Lowery v. State

¶1dissenting.

¶2Because I find that the evidence was insufficient to prove that Demetrie Lowery was a party to the crimes committed by Octavious Williams, I respectfully dissent.

¶3Mere presence at the scene of the crime, even coupled with knowledge and approval, is not sufficient to convict a defendant of being a party to. the crime.11 Nor is evidence of presence during the crime coupled with flight sufficient to sustain a conviction.12 Even if the evidence presented at trial creates a grave suspicion that a defendant may be guilty of the charged crimes, suspicion will not sustain a conviction.13

¶4The evidence against Lowery, considered in the light most favorable to the prosecution, showed that he was present during the robbery, that he left the scene at the same time as Williams, and that he was found with Williams some time after the robbery. The evidence also showed that Lowery flagged his cousin down prior to the robbery. There was, however, no direct evidence that Lowery intentionally aided and abetted Williams in the commission of the crimes. Although criminal intent can be inferred from presence, conduct, and companionship before and after the offense,14 the facts supporting a conviction based on circumstantial evidence must exclude every other reasonable hypothesis save that of the guilt of the accused.15 “And while the jury generally determines whether every other reasonable alternative but guilt has been excluded, we must not be blinded by a verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law.”16

¶5Here, the victims of the armed robbery testified that Lowery looked shocked when Williams pulled out his gun. They also testified that Lowery did not say anything to either of them while Williams held the gun. The evidence presented at trial did not exclude the reasonable hypothesis that when Lowery happened to see his cousin riding down the road, he stopped him only for a conversation during which he asked for $20 and had no prior knowledge of, and was in fact surprised by, Williams’s subsequent actions. Thus, Lowery’s con*660victions for armed robbery are unsupportable as a matter of law and should be reversed.17

¶6The majority takes the position that there was both direct and circumstantial evidence of Lowery’s guilt and that, as a result, the circumstantial evidence rule does not apply. I disagree with the majority’s conclusion, but “even if it can be said that there was some direct evidence that [Lowery] was a party to the crimes, that does not negate the fact that there is a reasonable hypothesis that [Lowery] was not a party to the crimes.”18 The state’s burden of proof does not change because the evidence presented is direct rather than circumstantial. Direct evidence, as well as circumstantial evidence, “must establish guilt beyond a reasonable doubt and exclude every reasonable theory of innocence if a conviction is to be obtained.”19