Kelly v. Commonwealth

In Kelly v. Commonwealth, 8 Va. App. 359, 373-74, 382 S.E.2d 270, 278 (1989), the Court approved the precise jury instruction at issue in appellant's case. The Court distinguished that instruction from the one held unconstitutional in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). "The Sandstrom instruction created a mandatory presumption whereas the challenged Virginia Model Jury Instruction created a permissive inference." Kelly, 8 Va. App. at 374, 382 S.E.2d at 278. Therefore in Kelly, the instruction, taken in the abstract, was appropriate.