(Posted January 19, 2017) We get the first opinions of the new year today from Ninth and Franklin, as the Supreme Court decides two appeals by published opinion.

Criminal law

A shoplifting conviction sets the scene for a fight over jury instructions in Lindsey v. Commonwealth. A store employee saw Lindsey put two hats inside his clothing. Another employee confronted Lindsey, who was later charged with petit larceny, third offense.

At trial, the prosecution offered a jury instruction out of VMJI:

Willful concealment of goods or merchandise while still on the premises of a store is evidence of an intent to convert and defraud the owner of the value of the goods or merchandise, unless there is believable evidence to the contrary.

Lindsey objected to that and offered a substitute:

You may infer that willful concealment of goods or merchandise while still on the premises of a store is evidence of an intent to convert and defraud the owner of the value of the goods or merchandise.

Since this language is very similar, I’ll highlight the difference: the defense instruction tells the jury that it may infer intent from concealment, while the prosecution’s says that concealment is evidence of intent.

Lindsey was convicted, and the Court of Appeals affirmed per curiam. But Lindsey’s trip to a writ panel bore fruit; the justices agreed to take a look.

The dispositive issue here is whether the prosecution’s instruction creates a presumption, in which case it’s unconstitutional; or else allows the jury to draw a permissive inference, in which case it’s not. Presumptions don’t have to be conclusive in order to violate the Due Process Clause; even a rebuttable presumption is impermissible.

By a 5-2 margin, the SCV today rules that the VMJI language doesn’t create a presumption, so the conviction is affirmed. The chief justice, writing for the majority, notes that the instruction given

merely instructed the jury that willful concealment of goods while on the premises of a store is evidence of intent to convert and defraud. It provided that the jury could consider the concealment of merchandise as evidence of criminal intent, along with any other evidence that was presented to it.

In that sense, it describes a permissive inference that the jury may draw, and doesn’t mandate any conclusion that the jury must accept.

Justice Goodwyn, writing on behalf of Senior Justice Koontz, disagrees; he believes that this language requires the jury to find criminal intent, “unless there is believable evidence to the contrary.” No criminal defendant is required to adduce “believable evidence” in a criminal trial, given the obligation of the prosecution to prove each element beyond a reasonable doubt and the defendant’s right to remain silent. The dissent would remand the case for a retrial, “if the Commonwealth be so advised.”

As always, I don’t get a vote, but if I had been on the court, I probably would have joined the majority. I agree with those five justices that an instruction that concealment “is evidence of” intent doesn’t command the jury to find that intent; it still must evaluate that evidence along with all the other evidence in the case.

The one thing that troubles me just a bit about this conclusion is the final clause in the model instruction: “unless there is believable evidence to the contrary.” That clause doesn’t match up well with the previous language, which states that concealment is “evidence of intent,” as contrasted with, say, “proof of intent.” That phrasing would clearly run afoul of the Due Process Clause. Because of that, and despite the fact that this appeal resulted in an affirmance, it might behoove the model-instruction solons to take another look at the wording of this instruction.


In September the justices heard argument in an automobile MIST (minor impact, soft-tissue injury) appeal, Gilliam v. Immel. Immel rear-ended Gilliam and admitted that he did it; liability was conceded, so the sole issue at trial was damages. There was no discernible damage to Gilliam’s car, and today’s opinion notes that during the collision, “Gilliam was restrained by her seatbelt and no part of her body came into contact with any part of her vehicle.” Her body tensed on impact, but she had no visible signs of injury.

An ambulance came to the scene and took Gilliam to a hospital, where she told health-care providers that her back and neck were sore. They gave her some medication and released her; she went to work the next day. She received follow-up treatment from her family doctor, an orthopedist, and a neurologist after she reported that the pain in her neck had radiated down into her shoulder. She received what I infer was a cortisone injection and some outpatient surgery (which again cost her only one day of work) to address her shoulder pain.

The orthopedist who performed the surgery opined, based on Gilliam’s reports, that her medical care was traceable to the collision, despite her history of back surgery years before. Gilliam introduced medical bills of $73,000.

At trial, the surgeon testified for Gilliam, while another orthopedist testified for Immel based on a record review. (For the uninitiated in PI litigation, that means that he never examined or treated Gilliam; he just read her medical records.) Immel’s expert opined that none of the expenses were attributable to the collision; she suffered only a minor strain that would resolve itself naturally within weeks.

A jury heard all this and wound up believing Immel’s expert; it returned a verdict for Gilliam but awarded her zero dollars in damages. The trial court entered judgment accordingly.

On appeal, the justices unanimously affirm. Justice McClanahan writes the opinion, and she points out that the evidence was very much in dispute as to whether Gilliam’s medical care was causally related to the collision. Gilliam argued that had she proved, at a minimum, that her back and neck injuries were symptomatic for weeks, and she was entitled to at least something for that. No dice, Justice McClanahan answers; that claim – and the surgeon’s confirmation of it – depended entirely on Gilliam’s own report. And the jury was free to conclude that she was embellishing her symptoms, if it so chose.

The court decides one other issue here. Gilliam sought to tell the jury that in the immediate wake of the collision, Immel said to her, “You black bitch. I don’t have insurance. You’re not going to get anything out of me.” As inflammatory as that statement is, it didn’t relate to the one issue that was actually being tried: the extent of Gilliam’s injuries. Theoretically it could be relevant to a claim of infliction of emotional distress, but Gilliam didn’t plead a claim like that, so the Supreme Court affirms the trial court’s decision to exclude the statement at trial.

One last point about the primary ruling in the case. While technically this was a verdict in favor of the plaintiff, the court continues the long-standing practice of evaluating it as being in favor of the defendant, since the jury awarded zero damages. That makes a difference in this appeal, because it calls for the justices to view the evidence in a light most favorable to Immel, not Gilliam. Hence their conclusion that the jury may not have believed Gilliam’s reports of pain.