State v. CarusoState v. Caruso
Michael Q. Caruso was charged by bill of information with violation of
The state appealed to the court of appeal. The court of appeal transferred the case tо this court pursuant to
Statutes are presumed valid and their constitutionality should be upheld whenever possible. State v. Griffin, 495 So.2d 1306 (La.1986). Louisiana criminal statutes shall be given a genuine construction, according to the fair imрort of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.
At the time of the alleged offense,
A. If any person rents or leases a motor vehicle and obtains or retains possession of the motor vehicle by means of any false or fraudulent representation including but not limited to a false representation as to his name, residence,
employment, or operator‘s license, or by means of fraudulent concealment, or false pretense or personation, or trick, artifice, or device; or, if the person with fraudulent intent wilfully refuses to return the leased vehicle to the lessor after the expiration of the lease term as stated in the lease contract, the person shall be guilty of a felony and upon conviction thereof shall be subject to the penalty provided for in Subsection B of this Section. The offender‘s failure to return or surrender the motor vehicle within fifteen calendar days after notice to make such return or surrender has been sent by certified mail to the offender‘s last known address shall be presumptive evidence of his intent to defraud. (Emphasis added) B. Any person found guilty of violating the provisions of this Section shall be fined not more than five hundred dollars or imprisoned not more than five years with or without hard labor, or both.
Defendant contends that the use of the language “shall be presumptive evidence” in the last sentence of the statute creates a mandatory presumption establishing defendant‘s intent to defraud, an element of the crime for which he has been charged, and impermissibly shifts the burden of proof to defendant to rebut the presumption. We disagree.
Due process requires the prosеcution to prove each element of a crime beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Inferences and presumptions are a staple of our adversary system of factfinding whereby a trier of fact is permitted to determine the existence of an element of the crime—that is, an “ultimate” or “elemental” fact—from the existence of one of more “evidentiary” or “basic” facts. In criminal cases, the ultimate test of the validity of evidentiary presumptions is that they must not undermine the factfinder‘s responsibility at trial, based on evidence adduced by the state, to find the ultimate facts beyond a reasonable doubt. County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).
For purposes of due process analysis in criminal cases, a distinction has been made between presumptions which are mandatory and those which are permissive. A mandatory presumption instructs the factfinder that it must infer the presumed fact if the state proves certain predicate facts. Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).3 A mandatory presumption is examined on its face to determine the extent to which the basic and elemental facts coincide. Ulster County, 442 U.S. at 158-59, 99 S.Ct. 2213. To sustain the use of a mandatory presumption to prove a crime or element of a crime, the prosecution must demonstrate that the presumed fact must beyond a reasonable doubt flow from the proven fact on which it is made to depend. Ulster County, 442 U.S. at 165-66, 99 S.Ct. 2213; State v. Lindsey, 491 So.2d 371, 374 (La.1986).
A permissive inference or presumption, on the other hand, allows, but does not require, the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and places no burden of any kind on the defendant. In this situation, the basic fact may constitute prima facie evidence of the elemental fact. Because thе 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 the reasonable doubt”
Over a decade ago, this court had the opportunity to address the constitutionality of a statute containing a presumption similar to the one in the instant case in State v. Lindsey, 491 So.2d 371 (La.1986). In Lindsey, the defendant challenged the constitutionality of
Reviewing all these statutes, it does not seem reasonable that the legislature would have intended to establish mandatory presumptions in all these cаses. Few, if any, of the elemental facts flow beyond a reasonable doubt from the basic facts on which the statutes base their presumptions. It seems at least equally reasonable if not more reasonable to conclude that the legislature intended “presumptive evidеnce” and “prima facie evidence” to signify only permissible inferences. Hence, we conclude that the statutes are ambiguous and should be interpreted as creating permissive presumptions. Lindsey, 491 So.2d at 375.
We adhere to our reasoning in Lindsey and find that the language “shall be presumptive evidence” in
Accordingly, we find that the last sentence of
DECREE
For the reasons assigned, the judgment of the trial court declaring the last sentence of
LEMMON, J., concurs and assigns reasons.
JOHNSON, J., concurs.
LEMMON, J. Concurring.
I reluctantly agree that the ambiguous language in
The real problem is that permissive presumptions are generally inappropriate in statutes which define a crime. While conclusive presumptions may be appropriately included in such statutes, inclusion of a permissive presumption generally serves no useful purpose. In the present statute, for examplе, proof that the defendant failed to return the vehicle within fifteen days of notice is clearly admissible as evidence bearing on the issue of intent to defraud. Thus the language does not facilitate the admissibility of evidence bearing on intent. Moreover, the jury, unless provided with further exрlanation in the trial judge‘s instructions, may erroneously construe the statutory language as making such evidence alone sufficient to support a conviction beyond a reasonable doubt, without any other evidence presented by the prosecution. In such a case, the stаtutory language would unconstitutionally shift the burden to the defendant to prove his or her innocence without the prosecutor‘s having established the defendant‘s guilt beyond a reasonable doubt.2Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).
Therefore, the only apparent legitimate purpose of the statutory language is to permit the jury to consider such evidence as raising an inference that defendant acted with intent to defraud. The language, however, is unnecessary for that purpose, since the jury, in the absence of the statute, undoubtedly may consider such evidence (and other circumstantiаl evidence relevant to the issue of intent) as raising an inference with the intent to defraud.
These very valid concerns perhaps prompted my majority opinion in State v. McCoy, 395 So.2d 319 (La.1980), a six-to-one decision. And perhaps we went too far in our decision in the McCoy case that inclusion of such language in a statute is not constitutionally permissible, in the light of the reasoning of the Lindsey opinion. But as pointed out above, significant
The Legislature, after Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), perhaps attempted to remedy statutes which contained presumptions by declaring that the presumptions were “only presumptive evidence.” It would have been far prefеrable to simply remove permissive presumptions from the statutes.
Moreover, if the Legislature desires to make it a crime to rent a vehicle and not return it within fifteen days of notice, then the Legislature can simply provide that such failure is an element of the crime, rather than clаssifying the failure as presumptive evidence.