State of Utah v. Joseph Brandon Crowley

¶1 Defendant Joseph Brandon Crowley appeals from

convictions for theft by receiving stolen property and theft by

deception following a jury trial. We reverse and remand for a new

trial.

BACKGROUND

¶2 "On appeal from a jury verdict, we view the evidence and

all reasonable inferences in a light most favorable to that verdict

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20120128-CA 2 2014 UT App 33

and recite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2,

114 P.3d 551 (citation and internal quotation marks omitted). The

charges filed against Defendant stem from the theft of an iPod from

a parked vehicle. The evidence reveals that Defendant sold that

iPod at a pawnshop approximately two weeks after it had been

stolen. The pawn shop clerk recorded Defendant's personal

information together with a description of the iPod and its serial

number into a database as required by law. The clerk also created

a pawn slip with the same information which Defendant signed

and marked with his fingerprint. After the victim reported the iPod

stolen, the police used the pawnshop information to identify

Defendant as the seller of the iPod. Two fingerprint experts from

the police forensic unit agreed that the fingerprint on the

pawnshop slip matched Defendant's fingerprint.

¶3 The State charged Defendant with one count of theft by

receiving stolen property, see Utah Code Ann. § 76-6-408

(LexisNexis Supp. 2009), and one count of theft by deception, see id.

§ 76-6-405 (2008). At the conclusion of Defendant's trial, the State

argued to the jury that the evidence demonstrated that the iPod

had been stolen and that Defendant possessed it and had pawned

the item shortly after the theft took place. The State also told the

trial judge, outside the presence of the jury, that the State could not

"prove that he actually stole it” but "only ha[d] evidence to show

that [Defendant] . . . possessed” the iPod in the "moments” before

Defendant pawned it. Accordingly, to connect Defendant to the

theft, the State relied on the presumption of law outlined in jury

instruction 33 (Instruction 33). Instruction 33 provides,

The law presumes that possession of property

recently stolen, when no satisfactory explanation of

such possession is made, shall be deemed prima facie

evidence that the person in possession stole the

property. While the law regards the facts giving rise

to the presumption as evidence of the presumed fact,

the presumed fact must on all evidence be proved

beyond a reasonable doubt.

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20120128-CA 3 2014 UT App 33

Defendant objected to Instruction 33, but the trial court overruled

the objection. The jury convicted Defendant on both counts, and

the court sentenced him to probation. Defendant timely appeals.

ISSUES AND STANDARD OF REVIEW

¶4 Defendant challenges his convictions on two grounds. First,

Defendant argues that Instruction 33 unconstitutionally shifted the

burden of proof from the State to Defendant by instructing the jury

to presume that Defendant stole the iPod once the State proved

that he possessed it unless Defendant offered a satisfactory

explanation for his possession. "[T]he propriety of a jury

instruction presents a question of law which we review for

correctness.” State v. Tucker, 2004 UT App 217, ¶ 4, 96 P.3d 368

(alteration in original) (citation and internal quotation marks

omitted). Second, Defendant argues that Instruction 33 confused

and misled the jury by instructing the jury to presume that

Defendant stole the iPod, even though the State did not charge

Defendant with the actual theft of the iPod. Because we reverse his

convictions based on his claim that Instruction 33

unconstitutionally shifted the burden of proof to him, we need not

address Defendant's second claim. See Carter v. State, 2012 UT 69,

¶ 16 n.7, 289 P.3d 542.

ANALYSIS

I. Defendant's Claim Is Preserved.

¶5 Initially, the State argues that Defendant failed to preserve

his claim that Instruction 33 impermissibly shifted the burden of

proof to him. "As a general rule, in order to preserve an issue for

appeal[,] the issue must be presented to the [trial] court in such a

way that the [trial] court has an opportunity to rule on that issue.”

State v. Moa, 2012 UT 28, ¶ 23, 282 P.3d 985 (first alteration in

original) (citation and internal quotation marks omitted). Before the

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20120128-CA 4 2014 UT App 33

close of trial, Defendant's trial counsel objected to Instruction 33 on

several grounds. First, defense counsel argued that Instruction 33

was inapplicable to this case because the presumption outlined in

the instruction referred only to the crime of theft and not to the

crimes of theft by receiving stolen property and theft by deception.

Next, defense counsel argued that Instruction 33's presumption

violated his right to remain silent "and his right not to give

evidence against himself” because Instruction 33 put "him in a

position where he either ha[d] to testify and give a satisfactor[y]

explanation, or . . . not testify and have this legal presumption

against him.” After hearing the State's response, the court

overruled defense counsel's objections.

¶6 Although defense counsel did not use the words "burden of

proof” or "burden-shifting” in raising an objection to Instruction

33, she clearly objected to the burden-shifting effect of Instruction

33: that if Defendant did not provide a "satisfactor[y] explanation,”

he would "have this legal presumption against him.” It is therefore

evident from the record that defense counsel sufficiently raised this

issue to a level of consciousness that allowed the trial court to

consider it. See Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60,

¶ 57 ("An issue may be raised directly or indirectly, so long as it is

raised to a level of consciousness such that the trial judge can

consider it.” (citation and internal quotation marks omitted)); see

also Pratt v. Nelson, 2007 UT 41, ¶ 24, 164 P.3d 366 (concluding that

an issue was preserved because the trial court "was aware” of the

issue and specifically resolved it in a "deliberate manner,” even

though the trial "court did not have the benefit of the [appellants']

argument”); Arbogast ex rel. Arbogast Family Trust v. River Crossings,

LLC, 2008 UT App 277, ¶ 11, 191 P.3d 39 (determining that an issue

was preserved because "the trial court specifically considered [the]

issue,” even where the appellant's "trial counsel did very little to

raise the . . . issue before the trial court”), aff'd, 2010 UT 40, 238 P.3d

1035. It is further evident that the trial court did consider and rule

on the burden-shifting issue. Specifically referring to the

presumption provided in Instruction 33, the court explained that

it had added language to the jury instructions indicating that the

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20120128-CA 5 2014 UT App 33

presumed fact must on "all evidence be proved beyond a

reasonable doubt” by the State. The court then determined that,

with the added language, "it's still the burden of the State” to

prove Defendant's guilt and ruled, "Based on the instruction in its

entirety I find that it meets constitutional muster . . . .”

Accordingly, we conclude that Defendant adequately preserved

the issue for our review.

II. Submission of Instruction 33 to the Jury Was Error and

Prejudiced Defendant.

A. Instruction 33

¶7 The United States Supreme Court has held that "[t]he Due

Process Clause of the Fourteenth Amendment 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.” Francis v. Franklin, 471 U.S. 307, 313 (1985) (citation and

internal quotation marks omitted); accord State v. Austin, 2007 UT

55, ¶ 6, 165 P.3d 1191 ("The government must prove every element

of a charged offense beyond a reasonable doubt.”). "This bedrock,

axiomatic and elementary [constitutional] principle prohibits the

State from using evidentiary presumptions in a jury charge that

have the effect of relieving the State of its burden of persuasion

beyond a reasonable doubt of every essential element of a crime.”

Francis, 471 U.S. at 313 (alteration in original) (citation omitted).

¶8 "In determining whether a jury instruction relieves the State

of this burden, '[t]he threshold inquiry' requires that we 'determine

the nature of the presumption it describes.'” State v. Kelson, 2012 UT

App 217, ¶ 16, 284 P.3d 695 (alteration in original) (quoting Francis,

471 U.S. at 313–14), cert. granted, 298 P.3d 69 (Utah 2013). The

reviewing court must decide whether the jury instruction imposes

a mandatory presumption or merely allows for the jury to draw a

permissive inference. Id. "A mandatory presumption instructs the

jury that it must infer the presumed fact if the State proves certain

predicate facts.” Francis, 471 U.S. at 314. Mandatory presumptions

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20120128-CA 6 2014 UT App 33

violate due process when "they relieve the State of the burden of

persuasion on an element of an offense.” Id. By contrast, 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. Because the State is still

required "to convince the jury that the suggested conclusion should

be inferred based on the predicate facts proved,” permissive

inferences do not violate the Due Process Clause. Id.

¶9 Our case law reveals that this "threshold inquiry” has

already been completed relative to the specific language in the first

sentence of Instruction 33 that sets out the presumption. The first

sentence of Instruction 33 reads, "The law presumes that

possession of property recently stolen, when no satisfactory

explanation of such possession is made, shall be deemed prima

facie evidence that the person in possession stole the property.”

This language is quoted directly from Utah Code section 76-6-402,

which states, "Possession of property recently stolen, when no

satisfactory explanation of such possession is made, shall be

deemed prima facie evidence that the person in possession stole the

property.” Utah Code Ann. § 76-6-402(1) (LexisNexis 2008). Our

courts have held that this language creates an impermissible

mandatory presumption. See State v. Smith, 726 P.2d 1232, 1234–36

(Utah 1986); State v. Chambers, 709 P.2d 321, 325–28 (Utah 1985);

State v. Carlson, 934 P.2d 657, 659–60 (Utah Ct. App. 1997); State v.

Perez, 924 P.2d 1, 4–5 (Utah Ct. App. 1996).

¶10 In State v. Chambers, 709 P.2d 321 (Utah 1985), the Utah

Supreme Court held that a jury instruction stating that

"[p]ossession of property recently stolen, when no satisfactory

explanation of such possession is made, shall be deemed prima

facie evidence that the person in possession stole the property”

created an impermissible mandatory presumption. Id. at 324, 326.

The court explained,

[A] jury instruction using the language of [Utah Code

section] 76-6-402(1) is unconstitutional because it

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20120128-CA 7 2014 UT App 33

directly relates to the issue of guilt and relieves the

State of its burden of proof. . . . Thus, the statutory

language should not be used in any form in instructing

juries in criminal cases, and we expressly disavow the

language and holdings of our earlier cases to the

contrary.

Id. at 327 (emphasis added). The supreme court also expressed

concern over inclusion of the phrase "prima facie.” The term

"prima facie,” as it is used in section 76-6-402(1), refers to the

standard by which the trial court—not the jury—determines

whether the evidence presented warrants submission to the jury.

Id. The court noted that in "criminal cases . . . where the burden

remains on the State throughout the case, the jury should not be

involved in such considerations.” Id.

¶11 In the years since Chambers, Utah courts have upheld

instructions similar to Instruction 33 only when language is added

that clarifies that the instruction allows for a permissive inference

and does not create a mandatory presumption. For instance, in

State v. Smith, 726 P.2d 1232 (Utah 1986), the relevant jury

instruction read,

Utah Law provides that:

Possession of property recently stolen when

no satisfactory explanation of such possession is

made, shall be prima facie evidence that the person

in possession stole the property.

Thus, if you find from the evidence and

beyond a reasonable doubt, that the defendant was

in possession of stolen property, that such possession

was not too remote in point of time from the theft,

and the defendant made no satisfactory explanation

of such possession, then you may infer from those

facts that the defendant committed the theft.

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20120128-CA 8 2014 UT App 33

You may use the same inference, if you find it

justified by the evidence, to connect the possessor of

recently stolen property with the offense of burglary.

Id. at 1234 (emphases added) (internal quotation marks omitted).

The Smith court held that "the instruction [could not] be deemed

reversible error . . . in light of the clear explanatory instructions that

all that the jury could make of the term 'prima facie' was a

permissible inference.” Id. at 1236 (emphasis added). However, the

court also "emphatically declare[d]” that the holding in Chambers

was still good law, id. at 1235, and that the "trial court should not

have used the statutory language [of section 76-6-402(1)] in the

instruction for the reasons stated in Chambers,” id. at 1235–36.

Nevertheless, the court upheld the jury instruction because the

instruction explained that the jury was allowed to draw only a

permissive inference, as opposed to a mandatory presumption. Id.

at 1234–35.

¶12 Similarly, in State v. Perez, 924 P.2d 1 (Utah Ct. App. 1996),

the relevant jury instruction read,

Possession of property recently stolen, if not

satisfactorily explained, is ordinarily a circumstance

from which you may reasonably draw the inference and

find, in light of the surrounding circumstances shown by

the evidence in the case, that the person in possession

of the stolen property stole the property and knew

that it was stolen.

Thus, if you find from the evidence and

beyond a reasonable doubt (1) that the defendant

was in possession of property, (2) that the property

was stolen, (3) that such possession was not too

remote in point of time from the theft, and (4) that no

satisfactory explanation appears from the evidence,

then you may infer from these facts and find that the

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20120128-CA 9 2014 UT App 33

defendant stole the property and knew the property

was stolen.

Id. at 5 (internal quotation marks omitted). We explained that in

Perez, similar to the instruction in Smith, the instruction contained

language that provided only for a permissive inference. Id. Indeed,

we observed that the language of the instruction "eliminat[ed] the

confusing term prima facie and, in fact, emphasize[d] the discretion

allowed the fact finder.” Id. Accordingly, we ruled that the

instruction did not improperly shift the burden of proof to the

defendant. Id. Likewise, the relevant jury instruction provided in

State v. Carlson, 934 P.2d 657 (Utah Ct. App. 1997), copied

essentially verbatim the instruction presented to the jury in Perez.

Id. at 659–60. Accordingly, this also court upheld the Carlson

instruction. Id. at 660.

¶13 Here, because Instruction 33 contains no language clarifying

that the jury is allowed to make a permissive inference, and

because the instruction contains the confusing words "prima facie”

with no supporting explanation, we conclude that the first sentence

of the instruction creates an unconstitutional mandatory

presumption in violation of Defendant's due process rights.

However, we cannot evaluate the first sentence of Instruction 33 in

isolation. We must now consider the remainder of the instruction,

as well as "consider a reasonable jury's understanding in the

context of the jury instructions and the record as a whole.” State v.

Kelson, 2012 UT App 217, ¶ 21, 284 P.3d 695, cert. granted, 298 P.3d

69 (Utah 2013); see also State v. Johnson, 774 P.2d 1141, 1146 (Utah

1989) ("[J]ury instructions are to be considered as a whole . . . .”).

"'Other instructions [and the record] might explain the particular

infirm language to the extent that a reasonable jur[y] could not

have considered the charge to have created an unconstitutional

presumption.'” Kelson, 2012 UT App 217, ¶ 22 (alterations in

original) (quoting Francis v. Franklin, 471 U.S. 307, 315 (1985)).

State v. Crowley

20120128-CA 10 2014 UT App 33

¶14 The State argues that even if the first sentence of Instruction

33 creates an impermissible mandatory presumption, that flaw is

cured by the second sentence of the instruction which reads,

"While the law regards the facts giving rise to the presumption as

evidence of the presumed fact, the presumed fact must on all

evidence be proved beyond a reasonable doubt.” The State

contends that this sentence "clarifies that the jury, in finding the

facts, cannot rely on the legal presumption alone. Rather, the jury

must consider 'all evidence' in determining whether the presumed

fact—that the person in possession stole the property—was

proved . . . beyond a reasonable doubt.” While it is possible that the

jury understood the second sentence of Instruction 33 in a manner

consistent with the State's explanation, the jury could just as well

have interpreted this second sentence to mean "that the

presumption was a means by which proof beyond a reasonable

doubt” could be satisfied. See Francis, 471 U.S. at 319 (citation and

internal quotation marks omitted). This is problematic because

unlike the jury instructions in Smith, Perez, and Carlson, the second

sentence of Instruction 33 fails to instruct the jury that the

presumption was not mandatory and within the jury's discretion

to apply. For instance, the second sentence does not provide any

language instructing the jury that it "may infer” or "may

reasonably draw the inference” that Defendant committed the

crimes charged from the predicate facts. Nor does the second

sentence of Instruction 33 instruct the jury that it maintained

"discretion” about whether to find that Defendant stole the iPod

once the State proved that he possessed it—a consideration that

factored heavily in this court's approval of the instruction used in

Perez. Finally, the second sentence of Instruction 33 fails to provide

proper context for the term "prima facie,” an omission that was of

particular concern to the supreme court in Chambers.

¶15 The State also argues that Instructions 34 and 38 help cure

Instruction 33's defect. However, Instructions 34 and 38 are

generalized instructions explaining that all of the elements of theft

by receiving stolen property and theft by deception must be proven

by the State beyond a reasonable doubt. Like the second sentence

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20120128-CA 11 2014 UT App 33

of Instruction 33, these instructions do "not suffice to absolve the

infirmity” present in Instruction 33, see Francis, 471 U.S. at 322,

because they are "generalized instructions [that] do not clarify the

mandatory rebuttable presumption contained in” Instruction 33, see

Kelson, 2012 UT App 217, ¶ 23; see also Francis, 471 U.S. at 319.

Furthermore, even where a separate instruction directly contradicts

a mandatory presumption by restating the presumption in

permissive form, this is not sufficient to cure the faulty instruction

because this court has "'no way of knowing which of the . . .

irreconcilable instructions the jurors applied in reaching their

verdict.'” Kelson, 2012 UT App 217, ¶ 22 (quoting Francis, 471 U.S.

at 322); see also State v. Tarafa, 720 P.2d 1368, 1371–72 (Utah 1986)

(concluding that despite the existence of a separate instruction to

the jury that a presumption that the defendant knew property was

stolen was "permissive in nature,” that instruction merely

contradicted a prior instruction that created an impermissible

mandatory presumption, resulting in a situation where a

"reasonable juror could have been left in a quandary as to whether

to follow the so-called explanatory instruction or the immediately

preceding one it contradicted”). Thus, any saving language

clarifying that Instruction 33's presumption was within the jury's

discretion should have been included within that instruction.

Instruction 33 contains no such language.

¶16 Finally, nothing from the record indicates that the trial court

orally cured the defect in Instruction 33. The court merely

reiterated the elements of the crimes charged and the general

burdens of proof. Accordingly, we hold that submission of

Instruction 33 to the jury was error. We now turn to the question

of whether this error prejudiced Defendant.

B. Prejudice

¶17 Generally, an error in jury instructions that was properly

preserved at the trial level "is reversible only if a review of the

record persuades the court that without the error there was a

reasonable likelihood of a more favorable result for the defendant.”

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20120128-CA 12 2014 UT App 33

State v. Fontana, 680 P.2d 1042, 1048 (Utah 1984) (citation and

internal quotation marks omitted); see also Utah R. Crim. P. 30(a)

("Any error, defect, irregularity or variance which does not affect

the substantial rights of a party shall be disregarded.”); State v.

Hamilton, 827 P.2d 232, 240 (Utah 1992). However, "[w]here the

error results in the deprivation of a constitutional right, we apply

a higher standard of scrutiny, reversing the conviction unless we

find the error harmless beyond a reasonable doubt.” State v.

Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573; accord Chapman v. California,

386 U.S. 18, 24 (1967). When considering whether an error was

harmless beyond a reasonable doubt, we consider, among other

factors, "the overall strength of the State's case.” See Hamilton, 827

P.2d at 240. "The more evidence supporting the verdict, the less

likely there was harmful error.” Id.

¶18 The gravamen of both offenses charged by the State is that

Defendant knew or at least reasonably believed that the iPod had

been stolen when he pawned it. The crime of theft by receiving

stolen property requires the person receiving the property to

"know[] that it has been stolen, or believ[e] that it probably has been

stolen.” Utah Code Ann. § 76-6-408(1) (LexisNexis Supp. 2009)

(emphases added). The crime of theft by deception requires that a

person "obtain[] or exercise[] control over property of another

person . . . by deception.” Id. § 76-6-405(1) (2008). And deception

occurs only when a person "intentionally” deceives another during

a transaction. See id. § 76-6-401(5) (emphasis added). The State told

the trial judge that it "only ha[d] evidence to show that

[Defendant] . . . possessed [the iPod] in the moments” before

Defendant pawned it. Although the State presented substantial

evidence identifying Defendant as the person who pawned the

iPod, the State essentially conceded that because it had presented

no evidence directly linking Defendant to the iPod's theft—and by

extension no evidence that Defendant knew or believed that the

iPod had been stolen—convictions for each offense were

necessarily predicated exclusively on proof of Defendant's

possession and selling of the iPod at the pawnshop. In other words,

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20120128-CA 13 2014 UT App 33

the State based its case almost entirely on the jury's application of

the presumption contained in Instruction 33. Indeed, during its

closing argument the State told the jury,

The law presumes that possession of . . . property

recently stolen when no satisfactory explanation of

such possession is made shall be deemed prima facie

evidence that the person in possession stole the

property.

This is a presumption set up by the law. . . .

We do have evidence that this property was recently

stolen before it was pawned. Then we have

evidence—it was basically less than two weeks that

property had been reported stolen and that it was

pawned at the pawn shop, or approximately two

weeks. . . .

So that presumption applies to this case when

you're trying to determine whether or not that

[Defendant] had the property and he had it

unlawfully without permission of anyone, that he

wasn't supposed to have that property.

¶19 The State argues that because the evidence at trial

overwhelmingly proved that Defendant was the one who

possessed and pawned the stolen iPod, no prejudice resulted from

the erroneous instruction. But as we discussed above, convictions

for the offenses charged required the State to not only prove that

Defendant pawned the iPod, but that he also knew or at least

believed that it had been stolen. To establish these elements, the

State relied on the impermissible mandatory presumption in

Instruction 33. The jury was not instructed that it had the discretion

to apply the presumption contained in Instruction 33, and the court

did not cure this error. Because the State necessarily relied on the

jury's application of the presumption to reach a conviction for each

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20120128-CA 14 2014 UT App 33

offense, we are not persuaded that the error was harmless beyond

a reasonable doubt.

¶20 Instruction 33 contained an impermissible mandatory

presumption that violated Defendant’s due process rights by

shifting the burden of proof of an element of the charged offenses

to him. Neither the second sentence in Instruction 33 nor any other

written jury instruction or statement by the trial court served to

correct this flaw. The State has not established beyond a reasonable

doubt that submission of the flawed instructions to the jury was

harmless. Accordingly, we reverse and remand for a new trial in

which the jury is properly instructed.