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223 Ga. App. 504

Brazle v. State

Court of Appeals of Georgia

Decided November 12, 1996

Court of Appeals of Georgia · decided 1996-11-12

Relies on Cooley v. State

Decided 1996-11-12

Smith, Judge,

¶1concurring specially.

¶2The dissent says that Brazle’s defense — really his alibi — that he left the parking lot and went to pick up his check — “was not inconsistent with his participation in the crime.” That may be true, but it is not material. What matters is whether the evidence is inconsistent with his defense. To base a conviction on evidence that is merely consistent with guilt goes too far. To support a conviction on circumstantial evidence alone, the evidence must not only be consistent with Brazle’s guilt, but must be inconsistent with — must exclude — his reasonable hypothesis of innocence. See, e.g., Cooley v. State, 219 Ga. App. 176, 177 (464 SE2d 619) (1995). In my view, the evidence here fails in that respect.

¶3I am authorized to state that Presiding Judge Birdsong and *507Judge Blackburn join in this special concurrence.

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