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. Milam, Jr., Judge 

 Jason S. Eisner for appellant. 

 Karen Misbach, Assistant Attorney General (Kenneth T. Cuccinelli, 

II, Attorney General; Joshua 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 checks in return for cash, in violation of Code 

§ 18.2-181.1. On appeal, appellant contends that the trial court erred in requiring him to present 

evidence in order to be found not guilty. In addition, appellant contends the evidence was 

insufficient to prove that he presented the checks with the intent to defraud. For the following 

reasons, we affirm appellant’s conviction. 

I. BACKGROUND 

 “When considering a challenge to the sufficiency of the evidence to sustain a conviction, 

this Court reviews ‘the evidence in the light most favorable to the prevailing 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 opinion is not designated for publication. 
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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 proved that on July 24, 2008, appellant wrote a $350 

check payable to Shadowood Mart, a convenience store 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 permission from Abdul Kahn (“Kahn”), the store owner. 

Four days later, on July 28, 2008, appellant presented another check payable to Shadowood Mart 

in the amount of $150, which his mother also cashed. Kahn first became aware of the second 

check when he was making a deposit on the day after it had been cashed. Appellant’s mother 

testified that she asked Kahn to hold the checks 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 checks for payment, the bank returned them to 

him with the notation that the account on which the checks were drawn did 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 promised 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 Carolina. Appellant’s mother testified that she 

was unable to contact him. Thereafter, in September 2008, appellant’s mother suffered a stroke 

and, as a result, was not able to “fully communicate” with appellant until October 2008.1

 

Appellant’s mother testified that she never told appellant that his checks to Shadowood Mart 

were returned for insufficient funds. 

 1

 Appellant’s mother testified that she did not return to work at Shadowood Mart after her 

stroke. 
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 On March 11, 2009, Kahn sent appellant two separate letters by certified mail to two 

separate addresses demanding full payment of the dishonored checks. The addresses to which 

the letters were sent were the address listed 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 moved 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, appellant’s mother and Kahn each testified for the Commonwealth. At 

the conclusion of the Commonwealth’s evidence, appellant 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 trial court found the Commonwealth’s evidence 

sufficient to establish a prima facie case of appellant’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] presumption to be applicable in 

the case and the defense put on no evidence. . . . I mean the 

presumption, I think, does apply here 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 other than the sending the notice 

required by the statute. . . . [The] Court’s having to base its 

decision in this case purely on the Commonwealth’s evidence. 

Certainly [appellant] has no obligation 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 and 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 checks 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] mother, 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, appellant’s counsel stated that he believed that “the 

rationale behind the Court’s finding 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 evidence that the Court considers in 

the case. It’s all the Commonwealth’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, Your 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 appellant 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 analysis, 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 argument regarding the statute or its 
- 5 - 

 

 In a prosecution under Code § 18.2-181 (issuing 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 him, shall have paid the holder 

thereof the amount due thereon, together 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 address of the maker or drawer shall be deemed 

sufficient and equivalent to notice 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, frequently 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 manifest 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 error 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 either 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 fraudulent intent of the drawer.” Bray v. 

Commonwealth, 9 Va. App. 417, 423, 388 S.E.2d 837, 840 (1990). 

 Once the Commonwealth presents prima facie evidence as required by Code § 18.2-183, 

that evidence permits, but does not require, a reasonable 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 defraud is established, “thereby shifting the burden of 

producing evidence to the defendant.” 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 producing evidence to the defendant”). At no time 

during appellant’s trial, however, did the trial court require appellant to produce evidence.4

 

While a defendant may rely upon the Commonwealth’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 producing 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 appellant that he was not required to produce 

evidence. When appellant once again raised the 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 reality a permissible inference. While a presumption 

requires the trier of fact to make a certain finding, a permissible inference merely permits, but 

does not require, the trier of fact to come to a certain conclusion.”). 

 We conclude that from the evidence presented, 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 worthless checks for payment to the store owner and 

properly imposed on the Commonwealth the ultimate burden of persuasion. 

B. Sufficiency of the Evidence 

 Appellant also contends that the trial court erred by finding the evidence was sufficient to 

prove that he issued the checks with the intent to defraud. Appellant asserts on appeal that the 

Commonwealth’s own evidence rebuts the presumption 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 received 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 viewing 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 the 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 appellant issued the checks with the intent to defraud. “Intent to 

defraud means that the defendant intends to ‘deceive another person, and to induce such other 

person, in reliance upon such deception, to assume, create, transfer, alter, or terminate a right, 

obligation or power with reference 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 the statutory presumption created by Code § 18.2-183 was 

successfully rebutted by the Commonwealth’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, which provides, in pertinent part, 

If such check . . . shows on its face a printed or written address, 

home, office, or otherwise, of the maker or drawer, then the 

foregoing notice, when sent by certified or registered mail to such 

address, with or without return receipt requested, shall be deemed 

sufficient and equivalent to notice 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 Virginia shortly after presenting the checks for payment, left no 
- 9 - 

forwarding address, and could not be contacted 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 the checks within five days as 

required by Code § 18.2-183, the evidence was sufficient to prove that appellant had the requisite 

intent to defraud. Appellant’s conviction is affirmed. 

Affirmed.
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ting

 

Alston, J., concurring. 

 I agree with the majority that the trial court did not require appellant to present evidence 

in order to be found not guilty and that the evidence 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 first assignment of error. 

 On appeal, appellant alleges that the trial court 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 constitutional question of whether 

Code § 18.2-183 impermissibly shifts the burden of proof to a defendant.6

 I write separately 

here to expand upon the majority’s implicit constitutional 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 failure to adequately set forth 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 thoroughly addressed by this Court. 

In addition, I believe appellant adequately presented this constitutional question to the 

trial court. Rule 5A:18, as in effect 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 satisfy the rule, an objection be stated “with the 

grounds therefor.” Appellant fulfilled this requirement through his specific objection to the 

“burden shifting” of the trial court’s ruling and his related objection to what appellant viewed as 

the trial court’s requirement that appellant present evidence. Furthermore, appellant’s failure to 

cite authority in support of his objection 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 adequately 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 presented appellant’s belief that the trial court was 

interpreting Code § 18.2-183 in a manner that unconstitutionally shifted 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 intelligently 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 unintentionally suggest a constitutionally incomplete 

methodology for resolution of the issue presented. 

“[T]he Due Process Clause requires the prosecution 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 necessarily 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 presumptions are a staple of our adversary system 

of factfinding”). 

To understand the legal significance of the various “presumptions” which may exist in a 

statute purporting to establish prima facie evidence of an element of a crime, one must 

understand the terminology advanced in the caselaw defining the diverse sets and subsets of 

statutory presumptions. At the outset, it must be recognized that a statutory presumption may be 

mandatory or permissive. Mandatory presumptions 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 presumptions7

 “suggest[] to the 

[trier of fact] a possible conclusion 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 often referred to as a presumption is in reality a permissible 

inference.” Ronald J. Bacigal, Virginia Criminal Procedure § 17:8 (2010-2011). As Professor 

Bacigal explains, some courts and commentators interpret a “presumption” 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 law, 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 presumptions necessarily shift the burden of proof 

on an element of the crime to a criminal defendant. 
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Court has developed subsets of both the mandatory 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 [trier 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 facts giving rise to the presumption.” Id.; see also

Black’s Law Dictionary 1305 (9th ed. 2009) (defining “irrebuttable 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 statute 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 term “irrebuttable” presumption. See Black’s Law Dictionary 1305 

(9th ed. 2009) (stating that “conclusive presumption” is also termed “irrebuttable presumption”). 

9

 For the sake of clarity, I emphasize that there are four recognized types of statutory 

presumptions: (1) mandatory rebuttable presumptions, which instruct the trier of fact that it must

infer the presumed element if the Commonwealth proves certain predicate facts, but the 

presumption remains subject to rebuttal; (2) mandatory irrebuttable presumptions, which instruct 

the trier of fact that it must infer the presumed element if the Commonwealth proves certain 

predicate facts, regardless of any evidence tending to rebut the presumption; (3) permissive 

rebuttable presumptions, which allow but do not require 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) permissive irrebuttable presumptions, which allow but do not require 

the trier of fact to infer the presumed element 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 the permissive rebuttable presumption created by 

Code § 18.2-183. 
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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 statutory 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 the constitutionality of 

permissive rebuttable presumptions. Simply implying that the code section 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 explains the analytical 

framework used to reach this conclusion nor adequately 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 presumptions 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 construed 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 justify in light of the proven facts before the [trier of fact].” 

Francis, 471 U.S. at 314-15. This standard for permissive 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 presumption 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 address 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 satisfies the test for permissive presumptions 

under the Due Process Clause because it provides a rational mechanism to allow 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 not pay the amount due on a check within five days 

of receiving actual or, under certain circumstances, constructive written notice that the check has 

not been paid to the holder. The connection between 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 between 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 paid, and a defendant’s intent to 

defraud at the time of issuing the check is rational. 

In sum, because the permissive rebuttable 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 constitutional 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 creates a permissive rebuttable presumption that does not violate 

the Due Process Clause and that the trial court did not err in its conclusion that it was not 

imposing an impermissible burden-shifting requirement under Code § 18.2-183.