                              FOURTH DIVISION
                              ELLINGTON, P. J.,
                           BRANCH and MERCIER, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       June 9, 2016




In the Court of Appeals of Georgia
 A16A0523. JONES v. THE STATE.

      BRANCH, Judge.

      After he failed to return a car he had rented in Tennessee, Randall Jones was

apprehended while driving the car in Gordon County and charged with theft by

conversion and by bringing stolen property into the state. On appeal from his

conviction on both of these counts, Jones argues that the verdict is mutually exclusive

and therefore contrary to law. We find no error and affirm.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation

omitted). We neither weigh the evidence nor judge the credibility of witnesses, but

determine only whether, after viewing the evidence in the light most favorable to the
prosecution, “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)

(99 SCt 2781, 61 LE2d 560) (1979) (citation and emphasis omitted).

      Thus viewed in favor of the jury’s verdict, the record shows that on December

5, 2013, Jones rented a 2004 Mazda from Tweety’s Automart in East Ridge,

Tennessee. The signed rental agreement provided that Jones could drive the car 800

miles per week and that Jones would return the car by December 9, or four days later.

At trial, Jones admitted that he had driven the car to California to see his son, stayed

“just a couple of hours,” and returned to the Southeast without meeting his son. On

December 9, 2013, however, Jones ran out of gas in Atlanta. Jones spent the night in

Atlanta but did not call Tweety’s, which could not reach Jones and reported the car

stolen on December 10.

      On December 11, a police officer driving on Interstate 75 in Gordon County

recognized the car from a police alert for a stolen vehicle and stopped the car. Jones

was driving at the time of his arrest, and the car’s odometer showed that it had been

driven 5,109 miles, or more than four thousand miles over the authorized amount.

      Jones was charged with theft by conversion and theft by bringing stolen

property into Georgia. The trial court charged the jury that under OCGA § 16-8-11,

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both of these crimes “shall be considered as having been committed in any county in

which the accused exercised control over the property which was the subject of the

theft.” After a jury found him guilty on both counts, Jones was convicted and

sentenced to five years on each count, running concurrently, with two to serve.

Jones’s motion for new trial was denied.

      On appeal, Jones’s sole assertion of error is that the verdict was mutually

exclusive as to the two crimes charged because it was impossible for him to have

stolen the car in Tennessee and also to have possessed it lawfully in Georgia before

converting it to his own use. We disagree.

      As the Supreme Court of Georgia has recently clarified, the “general rule” is

that “a guilty verdict cannot be challenged on the ground that the jury’s verdict of

guilt on one count of an indictment is inconsistent with an acquittal on another

count.” State v. Springer, 297 Ga. 376, 377 (1) (774 SE2d 106) (2015), citing United

States v. Powell, 469 U.S. 57, 68-69 (105 SCt 471, 83 LE2d 461) (1984) and Dumas

v. State, 266 Ga. 797, 799 (471 SE2d 508) (1996). “Such verdicts are deemed

constitutionally tolerable because they may reflect an exercise of lenity by the jury

that is not necessarily grounded in its view of the evidence.” Springer, 297 Ga. at 377

(citation and punctuation omitted). A verdict is mutually exclusive only when “[a]

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jury, in finding the defendant guilty of both counts, necessarily reached two positive

findings of fact that cannot logically mutually exist.” Id. at 379 (1) (citation and

punctuation omitted). In this case, the two crimes of theft by conversion and bringing

stolen property into the state can logically mutually exist.

      OCGA § 16-8-4 (a) provides that
      [a] person commits the offense of theft by conversion when, having
      lawfully obtained funds or other property of another including, but not
      limited to, leased or rented personal property, under an agreement or
      other known legal obligation to make a specified application of such
      funds or a specified disposition of such property, he knowingly converts
      the funds or property to his own use in violation of the agreement or
      legal obligation.


OCGA § 16-8-4 “is not intended to punish a simple breach of contract”; rather, it is

[t]he presence of fraudulent intent [that] distinguishes theft by conversion from

breach of contract.” Tukes v. State, 250 Ga. App. 117, 118 (1) (a) (550 SE2d 678)

(2001) (footnote omitted). OCGA § 16-8-9 provides that “[a] person commits the

offense of theft by bringing stolen property into this state when he brings into this

state any property which he knows or should know has been stolen in another state.”

      The State presented evidence that Jones drove the Mazda far in excess of the

lease’s specification of maximum mileage well before he arrived in California, let

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alone before he attempted to return to Tennessee via Georgia. Jones also testified that

he drove the car to California in order to see his son there. Although Jones lawfully

obtained the car, this jury was entitled to infer fraudulent intent to convert the car

from Jones’s setting out for a destination thousands of miles away from Chattanooga

even though the rental agreement specified that he drive the car no more than 800

miles. See Williams v. State, 328 Ga. App. 898, 900 (1) (763 SE2d 280) (2014)

(defendant’s failure to make monthly payments on or return rented televisions, as

required under rental contract, was sufficient to sustain a finding that she was guilty

of converting the televisions to her own use); Tukes, 250 Ga. App. at 118-119

(finding evidence of defendant’s retention of cash in violation of a contract sufficient

to sustain his conviction for theft by conversion). When Jones later returned to

Georgia in the same converted car, the evidence authorized this jury to conclude that

he committed the crime of bringing stolen property into the state. See Smith v. State,

256 Ga. App. 22, 22 (567 SE2d 359) (2002) (testimony placing defendant in

possession of car in another state minutes after a theft and in possession of the same

car in Georgia hours after the theft was sufficient to sustain his conviction for

bringing stolen property into the state).



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      Although Jones’s conversion of the car took place well before he arrived in

Georgia, venue was established in Georgia because, as the trial court properly

charged the jury, that conversion “shall be considered as having been committed in

any county in which the accused exercised control over the property which was the

subject of the theft.” OCGA § 16-8-11. Because Jones was seen exercising control

over the car in Gordon County, venue was appropriate in that county. Pruitt v. State,

245 Ga. App. 801, 802 (2) (538 SE2d 874) (2000) (venue in prosecution for theft by

taking a motor vehicle was proper in Hall County when defendant exercised control

over vehicle in that county).

      Our determination that evidence of venue in Georgia was sufficient does not

mean, however, that the conversion actually happened in Georgia such that Jones

must have brought the car into Georgia lawfully. A person’s “guilty knowledge” as

to the status of property as stolen in another state “can be established by direct or

circumstantial evidence and can be inferred from circumstances which would, in the

opinion of the jury, lead a reasonable person to believe that the vehicle was stolen.”

Cunningham v. State, 222 Ga. App. 740, 742 (1) (b) (475 SE2d 924) (1996) (citation

omitted). Jones himself testified that he drove the Mazda from Chattanooga to

California after signing an agreement to drive it no more than 800 miles. This jury

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could reasonably infer that Jones fraudulently converted the car to his own use well

before entering Georgia on his return trip to Chattanooga, and was also authorized to

conclude that he knew he had thus converted the car when he entered Georgia,

thereby bringing stolen property into the state. Cunningham, 222 Ga. App. at 742 (1).

      In sum, the verdict before us cannot be characterized as mutually exclusive

because the two crimes of theft by conversion and bringing stolen property into the

state logically mutually exist – that is, the evidence before this jury authorized it to

conclude both that Jones converted the car to his own use outside of Georgia and that

he then brought the same car into Georgia. We therefore affirm Jones’s conviction.

      Judgment affirmed. Ellington, P. J., and Mercier, J., concur.




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