Joshua Garcia v. State of Arkansas

Annotate this Case
Joshua GARCIA v. STATE of Arkansas

97-765                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 30, 1998


1.   Juveniles -- juvenile criminal case -- factors on review. --In
     reviewing a juvenile criminal case, the supreme court looks at
     the record in the light most favorable to the State and
     sustains the conviction if there is any substantial evidence
     to support it.

2.   Statutes -- statutory presumptions -- limitations. -- Even in
     criminal prosecutions, Congress or a state Legislature may
     with certain limitations enact that when certain facts have
     been proved they shall be prima facie evidence of the
     existence of the main fact in question; the limitations are
     these: there must be some rational connection between the fact
     proved and the ultimate fact presumed; the inference of the
     existence of the ultimate fact from proof of the other fact
     must not be so unreasonable or unnatural as to be a purely
     arbitrary mandate; and the accused must not be deprived of a
     proper opportunity to present his defense to the main fact so
     presumed and have the case submitted upon all the evidence to
     the jury for its decision.

3.   Statutes -- limits of presumptions in criminal cases --
     permissive inference discussed. -- The United States Supreme
     Court, in discussing the limits of presumptions in criminal
     cases, found that the most common evidentiary device is the
     entirely permissive inference or presumption that allows, but
     does not require, the trier of fact to infer the elemental
     fact from proof by the prosecutor of the basic one and that
     places no burden of any kind on the defendant; in that
     situation, the basic fact may constitute prima facie evidence
     of the elemental fact; when reviewing this type of device, the
     Court has required the party challenging it to demonstrate its
     invalidity as applied to him; because this permissive
     presumption leaves the trier of fact free to credit or reject
     the inference and does not shift the burden of proof, it
     affects the application of the "beyond a reasonable doubt"
     standard only if, under the facts of the case, there is no
     rational way the trier could make the connection permitted by
     the inference; only in that situation is there any risk that
     an explanation of the permissible inference to a jury, or its
     use by a jury, has caused the presumptively rational fact-
     finder to make an erroneous factual determination.

4.   Statutes -- presumptions -- mandatory and permissive
     distinguished. -- A mandatory presumption instructs the jury
     that it must infer the presumed fact if the State proves
     certain predicate facts; 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; if the presumption is permissive, it usually will
     not be viewed as relieving the State's burden of persuasion to
     prove all elements of the crime beyond a reasonable doubt; a
     permissive inference will violate due process only if the
     suggested conclusion is one that reason and common sense will
     not justify in the light of the proven facts before the jury;
     as long as the presumption is permissive, and there is a
     "rational connection" between the fact proved and the fact
     presumed, there is no merit to the accused's contention that
     the burden of coming forward was impermissibly shifted to him. 
     
4.   Constitutional law -- application of statutory presumption did
     not violate due process rights -- case affirmed. -- The
     juvenile court did not err in its finding of delinquency where
     appellant had the presumptively violative knife, which under
     Ark. Code Ann.  5-73-121 was a knife with a three-and-one-
     half-inch blade, in the front pocket of his pants, at junior
     high school, during school hours; there was a rational
     connection between appellant's carrying the knife to school
     and the intent to carry it as a weapon; appellant himself did
     not make any claim to innocuous uses; the application of the
     statutory presumption to appellant under these facts did not
     violate his due process rights. 


     Appeal from Pope Juvenile Court; Benny E. Swindell, Juvenile
Judge; affirmed.
     Young & Finley, by:  Dale W. Finley, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     On February 20, 1997, an amended delinquency petition was
filed in Pope County Chancery Court, Juvenile Division, charging
appellant Joshua Garcia with  carrying a knife as a weapon in
violation of Ark. Code Ann.  5-73-121 (Repl. 1993).  He was
fourteen at the time of the charged offense.  After a hearing on
the matter, the juvenile court entered an amended order and
adjudged Garcia delinquent.  The juvenile court concluded that
Garcia carried the three-and-one-half-inch blade with the intent to
use it as a weapon and placed him on six months' probation.
     Garcia was initially charged with carrying a knife with the
purpose to employ it as a weapon against a person in violation of
Ark. Code Ann.  5-73-120 (Supp. 1995), in addition to an unrelated
third-degree battery charge.  He pled guilty to the  5-73-120
violation, but later was allowed to withdraw his plea. The
unrelated battery charge was nolle prossed.  On February 20, 1997,
the State filed the amended petition charging Garcia under a
separate statute,  5-73-121, for having a knife three-and-one-half
inches long for use with the purpose to employ the weapon against
a person.
     At the delinquency hearing for violation of  5-73-121, Rudy
Parks, the principal of Gardner Junior High School in Russellville,
testified that on September 20, 1996, the school was having trouble
with students spraying an undisclosed substance around the school
building.  He explained that Garcia was identified as carrying a
spray can, and, as a result, he was brought to his office and
searched.  Parks testified that he found a large knife in the front
pocket of his jeans.  He also related to the court that Garcia told
him he was going to give the knife to a friend.  On cross-
examination, the principal admitted that it "could have been
possible" that the knife was recovered from Garcia's book bag.  He
further agreed that no one suggested that Garcia intended to use
the knife to injure another student.  Bryce Davenport, the school's
resource officer and a member of the Russellville Police
Department, next testified that the knifeþs blade measured three-
and-one-half inches in length.
     Garcia did not call any witnesses on his behalf, and his
attorney moved for a dismissal of the charge, arguing that the
State was required to prove that he carried the knife with the
intent to use it as a weapon and that the State's evidence failed
in this respect.  The juvenile court found as follows:
     I'm basing my finding on the basis of a knife with a
     blade three and [one] half inches or longer in his
     possession and the statute makes that fact a prima facie
     case.  And there is nothing to rebut that.
The amended order which was entered stated in part:
          The defendant is guilty of the offense as charged in
     that he had in his possession a knife having a blade
     three and one-half inches in length.  Giving effect to
     the relevant statues (sic) it appears that the knife was
     carried with the intent to use it as a weapon against a
     person.
     Garcia now claims on appeal that the juvenile court erred in
not requiring proof of intent to possess the knife as a weapon.  He
points out that the amended delinquency petition asserted that he
violated Ark. Code Ann.  5-73-121 (Repl. 1993).  Section 5-73-121
reads in relevant part:
          (a) A person who carries a knife as a weapon, except
     when upon a journey or upon his own premises, shall be
     punished as provided by  5-73-121(b).
          (b) If a person carries a knife with a blade three
     and one-half inches (3«") long or longer, this fact shall
     be prima facie proof that the knife is carried as a
     weapon.
Id.
     Violation of  5-73-121 is punishable by a fine of not less
than $50 nor more than $200 or by imprisonment in the county jail
for not less than thirty days nor more than three months, or by
both a fine and imprisonment.  Ark. Code Ann.  5-73-123(b) (Repl.
1993).  Section 5-73-121, which has not been amended, was enacted
in 1961 under the following title: "AN ACT to Prohibit Carrying a
Knife as a Weapon and to Create a Presumption That a Person
Carrying a Knife With a Blade Three and a Half Inches (31/2") Long
or Longer Is Carrying It as a Weapon."  1961 Ark. Acts 457. 
     Since its enactment, this court has had few occasions to
discuss the application of  5-73-121.  In Rowland v. State, 255
Ark. 215, 499 S.W.2d 623 (1973), we recognized that conduct falling
under the former  5-73-121 was a separate crime from conduct
proscribed under the former  5-73-120.  In Smith v. State, 241
Ark. 958, 411 S.W.2d 510 (1967), we affirmed the revocation of a
suspended sentence based on conduct which violated the former  5-
73-121.  In Smith, the appellant was found near midnight running
down the road with a knife which had a ten-inch blade.
     A sister statute, although it constitutes a separate offense,
is  5-73-120.  That is the statute under which Garcia was first
charged.  It reads in part:
          A person commits the offense of carrying a weapon if
     he possesses a handgun, knife, or club on or about his
     person, in a vehicle occupied by him, or otherwise
     readily available for use with a purpose to employ it as
     a weapon against a person.
Ark. Code Ann.  5-73-120(a) (Supp. 1995).  The term "knife"
includes "any bladed instrument that is capable of inflicting
serious physical injury or death by cutting or stabbing."  Ark.
Code Ann.  5-73-120(b)(2).  Violation of this section constitutes
a Class A misdemeanor, which is punishable, under most
circumstances, by a term of imprisonment not exceeding one year, or
by a fine not exceeding $1,000, or by both imprisonment and a fine. 
Ark. Code Ann.  5-73-120(d)(2); Ark. Code Ann.  5-4-104(d) (Repl.
1993); Ark. Code Ann.  5-4-201(b)(1) (Repl. 1993); Ark. Code Ann.
 5-4-401(b)(1) (Repl. 1993).  Section 5-73-120 was enacted in
1975.  Neither party argues that  5-73-121 has, in any way, been
implicitly repealed by the enactment of the later statute,  5-73-
120.
     In Nesdahl v. State, 319 Ark. 277, 890 S.W.2d 596 (1995), a
juvenile was convicted under  5-73-120 for possessing a knife with
a five-inch, double-edged blade that was found in a sheath in the
small of his back.  On appeal, he argued that the evidence was
insufficient to support the judgment and attempted to make the
argument that the trial court improperly relied on the prima facie
element of the separate statute,  5-73-121, to reach the result. 
We declined to reach that specific point because we held that the
trial court did not err in concluding under the evidence presented
that Nesdahl carried the knife for the purpose of employing it
against another person.
     In sum, the primary differences between  5-73-120 and  5-73-
121 are (1)  5-73-121 contains no specific element of purpose to
use the knife as a weapon against another person; (2)  5-73-121
carries a three-month maximum term in jail as compared to one year
for violation of  5-73-120; and (3)  5-73-121 includes a
presumption of guilt if the knifeþs blade is three-and-one-half
inches.
     In reviewing a juvenile criminal case, this court looks at the
record in the light most favorable to the State and sustains the
conviction if there is any substantial evidence to support it. 
Nesdahl v. State, supra; Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993).  In this case, the evidence supporting the conviction
was the unrefuted evidence that Garcia was found in possession of
a knife with a three-and-one-half-inch blade at junior high school. 
The juvenile court based its finding on the fact that Garcia was
carrying such a knife and noted that there was nothing to rebut the
presumption.
     Garciaþs primary contention on appeal is that the presumption
set out in  5-73-121 impermissibly shifts the burden of proof to
Garcia and violates his due process rights as a result.  This
court, in the past, has had occasion to discuss the
constitutionality of presumptions, particularly with respect to the
possession of controlled substances in various amounts and the
resulting presumed intent to deliver those substances to third
parties.  This was the case in Stone v. State, 254 Ark. 1011, 498 S.W.2d 634 (1973), where we upheld a statutory presumption in
connection with possession of heroin and established the following
rule:
     The general principle is well recognized that even in
     criminal prosecutions, Congress or a state Legislature
     may with certain limitations enact that when certain
     facts have been proved they shall be prima facie evidence
     of the existence of the main fact in question.  ...  The
     limitations are these: There must be some rational
     connection between the fact proved and the ultimate fact
     presumed; the inference of the existence of the ultimate
     fact from proof of the other fact must not be so
     unreasonable or unnatural as to be a purely arbitrary
     mandate; and the accused must not be deprived of a proper
     opportunity to present his defense to the main fact so
     presumed and have the case submitted upon all the
     evidence to the jury for its decision.
Stone, 254 Ark. at 1020-21, 498 S.W.2d  at 639-40, quoting O'Neill
v. United States, 19 F.2d 322, 327 (8th Cir. 1927).  See also
Hooper v. State, 257 Ark. 103, 514 S.W.2d 394 (1974) (affirming
convictions for possession of one-half pound of marijuana with the
intent to deliver when the state proved only possession in excess
of the statutory presumption).
     This court's precedent as evidenced in Stone v. State, supra,
appears consistent with that of the United States Supreme Court. 
For example, in Ulster County Court v. Allen, 442 U.S. 140 (1979),
the Court considered a challenge to the constitutionality of a New
York statute that provided, with certain exceptions, that the
presence of a firearm in an automobile is presumptive evidence of
its illegal possession by all people inside the vehicle. In
upholding the presumption on the facts of that case, the Court
discussed the limits of presumptions in criminal cases:
          The most common evidentiary device is the entirely
     permissive inference or presumption which allows--but
     does not require--the trier of fact to infer the
     elemental fact from proof by the prosecutor of the basic
     one and which places no burden of any kind on the
     defendant.  See, e.g., Barnes v. United States, [412 U.S. 837,] 840 n.3.  In that situation the basic fact may
     constitute prima facie evidence of the elemental fact. 
     See, e.g., Turner v. United States, 396 U.S. 398, 402
     n.2.  When reviewing this type of device, the Court has
     required the party challenging it to demonstrate its
     invalidity as applied to him.  E.g., Barnes v. United
     States, supra, at 845; Turner v. United States, supra, at
     419-424.  See also United States v. Gainey, 380 U.S. 63,
     67-68, 69-70 (1965).  Because this permissive presumption
     leaves the trier of fact free to credit or reject the
     inference and does not shift the burden of proof, it
     affects the application of the "beyond a reasonable
     doubt" standard only if, under the facts of the case,
     there is no rational way the trier could make the
     connection permitted by the inference.  For only in that
     situation is there any risk that an explanation of the
     permissible inference to a jury, or its use by a jury,
     has caused the presumptively rational fact-finder to make
     an erroneous factual determination.
Ulster County Court, 442 U.S.  at 157.
     The threshold inquiry, accordingly, is whether the presumption
in  5-73-121 is mandatory or permissive.  The Court has explained:
     A mandatory presumption instructs the jury that it must
     infer the presumed fact if the State proves certain
     predicate facts.  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.
Francis v. Franklin, 471 U.S. 307, 314 (1985) (citations omitted). 
If the presumption is permissive, it usually will not be viewed as
relieving the State's burden of persuasion to prove all elements of
the crime beyond a reasonable doubt.  Id.  A permissive inference
will violate due process only if the suggested conclusion is one
that reason and common sense will not justify in the light of the
proven facts before the jury.  Id.; Ulster County Court v. Allen,
supra.  As long as the presumption is permissive, and there is a
"rational connection" between the fact proved and the fact
presumed, there is no merit to the accused's contention that the
burden of coming forward was impermissibly shifted to him.  See,
e.g., Barnes v. United States, 412 U.S. 837, 846 n.11 (1973),
citing Leary v. United States, 395 U.S. 6 (1969); Tot v. United
States, 319 U.S. 463 (1943).
     In this case, the juvenile court was the fact finder and the
State was only required to prove under  5-73-121 that Garcia
carried the knife as a weapon.  The State was not required to prove
that he carried it with the specific purpose of using it as a
weapon against another person, which is the statutory element under
 5-73-120, even though the amended delinquency petition and the
juvenile courtþs order use that terminology.  Whether there is a
rational connection between Garcia's carrying a knife with a three-
and-one-half-inch blade to school and the intent to carry it as a
weapon is the crucial issue at hand.
     We conclude that there is such a connection and that the
juvenile court did not err in its finding of delinquency.  Garcia
had the presumptively violative knife at junior high school during
school hours.  Viewing the proof in the light most favorable to the
State as we must, he was carrying the knife in the front pocket of
his pants.  Why else would he be carrying an oversized knife at
school under these circumstances than as a weapon?  Though the
principal told the court that Garcia told him he had the knife
there to give to a friend, that fact alone does mean the knife was
not carried to school as a weapon.  Nor does the fact that he might
have been merely showing the knife to others militate against its
possession as a weapon.
     Garcia himself did not make any claim to innocuous uses, and
the trial court alluded to that fact in its ruling.  We do not see
how application of the presumption to Garcia under these facts
violated his due process rights when the young man had to know that
possession of a knife with a three-and-one-half-inch blade in a
school environment was contrary to school rules, if not the law.
     Affirmed.
     Newbern, Glaze, and Imber, JJ., dissent.
     David Newbern, Justice, dissenting.  By Act 457 of 1961, the
Arkansas General Assembly enacted the following law that is now
codified as Ark. Code Ann.  5-73-121 (Repl. 1997):

     Carrying a knife as a weapon.
          (a) A person who carries a knife as a weapon, except when
     upon a journey or upon his own premises, shall be punished as
     provided by  5-73-123(b).
          (b) If a person carries a knife with a blade three and
     one-half inches (3 1\2") long or longer, this fact shall be
     prima facie proof that the knife is carried as a weapon.
          (c) This section does not apply to officers whose duties
     include making arrests or keeping and guarding prisoners, nor
     to persons summoned by the officers to aid in the discharge of
     their duties while actually engaged in the discharge of their
     duties.

     By Act 696 of 1975, the General Assembly enacted a
comprehensive statute on the carrying of weapons, including knives,
which, as amended, is now codified as Ark. Code Ann.  5-73-120
(Repl. 1997).  The later law covers fully the statements contained
in subsections (a) and (c) of  5-73-121 but does not include the
language making the carrying of a knife with a blade of 3.5 inches
or longer prima facie proof that the knife is carried as a weapon. 
The legislative oversight in failing to repeal the earlier statute
has resulted in the retention in our law of a provision easily
applied, as in this case, in violation of an accused's right to due
process of law.
     Joshua Garcia was shown to have "carried" a knife with a 3.5-
inch blade to school.  The principal testified that he believed Mr.
Garcia had the knife in his right front pocket but acknowledged on
cross-examination the possibility that the knife was found in a
bookbag.  The principal further testified that Mr. Garcia explained
that he was going to give the knife to a friend.  The principal
conceded that there had been no suggestion that Mr. Garcia intended
to use the knife to injure anyone or to use the knife as a weapon.
     Nothing else was introduced by the State to show that Mr.
Garcia carried the knife "as a weapon."  The Chancellor, however,
determined that this element of the offense, by operation of the
"prima facie proof" language of  5-73-121(b), had been proven, and
Mr. Garcia was adjudicated delinquent as he had presented, in the
words of the Chancellor, "nothing to rebut that."
     The question that we must resolve is whether the Chancellor's
reliance on the "presumption" found in  5-73-121(b) comports with
the Due Process Clause of the Fourteenth Amendment, which, as the
United States Supreme Court has explicitly held, "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."  In re Winship, 397 U.S. 358, 364 (1970).  
     The use of a presumption in a criminal case may violate the Due
Process Clause if it permits a conviction without requiring the
factfinder to conclude that the State has proved each element of the
offense beyond a reasonable doubt.  See Sandstrom v. Montana, 442 U.S. 510 (1979); Mullaney v. Wilbur, 421 U.S. 684 (1975); In re
Winship, supra.  See also Francis v. Franklin, 471 U.S. 307, 313
(1985)(stating due process requires the State to bear the "burden
of persuasion beyond a reasonable doubt of every essential element
of a crime"); Patterson v. New York, 432 U.S. 197, 215 (1977)
(stating that Mullaney "surely held that a State must prove every
ingredient of an offense beyond a reasonable doubt, and that it may
not shift the burden of proof to the defendant by presuming that
ingredient upon proof of the other elements of the offense").  See
generally 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 
77, at p. 367 (2d ed. 1994)(stating "that the prosecutor has the
obligation to prove each element of the offense beyond a reasonable
doubt" and "that the accused bears no proof burden whatsoever with
respect to any element of the crime").
     The Supreme Court has recognized the importance of inferences
and presumptions in our "adversary system of factfinding" and has
conceded that "[i]t is often necessary for the trier of fact to
determine the existence of an element of the crime -- that is, an
`ultimate' or `elemental' fact -- from the existence of one or more
`evidentiary' or `basic' facts."  County Court of Ulster County, New
York v. Allen, 442 U.S. 140, 156 (1979).  The validity of such
"evidentiary devices" under the Due Process Clause depends upon "the
strength of the connection between the particular basic and
elemental facts involved and on the degree to which the device
curtails the factfinder's freedom to assess the evidence
independently." Id.  The Court has stressed that "the ultimate test
of any device's constitutional validity in a given case remains
constant: the device must not undermine the factfinder's
responsibility at trial, based on evidence adduced by the State, to
find the ultimate facts beyond a reasonable doubt."  Id.
     Thus, the power of legislatures or courts "to declare that one
fact may be inferred from another is subject to `the basic
requirement of Anglo-American law that no liability shall be imposed
until the essential legal elements of that liability shall have been
proved.'"  1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence
303[02], at p. 303-11 (1996)(footnote omitted).  See also Mueller &
Kirkpatrick, supra,  80, at p. 381 (stating "presumptions relating to
elements of the charged offense create constitutional error if they
are deployed against criminal defendants in conclusive terms or use
language that has burden-shifting effect").
     In the Allen case, the Court discussed the variety of
presumptions that exist in the law and prescribed different rules
for assessing their validity.  See also Sandstrom v. Montana, 442 U.S.  at 514 (stating that the "nature of the presumption" at issue
determines the "constitutional analysis" to apply); 2 McCormick on
Evidence  346, at p. 481 (4th ed. 1992)("Under the Allen decision,
these various kinds of presumptions differ not only procedurally,
but also with regard to the tests for their constitutional
permissibility as well.").
     First, the Court recognized the "permissive inference or
presumption," which, the Court said,

     allows -- but does not require -- the trier of fact to
     infer the elemental fact from proof by the prosecutor of
     the basic one and which places no burden of any kind on
     the defendant.  In that situation the basic fact may
     constitute prima facie evidence of the elemental fact.

County Court of Ulster County, New York v. Allen, 442 U.S.  at 157. 
A "permissive" inference or presumption "leaves the trier of fact
free to credit or reject the inference and does not shift the burden
of proof."  Id.  Therefore, the Court concluded, the use of such a
presumption typically will not operate to relieve the State of its
obligation, as recognized in the Winship case, to prove each element
of the offense beyond a reasonable doubt.
     The use of a permissive presumption will, however, violate due
process if "there is no rational way the trier could make the
connection permitted by the inference."  Id.  Thus, even with
respect to permissive presumptions, there must be "a `rational
connection' between the basic facts that the prosecution proved and
the ultimate fact presumed," and the presumed facts must follow
"more likely than not" from the basic or evidentiary facts proved
by the State.  Id. at 165.
     The second type of presumption that the Court discussed in the
Allen case is the "mandatory presumption," which the Court described
as "a far more troubling evidentiary device."  Id. at 157.  As the
Court observed, a mandatory presumption "tells the trier of fact
that he or they must find the elemental fact upon proof of the basic
fact, at least unless the defendant has come forward with some
evidence to rebut the presumed connection between the two facts." 
Id.  A more stringent test must be used in determining the validity
of a mandatory presumption.  "[U]nless the evidence necessary to
invoke the inference is sufficient for a rational jury to find the
inferred fact beyond a reasonable doubt," the use of a mandatory
presumption violates the Due Process Clause.  Id. at 166.  The State
"may not rest its case entirely" on a mandatory presumption "unless
the fact proved is sufficient to support the inference of guilt
beyond a reasonable doubt."  Id. at 167.  See also Mueller &
Kirkpatrick, supra,  80, at p. 382 (stating that a mandatory
presumption is valid "only if the basic facts make the presumed fact
true beyond a reasonable doubt"); 1 Wharton's Criminal Evidence  3:4,
at p. 139 (15th ed. 1997).
     Thus, a significant difference between permissive presumptions
and mandatory presumptions concerns the applicable "standard[] of
proof required to establish a rational connection" between the
proven "basic facts" and the presumed "ultimate facts."  Wharton's,
supra,  3:4, at p. 138.  With respect to permissive presumptions,
there is a "rational connection," and thus no constitutional
infirmity, if the trier of fact could infer from the basic fact that
it is "more likely than not" that the ultimate fact exists.  With
respect to mandatory presumptions, there is a "rational connection,"
and thus no constitutional infirmity, if the trier could infer from
the basic fact that the ultimate fact exists "beyond a reasonable
doubt."
     The majority opinion in this case mentions the two kinds of
presumptions, but it does not say whether the language in question
is one or the other.  The significance of the distinction may be
lost in this case, however, as the majority misses an important
caveat in the Allen opinion.  The Supreme Court limited the
applicability of the more lenient "more likely than not" standard
to cases in which the permissive presumption "is not the sole and
sufficient basis for a finding of guilt."  County Court of Ulster
County, New York v. Allen, 442 U.S.  at 167.  Thus, where a
permissive presumption is the only evidence offered by the State to
prove an essential element of the offense, the applicable standard
is the "beyond a reasonable doubt" standard.  In that situation, due
process requires that the trier of fact be able to infer from the
basic fact that the ultimate fact exists beyond a reasonable doubt. 
See United States v. Allen, 127 F.3d 260, 270 (2d Cir. 1997); State
v. Delmarter, 845 P.2d 1340, 1349-50 (Wash.App. Div. 2 1993).
     The majority recognizes that the sole basis recited by the
Chancellor for his finding was the length of the blade and the lack
of rebuttal.  The majority seems to state its own factual finding
or perhaps "rationale" as follows:  "Viewing the proof in the light
most favorable to the State as we must, he was carrying the knife
in the front pocket of his pants.  Why else would he be carrying an
oversized knife at school under these circumstances than as a
weapon?"  Many answers suggest themselves immediately, e.g., to
whittle at recess or on the way home, to show the knife to a friend,
to play mumbledypeg, to sharpen pencils, etc.  Even if the
Chancellor had recited those facts and the "why else" logic, it
would have fallen far short of demonstrating that the "elemental"
fact is shown beyond a reasonable doubt by proof of the "basic"
fact.
     According to the decisions of the Supreme Court,

     . . . a statutory presumption cannot be sustained if
     there be no rational connection between the fact proved
     and the ultimate fact presumed, if the inference of the
     one from proof of the other is arbitrary because of lack
     of connection between the two in common experience.  This
     is not to say that a valid presumption may not be created
     upon a view of relation broader than that a jury might
     take in a specific case.  But where the inference is so
     strained as not to have a reasonable relation to the
     circumstances of life as we know them, it is not
     competent for the legislature to create it as a rule
     governing the procedure of courts.

Tot v. United State, 319 U.S. 463, 467-68 (1943).  See Leary v.
United States, 395 U.S. 6, 36 (1969)(stating "a criminal statutory
presumption must be regarded as `irrational' or `arbitrary,' and
hence unconstitutional, unless it can at least be said with
substantial assurance that the presumed fact is more likely than not
to flow from the proved fact on which it is made to depend"). 
"Common experience" fails to sustain such an inference in this case,
and the majority opinion offers absolutely no assurance, let alone
"substantial assurance," Leary v. United States, supra, that the two
facts are "very probably connected."  United States v. Adams, 293 F. Supp. 776, 782 (S.D.N.Y. 1968).
     The only case in which  5-73-121(b) has been recited as a
basis for sustaining a conviction is Smith v. State, 241 Ark. 958,
411 S.W.2d 510 (1967).  An officer observed Mr. Smith running from
the scene of a burglary while carrying a ten-inch "corn knife or
meat cleaver" in his hip pocket.  That conviction could easily have
been sustained under  5-73-120, the more recent statute that
requires the State to prove the accused possessed a knife "for use
with a purpose to employ it as a weapon against a person."  To allow
the State to prove Joshua Garcia guilty of a criminal offense by
evidence that he possessed a tool as common as a 3.5-inch knife is
constitutionally intolerable.
     I respectfully dissent.
     Glaze and Imber, JJ., join in this dissent.