concurring specially.
The State’s case was based on direct and circumstantial evidence. Accordingly, under Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991), “a charge on the law of circumstantial evidence must be given on request.” The requested charge on circumstantial evidence, which the trial court refused to give, properly stated the law, was adequately adjusted to the evidence, and should have been given by the trial court. Nevertheless, I believe the error was harmless because, given the direct eyewitness testimony of the victim, and Mims’ incriminating statement to the investigator, compared with the secondary weight of the remaining circumstantial evidence, it is highly probable the erroneous refusal to give the charge did not contribute to the jury’s guilty verdict. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); Rash v. State, 207 Ga. App. 585, 587-588 (428 SE2d 799) (1993); compare McGuire v. State, 209 Ga. App. 813 (434 SE2d 802) (1993).
I am unable to join in the plurality’s conclusion that the circumstantial evidence charge need only be given under Robinson, supra, where the State “depends” on circumstantial evidence as necessary to prove one of the essential elements of the offenses. In my view, this is just another way of saying that no charge on circumstantial evidence is required where the circumstantial evidence, by itself, would not be sufficient to authorize a conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This argument was considered and rejected in Robinson, supra. Put simply, I believe Robinson requires the charge at issue be given in every criminal case upon request. If this is not our Supreme Court’s intent in announcing the Robinson black letter rule, it should so declare.
I fully concur in Division 3 of the plurality opinion.
I am authorized to state that Presiding Judge McMurray and Presiding Judge Birdsong join in this special concurrence.