dissenting. I can agree with the majority that there was no direct evidence introduced conclusively showing that the pills were, positively, a controlled substance. However, I differ with the majority’s conclusion that, absent such direct proof, there was no substantial evidence to sustain the jury’s verdict. Based on the evidence as a whole, I believe that a question of fact was raised for the jury to determine, and that there was sufficient circumstantial evidence from which this fact could reasonably be inferred. While it is true that the prosecution bears the burden of proving every element of the offense beyond a reasonable doubt, it has never been a requirement that each element must be established by direct proof.
Guilt need not always be proven by direct evidence. Booth v. State, 26 Ark. App. 115, 761 S.W.2d 607 (1989). Even circumstantial evidence may be sufficient to sustain a conviction as it may constitute substantial evidence, and whether the circumstantial evidence excludes every other reasonable hypothesis is for the fact-finder to determine. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). The fact that some evidence may be circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact can be inferred. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987).
Here, there was testimony that the pill bottles were mostly empty, although both prescriptions had been filled just the previous day. There was further testimony adduced concerning the appellant’s behavior, revealing that her speech was slurred, she had to be assisted in walking, she was hysterical, and that no sobriety tests were administered because the officers felt she was in no condition to perform them. Based on this evidence, the majority has concluded that the evidence was sufficient to show that she was physically impaired, and that her reactions, motor skills and judgment were altered such that she constituted a danger to herself and other persons. Further, the majority seems to agree that the evidence supports a finding that the appellant ingested the pills contained in the bottles. Based on these very facts, I do not think that her behavior was so wholly unexplained that the jury was left to speculation and conjecture when determining her guilt or innocence. A directed verdict is proper only when no fact issue exists, and on appeal we view the evidence in the light most favorable to the appellee, and the case is affirmed if there is substantial evidence to support the jury’s verdict. Wilson v. State, 10 Ark. App. 176, 662 S.W.2d 204 (1983). In my view, the circumstantial evidence in this case undoubtedly raised a question of fact for the jury to determine, and would, in turn, constitute substantial evidence to support the verdict. Although I am not suggesting that the state not be held to its burden of proof, it cannot be said that the evidence, albeit circumstantial, was insufficient as a matter of law.