Wallace E. Coleman, Jr. v. Robert H. Butler, Sr., Warden, Louisiana State Penitentiary, Respondent

GEE, Circuit Judge:

Wallace Coleman, Jr. was convicted of auto theft in a Louisiana state court proceeding and sentenced to serve 20 years as an habitual offender. The Louisiana Supreme Court affirmed the conviction. State v. Coleman, 358 So.2d 289 (La.1978). Coleman brings this habeas petition to challenge the constitutionality of an evidentiary presumption presented in the jury charge. Because we conclude that the challenged instruction did not present a mandatory presumption, we affirm.

The evidence adduced at trial showed that in the fall of 1976, Don Stelly’s wife awakened just before 6:30 a.m. to the sound of their 1975 Chevy leaving the premises. She arose and made phone calls, which confirmed that neither her husband nor relatives had taken the vehicle. Sometime before 7:00 a.m., the taking was reported to the police, who dispatched a radio report. Thereafter, a police officer apprehended Coleman driving the car some 30 miles away, just two blocks short of an entrance to the interstate highway system.

Coleman’s sole witness was his wife, who testified only about the family and their residence, which was about 100 miles distant from the area where Coleman was apprehended. The arresting officer testified that Coleman stated that “the keys were in the automobile and I borrowed it.” No additional testimony was adduced at trial to explain Coleman’s possession of the vehicle.

Coleman challenges the portion of the charge instructing that guilt could be presumed from the unexplained possession of recently stolen property. He contends the effect of this instruction was to unconstitutionally relieve the state of its burden of proving beyond a reasonable doubt that he possessed the “intent to deprive permanently.” He argues that the instruction impermissibly shifted the burden of persuasion to him, in violation of his right not to testify and his right to rely on his presumption of innocence.

Coleman was convicted of theft under La.Rev.Stat.Ann. § 14:67 (West 1986). This statute defines theft as the misappropriation or taking of anything of value, further describing the “intent to deprive the other permanently” of the property as “essential.” By contrast, La.Rev.Stat.Ann. § 14:68 denounces the lesser crime of “unauthorized use of a movable,” defined as the intentional taking or use of a movable “but without any intention to deprive the other of the movable permanently.” The Louisiana Code permits the use of certain legal presumptions, including a rebuttable presumption that “the person in the unexplained possession of property recently stolen is the thief.” La.Rev.Stat. § 15:432 (West 1981).

The Fourteenth Amendment prohibits the state from using evidentiary presumptions in a jury charge when they have the effect of relieving the state of its burden of persuasion on an essential element of an offense. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985) (citing Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 2457-59, 61 L.Ed.2d 39 (1979)). A mandatory presumption, one that instructs a criminal jury that it must infer the presumed fact if the state proves the predicate fact or facts, is unconstitutional. A permissive inference suggests to the jury that it may, but need not, draw an inference if the state proves the predicate fact or facts. A permissive inference is unconstitutional only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts. Franklin, 105 S.Ct. at 1971.

In determining whether the instruction creates a mandatory presumption or a permissive inference, we initially focus on the specific language that is challenged. If a jury could reasonably have understood that portion of the jury charge as creating a presumption that relieves the state of its burden of persuasion on an element of the offense, the potentially offending words must be considered in the context of the entire charge. “Other instructions might explain the infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption.” Id. (citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)).

Coleman challenges this portion of the jury charge:

A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may nonetheless be destroyed by rebutting evidence; such is the presumption that ... the defendant is innocent; that the person in the unexplained possession of property recently stolen is the thief____

From the recent possession of stolen things guilt may be inferred unless there is a reasonable account given of the property as having been lawfully and not feloniously obtained. This inference or presumption is strengthened or weakened in accordance with the length of time between the theft and the time of finding of the property.

If it is shown to your entire satisfaction and beyond a reasonable doubt that the defendant possessed the things of value described in the bill, either physically or constructively, it must also be shown by the same degree of proof, that the intention of defendant was to deprive another permanently of his property in violation of the theft article.

The sole issue on appeal is whether this portion of the charge could reasonably have been interpreted as a mandatory presumption, one that relieved the state of its burden of persuasion on the question of intent. We focus on the instruction that “[fjrom the recent possession of stolen things guilt may be inferred unless there is a reasonable account given of the property as having been lawfully and not feloniously obtained.” The word “may” dispels the notion that the instruction mandates the jury to infer either that the defendant participated in the taking or that the defendant possessed the requisite intent to deprive permanently. The next sentence, in fact, invites the jury to weigh the strength to be accorded the inference by considering the length of time between the theft and the finding of the property.¹ This language not only denotes the permissive quality of the inference, but also confines the presumption to its proper scope, that of deciding whether the possessor participated in the taking.

In isolation, this statement might be interpreted as allowing an inference that the defendant is guilty of theft, without further proof of the element of intent, once the state has proved the defendant’s unexplained, or unsatisfactorily explained, possession of recently taken property. That notion would be fleeting. The immediately subsequent instruction reiterates that the fact of the defendant’s possession must be shown beyond a reasonable doubt and that, by the same degree of proof, it must be shown that the defendant intended to deprive another permanently of his property. Thus, we conclude that a reasonable juror could not have interpreted this portion of the charge as mandating that proof establishing Coleman’s possession of the recently stolen automobile required the jury to infer that he possessed the requisite intent to deprive permanently.²

Even assuming arguendo that this portion of the charge could be interpreted as creating an impermissible presumption, the jury charge as a whole would disabuse a reasonable juror of this notion. The district court began with an instruction on the presumption of innocence and the accused’s right to rely on that presumption, further instructing the jury that the state had the “burden of proving beyond a reasonable doubt every fact and circumstance necessary to constitute the guilt of the accused.” In addition to defining “beyond a reasonable doubt,” the court repeated this standard of proof numerous times throughout the charge. The court then instructed the jury that it was prohibited from drawing any adverse inference from the accused’s decision not to testify. After reciting both the article on theft and unauthorized use of movables, which necessarily reiterated their differing elements of intent, the court emphasized: “It will be noted that the theft article makes proof of an intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking essential before a conviction can be had.” The court then gave the instruction challenged by Coleman. Thereafter, the court addressed among other things, the issue of greater and lesser offenses, stating “you can only find the defendant guilty of that grade of the offense of which you are convinced beyond a reasonable doubt he is guilty.” Although the language of the challenged instruction could be improved,³ we conclude that it nevertheless does not create an unconstitutional mandatory presumption.

AFFIRMED.

1 . Thus, the jury was assured it need not infer that the defendant unlawfully took the property, even in the absence of rebutting evidence concerning how the defendant acquired the property. The presumption, at most, creates a shift in the burden of production in that it may be rebutted by a reasonable account of the property as having been lawfully and not feloniously obtained. Franklin held that a rebuttable mandatory presumption that shifts the burden of persuasion on an essential element of the alleged crime is unconstitutional. It specifically reserved the question whether a mandatory presumption that shifts only the burden of production is unconstitutional. .105 S.Ct. at 1971 n. 3. Thus, it is clear that the Supreme Court has not found that a permissive inference that signals a shift in the burden of production violates due process.

Moreover, the Supreme Court recently held that placing the burden of proving self-defense on a defendant charged with murder does not violate the due process clause of the fourteenth amendment. Martin v. Ohio, — U.S. -, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987).

2 . We are mindful that the Eleventh Circuit has found an evidentiary presumption similar to the one in today’s case to be an unconstitutional mandatory presumption. United States v. Johnson, 805 F.2d 1518 (11th Cir.1986) (petition for rehearing pending).

[P]ossession of recently stolen property ... is a circumstance on which the jury may reasonably draw the inference that the person in possession participated in some way in the theft____

If you find ... that, while recently stolen, the property was in the possession of the accused, the jury would be justified in drawing ... the inference ... that the accused participated in some way in the theft of the property____

Id. at 1522 (Emphasis added).

The Eleventh Circuit concluded that this instruction rose to the level of an unconstitutional mandatory presumption. That Court does not, however, favor us with an explanation of how this instruction violates the Supreme Court’s guideline that a mandatory presumption is one that instructs the jury that it must infer the presumed fact, while a permissive inference suggests a possible conclusion to be drawn if the state proves the predicate facts, but does not require the jury to draw that conclusion. Franklin, 105 S.Ct. at 1971.

3 . To avoid the potential for confusion, the better practice would be to eliminate all suspect language, i.e. that from the possession of recently "stolen” things, “guilt” may be inferred, and the verbiage concerning the presumption that the person in the possession of property recently "stolen” is the "thief." The instruction should clearly confine the presumption to its narrow scope, which permits, but does not require, that jury to draw the inference that the possessor of property recently taken from another participated in the taking.