COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge Alston and Senior Judge Annunziata Argued at Salem, Virginia

FRANK LEO COX, III MEMORANDUM OPINION * BY v. Record No. 1527-10-3 CHIEF JUDGE WALTER S. FELTON, JR. AUGUST 23, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Mila m, Jr., Judge Jason S. Eisner for appellant. Karen Misbach, Assist ant Attorney General (K enneth T. Cuccinelli, II, Attorney General; Jo shua M. Didlake, Assistant Attorney General, on brief), for appellee.

Frank Leo Cox, III (“appellant”) was convicted by the Circuit Court of the City of Danville (“trial court”) of presenting two or more bad chec ks in return for cash, in violation of Code § 18.2-181.1. On ap peal, appellant contends that the trial court erred in requiring him to present

evidence in order to be found not guilty. In addition, appella nt contends the evidence was insufficient to prove that he pres ented the checks with the intent to defraud. For the following reasons, we affirm ap pellant’s conviction.

I. BACKGROUND “When considering a challenge to the sufficiency of the evid ence to sustain a conviction,

this Court reviews ‘the ev idence in the light most favorable to the preva iling party at trial and consider[s] all inferences fairly deducible from that evidence.’” Clark v. Commonwealth , 279 Va.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - 636, 640, 691 S.E.2d 786, 788 (2010) (alteration in original) (quoting Jones v. Commonwealth , 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008)). The evidence presented at trial prove d that on July 24, 2008, appellant wrote a $350 check payable to Shadowood Mart, a convenience st ore located in Danville, Virginia, in return for cash. Appellant’s mother, Patsy Cox, then an employee of Shadowood Mart, cashed the check for appellant, after first obtaining permissi on from Abdul Kahn (“Kahn”), the store owner. Four days later, on July 28, 2008, appellant pres ented another check payable to Shadowood Mart in the amount of $150, which his mother also ca shed. Kahn first became aware of the second check when he was making a deposit on the day af ter it had been cashed. Appellant’s mother

testified that she asked Kahn to hold the check s for one week before he deposited them. However, Kahn testified that he did not recall being asked to hold the checks. Shortly after Kahn presented the cashed check s for payment, the bank returned them to

him with the notation that the account on which the checks were drawn di d not contain sufficient funds to pay them. Kahn informed appellant’s mother that the bank returned the checks unpaid and the reason why. Appellant’s mother promis ed Kahn she would contact appellant about the checks. At the time appellant wrote the checks, he lived with his mother in Virginia. However, by August 2008 appellant had moved to North Caroli na. Appellant’s mother testified that she was unable to contact him. Thereafter, in Se ptember 2008, appellant’s mother suffered a stroke and, as a result, was not able to “fully communicate” with appella nt until October 2008. 1 Appellant’s mother testified th at she never told appellant th at his checks to Shadowood Mart

were returned for insufficient funds.

1 Appellant’s mother testified that she did not return to wo rk at Shadowood Mart after her stroke.- 3 - On March 11, 2009, Kahn sent appellant two separate letters by certified mail to two separate addresses demanding full payment of th e dishonored checks. The addresses to which

the letters were sent were the address liste d for appellant on the face of the checks and appellant’s mother’s home address. The letter sent to the address on the check was returned to Kahn with the notation that appellant had move d from that address and left no forwarding

address. The letter sent to appellant’s mother’s address was returned to Kahn as unclaimed. Appellant was arrested on January 27, 2010, for violating Code § 18.2-181.1. 2 At appellant’s bench trial, appell ant’s mother and Kahn each testif ied for the Commonwealth. At the conclusion of the Commonwealth’s evidence, a ppellant moved to strike the evidence, arguing

that the evidence was insufficient to show that he possessed the requisite intent to defraud when he presented the checks for payment. The tr ial court found the Comm onwealth’s evidence sufficient to establish a prima facie case of a ppellant’s intent to defraud under Code § 18.2-183 and denied appellant’s motion to strike. Following the trial court’s ruling, appellant presented no evidence and renewed his

motion to strike. The trial court denied appellant’s motion and found him guilty, stating, [T]he Court found the [statutory] pr esumption to be applicable in the case and the defense put on no evidence. . . . I mean the presumption, I think, does apply he re which is the only thing the Court finds that the Commonwealth . . . because it’s true, the Court cannot find actual notice based on the evidence the Commonwealth has presented othe r than the sending the notice required by the statute. . . . [T he] Court’s havi ng to base its decision in this case purely on the Commonwealth’s evidence. Certainly [appellant] has no obligat ion to testify or provide any evidence and exercise of that right cannot be held against [appellant] but I . . . having found that the . . . statute does provide prima facie evidence of intent a nd knowledge, I do find that notice was sent by certified mail, return receipt requested, although it was unclaimed to the address shown on the check. There were also, I

2 Code § 18.2-181.1 prohibits the issuance of two or more check s with an aggregate value of $200 or more in a manner that violates Code § 18.2-181 (requiring proof of fraudulent intent to sustain a conviction for issuing bad checks).- 4 - mean, beyond that, [appellant’s] mo ther, who accepted the checks, had some contact with [appellant] after . . . October, she having suffered a stroke. She did not say that they specifically discussed these checks, however, based on the . . . the notice, I think I have to find that the Commonwealth’s witness did comply with the statute and that that provides prima facie evidence of intent so I have to find him guilty. After this statement by the trial court, appellan t’s counsel stated that he believed that “the

rationale behind the Court’s find ing required [appellant] to put on evidence.” The trial court responded: No, no, no, I said I’m relying on the Commonwealth’s evidence and I said, I found earlier, the Commonwealth’s evidence established compliance with the statute and that’s how I’ve overruled the motion to strike. . . . I mean, I’m just simply making the point that there’s no other evid ence that the Court considers in the case. It’s all the Commonweal th’s evidence. The Court can’t hold it against [appellant] the fact that he didn’t present evidence but if the Commonwealth’s . . . evidence provides evidence of guilt then that’s what the Court has to rely on. The following exchange then took place: [APPELLANT]: For the record, Y our Honor, we take exception to the Court’s ruling based on burden shifting, if we would suggest.

THE COURT: Under the statute? [APPELLANT]: Yes, Your Honor. The trial court subsequently sentenced appell ant to three years’ incarceration with all three years suspended. This appeal followed.

II. ANALYSIS A. Burden Shifting Appellant asserts that the trial court erred in requiring him to present defense evidence to prove his innocence. 3

3 With all due respect to the concurrence’s an alysis, appellant did not raise constitutional or Due Process Clause arguments to the trial court, explicitly or implicitly . He did not cite any authority to the trial court to support any constitutional argumen t regarding the statute or its- 5 - In a prosecution under Code § 18.2-181 (i ssuing bad checks), the Commonwealth may rely on the rebuttable presumption of intent to defraud provided by Code § 18.2-183. Code § 18.2-183 provides, In any prosecution or action under [Code § 18.2-181 and Code § 18.2-181.1], the making or drawing or uttering or delivery of a check . . . which is refused by the drawee because of lack of funds or credit shall be prima facie evidence of intent to defraud or of knowledge of insufficient funds in, or credit with, such bank, banking institution, trust company or other depository unless such maker or drawer, or someone for hi m, shall have paid the holder thereof the amount due thereon, toge ther with interest, and protest fees (if any), within five days after receiving written notice that such check . . . has not been paid to the holder thereof. Notice mailed by certified or registered mail, evidenced by return receipt, to the last known addr ess of the maker or drawer shall be deemed sufficient and equivalent to not ice having been received by the maker or drawer.

application to the evidence presented at trial. We will not consider an alternative argument raised for the first time on appeal. See Rule 5A:18. Rule 5A:18 “applies even to [appellant’s] constitutional claims.” Deal v. Commonwealth , 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992). The laudatory purpose behind Rule 5A:18, and its equivalent Supreme Court Rule 5:25, fre quently referred to as the contemporaneous objection rules, is to require that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. The rules promote orderly and efficient justice and are to be strictly enforced except where the error has resulted in ma nifest injustice. Errors can usually be corrected in the trial court, particularly in a bench trial, without the necessity of appeal. Because our function is to review the rulings of the trial court, rather than superintend the proceedings, we will notice erro r for which there has been no timely objection only when necessary to satisfy the ends of justice.

Brown v. Commonwealth , 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989). Appellant does not argue that we should invoke eith er the good cause or ends of justice exceptions to Rule 5A:18. See Redman v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). The Court will not consider Rule 5A:18 exceptions sua sponte

. See Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).- 6 - (Emphasis added). In other words, Code § 18.2-183 provides “a rule of evidence upon which the Commonwealth may rely in facilitating proof of the fraudulen t intent of the drawer.” Bray v.

Commonwealth , 9 Va. App. 417, 423, 388 S.E.2d 837, 840 (1990). Once the Commonwealth presents prima f acie evidence as required by Code § 18.2-183, that evidence permits, but does not require, a reasona ble trier of fact to find that at the time the dishonored check was presented, the accused intended to defraud his victim. Stated differently, if the trier of fact accepts the Commonwealth’s evidence as credible, a rebuttable presumption that the accused possessed the intent to defra ud is established, “thereby shifting the burden of producing evidence to the defe ndant.” Charles E. Friend, The Law of Evidence in Virginia § 9-5 (6th ed. 2003) (noting that Code § 18.2-183 is “usually construed to create a rebuttable presumption, thereby shifting the burden of produc ing evidence to the defendant”). At no time during appellant’s trial, howeve r, did the trial court require appellant to produce evidence. 4 While a defendant may rely upon the Commonwea lth’s evidence to rebut the presumption, Hodge v. Commonwealth , 217 Va. 338, 343, 228 S.E.2d 692, 696 (1976) , and is not required to “prove anything,” he “[runs] the risk of not pr oducing some evidence to rebut the presumption,”

Wilson v. Commonwealth , 225 Va. 33, 43, 301 S.E.2d 1, 6 (1983).

Nor did the court relieve the Commonwealth from its burden of persuasion. “‘A permissive inference does not relieve the [Commonwealth] of its burden of persuasion because it still requires the [Commonwealth] to convince the [trier of fact] that the suggested conclusion

should be inferred based on the predicate facts proved.’” Dobson v. Commonwealth , 260 Va. 71, 75, 531 S.E.2d 569, 572 (2000) (emphasis added) (quoting Francis v. Franklin , 471 U.S. 307, 314 (1985)). See Ronald J. Bacigal, Virginia Criminal Procedure § 17:8 (2010-2011) (“What is

4 The trial court repeatedly informed appe llant that he was not required to produce evidence. When appellant once again raised th e issue during his sentencing hearing, the trial court reiterated that “[appellant] certainly has no obligation whatsoever to present evidence.”- 7 - often referred to as a presumption is in realit y a permissible inference. While a presumption requires the trier of fact to ma ke a certain finding, a permissibl e inference merely permits, but does not require, the trier of fact to come to a certain conclusion.”). We conclude that from the evidence presente d, the trial court did not require appellant to present evidence to find him not guilty. Instead, the trial court properly relied on the statutory rebuttable presumption from which it could find, but was not required to find, that appellant had the intent to defraud when he presented the wort hless checks for payment to the store owner and properly imposed on the Commonwealth th e ultimate burden of persuasion. B. Sufficiency of the Evidence Appellant also contends that the trial cour t erred by finding the evidence was sufficient to prove that he issued the checks with the intent to defraud. Appellant as serts on appeal that the Commonwealth’s own evidence rebuts the pres umption created by Code § 18.2-183. He argues

that the Commonwealth’s evidence shows that he did not pay the checks after receipt of notice that Kahn had not been paid because he never rece ived actual notice that the checks had not been paid, and not because he intended to defraud Kahn. 5 In reviewing the sufficiency of the evidence, “we presume the judgment of the trial court to be correct,” Broom v. Broom , 15 Va. App. 497, 504, 425 S.E.2d 90, 94 (1992), and “will not set it aside unless it is plainly wrong or without evidence to support it.” Dodge v. Dodge , 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986).

Davis v. Commonwealth , 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). “[T]he relevant question is whether, after viewi ng the evidence in the light most favorable to the prosecution,

5 Appellant does not contest that the manner in which the certified letters were sent failed to meet the requirements of Code § 18.2-183.- 8 - any rational trier of fact could have found th e essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). To sustain appellant’s conviction for violating Code § 18.2-181.1, the Commonwealth was required to prove that appella nt issued the checks with the in tent to defraud. “Intent to

defraud means that the defendant intends to ‘d eceive another person, and to induce such other person, in reliance upon such decepti on, to assume, create, transfer, alter, or terminate a right, obligation or power with re ference to property.’” Bray , 9 Va. App. at 422, 388 S.E.2d at 839 (quoting Black’s Law Dictionary 381 (5th ed. 1979)). Appellant argues that th e statutory presumption created by Code § 18.2-183 was successfully rebutted by the Commo nwealth’s own evidence, which established that appellant never received actual notice that the checks had not been paid. Appellant’s argument ignores the plain language of Code § 18.2-183, whic h provides, in pertinent part,

If such check . . . shows on its f ace a printed or written address, home, office, or otherwise, of the maker or drawer, then the foregoing notice, when sent by certif ied or registered mail to such address, with or without return receipt requested, shall be deemed sufficient and equivalent to not ice having been received by the maker or drawer, whether such notice shall be returned undelivered or not. (Emphasis added). Appellant additionally argues that the Commonwealth’s evidence rebutted the presumption of intent to defraud under Code § 18.2-183 because Kahn sent the letters to him approximately seven months after he moved from Virginia to North Carolina. Whether the evidence is sufficient to rebut the presumption is a question for the fact finder to determine. See

Moffit v. Commonwealth , 16 Va. App. 983, 987, 434 S.E.2d 684, 687 (1993). The record on appeal reflects that appellant gave the bad checks to his mother, to cash at her place of employment. Appellant left Vi rginia shortly after presenting the checks for payment, left no- 9 - forwarding address, and could not be contacte d by Kahn or his mother. From the evidence presented at trial, the trial court was entitled to infer that appellant was aware that at the time he presented the checks to Shadowood Mart to cash, there were insufficient funds in his checking account to pay those checks when presented for payment. Because the Commonwealth proved that Kahn sent, by certified mail, two letters to appellant at the address printed on the checks notifying appellant that the checks had not been paid and that thereafter appellant did not pay the amount due on th e checks within five days as required by Code § 18.2-183, the evidence was sufficien t to prove that appellant had the requisite intent to defraud. Appellan t’s conviction is affirmed.

Affirmed.- 10 - ting Alston, J., concurring. I agre e with the majority that the trial court did not require appellant to present evidence in order to be found not guilty and that the ev idence was sufficient to prove that appellant presented the checks with the intent to defraud. However, I write separately to address the Due Process Clause issue I believe was appropriately raised by appellant’s firs t assignment of error. On appeal, appellant alleges that the trial c ourt erred in “finding that [appellant] had to present evidence in his case in order to be found not guilty under the presumption created in” Code § 18.2-183. Through this argument, appellant raises the constitution al question of whether Code § 18.2-183 impermissibly shifts th e burden of proof to a defendant. 6 I write separately here to expand upon the majority’s implicit constituti onal analysis and to clarify both the exis terminology regarding presumptions and their constitutional validity under the Due Process Clause. It is my view that the majority’s fail ure to adequately set fort h its reasoning in reaching

6 Appellant’s citation on brief to Hodge v. Commonwealth , 217 Va. 338, 342, 228 S.E.2d 692, 695 (1976), and his assertion that the shifting of the burden of persuasion to the accused is “constitutionally infirm” sufficiently raises the due process issue such that, in my view, the constitutional question must be t horoughly addressed by this Court. In addition, I believe appellant adequately presented this constitutional question to the trial court. Rule 5A:18, as in eff ect at the time of appellant’s trial, see Fails v. Va. State Bar , 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of Court in effect at the time of the proceedings below), simply stated that to sa tisfy the rule, an objection be stated “with the grounds therefor.” Appellant fulfilled this re quirement through his specific objection to the “burden shifting” of the trial cour t’s ruling and his related objecti on to what appellant viewed as the trial court’s requirement that appellant presen t evidence. Furthermore, appellant’s failure to cite authority in support of his obj ection at trial is not fatal to consideration of his argument on appeal, as Rule 5A:18 “does not prohibit reliance on statutes or cases not presented to the trial court to support, on appeal, a position otherwise adequate ly presented at trial.” Lash v. County of Henrico , 14 Va. App. 926, 929, 421 S.E.2d 851, 853 (1992) ( en banc ). In my view, appellant’s statements at trial adequately presen ted appellant’s belief that the trial court was interpreting Code § 18.2-183 in a ma nner that unconstitutionally sh ifted the burden of proof to appellant. Because appellant’s objection fulfilled the main purpose of Rule 5A:18, “to afford the trial court an opportunity to rule in telligently on the issues presented,” Weidman v. Babcock , 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991), I believe Rule 5A:18 does not bar appellate consideration of the constitutional issue in this case.- 11 - its determination of this issue may unintenti onally suggest a constitu tionally incomplete methodology for resolution of the issue presented. “[T]he Due Process Clause requires the pros ecution to ‘prove beyond a reasonable doubt every fact necessary to constitute the crime charged.’” Hodge v. Commonwealth , 217 Va. 338, 341, 228 S.E.2d 692, 695 (1976) (quoting Mullaney v. Wilbur , 421 U.S. 684, 685 (1975)). However, statutory presumptions do not necessar ily unconstitutionally shift the burden of proof

from the Commonwealth to a criminal defendant. See Cnty. Court of Ulster v. Allen , 442 U.S. 140, 156 (1979) (stating that “[i]nferences and presum ptions are a staple of our adversary system of factfinding”). To understand the legal significance of the various “presump tions” which may exist in a statute purporting to establish prima facie ev idence of an element of a crime, one must understand the terminology advanced in the case law defining the diverse sets and subsets of statutory presumptions. At the outset, it must be recognized that a statut ory presumption may be mandatory or permissive. Mandatory presumpti ons instruct the trier of fact that it “ must infer the presumed fact if the [Commonwealth ] proves certain predicate facts.” Francis v. Franklin , 471 U.S. 307, 314 (1985) (emphasis added). In contrast, permissive presumptions 7 “suggest[] to the [trier of fact] a possible conclu sion to be drawn if the [Commonwealth] proves predicate facts, but do[] not require the [trier of fact] to draw that conclusion.” Id. The United States Supreme

7 I recognize that “[w]hat is of ten referred to as a presumpti on is in reality a permissible inference.” Ronald J. Bacigal, Virginia Criminal Procedure § 17:8 (2010-2011). As Professor Bacigal explains, some courts and commentator s interpret a “presumpti on” to place upon the opponent of the presumption “the burden of disproving the presumed fact.” Id. Thus, some courts prefer the term “permissible inference,” which makes clear that the burden of proof on an element of the crime is not unconstitutionally shifted to a criminal defendant. Id. To further highlight the journey through the terminology maze in this area of the la w, I note that other courts have used the terms “permissive inference” and “permissive presumption” interchangeably. In the instant concurrence, I adopt the term “permissive presumption”; in doing so, I do not intend to imply that all permissive pr esumptions necessarily sh ift the burden of proof on an element of the crime to a criminal defendant.- 12 - Court has developed subsets of both the mandato ry and permissive presumptions by recognizing that these presumptions can be rebuttable or irrebuttable. 8 See id. at 314 n.2. A rebuttable presumption allows (in the case of a permissive rebuttable presumption) or requires (in the case of a mandatory rebuttable presumption) the trier of fact “to find the presumed element unless the defendant persuades the [tri er of fact] that such a finding is unwarranted.” Id. In contrast, an irrebuttable “presumption removes the presumed element from the case once the [Commonwealth] has proved the predicate f acts giving rise to the presumption.” Id. ; see also Black’s Law Dictionary 1305 (9th ed. 2009) (defining “irre buttable presumption” as “[a] presumption that cannot be overcome by any additional evidence or argument”). 9 I agree with the majority that Code § 18.2-183 creates a rebuttable presumption. See

Huntt v. Commonwealth , 212 Va. 737, 739, 187 S.E.2d 183, 186 (1972) (interpreting Code § 6.1-117, the predecessor st atute to Code § 18.2-183); Sykes v. Commonwealth , 42 Va. App. 581, 588, 593 S.E.2d 545, 548 (2004). However, the constitutionality of the rebuttable presumption created by Code § 18.2-183 also turns upon the classification of the presumption as

8 Although the Francis Court uses the term “conclusive” presumption, 471 U.S. at 314 n.2, to avoid confusion, I use the te rm “irrebuttable” presumption. See Black’s Law Dictionary 1305 (9th ed. 2009) (stating that “conclusive presumpti on” is also termed “irrebuttable presumption”).

9 For the sake of clarity, I emphasize that th ere are four recognized types of statutory presumptions: (1) mandatory rebuttable presumpti ons, which instruct the tr ier of fact that it must infer the presumed element if the Commonweal th proves certain predicate facts, but the presumption remains subject to rebuttal; (2) manda tory irrebuttable presum ptions, which instruct the trier of fact that it must infer the presumed element if the Commonwealth proves certain predicate facts, regardless of any evidence tend ing to rebut the presum ption; (3) permissive rebuttable presumptions, which allow but do not requi re the trier of fact to infer the presumed element if the Commonwealth proves certain predicate facts, but the presumption remains subject to rebuttal; or (4) perm issive irrebuttable presumptions , which allow but do not require the trier of fact to infer the presumed elemen t if the Commonwealth proves certain predicate facts, regardless of any evidence tending to rebut the presumption. The test for the constitutionality of each type of presumption differs, and in the instant case I address the constitutionality of only th e permissive rebuttable presumption created by Code § 18.2-183.- 13 - mandatory or permissive. The majority implicitly holds that Code § 18.2-183 creates a permissive presumption when it states that the presumption in the instant case “‘still requires the [Commonwealth] to convince the [trier of fact] that the suggested conclusion should be inferred based on the predicate facts proved,’” Dobson v. Commonwealth , 260 Va. 71, 75, 531 S.E.2d 569, 572 (2000) (emphasis added) (quoting Francis , 471 U.S. at 314), and when it states that “the trial court properly relied on the statutor y rebuttable presumption from which it could find, but was not required to find, that appellant had the intent to defraud . . . .” However, I write separately not to challenge the result reached by the majority but in order to provide an explanation and rationale for this holding, and to explicate the test for th e constitutionality of permissive rebuttable presumptions. Simply impl ying that the code secti on creates a permissive presumption without articulating why or how the Court has made this determination, and without explaining the constitutional ramifications of this classification, neither e xplains the analytical framework used to reach this conclusion nor adequa tely speaks to appellant ’s assignment of error

in the instant case. I would hold explicitly that Code § 18.2-183 creates a permissive presumption. While not all rebuttable presumptions are permissive presumptions, see Francis , 471 U.S. at 314 n.2, “our general rule is to give rebuttable presum ptions permissive or burden-of-production-shifting effect only,” Wilson v. Commonwealth , 225 Va. 33, 41, 301 S.E.2d 1, 5 (1983). This general rule applies even when the presumption “is cons trued to require the defendant[] to produce some

evidence.” Wilson , 225 Va. at 42, 301 S.E.2d at 5. As a result, I would hold that Code § 18.2-183 creates a permissive rebuttable presumption. After classifying the presumption created by Code § 18.2-183 as a permissive rebuttable presumption, it is incumbent upon the Court in the instant case to determine whether the presumption satisfies the requirements of the Due Process Clause. The constitutional test for- 14 - rebuttable presumptions and the constitutional test for permissive presumptions are two separate lines of inquiry. A rebuttable presumption is constitutional “provided that the prosecution retains the ultimate burden of proof beyond a reasonable doubt.” Dobson , 260 Va. at 75, 531 S.E.2d at 571. Permissive presumptions are constitutional as long as “the suggested conclusion is . . . one that reason and common sense justif y in light of the proven facts be fore the [trier of fact].”

Francis , 471 U.S. at 314-15. This standard for permi ssive presumptions is not satisfied if the Court determines that “there is no rational way the trier could make the connection permitted by

the inference.” Allen , 442 U.S. at 157. The majority addresses the former test, but not the latter. I agree with the majority that the rebuttable nature of the permissive pres umption created by Code § 18.2-183 does not render the statute unconstitutional by relieving the Commonwealth of the ultimate burden of proof beyond a reasonable doubt or requiring the defendant to present evidence. In this regard, a defendant may rely upon the Commonwealth ’s evidence to rebut the presumption, Hodge , 217 Va. at 343, 228 S.E.2d at 696, even though he “[runs] the risk of not producing some evidence to rebut the presumption,” Wilson , 225 Va. at 43, 301 S.E.2d at 6. However, the majority’s analysis of the burden-shifting effect of Code § 18.2-183 ends here. In my view, the majority must next a ddress whether the presumption created by Code § 18.2-183 satisfies the separate constitutional test for permissive presumptions. I would hold that the presumption created by Code § 18.2-183 sa tisfies the test for permissive presumptions under the Due Process Clause because it provides a rational mechanism to a llow the trier of fact to make the connection permitted by the inference. Code § 18.2-183 allows the trier of fact to

infer intent to defraud when a defendant does no t pay the amount due on a check within five days of receiving actual or, under certai n circumstances, constructive written notice that the check has not been paid to the holder. The connection be tween a defendant’s failure to pay, despite actual- 15 - notice that his or her check has been dishonored, and a defendant’s intent to defraud at the time of issuing the check is rational. In addition, the connection be tween a defendant’s failure to provide the drawee with his or her correct address on the face of the check, or a defendant’s refusal to accept notice that his or her check has not been pai d, and a defendant’s intent to defraud at the time of issuing the check is rational. In sum, because the permissive rebuttab le presumption created by Code § 18.2-183 is

rational and does not relieve the Commonwealth of the ultimate burden of proof beyond a reasonable doubt, I would hold that it does not violate the Due Process Clause. Because the majority does not fully address this constitutio nal question, and because I believe appellant particularly raised this issue on brief in his appeal and before the trial court, I would hold explicitly that Code § 18.2-183 cr eates a permissive rebuttable pr esumption that does not violate

the Due Process Clause and that the trial court did not err in its conc lusion that it was not imposing an impermissible burden-shifting requirement under Code § 18.2-183.