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. 1GREGORY, Justice, dissenting. This case must be affirmed because it not only presents a constitutional facial attack against OCGA 16-8-19 (a) (3), but also an attack against the statute as applied to the facts of this case. These parties stipulated the facts to the trial court. They were in agreement on all material issues except one. The State's witnesses would testify at trial that the tapes were not returned. The defendant would testify she returned the tapes. The prosecutor made it abundantly clear to the trial judge that he could produce no evidence of an actual conversion and relied solely on the presumption of OCGA 16-8-19 (a) (3) to make out a case.* Therefore, this is an "as applied" constitutional attack. The parties deliberately put the issue of the constitutionality of this statute as applied to the facts in this case to the trial court. The trial judge ruled the presumption unconstitutional and I agree. These parties have litigated the case as if it had gone to the jury with the presumption as evidence of the alleged conversion. I view the issue as follows. Validity of a presumption in a criminal statute depends in part upon the strength of the connection between the basic fact and the ultimate fact. County Court of Ulster v. Allen, 442 U. S. 140, 157 (99 SC 2213, 60 LE2d 777) (1979); Williamson v. State, 248 Ga. 47, 50 (281 SE2d 512) (1981). If the ultimate fact is not rationally related to the basic fact, a presumption does not meet the due process requirement. It fails to meet the demands of due process when used in a statute to establish an essential element of the crime "unless it can at least be said with substantial assurance that the presumed fact [ultimate fact] is more likely than not to flow from the proved fact [basic fact] on which it is made to depend." Leary v. United States, 395 U. S. 6, 36 (89 SC 1532, 23 LE2d 57) (1969). "(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. "(b) For the purpose of the Code section, 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) Fail 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. Intentional conversion is an element of the crime described in the statute. What the statute allows is the proof of this element of the crime, the ultimate fact in terms of the presumption discussion above, by proof of certain basic facts, to-wit: The lessee (1) knowingly fails to timely return the item, (2) in violation of the agreement, (3) without a lawful reason, where (4) demand has been made. If these four basic facts are proved, does it follow that it is more likely than not that the lessee intended to convert the item? Such proof just as likely shows the lessee simply lost the item. If this is the case he then knows it has not been timely returned. Surely this violates any likely rental agreement and presents no lawful reason to avoid civil liability. A demand by lessor could not possibly cause lessee to produce that which has been lost. Suppose the item has been stolen by a third party, destroyed in a fire, loaned to and misplaced by a friend, returned to the wrong lessor, or any one of many other common occurrences. Such occurrences comprise ultimate facts which might be drawn from the basic facts of the statute, and to my mind mean one cannot say it is more likely than not the lessee intended a conversion. I would hold the statute violates due process as applied to the stipulated facts. I am authorized to state that Justice Smith joins in this dissent. Virginia W. Tinkler, for appellee. | 
