dissenting. While I agree with the majority that the trial court did not err in denying the motion to suppress testimony relating to the photograph lineup, I strongly disagree with the holding that the trial court correctly denied Mays’s motion for directed verdict.
The majority has found the following evidence substantial, and thus sufficient to sustain the conviction of James Earl Mays for aggravated robbery of a liquor store: the testimony of the victim, Robert Pillow, who repeatedly failed to identify Mays as the robber in both a photographic line-up and at trial, and the testimony of Dennis Bearden who positively identified Mays as a man whom he saw coming from the alleyway behind the liquor store around the time of the robbery. Bearden testified that he closely observed Mays as he walked away from the budding because he became suspicious of him, and that he “got a good look at him.” However, although the victim testified that the robber left wearing a hat and carrying a half-gallon of liquor, and described him as approximately 5'8" tall, the observant Mr. Bearden made no mention of either a hat or a half-gallon of liquor, and described the person he observed as a little over six feet tall.
The majority holds that the trial court correctly denied Mays’s motion for directed verdict because “the law does not require that a witness’s description be totally accurate,” relying upon a Missouri case, State v. Radford, 559 S.W.2d 751 (Mo. App. 1977) and Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985), for the propositions that a witness’s description need not be totally accurate, and that weaknesses in the victim’s identity of the accused are matters of credibility for the jury to resolve. However, in both Radford and Davis, the victims positively identified the accused in a pretrial line-up and at trial. In Radford, there was a discrepancy in the defendant’s height and the estimation of height reported by the victim; the victim in Davis was unsure at the trial held six years after the robbery whether Davis had been wearing a beard. The majority’s reliance upon Radford and Davis is clearly misplaced.
Even more troubling is the majority’s failure to address Mays’s argument concerning the circumstantial nature of the evidence. Since no one identified Mays as the robber, the case against him was entirely circumstantial. It is well settled that the fact that evidence is circumstantial does not render it insubstantial. Tucker v. State, 50 Ark. App. 203, 901 S.W.2d 865 (1995). To constitute substantial evidence in a criminal trial, however, circumstantial evidence must exclude every other reasonable hypothesis consistent with the appellant’s innocence, and the factfinder must not be left to speculation and conjecture. Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996); Knight v. State, 51 Ark. App. 60, 908 S.W.2d 664 (1995). Although the question of whether circumstantial evidence excludes every other reasonable hypothesis other than the accused’s guilt is usually for the jury, see Abbot v. State, 256 Ark. 558, 508 S.W.2d 733 (1974), on appellate review, the reviewing court considers whether the evidence was in fact sufficient to exclude all other reasonable hypotheses. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). Two equally reasonable conclusions regarding what occurred merely give rise to a suspicion of guilt, and that is insufficient as a matter of law to sustain a criminal conviction. Carter v. State, supra.
Here, even the evidence that supports the conviction presents two equally plausible hypotheses: either Mays was the person who committed the robbery, or he was, unluckily for him, simply in the wrong place at the wrong time. Consequently, the jury had to resort to speculation and conjecture to convict Mays of this crime, and I would reverse and dismiss.
Neal and Crabtree, JJ., join in this dissent.