dissenting.
In its opinion, the majority has found that Albert Lewis Huggins’s conviction of capital murder was supported by substantial evidence. I disagree. I also conclude the theft conviction must be reversed. Mr. Huggins may have been proven guilty of theft by receiving under Ark. Code Ann. § 5-36-106 (Repl. 1993), an offense with which he was not charged, but he was not proven guilty of theft of property as defined in Ark. Code Ann. § 5-36-103(a)(l) (Repl. 1993).
1. Murder
With respect to the murder charge, the case against Mr. Huggins was entirely circumstantial. While it is well established that circumstantial evidence can constitute substantial evidence, the nature of such evidence necessarily requires a jury to rely on inferences in reaching a decision to convict the accused. A jury has a special role in circumstantial evidence cases because to render a verdict of conviction it must find the evidence is such as to exclude every other reasonable hypothesis of guilt. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981); Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974). The standard of review of convictions based on circumstantial evidence must insure that the jury, after evaluating the evidence, was forced to conclude that the defendant was guilty of the crime charged, and that the verdict was not based on speculation and conjecture. See Brown v. State, 258 Ark. 360, 524 S.W.2d 616 (1975).
Although the decision that only one hypothesis, i.e., one suggesting guilt of the accused, is acceptable belongs to the jury, our review should consider whether the evidence was sufficient to exclude other reasonable hypotheses. We have considered the existence (or nonexistence) of a hypothesis consistent with innocence when reviewing the sufficiency of the evidence. An example is Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993), in which we found sufficient evidence to support the conviction but discussed and rejected an alternative hypothesis.
Although our consideration of the special role of the jury in circumstantial evidence cases, as in the Dixon case, may go somewhat beyond the standard of review frequently enunciated, it is the better approach, and it should always be used in cases where the circumstantial evidence connecting the defendant to the crime is sparse. In such situations, our determination whether the jury reached its verdict through speculation and conjecture of necessity takes into account other hypotheses, consistent with innocence, that would explain the defendant’s behavior. Other courts have followed this course. See, e.g., Chaudoin v. State, 362 So.2d 398 (Fla.App. 1978), in which the following appears:
Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, is not sufficient to sustain the conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence. So it is in the instant case we find implicit in the circumstantial evidence offered a possibility of innocence which is equally as strong as the possibility of guilt.
If the circumstantial evidence against Mr. Huggins on the charge of capital murder is reviewed according to this standard, I cannot conclude the conviction was supported by substantial evidence. The majority opinion indicates that substantial evidence of Mr. Huggins’s guilt lies in the opportunity that he had to place the poison in Clark White’s drink, which is the period when Mr. Lewis and Mr. White went to the back of the trailer, as well as Mr. Huggins’s subsequent efforts to conceal the fact that he had been present when Mr. White died. In addition, the majority mentions, as a possible motive, that Mr. Huggins was under orders to return to Memphis with either the money or the car.
The most troubling aspect of the majority view is that the undisputed instrument of Mr. White’s death was just as likely, and perhaps even more likely, to have been under Mr. White’s control rather than that of Mr. Huggins. Other evidence suggests at least one alternative explanation for Mr. White’s demise.
Captain Greg Martin testified that Mr. White was an officer with the Earle Police Department before he joined the Crittenden County Sheriff’s Department. Mr. White’s first assignment with the Earle Police was as an ordinance officer, whose duties included euthanizing stray dogs not claimed by their owners. Captain Martin testified that Mr. White used Sleep Away for that purpose. On cross-examination, he stated Mr. White did not return the bottle of Sleep Away that he had in his possession when his tenure as ordinance officer was over. Mr. White thus had possession of a container of Sleep Away as well as knowledge concerning its effects as an anesthetic.
As the majority points out, Mr. Lewis testified that while he, Mr. Huggins, and Mr. White were in the kitchen, he saw Mr. White pull “something” out of the cabinet and cut it open. Mr. Lewis’s testimony supports a conclusion that Mr. White not only removed the Sleep Away from the kitchen cabinet, but also made it possible for the substance to be poured.
Dr. John Stevens, a veterinarian from West Memphis, testified that Sleep Away is normally administered intravenously to dogs. The doctor also testified that Sleep Away contains a 26% concentration of the barbiturate agent sodium pentobarbital, which is a common anesthetic. Dr. Stevens also testified that whether or not Sleep Away is lethal depends upon the amount actually consumed, and he stated that if a dog were given less than the lethal amount, he would merely sleep, or be in what the doctor called “a plane of anesthesia.”
Clark White and his friends had, according to Mr. Lewis, smoked 50 or 60 rocks during three days. They had been without sleep all that time. Mr. White was already late in reporting to the State Police in Jonesboro on his new assignment. It seems plausible to me that he may have wanted to get some sleep. He could easily have miscalculated the necessary dosage.
Suicide is another reasonable hypothesis. Here was a police officer who had pawned the State’s vehicle to drug dealers, been on a three-day crack binge, and missed his reporting date in Jonesboro. He might have seen death as the only way out.
Under these circumstances, the State’s evidence regarding Mr. Huggins’s motive and opportunity to commit capital murder, as well as his efforts to conceal the cause of Mr. White’s death, must point so forcefully to his guilt that all other hypotheses are excluded. I do not believe that it does.
The majority contends that Mr. Huggins had the opportunity to put the Sleep Away in Mr. White’s drink when Mr. White and Mr. Lewis left Mr. Huggins in the kitchen and went to the back of the trailer. Mr. Lewis’s testimony revealed that up to that point, the three men went into the kitchen, began to cook, and Mr. White pulled “something” from the cabinet and cut it. Mr. Lewis also testified that while they were in the kitchen, he heard something, which he eventually discovered to be the container of Sleep Away, “hit the can.” If the container of Sleep Away was thrown out while all three men were in the kitchen, Mr. Lewis’s testimony suggests that the substance was dispensed in Mr. White’s presence, if not by White himself. If that is true, then the Sleep Away was put in Mr. White’s drink before Mr. Huggins’s was left alone in the kitchen.
The majority has interpreted Mr. Lewis’s testimony to indicate that he heard the container of Sleep Away “hit the can” after Mr. White “keeled over” in the living room. That is an erroneous interpretation. The relevant portions of Mr. Lewis’s testimony during direct examination are as follows:
A. That’s when, well, after we was in the kitchen, Clark was behind me, and what he was doing behind me I really didn’t know.
Q. Who was?
A. Clark was standing behind me in the kitchen. We all was in the kitchen together, and he was behind me in the kitchen. And, you know, I seen a knife laying on the cabinet, but I didn’t know what the knife was for.
Q. Okay.
A. So I, you know, everything went so fast, and I heard something hit the garbage can.
Then, later during direct examination, Mr. Lewis testified about what happened after Mr. White collapsed:
A. Well, after Clark fell over, I remember hearing something hit the garbage can, so I walked back over to the garbage can and saw what it was.
Q. What was it?
A. It was a container of Sleep Away.
Q. All right. And when was this?
A. This was after we had went in the living room and sat down.
Q. So I get this right, what is the time frame about said you heard him hit the ground?
A. He hit the floor.
Q. All right. And then you heard what?
A. I remember the container hitting the garbage can.
Rather than changing his testimony to say that he heard the bottle being thrown away after they were all in the living room, Mr. Lewis’s testimony indicates that Mr. White’s falling over made him recall hearing an object hit the garbage can, and he walked over to see what it was.
The majority opinion also implies that Mr. Huggins had a motive to commit murder because he was under orders to return to Memphis with either the money or the car. Arguably, if Mr. White could not produce the money to take the car out of pawn, Mr. Huggins would have had to return to Memphis with the car. However, there is no evidence whatsoever to indicate that Mr. White could not pay to get the car out of pawn as he had done earlier in the weekend. Therefore, there is no evidence that indicates why Mr. Huggins would have to murder Mr. White in order to obey his orders.
The majority also emphasizes that Mr. Huggins’s guilt is indicated by his efforts to conceal the fact that Clark White died from poisoning. However, the events of the weekend preceding Mr. White’s death support other explanations for Mr. Huggins’s behavior. The evidence presented by the State revealed that the entire weekend was filled with illegal activity, including the sale and consumption of crack cocaine, as well as the acceptance of a pawn arrangement by a large drug operation in which Mr. Huggins was a major participant. Mr. Huggins, as a collector for the operation, was under orders to return to Memphis with the money or the car. Under these circumstances, it is likely that Mr. Huggins sought to conceal the nature of Mr. White’s death in order to avoid implicating his drug operation in Mr. White’s demise and returning to Memphis without something to satisfy the pawn arrangement.
The State’s evidence concerning motive, opportunity, and the concealment of the manner of death simply does not force a conclusion that Mr. Huggins murdered Mr. White. In these circumstances, the evidence is not sufficient to support the murder conviction.
2. Theft
As to the theft conviction, the majority relies on proof that Mr. Huggins and Mr. Lewis, with knowledge that the Pontiac Firebird belonged to the Crittenden County Sheriff’s Department, returned to Memphis in the vehicle on January 11, 1993. Specifically, the majority has concluded that Mr. Huggins’s behavior amounted to the exercise of unauthorized control over the automobile, as prohibited by Ark. Code Ann. § 5-36-103(a)(l). I disagree.
The Trial Court was correct when he concluded that a theft occurred when Clark White pawned the vehicle, which he knew belonged to the Crittenden County Sheriff’s Department. In its brief, the State rejects that conclusion, however, because it would mean that the offense occurred outside Arkansas and thus outside the jurisdiction of the Circuit Court. The argument is that we should affirm the conviction because the theft occurred when Mr. Huggins and Mr. Lewis drove the car back to Memphis after leaving Mr. White’s trailer. That is wrong because the only evidence is that Mr. White, who had a possessory interest in the car, had previously transferred possession of the car to Mr. Huggins. Huggins took possession of the car in Memphis, and his superior in the drug operation cautioned him not to allow Mr. White to drive the car for fear he would not bring it back to Memphis.
Albert Huggins’ control of the vehicle does not constitute “theft” as is defined in Ark. Code Ann. § 5-36-103(a). The more appropriate charge under these circumstances would have been for theft by receiving, which is set forth as follows in Ark. Code Ann. § 5-36-106:
(a) A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.
(b) For purposes of this section, “receiving” means acquiring possession, control, or title or lending on the security of the property.
(c) The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen.
Mr. Huggins could have been charged with theft by receiving even though he initially received the car in Memphis because theft by receiving is a continuing offense. State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978). Mr. Huggins was simply mischarged, and we should not affirm a conviction of an offense which did not occur.
I respectfully dissent.