Torgersen v. State

Sognier, Chief Judge,

dissenting.

I respectfully dissent. I conclude the majority has incorrectly applied the principles of review applicable in circumstantial evidence cases when the defendant presents a reasonable hypothesis consistent with innocence.

When the evidence connecting a defendant to the charged crime is circumstantial, to warrant a conviction “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “The term ‘hypothesis’ as used in [OCGA § 24-4-6] refers to such reasonable inferences as are ordinarily drawn by ordinary [persons] in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else, but that the State should show to a moral certainty that it was the defendant’s act.” (Punctuation and citations omitted.) Atchison v. State, 181 Ga. App. 351, 352 (352 SE2d 201) (1986). “ ‘When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt.’ [Cit.]” Kreager v. State, 148 Ga. App. 548 (252 SE2d 1) (1978).

As a general rule, the determination whether the circumstances are sufficient to exclude every reasonable hypothesis except that of the defendant’s guilt is made by the jury. Atchison, supra; see Smith v. State, 56 Ga. App. 384, 387 (192 SE 647) (1937). Nonetheless, our courts have long recognized that “where there appears a hypothesis from the evidence, or from the lack of evidence and the defendant’s statement, pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, [an appellate court] may declare it so as a matter of law.” Smith, supra at 387-388. Accord Harris v. State, 236 Ga. 242, 244-245 (1) (223 SE2d 643) (1976) (adopted rule stated in Smith for appellate review of evidence in cases based on circumstantial evidence). While we must review the evidence in a light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or the lack thereof. Solomon v. State, 195 Ga. App. 684, 688 (394 SE2d 570) (1990).

My thorough review of the transcript persuades me this is such a case. While I agree with the majority that there were some inconsis*841tencies in appellant’s explanations of the events that occurred the night of his wife’s death, “the burden of proof on the [S]tate was not only to produce evidence ‘consistent with the hypothesis of guilt,’ but also to produce sufficient evidence to ‘exclude every other reasonable hypothesis save that of the guilt of [appellant].’ [Cit.]” Muckle v. State, 165 Ga. App. 873, 875 (1) (303 SE2d 54) (1983). “[M]ere suspicion is not sufficient to support a conviction.” Id. Given that witnesses for both the State and appellant established that because of her chronic abuse of alcohol, Ms. Torgersen had poor muscle tone, bruised easily, and often drank to the point of staggering or falling down, and considering the evidence of her blood alcohol level at the time of her death together with Dr. Van Ham’s opinion as to the cause of the fatal injury, I find the State did not dispel the reasonable hypothesis that she ruptured her bladder by staggering into and falling over the footboard of her bed.

Decided July 15, 1991 Reconsideration denied July 31, 1991 Duffy & Feemster, Dwight T. Feemster, Ronald K. Thompson, for appellant. Spencer Lawton, Jr., District Attorney, Lars T. Granade, Assistant District Attorney, for appellee.

“ ‘Hence, the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence. [In such circumstances], the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence. (Cit.)’ [Cit.]” Kreager, supra at 549. “Where the circumstances of a case are equally compatible with guilt or innocence so that it is just as easy to draw one inference over another, the conviction cannot stand. [Cits.]” Barnett v. State, 153 Ga. App. 430, 431-432 (2) (265 SE2d 348) (1980). I agree with appellant that his testimony and the testimony of his medical expert witness, Dr. Raymond Van Harn, combined with the evidence concerning his wife’s alcoholism and physical condition, established the reasonable hypothesis of accidental death as a consequence of a fall, see Kreager, supra, and accordingly, I would reverse.