Mims v. State , 264 Ga. 271 ( 1994 )

Hunt, Chief Justice,

concurring.

I agree that the judgment of the Court of Appeals in this case must be reversed, but I write separately for two reasons.

1. First, the majority admonishes that a charge on circumstantial evidence is required “in every instance where it has been introduced.” One might argue that circumstantial evidence, consisting mainly, as it does, of inferences and deductions, is not “introduced,” but that is not the point. The point is, as Judge Birdsong exclaimed in Johnson v. State, 210 Ga. App. 99 (435 SE2d 458) (1993) (referred to in passing in fn. 2 of the majority opinion), proof of criminal intent, an element in almost every crime, is, of necessity, the subject of circumstantial evidence.⁴ Why, then, should trial courts devote any of their precious time to a consideration of this issue? An instruction on evidence, whether direct or circumstantial, should always be given on request.⁵

2. It must also be noted that the rule stated in OCGA § 24-4-6 applies with equal force to direct evidence. That is, even though direct evidence may enjoy greater statutory status than circumstantial evidence, see OCGA § 24-1-1,⁶ it, as well as circumstantial evidence, must establish guilt beyond a reasonable doubt and exclude every reasonable theory of innocence if a conviction is to be obtained. Presently, the Suggested Pattern Jury Instructions include this:

(Give the following charge only if one or more essential elements of the state’s case is based on circumstantial evidence.)

To warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused.

Because this charge implies, erroneously, that direct evidence requires a lesser standard of proof, that is, that direct evidence would not have to exclude every other reasonable theory, I would substitute the following:

You would be authorized to convict only if the evidence proves the guilt of the accused beyond a reasonable doubt and the evidence excludes all reasonable theories of innocence. It is the state’s burden to produce such evidence.

Moreover, I would not require the “two theories charge,” even on request. It is merely an amplification of the statutory charge, or just another way of saying the jury must find guilt beyond a reasonable doubt.

I am authorized to state that Justice Fletcher and Justice Sears-Collins join in this concurrence.

4 There are certain offenses, status felonies and various minor criminal violations, for example, that may require no proof of mens rea.

5 Deciding whether evidence is direct or circumstantial or both can be confusing. For example, evidence that the defendant and the victim were the only persons present in a house at the time of death is certainly direct evidence of that fact; it may also constitute a circumstance which, taken along with other consistent circumstances, points to the conclusion that the defendant killed the victim. Whether it ultimately supports such a conclusion and thus becomes circumstantial evidence tending to prove that conclusion will depend on the existence of other facts proven by direct and/or circumstantial evidence.

6 But see Steen v. State, 130 Ga. App. 632, 634 (204 SE2d 344) (1974) quoted in the Suggested Pattern Jury Instructions, Vol. II: “The comparative weight of circumstantial evidence and direct evidence, on any given issue, is a question of fact for the jury to decide.”