State v. Russell , 256 Ga. 503 ( 1986 )

Weltner, Justice.

Consuelo Foster Russell was indicted for conversion of leased personal property pursuant to OCGA § 16-8-19. She leased certain video cassette tapes that, according to the lessor, she did not return. On her motion, the trial court dismissed the indictment, finding OCGA § 16-8-19 unconstitutional. The state appeals.

1. The state contends that the trial court erred in holding that the statute creates a mandatory presumption of intent. OCGA § 16-8-19 (a) defines the crime of conversion of leased personal property. OCGA § 16-8-19 (b) provides that “an intentional conversion shall be presumed to have occurred whenever a person to whom personal property has been rented or leased shall knowingly and in violation of his agreement ... (3) [f]ail or refuse without a lawful reason to surrender the property or any part of it to the owner or lessor upon demand following the expiration or lawful termination of the agreement.” The trial court held that the statute relieves the state of the affirmative burden of proving an essential element of the crime of conversion, relying on the authority of Mullaney v. Wilbur, 421 U. S. 684 (95 SC 1881, 44 LE2d 508) (1975); County Court of Ulster v. Allen, 442 U. S. 140 (99 SC 2213, 60 LE2d 777) (1979); Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979); Francis v. Franklin, 471 U. S. _ (105 SC 1965, 85 LE2d 344) (1985); and Miller v. Norvell, 775 F2d 1572 (11th Cir. 1985).

2. We agree that OCGA § 16-8-19 (b) creates an impermissible presumption. Specifically, under subparagraph (3), a lessee of personal property might “knowingly and in violation of his agreement” fail or refuse to return property, upon demand, following the expiration or lawful termination of the agreement — because the property has been lost, or stolen.

That cannot amount to criminal conversion. Yet, under § 16-8-19 (b), conviction would be required under the presumption.

3. The invalidity of subsection (b), supra, however, does not mean that the statute describing the offense of conversion of leased personal property is, in like manner, invalid.

The elements of that statute are as follows: “(a) A person commits the offense of conversion of leased personal property when he converts to his own use any personal property which has been delivered under the terms of a lease or rental agreement in violation of the agreement and to the damage of the owner or lessor.”

It will be seen that no such infirmity resides within the definition of the offense.

4. One matter remains, which is to observe that trial courts need to frame appropriate charges (within the usual bounds of the circumstantial evidence rule where applicable) to assist the jury in understanding the term “convert” as used in the statute. These must, of course, be in the terms of permissible inference, rather than of mandatory presumption.¹

Judgment reversed.

All the Justices concur, except Smith and Gregory, JJ., who dissent, and Bell, J., who concurs in the judgment only.

1 We do not disagree with the disent as to the invalidity of the statutory presumption. We do not, however, consider comments of counsel, as indicated in the dissent, to be conclusive as to the evidence which might be adduced at trial.