dissenting.
Reviewing the evidence in the light most favorable to the jury’s verdict, a rational trier of fact could have found Scarber guilty of the misdemeanor theft by conversion beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
“A person commits the offense of theft by conversion when, having lawfully obtained . . . property of another . . . under an agreement ... to make ... a specified disposition of such property, he knowingly converts the . . . property to his own use in violation of the agreement. . . .” OCGA § 16-8-4 (a).
The evidence was undisputed that defendant took the victim’s furniture, which she and her husband had bought about two years previously for about $1,500, and was to give her $500 of the proceeds of the sale of it within two or three weeks. She needed the money for rent and a car payment.
She started checking up on it after defendant stopped coming to her home, as had been his custom. The money was not forthcoming as agreed, even though defendant kept promising it to the victim. Whenever she would go to his furniture refinishing shop to get it, he would not be there; only his employees would be present. She did not see her furniture in his shop and talked to his employees about it. That prompted her to go to a certain antique dealer, and based on what she learned there, she swore out a warrant on August 25, 1991. The case was tried a year-and-a-half later, on February 16, 1993.
Defendant never offered an explanation to the victim of what he had done with her furniture or, if he sold it, with the promised proceeds. Despite his repeated promises to pay her the amount of the proceeds for its sale which he had agreed upon, and her frustrated efforts to collect, she was met only with silence.
This, along with the reasonable inferences which could be drawn, is sufficient to find knowing conversion. Were it a simple matter of breach of contract, which according to Smith v. State, 229 Ga. 727 (194 SE2d 82) (1972), is to be distinguished, it would be reasonable to expect an explanation to the owner of the furniture. Total failure to communicate in these circumstances or to respond to the victim’s efforts to contact him, in the absence of any reason not to, evinces a criminal intent. Baker v. State, 143 Ga. App. 302, 304 (2) (238 SE2d 241) (1977). See also Lingold v. State, 162 Ga. App. 486, 487 (1) (292 SE2d 193) (1982).
Baker is cited in Barrett v. State, 207 Ga. App. 370 (427 SE2d *263845) (1993), the recent decision compared by the majority with this case. In Barrett, defendant accounted for the victim’s property and his failure to return it, albeit not until he testified at trial. He also explained why he had not accounted for it earlier. Scarber was not required to testify, of course, because he had a constitutional right not to do so and the jury could not infer anything from it, as the court properly charged. But here there is evidence that defendant had never accounted to the victim for her property or the proceeds from its sale, if there was such.
Decided December 3, 1993. T. Neal Brunt, for appellant. T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.The court charged the jury on the elements of the crime, the necessity for a finding of criminal intent, and the distinction between fraudulent conversion and breach of contract. As pointed out in Baker, supra, “The presence of criminal intent is a factual issue for the jury’s resolution,” citing what is now OCGA § 16-2-6. The statute provides that the factfinder “may find [criminal] intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”
The jury could find that there was more than a mere breach of contract. The trial court, as the “thirteenth juror,” Exley v. State, 180 Ga. App. 821, 822 (1) (350 SE2d 829) (1986), denied the motion for new trial, one of the grounds for which was that the evidence was insufficient. He did not find it so and neither do I.
I am authorized to state that Judge Andrews joins in this dissent.