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THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES D. BRACKHAN, )
)
Appellant, ) Court of Appeals No. A-4014
) Trial Court No. 3AN-S90-
7830CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1252 - October 2, 1992]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District,
Anchorage, Martha Beckwith, Judge.
Appearances: David R. Weber, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Leroy K.
Latta, Jr., Assistant District Attorney,
Edward E. McNally, District Attorney,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
James Brackhan was convicted by a jury of theft in the
fourth degree (theft of services). He appeals, challenging a
number of jury instructions. We reverse.
Brackhan was charged with theft for failing to pay a $6
cab fare. The state's evidence at trial indicated that, after
riding in a taxicab, Brackhan left without paying. In defense,
Brackhan asserted that he had fled the cab without paying because
the driver had assaulted him.
At the conclusion of the trial, District Court Judge
Martha Beckwith gave the jury an instruction reciting the
elements of the offense of theft of services, as set out in AS
11.46.200(a)(1).1 Over Brackhan's objection, Judge Beckwith also
included in this instruction the language of AS 11.46.200(b), a
provision in the theft of services statute which specifies that
proof of "absconding" without payment for certain services
amounts to a prima facie showing of deception. The following
language from AS 11.46.200(b) was quoted to the jury:
Absconding without paying for hotel,
restaurant, or other services for which
compensation is customarily paid immediately
upon the receiving of them is prima facie
evidence that the services were obtained by
deception.
On appeal Brackhan claims that this instruction in
effect created a presumption that impermissibly shifted the
burden of proof to the defense. Brackhan's claim finds support
in Alaska Rule of Evidence 303, which specifies that a "prima
facie evidence" provision in a criminal statute has the effect of
a presumption:
(b) Prima Facie Evidence. A statute
providing that a fact or group of facts
is prima facie evidence of another fact
establishes a presumption within the meaning
of this rule.
A separate provision, A.R.E. 303(a)(1), sets out the
manner in which the trial court must proceed when a presumption
in a criminal case is directed against the accused:
(a)(1) Presumptions Directed Against an
Accused. In all criminal cases when not
otherwise provided for by statute, by these
rules or by judicial decision, a presumption
directed against the accused imposes no
burden of going forward with evidence to
rebut or meet the presumption and does not
shift to the accused the burden of proof in
the sense of the risk of nonpersuasion, which
remains throughout the trial upon the party
on whom it was originally cast. However, if
the accused fails to offer evidence to rebut
or meet the presumption, the court must
instruct the jury that it may, but is not
required to, infer the existence of the
presumed fact from the proved fact, but no
mention of the word "presumption" shall be
made to the jury. If the accused offers
evidence to rebut or meet the presumption,
the court may instruct the jury that it may,
but is not required to, infer the existence
of the presumed fact from the proved fact,
but no mention of the word "presumption"
shall be made to the jury.
Although perhaps somewhat confusing at first blush, the
intent of this rule becomes apparent upon closer scrutiny. The
rule makes it clear, at the outset, that, absent an express
statutory provision to the contrary, a presumption against the
accused in a criminal case will never impose on the accused the
burden of going forward or shift from the state the burden of
proof (or "risk of nonpersuasion"). When a statutory presumption
against the accused remains unrebutted at trial, the rule
requires the court to inform the jury of its existence: "[I]f
the accused fails to offer evidence to rebut or meet the
presumption, the court must instruct the jury . . . ."
Conversely, when the accused presents evidence tending to rebut
the presumption, the rule leaves to the court's discretion the
question of whether the jury should be informed of the
presumption's existence: "If the accused offers evidence to
rebut or meet the presumption, the court may instruct the jury .
. . ." However, to protect against the possibility that a jury
might view a presumption as shifting the duty of going forward or
the burden of proof, Rule 303(a)(1) provides that, whenever the
trial court informs the jury of the existence of a statutory
instruction against the accused, it must avoid mention of the
word "presumption" and must phrase its instruction in language
creating a permissible inference: "[T]he court must [or, in the
event the presumption is rebutted, it may] instruct the jury that
it may, but is not required to, infer the existence of the
presumed fact from the proved fact, but no mention of the word
"presumption" shall be made to the jury."2
In the present case, the "prima facie evidence"
provision of AS 11.46.200(b) gave rise to a presumption that
Brackhan obtained services by deception when he failed to pay for
his taxicab ride. Because Brackhan presented evidence at trial
to meet or rebut the presumption, the decision whether to inform
the jury of its existence was a matter for Judge Beckwith's
discretion.3 In electing to inform the jury of the statutory
presumption, however, Judge Beckwith was obligated, under A.R.E.
303(a)(1), to describe the presumption as a permissible
inference.
The disputed instruction in this case was not worded in
the form required under A.R.E. 303(a)(1). It simply quoted the
"prima facie evidence" provision of AS 11.46.200(b). As we have
already indicated, under A.R.E. 303(b), the legal effect of
informing the jury of this statutory language was to create a
presumption. It is not unreasonable to expect that jurors would
have construed the prima facie evidence provision as having this
effect, even though it avoided any actual mention of the word
"presumption."4
The disputed instruction provided no guidance as to the
manner in which the jury was to apply the presumption established
by the prima facie evidence provision, and it failed to specify
that the weight and effect of this presumption were matters
within the jury's exclusive province. As a result, jurors may
well have believed themselves bound to accept the presumption as
mandatory; from the undisputed evidence that Brackhan absconded
from the taxicab without paying, the jury may well have concluded
that the element of deception had been conclusively established.
See Sandstrom v. Montana, 442 U.S. 510, 514 (1979) (whether
instruction concerning presumption is unconstitutional "depends
upon the way in which a reasonable juror could have interpreted"
it). For this reason, we hold that the trial court erred in
giving the instruction.5
Accordingly, the conviction is REVERSED.6
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. AS 11.46.200(a)(1) reads:
Theft of services. (a) A person commits
theft of services if
(1) the person obtains services, known
by that person to be available only for
compensation, by deception, force, threat,
or other means to avoid payment for the
services . . .
2. The commentary to A.R.E. 303(a)(1) sheds further light
on the language used in the rule. In relevant part, the
commentary states:
Subdivision (a) allows presumptions to
perform their intended functions, but
prevents them from exerting too great an
impact on the outcome of a case. If a
presumption is created by the legislature or
the courts, it serves as an incentive for the
accused to submit rebuttal evidence. If no
rebuttal evidence is submitted, the court,
without using the word "presumption," will
instruct the jury that it may, but is not
bound to, infer the existence of the presumed
fact from proof of the basic fact. Such an
instruction is couched purely in terms of a
permissible inference; no attempt is made to
guide the jury in assessing the sufficiency
of the inference to prove guilt. This
mandatory instruction is in the nature of a
mild comment on the evidence. No good reason
appears why the legislature or the courts
cannot require a specific non-binding
instruction when they deem it desirable.
If the accused offers evidence to rebut
or meet the presumption, the giving of an
instruction is discretionary.
Alaska Rules of Court, Commentary to A.R.E. 303 at 431 (Main
Edition 1992-93).
3. We assume for purposes of this decision that Judge
Beckwith did not abuse her discretion in electing to inform the
jury of the statutory presumption. We note, however, that the
relationship between the proved fact -- Brackhan's absconding
from the taxicab without paying -- and the presumed fact -- that
Brackhan obtained services by deception -- seems self-evident.
The commentary to A.R.E. 303(a)(1) suggests that, under such
circumstances, informing the jury of a presumption is unnecessary
and potentially prejudicial:
In instances where the nature of a
presumption directed against the accused is
such that the relationship between the proved
fact and the presumed fact is self-evident or
apparent, no instruction should normally be
given by the court if the accused offers
evidence to rebut or meet the presumption,
since, in such instances, a jury instruction
would tend to emphasize unduly and
unnecessarily the existence of the
presumption. On the other hand, in
circumstances where there is no obvious
connection between a proved fact and the
presumed fact, an instruction to the jury
regarding the existence of the presumption
would ordinarily be appropriate.
Alaska Rules of Court, Commentary to A.R.E. 303(a) at 431-32
(Main Edition, 1992-93).
4. The commentary to A.R.E. 301, which deals with the term
"prima facie evidence," makes it clear that this term is often
understood to create a presumption that shifts the burden of
producing evidence:
The term `prima facie case' is often used in
two senses and is therefore an ambiguous and
often misleading term. It may mean evidence
that is simply sufficient to get to the jury,
or it may mean evidence that is sufficient to
shift the burden of producing evidence . . .
A presumption may be utilized in both senses
in the same case. [Prima facie evidence]
statutes . . . do more than permit a party to
get to a jury on the basis of prima facie
evidence; they evince a legislative deter-
mination that the presumption should be
accepted until rebutted.
Alaska Rules of Court, Commentary to A.R.E. 301 at 430 (Main
Edition, 1992-93)(quoting J. McCormick, Evidence 342 at 803
n.26 (2d ed.)).
5. We note that other jurisdictions have reached similar
conclusions. See State v. Kipf, 450 N.W.2d 397, 413 (Neb. 1990)
(reversing when jury instructed that the use of lewd language was
prima facie evidence of intent to harass); State v. Jasper, 467
N.W.2d 855, 862-63 (Neb. 1991) (reversing when jury instructed
that firearm found in car was prima facie evidence that weapon
was possessed by occupants).
6. Reversal of the conviction on this ground makes it
unnecessary for us to address Brackhan's other claims.
