Scarber v. State

Blackburn, Judge,

concurring specially.

I concur fully with the majority opinion. I am compelled to address the dissent’s discussion regarding shifting of the burden of proof.

It is important to note that Scarber obtained Thomas’s furniture for sale on consignment, i.e., once the furniture was sold, Thomas was to receive $500 from the proceeds. Further, no evidence was presented by the State that the furniture was, in fact, sold or disposed of in any unlawful manner. The dissent quotes Baker v. State, 143 Ga. App. 302, 304 (2) (238 SE2d 241) (1977), for the rule that the burden of proof shifts to the defendant to “ ‘create a reasonable doubt as to his lack of intent,’ ” after the State has made out a prima facie case of conversion. However, in order to make out a prima facie case of conversion the State must prove that the defendant knowingly converted the property to his own use. OCGA § 16-8-4 (a). Further, “[i]t is the presence of a fraudulent intent [that] distinguishes theft by conversion from a simple breach of contract.” (Citation and punctuation omitted.) Baker v. State, 143 Ga. App. 302, 303 (2) (238 SE2d 241) (1977). In the present case, the State failed to present any evidence that the property was converted to the defendant’s use, much less that it was converted with fraudulent intent. Therefore, having failed to present a prima facie case, the burden never shifted to Scarber.

Additionally, while the dissent purports to recognize Scarber’s constitutional right not to testify, it imposes upon him the duty to explain the whereabouts of the property against him which imposition unconstitutionally shifts the burden of proof to the defendant. The dissent points out that in Barrett v. State, 207 Ga. App. 370 (427 SE2d 845) (1993), relied upon by the majority, the defendant testified and accounted for his failure to return the property. First, as shown by our disposition of Barrett, the defendant’s explanation is irrelevant when the State has failed to prove a prima facie case of conversion. Second, such an explanation is completely unnecessary in the present case where the State failed to make a prima facie case of conversion of the subject property against Scarber.