Fowler v. State, BC-400

• Decision Date: 12 June 1986
• Docket Number: No. BC-400,BC-400
• Citation: 492 So.2d 1344,11 Fla. L. Weekly 1329
• Parties: 11 Fla. L. Weekly 1329, 11 Fla. L. Weekly 1960 Larry G. FOWLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1344

492 So.2d 1344

11 Fla. L. Weekly 1329, 11 Fla. L. Weekly 1960

Larry G. FOWLER, Appellant, v. STATE of Florida, Appellee.

No. BC-400.

District Court of Appeal of Florida First District.

June 12, 1986.

On Motion for Rehearing

Sept. 11, 1986.

Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.

Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Larry Fowler was convicted of first degree felony murder and armed robbery and sentenced to life imprisonment. He appeals his conviction, contending that the trial court erred in denying his motion for judgment of acquittal because the evidence was legally insufficient to support conviction.

Fowler was indicted in one count for committing first degree murder by premeditated design or while engaged in the perpetration of a robbery, ¹ and in a second count for committing armed robbery. ² At trial it was the state's theory, as explained by the prosecutor in opening and closing arguments to the jury, that on January 21, 1983, the victim, Hampton Jerkins, picked up Fowler while the latter was hitchhiking along an interstate highway. The prosecutor theorized that while Jerkins and Fowler were traveling down a dirt road to Fowler's grandmother's house, Fowler decided to rob Jerkins, so he took Jerkins' rifle and forced him to stop the car, made him get out of the car and get down on his hands and knees in the road, and, while standing over Jerkins, shot him in the back. Fowler then took Jerkins' car and wallet and drove back to Pensacola.

The state's case was predicated entirely on circumstantial evidence. The jury exonerated Fowler of premeditated murder, but found him guilty of armed robbery and guilty of felony murder while committing robbery. The trial court denied Fowler's motion for judgment of acquittal and entered a judgment based on the jury verdict. Fowler's motion for new trial was denied. This appeal followed.

To convict Fowler of the felony murder charge, the state had to prove that Fowler killed Jerkins while "engaged in the perpetration of, or in the attempt to perpetrate ... robbery." § 782.04(1)(a), Fla.Stat. (1983). To convict for armed robbery, the state had to prove that Fowler took "money or other property" from Jerkins "by force, violence, assault, or putting in fear" and "in the course of committing the robbery ... carried a firearm or other deadly weapon." § 812.13, Fla.Stat. (1983). Therefore, it was absolutely essential that the record contain competent evidence to establish that Fowler took Jerkins' wallet by force and violence and killed him during the process. Fowler admitted the shooting, but contended it was purely accidental and that he did not rob Jerkins. He stated that after the shooting he found the wallet in Jerkins' car and took it when he left the car several hours after the accidental shooting.

The state's brief on appeal failed to clearly articulate how the circumstantial evidence in the record supported the state's theory of Fowler's guilt. Upon detailed questioning at oral argument, counsel for the state seemed unsure of the state's precise theory of the case and was unable to satisfactorily explain how the evidence proved its theory of guilt or how it was inconsistent with the reasonable hypothesis of innocence offered by defendant. The thrust of the state's argument on appeal has been that, under Rose v. State, 425 So.2d 521 (Fla.1983), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed. 812 (1983), and Heiney v. State, 447 So.2d 210 (Fla.1984), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1985), whether defendant is guilty beyond a reasonable doubt is a The parties have cited a number of cases which appear to establish conflicting standards for reviewing the sufficiency of circumstantial evidence. E.g., Heiney v. State, 447 So.2d 210; Williams v. State, 437 So.2d 133 (Fla.1983), cert. denied, 466 U.S. 909, 104 S.Ct. 1690, 80 L.Ed.2d 164 (1984); Rose v. State, 425 So.2d 521; Jaramillo v. State, 417 So.2d 257 (Fla.1982); McArthur v. State, 351 So.2d 972 (Fla.1977); Davis v. State, 90 So.2d 629 (Fla.1956); Mayo v. State, 71 So.2d 899 (Fla.1954); Buenoano v. State, 478 So.2d 387 (Fla. 1st DCA 1985); Fox v. State, 469 So.2d 800 (Fla. 1st DCA 1985), rev. denied, 480 So.2d 1296 (Fla.1985); Miles v. State, 466 So.2d 239 (Fla. 1st DCA 1985); Davis v. State, 436 So.2d 196 (Fla. 4th DCA 1983), rev. denied, 444 So.2d 418 (Fla.1984); Atkinson v. State, 429 So.2d 726 (Fla. 1st DCA 1983); Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982) rev. denied, 426 So.2d 26 (Fla.1983); Vick v. United States, 216 F.2d 228 (5th Cir.1954). It is generally true, as stated in McArthur, that "a review of prior decisions ... is not helpful to the analysis required here, since the nature and quantity of circumstantial evidence in each case is unique." 351 So.2d at 976. Nevertheless, the cited decisions set forth certain consistent principles of law which govern our review of the legal sufficiency of the circumstantial evidence.

question only the jury, not the court, may decide. The inability of the state to articulate an understandable theory of the evidence that contradicts Fowler's explanation and excludes his hypothesis of innocence leads us to conclude, after detailed study of the record, that the evidence is legally insufficient to support the judgment of conviction entered by the trial court.

It has long been held in Florida that "where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." McArthur v. State, 351 So.2d at 976, n. 12 (emphasis supplied). This means, as stated in Mayo, "Evidence which leaves one with 'nothing stronger than a suspicion' that the defendant committed the crime is not sufficient to sustain a conviction." 71 So.2d at 904. "In applying the standard, the version of events related by the defense must be believed if the circumstances do not show that version to be false." McArthur, 351 So.2d at 976 (emphasis supplied). This last-quoted proposition has been the law in this state for at least sixty years. Holton v. State, 87 Fla. 65, 99 So. 244 (1924).

While these long-standing principles impose a stringent standard of proof on the state in circumstantial evidence cases, it has been argued in recent years that this standard of proof has been relaxed by several appellate decisions which appear to curtail the court's power to decide whether the evidence is inconsistent with any reasonable hypothesis of innocence. In both Heiney v. State, 447 So.2d 210, and Rose v. State, 425 So.2d 521, the Supreme Court said that "the question of whether the [circumstantial] evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury's verdict, we will not reverse a judgment based upon a verdict returned by the jury." 447 So.2d at 212. More recently, in Buenoano v. State, 478 So.2d 387, this court, following Heiney, said, "The special standard governing sufficiency of evidence in circumstantial evidence cases does not, of course, mean that the trier of fact must believe the defense witnesses regarding facts on which the state has presented contrary testimony " and that "the state ... is entitled on appeal to a view of any conflicting evidence in the light most favorable to the jury's verdict." Id. at 390 (emphasis supplied). These decisions, the state argues to us, require that we must defer to the jury verdict as we are not permitted to substitute our judgment for the jury's.

Despite the apparent inconsistency of the statements of law quoted from the various decisions, neither Heiney nor Rose has disturbed the long-standing principles As we read the opinions in Rose, Williams, and Heiney, the Supreme Court is merely recognizing the jury's right to determine whether the state has disproved the defendant's hypothesis of innocence in those cases where there is evidence presented by the state that contradicts the defendant's story. In such cases it becomes the jury's duty, as finders of fact, to determine what evidence is credible and whether the credible circumstantial evidence that is "inconsistent with the defendant's hypothesis of innocence" is sufficient to "exclude" every reasonable hypothesis of innocence beyond a reasonable doubt. It is our responsibility on this appeal, therefore, to review the evidence as a whole and determine whether the state has presented sufficient, competent evidence impeaching defendant's story to allow the jury to resolve the disputed issues of material fact.

                enunciated in Mayo and McArthur.   As we read Mayo and McArthur, the court held that a conviction returned by the jury could not be sustained by the court unless there was competent and substantial evidence "inconsistent with any reasonable hypothesis of innocence."   In other words, it is for the court to determine, as a threshold matter, whether the state has been able to produce competent, substantial evidence to contradict the defendant's story.  If the state fails in this initial burden, then it is the court's duty to grant a judgment of acquittal to the defendant as to the charged offense, as well as any lesser-included offenses not supported by the evidence.  This must be so because "the version of events related by the defense must be believed if the circumstances do not show that version to be false."  McArthur, 351 So.2d at 976. 3  Even in our recent opinion in Buenoano we recognized that the jury could choose to disbelieve the defense only "regarding facts on which the state has presented contrary testimony."  Buenoano v. State, 478 So.2d at 390.   Otherwise, there would be no function or role for the courts in reviewing circumstantial evidence, as was stated so well in Davis v. State, 436 So.2d at 200:  "If we were

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