State v. Silvernail

STRAS, Justice

(concurring in part).

Our case law on sufficiency of the evidence is confusing and ambiguous in its application. I write separately because this case provides us with the opportunity to provide needed clarification to the standard for reviewing the sufficiency of the evidence when the State presents a combination of direct and circumstantial evidence in support of a criminal conviction. Rather than addressing that important and unsettled question, however, the court instead embarks on a fanciful voyage in which it assumes without deciding that our “circumstantial evidence standard” applies to the sufficiency of the direct evidence presented by the State — an approach that only amplifies the confusion in our case law. The court’s approach does not provide any guidance regarding how to assess the sufficiency of the evidence in mixed evidence cases — perhaps the most common category of cases that we review. I therefore write separately to do what the court will not: articulate a standard for evaluating the sufficiency of the evidence when the State presents a combination of direct and circumstantial evidence in support of a criminal conviction.

I.

Silvernail’s primary argument on appeal is simple: in his view, the State failed to prove beyond a reasonable doubt that he— as opposed to an unidentified alternative perpetrator — caused Roberts’s death. See Minn.Stat. § 609.185(a)(1) (2012) (requiring the State to prove that the defendant “cause[d] the death of a human being” in a first-degree premeditated murder case). In addressing that question, the parties disagree about the applicable standard of review. The State argues that the “circumstantial evidence standard” does not apply here because it proved that Silver-nail killed Roberts through a combination of direct and circumstantial evidence. In contrast, Silvernail contends that the “circumstantial evidence standard” applies whenever the State’s proof at trial depends in whole or in part on circumstantial evidence. Neither party disputes that the State presented a combination of direct and circumstantial evidence to prove the killer’s identity. Rather, the parties fundamentally disagree about the relevant legal rule in such circumstances — a question upon which we have given conflicting answers.

The court ignores the parties’ dispute about the standard of review and does not acknowledge, much less address, our conflicting articulations of the rule for evaluating the sufficiency of the evidence when the State presents a combination of direct and circumstantial evidence in support of a conviction. We have given no less than four different answers to the question of how to evaluate the sufficiency of the evidence in mixed evidence cases. In State v. Palmer, for example, we applied the “circumstantial evidence standard” because “the evidence of premeditation in th[e] case was largely, although not exclusively, circumstantial” 803 N.W.2d 727, 733 (Minn.2011) (emphasis added); see also State v. Boldman, 813 N.W.2d 102, 107 (Minn.2012) (applying the circumstantial evidence standard of review because “[t]he evidence of appellant’s intent to kill ... was largely circumstantial” (emphasis add*603ed)). In State v. Ortega, we evaluated the evidence of premeditation under the “circumstantial evidence standard” because “the State relied heavily on circumstantial evidence.” 813 N.W.2d 86, 100 (Minn.2012) (emphasis added). In State v. Moore, we articulated yet a third rule: the “circumstantial evidence standard” applies when “[m~\uch of the evidence presented by the State is circumstantial.” 481 N.W.2d 355, 360 (Minn.1992) (emphasis added). Finally, in State v. Flowers, we declined to apply the “circumstantial evidence” standard altogether because “[t]he State presented direct evidence on each element of the offense of aiding and abetting first-degree murder,” even though some of the evidence linking Flowers to the crime was circumstantial. 788 N.W.2d 120, 133 n. 2 (Minn.2010). It is no mystery why litigants are confused about our sufficiency of the evidence jurisprudence.

Without any explanation, the court dodges a fundamental legal question squarely presented for our review. There are no doubt instances in which sound principles of judicial restraint dictate that we “refrain from deciding any issue not essential to the disposition of the particular controversy before us.” See Navarre v. S. Wash. Cnty. Sch., 652 N.W.2d 9, 32 (Minn.2002) (citation omitted) (internal quotation marks omitted); see also Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895) (stating that the duty of every “judicial tribunalf] is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it”). But by simply assuming that the “circumstantial evidence” standard applies to Silvernail’s sufficiency claim, the court does not “avoid[] throwing settled law into confusion,” but instead “preserves a chaos that is evident to anyone who can read and count.” Webster v. Reprod. Health Servs., 492 U.S. 490, 535, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (Scalia, J., concurring). We can and should do better.

II.

I now turn to the question actually presented by this case: what standard applies to a criminal conviction proven through a combination of direct and circumstantial evidence. Under our “traditional standard” for evaluating the sufficiency of the evidence, we limit our review to a “painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” Ortega, 813 N.W.2d at 100 (citation omitted) (internal quotation marks omitted). We assume that “the jury believed the State’s witnesses and disbelieved any evidence to the contrary,” and we do not “disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.” Id.

In contrast, a heightened, two-step “circumstantial evidence standard” applies when the State secures a conviction with circumstantial evidence. The “circumstantial evidence standard” requires us to first identify the circumstances proved by the State, deferring to the jury’s acceptance of the State’s proof of these circumstances and rejection of any evidence in the record to the contrary. State v. Anderson, 789 N.W.2d 227, 241-42 (Minn.2010). We then “independently examine the reasonableness of all inferences that might be drawn from the circumstances proved, including inferences consistent with a hypothesis other than guilt.” Id. at 242 (citation omit*604ted) (internal quotation marks omitted). If the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis other than guilt, then the evidence is sufficient to sustain the conviction. Id.

The “circumstantial evidence standard” applies in two situations. First, it governs cases in which the evidence supporting a conviction consists solely of circumstantial evidence. See, e.g., Bernhardt v. State, 684 N.W.2d 465, 477 (Minn.2004) (applying the “circumstantial evidence standard” because the defendant’s conviction was “based entirely on circumstantial evidence”); State v. Jones, 516 N.W.2d 545, 548-49 (Minn.1994) (applying the “circumstantial evidence standard” because the defendant’s assault convictions were based solely on circumstantial evidence). Second, it operates in cases in which the State proves a disputed element of a criminal offense exclusively by circumstantial evidence, even if the State presents direct evidence on other elements of the offense. See State v. Al-Naseer, 788 N.W.2d 469, 474-75 (Minn.2010).

This ease, however, falls into neither of those two categories. Rather, the State’s proof at trial on the disputed element in this case — whether Silvernail caused Roberts’s death — consisted of a combination of direct and circumstantial evidence. When the evidence on an element is mixed, our case law does not yield a clear answer about whether the “traditional standard” or the “circumstantial evidence standard” governs.

In my view, the resolution of the lingering uncertainty in our case law turns on the differences between direct and circumstantial evidence and the rationale underlying the “circumstantial evidence standard.” We have defined “direct evidence” as “ ‘[ejvidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.’ ” Bernhardt, 684 N.W.2d at 477 n. 11 (alteration in original) (quoting Black’s Law Dictionary 596 (8th ed.2004)). Stated differently, direct evidence, if believed, directly proves the existence of a fact without requiring any inferences by the fact-finder. Circumstantial evidence, on the other hand, is “ ‘[e]vidence based on inference and not on personal knowledge or observation.’ ” Id. (alteration in original) (quoting Black’s Law Dictionary at 595). By definition, the fact-finder must make an inference from circumstantial evidence in order to find the ultimate fact — often the existence of an element of a criminal offense — asserted by the proponent of the evidence. See United States v. MacPherson, 424 F.Sd 183, 189 (2d Cir.2005) (explaining that “the mens rea elements of knowledge and intent can often be proved through circumstantial evidence and the reasonable inferences drawn therefrom”). When presented with circumstantial evidence on an element, the fact-finder may face two reasonable inferences from the circumstances proved by the State: one that points to the defendant’s guilt and another that points to the defendant’s innocence. Cf. State v. Taylor, 650 N.W.2d 190, 206 (Minn.2002); State v. Johnson, 173 Minn. 543, 545-46, 217 N.W. 683, 684 (1928). When there is a reasonable hypothesis pointing to the defendant’s innocence, we have long held that the State has failed to sustain its burden of proving the defendant’s guilt beyond a reasonable doubt. See State v. Webb, 440 N.W.2d 426, 430-31 (Minn.1989); State v. Kaster, 211 Minn. 119, 121, 300 N.W. 897, 899 (1941).

The dangers associated with circumstantial evidence — that the fact-finder might make unfounded inferences or draw unreasonable conclusions based on mere probabilities — no longer exist when direct evidence establishes the existence of an ul-*605tímate fact. See People v. Kennedy, 47 N.Y.2d 196, 417 N.Y.S.2d 452, 391 N.E.2d 288, 290-91 (1979) (noting that “cases involving circumstantial evidence must be closely reviewed because they often require the jury to undertake a more complex and problematical reasoning process than do cases based on direct evidence”). The reason is that direct evidence establishes the existence of the ultimate fact directly, without requiring the fact-finder to make any inferences. Bernhardt, 684 N.W.2d at 477 n. 11; see also Radomsky v. United States, 180 F.2d 781, 783 (9th Cir.1950) (explaining that “[djirect evidence establishes the fact to be proved without the necessity for ... inference”).

Silvernail’s confession to D.M. illustrates the point. According to D.M.’s testimony, Silvernail admitted to killing Roberts. Once the jury accepted D.M.’s testimony, the jury did not need to make any factual inferences in order to conclude that Silver-nail caused Roberts’s death. See State v. McClain, 208 Minn. 91, 95-96, 292 N.W. 753, 755 (1940) (“Confessions are held to be direct, rather than circumstantial, evidence of guilt.”). Rather, the jury only needed to conclude that D.M. was a credible witness1 — a determination that is “a function exclusively for the jury.”2 State v. Pippitt, 645 N.W.2d 87, 94 (Minn.2002); see also State v. Bolstad, 686 N.W.2d 531, 540 (Minn.2004) (declining to “usurp[ ] the jury’s role in assessing credibility”). Because direct evidence establishes the existence of the disputed element directly— here, that Silvernail caused Roberts’s death — there is no reason to evaluate the reasonableness of inferences that the jury is never required to make. Accordingly, I would hold that the “circumstantial evidence standard” does not apply to our review of an element of a criminal offense that the State has proven by direct evidence.

*606The element-by-element approach that I would adopt is consistent with Al-Naseer, in which we held that the “circumstantial evidence standard” applies to individual elements of a criminal offense that are proven by circumstantial evidence, even when the State proves the other elements of the offense by direct evidence. 788 N.W.2d at 474. Significantly, we declined to adopt an all-or-nothing approach in Al-Naseer, rejecting the court of appeals’ rule that applied the “circumstantial evidence standard” only when every element of a criminal offense had been proven by circumstantial evidence. Id.; see also State v. Leake, 699 N.W.2d 312, 319-21 (Minn.2005) (applying the “circumstantial evidence standard” to the element of premeditation despite the fact that direct evidence supported other elements of the offense).

Silvernail urges the court to apply the “circumstantial evidence standard” based on Palmer, a case in which the defendant challenged, as relevant here, the sufficiency of the evidence on his conviction of first-degree premeditated murder. 803 N.W.2d at 730. In Palmer, we applied the “circumstantial evidence standard,” describing the evidence of premeditation as “largely, although not exclusively, circumstantial.” Id. at 733. One could reasonably read Palmer as indicating that the State presented a combination of direct and circumstantial evidence on the element of premeditation. But such a reading cannot be squared with the facts of Palmer. Although the State presented direct evidence on other elements of the offense — such as eyewitness testimony that Palmer caused the victim’s death — the State’s evidence of premeditation was entirely circumstantial. Indeed, there was no confession or statement by Palmer indicating that he “considered], plan[ned] or prepare[d] for, or determine[d] to commit” the murder prior to its commission. Minn.Stat. § 609.18 (2012) (defining premeditation); see also DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir.1998) (“Rarely is direct evidence of premeditation and intent to kill available in a murder case, except where a confession is received in evidence.”). Nor did the parties in that case argue otherwise. Accordingly, I read Palmer as consistent with the rule I propose today: the “traditional standard” applies when the direct evidence is sufficient to prove the disputed element.

In this case, the direct evidence is sufficient to affirm Silvernail’s conviction. I would therefore apply the “traditional standard” to evaluate the evidence presented at Silvernail’s trial. Here, Silver-nail admitted to D.M. that he killed Roberts and that he “moved stuff’ around to make the scene of the crime look like a burglary.3 On review for sufficiency of the evidence, we assume that the jury believed D.M.’s testimony and disbelieved any evidence to the contrary. See Pippitt, 645 N.W.2d at 94. Because the jury heard evidence that Silvernail confessed to killing Roberts, I would conclude that the evidence was sufficient for the jury to have reasonably concluded that Silvernail, rather than an unidentified alternative perpetrator, killed Roberts.4

. Silvernail argues that the court should adopt a rule according less weight to the testimony of jailhouse informants because their testimony is inherently unreliable. I would reject Silvernail's argument because it would introduce an arbitrary — and potentially unworkable — distinction that would require courts to accord varying weight to confessions based on the identity of the witness. More importantly, such a rule would encroach upon the exclusive province of the jury to assess the credibility and weight of witness testimony. See State v. Engholm, 290 N.W.2d 780, 784 (Minn.1980) ("[I]t is well-settled in Minnesota that it is the province of the jury to determine the credibility and weight to be given to the testimony of any individual witness.”).

. D.M.’s testimony arguably constitutes direct evidence that Silvernail made the statement to D.M. but only circumstantial evidence that Silvernail killed Roberts. See, e.g., Wright v. Southland Corp., 187 F.3d 1287, 1295 n. 9 (11th Cir.1999) (noting in an employment discrimination case that "testimony from another individual ... of statements made by the decisionmaker” is "direct evidence of the fact that the decisionmaker made the alleged statement ... [but] merely circumstantial evidence of the fact that the employer illegally discriminated against [an employee]”); People v. Koenig, 29 Cal.2d 87, 173 P.2d 1, 3 (1946) ("[T]he testimony of a witness that the defendant admitted guilt ... [is] direct evidence that an admission or confession was made by the defendant but circumstantial evidence of the truth of what was admitted.”), overruled in part by People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960).

I decline to view the scope of direct evidence so narrowly, however, because it fails to account for the critical distinction between a reasonable inference drawn from the circumstances proved and the evaluation of the credibility of witnesses. Unlike inferences based on the circumstances proved, only the jury may evaluate the credibility of witnesses. See State v. Bliss, 457 N.W.2d 385, 391 (Minn.1990) (“Defendant’s attempt to retry his case by asking us to reevaluate [a witness's] credibility is contrary to our role.”). Applying these principles here, when D.M. recounted Silvernail’s confession at trial, the only inference the jury needed to make was that D.M. and Silvernail were credible — an assessment that we have long vested with the jury.

. I acknowledge that Minnesota law contains an additional requirement when the only direct evidence is in the form of a confession. See Minn.Stat. § 634.03 (2012). Because Sil-vernail does not argue that section 634.03 requires reversal of his conviction, the applicability of that statute is not before us. See State v. Powers, 654 N.W.2d 667, 676 (Minn.2003) (stating that “[ijssues not addressed by a party’s brief are considered waived” on direct appeal).

. Because I conclude that the direct evidence, standing alone, is sufficient to support the jury’s verdict in this case, I need not, and do not, address whether a different standard would have applied if the direct evidence had *607been insufficient to prove the disputed element of identity.