Stubbs v. State , 215 Ga. App. 873 ( 1994 )

Ruffin, Judge,

dissenting.

I respectfully dissent because I believe both convictions should be reversed. In McChargue v. State, 209 Ga. App. 612 (434 SE2d 153) (1993) we held that “a trial judge, even in the absence of a request, must charge the jury on the law set forth in OCGA § 24-4-6 in those cases, which are wholly dependent on circumstantial evidence.” (Citations and punctuation omitted.) Id. at 613. In contrast to Judge Andrews’s opinion, I do not believe Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) changes the rule in McChargue. I agree with Chief Judge Pope, Presiding Judge McMurray and Judge Blackburn that because the evidence that Stubbs burglarized the furniture store was circumstantial, he was entitled to the charge even in the absence of a request.

I also believe the conviction of possession of tools for commission of a crime should be reversed given OCGA § 16-7-20’s requirement that the State present direct evidence of the intent to use the tools in the commission of a crime. In Hogan v. Atkins, 224 Ga. 358, 359 (162 SE2d 395) (1968) our Supreme Court held that “[v]ery clearly, [OCGA § 16-7-20] requires two elements for conviction, viz.: (1) possession of the tools and implements and (2) intent to use these tools and implements in the commission of a crime . . . proof of both of these elements [is] essential to a conviction.” (Emphasis supplied.) Id. Here, the State’s evidence of Stubbs’s requisite intent to use the metal bar in the commission of a crime was entirely circumstantial. Furthermore, Stubbs offered a reasonable hypothesis for his possession of the metal bar which the jury could have determined was less probable than the State’s conclusion. He was therefore entitled to have the jury consider his explanation under proper instructions, regardless of whether requested, as the evidence was entirely circumstantial. Cf. Langston v. State, 208 Ga. App. 175, 178 (430 SE2d 365) (1993) (failure to give charge not reversible error where no reasonable hypothesis of innocence was offered and none appeared); Germany v. State, 235 Ga. 836 (221 SE2d 817) (1976) (unequivocal identification of the defendant and his car tag left no other hypothesis save the guilt of the defendant).

Decided December 5, 1994 Reconsideration denied December 20, 1994 Lewis R. Lamb, for appellant. Britt R. Priddy, District Attorney, Johnnie M. Graham, Gregory W. Edwards, Assistant District Attorneys, for appellee.

Moreover, we have held that when the party with the burden of proving intent in these circumstances seeks to carry the burden “ ‘not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury’s decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion but also render less probable all inconsistent conclusions.’ ” (Citations omitted; emphasis supplied.) Croker v. State, 101 Ga. App. 742, 743 (2) (115 SE2d 413) (1960) (decided under Code Ann. § 26-2701). Significantly, this language is very similar to that of the circumstantial evidence charge. Accordingly, I believe the jury was not adequately instructed that the State’s circumstantial evidence of Stubbs’s intent to use the metal bar in the commission of a crime should exclude “every other reasonable hypothesis save that of the guilt of the accused” and the conviction on this count should also be reversed.