact and places no burden of persuasion or production on the defendant. . . . In this situation, the basic fact may constitute “prima facie” evidence of the elemental fact. Ulster County Court[ v. Allen], 442 U.S. [140]at 157[, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979)] . . . . “A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to persuade the jury that the suggested conclusion should be inferred based on the predicate facts proved.” Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).
Id. Accord Commonwealth v. Kelly, 555 Pa. 382, 724 A.2d 909 (1999).5
In Kelly, a murder case, this Court reviewed an instruction based upon Section 6104 in which the trial court had informed the jury that the fact that the defendant used an unlicensed firearm, if found, “shall be evidence of [Kelly‘s] intention to commit said crime of violence.” 724 A.2d at 912 (emphasis original). The Kelly Court held that this instruction created a mandatory presumption which failed to pass muster under the due process clause, explaining its reasoning as follows:
Simply put, the issue of whether one happened to be carrying an unlicensed firearm has little probative value with respect to the ultimate issue of whether one possessed the requisite intent to be convicted of a crime stemming from an act of violence that the person committed. If the fact of carrying an unlicensed firearm is probative at all, it
certainly does not rise to the level of sustaining the Commonwealth‘s burden of proving beyond a reasonable doubt that the accused acted deliberately. We need not decide today just how lacking in probative value we believe the fact of carrying an unlicensed firearm is with regard to proving intent; it is enough to say that it is sufficiently lacking as to have resulted in a due process violation when it formed, by itself, the basis of a mandatory presumption of intent, as it did with respect to the instruction at issue.
Id. (emphasis original).
Appellant recognizes that Kelly is distinguishable because the Court‘s charge here set forth a mere permissive inference, rather than a mandatory presumption, arising from the use of a firearm and non-licensure. Appellant nevertheless contends that the permissive charge was no less constitutionally deficient under the due process clauses of the United States and Pennsylvania Constitutions.6 Appellant argues that, when a permissive inference may be relied upon to establish an element of an offense, the elemental fact must flow beyond a reasonable doubt from the proven fact. Brief for Appellant, 13, 19. Appellant avers that the elemental fact of his intent to inflict serious bodily injury—which was “the sole element of the crime contested by the accused” (Brief for Appellant, 20)—does not flow beyond a reasonable doubt from the isolated proven fact of his use of a firearm without a license to carry it, especially given the fortuity that no one suffered injury from his firing the weapon. Id. at 12, 20.
In the alternative, appellant argues that, even under the Ulster County test, he is entitled to relief because the intent to inflict serious bodily injury is not more likely than not to flow from the mere fact of using a firearm without a license. Appellant submits that the statutory inference is irrational or arbitrary and, accordingly, is unconstitutional. Brief for Appellant, 22-24.
The Commonwealth responds by invoking the Ulster County due process test, as explicated in Kelly and MacPherson. The Commonwealth argues that the trial court‘s instruction here merely authorized a permissive inference which, when considered in the context of the evidentiary record rather than on its own and in the abstract, was rational. Accordingly, there was no constitutional error in the jury charge. The
The two most recent decisions of this Court in this area, MacPherson and Kelly, have cited and followed Ulster County. This Court thoroughly described the operation of the Ulster County test, in the context of permissive inferences, in MacPherson—a case, like this one, where both the federal and Pennsylvania due process clauses were at issue. 752 A.2d at 388 n. 5. Justice, now Chief Justice, Cappy began by noting the “general rule,” in cases involving due process challenges to evidentiary devices of this nature:
“the ultimate test of any device‘s validity in [criminal cases] remains constant: the device must not undermine the fact-finder‘s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ulster County Court, 442 [U.S.] at 156, 99 S.Ct. 2213; Commonwealth v. Kelly, 555 Pa. 382, 724 A.2d at 911. This is so because the constitutional guarantee of due process mandates that a conviction be based on proof beyond a reasonable doubt of every fact that constitutes the crime charged. Id.
MacPherson, 752 A.2d at 390. Since permissive inferences and mandatory presumptions differ in the degree to which they restrict the factfinder‘s “ability to make an independent assessment of the evidence,” the due process test for a permissive inference is less demanding than the test for a mandatory presumption. Thus, in the case of mere permissive inferences, the constitutional challenge cannot be raised in the abstract; instead, the defendant “must demonstrate that the inference as applied to him violated his rights of due process.” Id., citing Ulster County, 442 U.S. at 157. Accord Kelly, 724 A.2d at 911 (in case of permissive inference, “the totality of evidence in the record other than the [inference] will be germane in an analysis of the [inference‘s] constitution-
Because this permissive [inference] 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. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.
Ulster County Court, 442 U.S. at 157.
MacPherson, 752 A.2d at 390.8,9
The preliminary analytical question for this Court is whether to evaluate appellant‘s claim pursuant to the Ulster
The DiFrancesco opinion made no mention of the “law of the land” clause in Article I, Section 9 in rendering its due process holding, instead analyzing the issue entirely in accordance with federal authority.10 Justice Pomeroy‘s opinion traced the federal “rational connection” test for statutory presumptions back to Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), noting that the U.S. Supreme Court had since come to refine the test. Justice Pomeroy then observed that it was an open question, under the U.S. Supreme Court‘s then-precedent, whether inferences going to elemental facts were subject to the beyond a reasonable doubt standard:
While the United States Supreme Court has not yet directly addressed this question, there are unmistakable intimations in its later decisions that where the inferred fact comprises an essential element of the crime charged, the inference must satisfy the reasonable doubt standard.
329 A.2d at 209, citing Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) and Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). at 551. In so doing, the Dissent ignores the teaching of both Ulster County and MacPherson.
Of course, the fact that DiFrancesco neither explicitly nor implicitly rendered a state constitutional holding does not foreclose the possibility that a stricter due process standard could be held applicable under Article I, Section 9 in a case where the issue is squarely presented. In this case, however, it is notable that appellant‘s brief, which is quite capably argued, does not suggest that the text or history of Article I, Section 9, or concerns of policy, recommend or require the DiFrancesco standard as a matter of Pennsylvania constitutional law.11 The mere fact that this Court predicted in DiFrancesco that federal law might evolve differently than it ultimately did does not require divergence from the federal standard. Moreover, in other instances, this Court has declined to afford greater due process protections under our state charter. E.g., 713 A.2d at 602 (noting that Court has held that phrase “law of the land” in Article I, Section 9 has same meaning as federal due process clause and, accordingly, “declin[ing] to hold that the due process clause of the Pennsylvania Constitution provides defendants greater protections than the United States Constitution in the area of pre-arrest delay“). Since appellant has not offered persuasive reasons grounded in the Pennsylvania constitutional experience in support of a different and more restrictive test, we will treat the due process provisions as coextensive in this instance. Commonwealth v. Haag, 570 Pa. 289, 809 A.2d 271, 283 n. 13 (2002) (where appellant did not argue that Article I, Section 9 provided him with greater due process protection, state and federal provisions treated as coextensive); 764 A.2d at 27 n. 5 (“While Appellees have suggested that this Court has the ability to construe Article I, Section 9 more broadly than federal due process, they have offered no particular reasons to support such a departure; therefore, we continue to treat the pertinent constitutional guarantees as coterminous for purposes of this opinion.“). Accordingly, it is the Ulster County test which controls our analysis.12
The circumstances of the crime here support the inference. Appellant was not simply detected in possession of an unlicensed firearm; he was caught in the act of firing it at another man. Appellant testified that he bought the gun “off the street,” did not generally carry it on him, but instead kept it “stashed” in the alley behind Flagler Avenue, and used it “for protection.” N.T. 118-19, 126. On April 29, 1996, he testified, he retrieved the gun from its hiding place after Ivan Wocoward had shot at him, with the intention of finding and shooting Wocoward. He acted upon that intention by firing three shots at Wocoward and then firing two more shots at Sergeant Haltzman in an attempt to escape after he was caught in the act. The trial evidence thus suggested a person unwilling to trust the police or other law enforcement authorities in resolving his alleged street disputes, but willing and prepared to take matters into his own hands including, if necessary, seeking out and shooting others. The fact that the gun was not lawfully purchased or licensed rationally supported an inference that it was intended to be used precisely as it was, i.e., unlawfully against other people, including being used to inflict serious bodily injury. The permissive inference, on this record, was constitutional.13 For the foregoing reasons, we affirm the order and judgment of the Superior Court.
Justice NEWMAN files a dissenting opinion.
Justice NEWMAN dissenting.
The Majority concludes that there was sufficient evidence produced to convict Reginald Anthony Hall (Hall) of attempting to injure an officer of the law and that the jury instruction at issue did not impermissibly relieve the Commonwealth of its burden to prove each and every element of the offense beyond a reasonable doubt. Because the only fact at issue in this case, the intent to commit aggravated assault, may have been resolved on the basis of a presumption, I must respectfully dissent.1
Hall was charged with aggravated assault after discharging a gun near the intersection of Flagler and Grant Streets in McKeesport, Pennsylvania. Among those present at the time were Susan Sullivan, on whose car Hall was riding, and Sergeant Mark Haltzman of the McKeesport Police Department (Officer Haltzman). Hall admitted to carrying an unlicensed firearm and firing it at Ivan Wocoward. Hall stated that the gun discharged accidentally when he was fleeing the
If you find that the Defendant used a firearm in the commission of either of the counts of aggravated assault and that he had no license to carry that firearm, you may regard that as an item of circumstantial evidence from which you may, if you choose, infer that the Defendant intended to commit the crime.
Subsequently, Hall was convicted of aggravated assault. It is clear that, pursuant to Pennsylvania law, intent to commit the crime is a necessary factual finding for a conviction for aggravated assault. Indeed, in this particular case, it was the lone element of the offense at issue in Hall‘s trial.
Initially, I note that
In Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), the United States Supreme Court held that “the due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.” The Court held that a “statutory presumption cannot be sustained if there is no rational connection between the fact proved and the ultimate fact presumed[;]” that is, if the presumption is not closely related and does not logically flow from the fact that is proved. In the instant matter, the fact proved was that Hall owned the firearm and did not possess a license to carry it. Yet, not all owners of firearms are required to obtain a weapons license. Rifles and shotguns used in hunting may be carried without a license (although the hunter requires a license to kill), nor is the starter firing a gun that starts a race required to have a license. Guns of any type that are in transit from point A to point B whether destined for a dealer or a hobbyist or an individual do not require that licenses be obtained by those briefly in possession. Section 6106,
A person is guilty of aggravated assault if he “attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any [police officer] . . . while in the performance of [his] duty. . . .”
The Commonwealth asserts that the instruction prescribed a permissive inference, i.e., that it allowed but did not require the jury to draw conclusions about the defendant‘s intent from his actions. However, the United States Supreme Court has indicated that “[a] defendant‘s state of mind or intent is an element of a criminal offense that cannot be taken from the trier of fact through reliance on a legal presumption of wrongdoing. . . .” Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). It has also held that presumptions “invade [the] fact finding function, which in a criminal case the law assigns solely to the jury.” Id. I am convinced that a reasonable juror in this case could have been misled by the instruction given and could have believed that, if it found that Hall did not possess a license for his firearm, it should find that he had the intent to commit the crime. A reasonable jury could well have interpreted this presumption as a direction by the court to find intent once convinced of the facts triggering the presumption.
We recently had occasion to discuss the impropriety of a mandatory presumption in Commonwealth v. Kelly, 555 Pa. 382, 724 A.2d 909 (1999),3 also authored by Mr. Justice Castille. That case concerned a constitutional challenge to
In Kelly, this Court reviewed an instruction to the jury based on
I believe that the current Majority Opinion is inconsistent with the rationale we expressed in Kelly. The effect of the holding in Kelly is that there is no reasonable relationship between carrying an unlicensed weapon and the intent to commit aggravated assault. In Kelly, this Court said:
Simply put, the issue of whether one happened to be carrying an unlicensed firearm has little probative value with respect to the ultimate issue of whether one possessed the requisite intent to be convicted of a crime stemming from an act of violence that the person committed.
If the fact of carrying an unlicensed firearm is probative at all, it certainly does not rise to the level of sustaining the Commonwealth‘s burden of proving beyond a reasonable doubt that the accused acted deliberately.
We need not decide today just how lacking in probative value we believe the fact of carrying an unlicensed firearm is with regard to proving intent; it is enough to say that it is sufficiently lacking as to have resulted in a due process violation when it formed, by itself, the basis of a mandatory presumption of intent, as it did with respect to the instruction at issue.
Kelly, 724 A.2d at 913 (emphasis added and in original). If there was no reasonable relationship between the act of
Although in the instant matter the jury was instructed that the accused was presumed innocent until proven guilty, and that the Commonwealth had the burden of proving beyond a reasonable doubt that Petitioner intended to fire the weapon at Officer Haltzman, this cannot be held to overcome the prejudice that is inherent when the jury was instructed that it could consider the possession of an unlicensed firearm as presumptive evidence of that intent. As stated by Mr. Justice Brennan in Sandstrom:
It follows that the trial court may not withdraw or prejudice the issue by instruction that the law raises a presumption of intent from an act. . . . [A] presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.
Sandstrom, 442 U.S. at 522 (quoting Morissette v. United States, 342 U.S. 246, 274-75, 72 S.Ct. 240, 96 L.Ed. 288 (1952)).
I believe that the Majority has espoused a position that is inconsistent with the rationale of Kelly. This is especially so where this Court, in Kelly, stated, “We need not decide today just how lacking in probative value we believe the fact of carrying an unlicensed firearm is with regard to proving intent . . .” to commit aggravated assault. Accordingly, I
Notes
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.