James William King v. State of Arkansas
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ARKANSAS COURT OF APPEALS
D.P. MARSHALL JR., Judge
DIVISION IV & I
CACR061487
31 October 2007
JAMES WILLIAM KING, AN APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT [CR054563]
v.
THE HONORABLE TIMOTHY
STATE OF ARKANSAS, DAVIS FOX, CIRCUIT JUDGE
APPELLEE
SUPPLEMENTAL OPINION ON
DENIAL OF PETITION FOR
REHEARING
In an earlier opinion, this court reversed James King’s theft conviction because
it was not supported by substantial evidence. King v. State, CACR 061487, slip op.
(Ark. App., 12 September 2007) (unpublished). The State now petitions for a rehearing
to correct an alleged error of law in our decision. It asserts that the determination of
whether circumstantial evidence excludes every other hypothesis consistent with the
appellant’s guilt was solely for the factfinder to decide. Carmichael v. State, 340 Ark.
598, 602, 12 S.W.3d 225, 227 (2000). And citing Martin v. State, 346 Ark. 198, 203,
57 S.W.3d 136, 139–40 (2001), the State argues that, as an appellate court, we were
not permitted to secondguess the factfinder’s decision.
Indeed, both Martin and Carmichael have statements that seem to immunize a
factfinder’s determination about the sufficiency of the evidence from appellate review.
We are grateful to the State for exposing this murkiness in our law. Nevertheless we
deny the State’s petition for rehearing because, after careful review, we conclude that
settled law supports our decision in this case. There is a long line of precedent in
which our courts have discussed the appellate standard for reviewing the judgment in
a criminal case when the evidence is entirely circumstantial. We take this opportunity
to confirm that standard of review.
I.
First, we note that Martin is about corroborating an accomplice’s testimony with
circumstantial evidence. This is a different issue from the one we face in this case
where no alleged accomplice testified. Martin’s issue, however, is related to the issue
here. Martin relies on Johnson v. State for the proposition that an appellate court may
not consider whether the evidence excludes every other reasonable hypothesis but that
of guilt. 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990). That point of law comes from
Cassell v. State, which correctly recites the substantialevidence standard for reviewing
a conviction based entirely on circumstantial evidence. 273 Ark. 59, 62, 616 S.W.2d
485, 486–87 (1981).
Cassell’s holding is good law. It follows the special rule we have for
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circumstantialevidence convictions:
In order to sustain a conviction based solely on circumstantial evidence,
the circumstances must be consistent with the guilt of the accused and
inconsistent with his innocence, and incapable of explanation on any other
reasonable hypotheses than that of guilt. When the circumstances are of
such a character as to fairly permit an inference consistent with
innocence, they cannot be regarded as sufficient to support a conviction.
Ayers v. State, 247 Ark. 174, 176–77, 444 S.W.2d 695, 696–97 (1969). This standard
for reviewing convictions is longstanding and sound:
In questioning the sufficiency of the proof counsel rely upon the rule, . .
. that circumstantial evidence must be consistent with guilt and
inconsistent with any other reasonable conclusion. That rule, . . . is
usually for the jury (or for the trial judge in a nonjury case), the test in
this court being the requirement of substantial evidence. . . . It is only
when circumstantial evidence leaves the jury, in determining guilt, solely
to speculation and conjecture that we hold it insufficient as a matter of
law.
Brown v. State, 258 Ark. 360, 361, 524 S.W.2d 616, 616–17 (1975) (George Rose
Smith) (citation omitted).
Though clear in its inception, this oftrepeated standard has been clouded by
slight modifications in the language of the opinions over time. Cases such as
Carmichael, on which the State now relies, correctly state the part of the standard
identifying the factfinder’s role, but they do not refer to the appellate court’s role in
reviewing the judgment. These cases include phrases like: “Once a trial court
determines the evidence is sufficient to go to the jury, the question of whether the
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circumstantial evidence excludes every hypothesis consistent with innocence is for the
jury to decide.” Gregory v. State, 341 Ark. 243, 248, 15 S.W.3d 690, 694 (2000); see
also Carter v. State, 324 Ark. 395, 398, 921 S.W.2d 924, 925 (1996); Abbott v. State,
256 Ark. 558, 561–62, 508 S.W.2d 733, 735 (1974); AMI—Crim. 106. This is a
correct, but incomplete, statement of our law.
Carmichael and like cases do not include the important nuance that describes the
appellate court’s role. A full statement of the standard of review must recognize both
parts of the inquiry, the factfinder’s role at trial and the appellate court’s role on
appeal. In many opinions, the appellate court’s role is signaled by using the word
“usually” when describing the factfinder’s role. Brown, supra; Cristee v. State, 25
Ark. App. 303, 306, 757 S.W.2d 565, 567 (1988) (“whether circumstantial evidence
excludes every other reasonable hypothesis is usually a question for the
jury”)(emphasis added); see also Deviney v. State, 14 Ark. App. 70, 74, 685 S.W.2d
179, 181 (1985); Murry v. State, 276 Ark. 372, 378, 635 S.W.2d 237, 241 (1982);
Smith v. State, 264 Ark. 874, 880, 575 S.W.2d 677, 681 (1979). In other opinions,
however, the second part of the standard is simply omitted, implying that the fact
finder’s decision in a circumstantial evidence case is essentially immune from review.
That is not the law. Our original standard of review remains intact.
II.
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On appeal, the question is this: when the evidence is viewed in the light most
favorable to the State, does substantial evidence support the judgment? When the
State’s case is made of entirely circumstantial evidence, if it leaves the factfinder to
speculation and conjecture, then the evidence is insufficient as a matter of law.
Deviney, 14 Ark. App. at 74, 685 S.W.2d at 181; Cristee, 25 Ark. App. at 306, 757
S.W.2d at 567; Abbott, 256 Ark. at 561–62, 508 S.W.2d at 735; Ledford v. State, 234
Ark. 226, 230, 351 S.W.2d 425,427–28 (1961); Scott v. State, 180 Ark. 408, 412, 21
S.W.2d 186, 188 (1929). Two equally reasonable conclusions about what happened
raise only a suspicion of guilt.
On appeal, we may consider whether the
record—viewed in the light most favorable to the State—presents this situation, and
thus required the factfinder to speculate to convict the defendant. This is the same
question the circuit court faces in deciding whether to send the case to the factfinder
at trial. In asking this question we are not doing the factfinder’s job. Instead, like the
circuit court, we are weighing whether the evidence was strong enough to put the case
in the factfinder’s hands for decision. And we must set aside any judgment based
upon evidence that required the factfinder to rely on speculation and conjecture.
Gregory v. State, 341 Ark. at 248, 15 S.W.3d at 694; Carter, 324 Ark. at 398, 921
S.W.2d at 925; Smith, 264 Ark. at 880, 575 S.W.2d at 681.
III.
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In King’s case, we followed this standard of review. We did not consider any
proof that supported King’s innocence. We recited the record in the light most
favorable to the State. That record was simply insufficient. The State proved only that
a coworker saw King moving the store’s hardware out the front door. King’s job at
the store, however, was to move hardware. Without more, the coworker’s testimony
does not prove that King was guilty of exercising unauthorized control over any store
item with the purpose of permanently depriving the store of it. Ark. Code Ann. § 536
103(a)(1) (Supp. 2003). The circuit court, as the finder of fact, therefore had to
speculate to find King guilty. This it may not do.
We stand by our reversal of King’s conviction. Petition denied.
PITTMAN, C.J., HART, BIRD, HEFFLEY and MILLER, JJ., agree.
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