...Consequently, Sherrod may be retried. See Dinning v. State, 267 Ga. 879, 485 S.E.2d 464 (1997). Judgment reversed. All the Justices concur. NOTES [1] We note that in State v. Russell, 256 Ga. 503, 350 S.E.2d 430 (1986), this Court considered a challenge to OCGA § 16-8-19(b), the predecessor to OCGA § 16-8-4(c)(2), and held it unconstitutional because it created an "impermissible presumption." Although the wording of the current statute is slightly different, it has the same improper effect as the statute...

...Conroy, Assistant District Attorney, Michael J. Bowers, Attorney General, Eddie Snelling, Jr., Assistant Attorney General, for appellant. Virginia W. Tinkler, for appellee. 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 ....

...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....

...nd 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....

...[1] Judgment reversed. All the Justices concur, except Smith and Gregory, JJ., who dissent, and Bell, J., who concurs in the judgment only. GREGORY, 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....

...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....

...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). OCGA § 16-8-19 provides: "(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....