specially concurring.
I agree with the result, but disagree with the majority’s reliance on State v. Dennis:
“* * * [circumstantial evidence for conviction] must not merely coincide with, render probable, and be consistent with, the guilt of the accused, but it must be inconsistent with any reasonable theory of his innocence and incapable of explanation upon any other rational hypothesis than that of guilt * * State v. Dennis, 177 Or 73, 77, 159 P2d 838, 161 P2d 670 (1945).
I believe the majority is confusing two separate *618questions: (1) in a circumstantial evidence criminal case what is the proper standard for the jury to apply to the state’s case in determining guilt or innocence ?; and (2) in such a case, following a finding of guilt, what is the proper standard for a reviewing court to apply in determining whether the evidence is sufficient to sustain the verdict?
I infer from the majority’s reliance on the quotation from Dennis that they believe it sets forth the proper standard for a reviewing court to apply to a circumstantial evidence case. I disagree with that. As I read the cases, the Dennis language in question is only relevant to the first question, that is, the proper standard for the finder of fact to use in a case like this. Indeed, language identical to that quoted from Dennis appears in Oregon Uniform Jury Instruction No. 202.05.
When, however, a finder of fact has determined the defendant to be guilty, we should apply a different standard to determine the validity of the verdict. As the Oregon Supreme Court stated in another circumstantial evidence case:
* * we may not set aside the decision of the jury where it hinges on a question of fact, such as whether the defendant did commit the acts charged, unless we can affirmatively say there was no evidence to support the verdict.” State v. Duggan, 215 Or 151, 333 P2d 907, 916 (1958).
I believe the distinction I am suggesting between the different standards that should be applied to circumstantial evidence by the jury and by a reviewing court is explicitly or implicitly recognized in the following cases: State v. Dennis, supra; State v. Duggan, supra; State v. Zauner, 250 Or 105, 441 P2d 85 (1968); *619State v. Thornton, 246 Or 377, 425 P2d 529 (1967); State v. Dean, 241 Or 124, 404 P2d 797 (1965); State of Oregon v. Watts, 208 Or 407, 301 P2d 1035 (1956); State v. Freeman, 92 Adv Sh 183, 4 Or App 627, 481 P2d 638 (1971).
I join in the result reached by the majority because I believe that even under the proper standard of review the evidence was not sufficient to support the finding of guilt in this case.