Stubbs v. State

¶1concurring specially.

¶2The majority’s opinion is yet another example of the futility of attempting to define direct evidence and circumstantial evidence. Contrary to the majority’s conclusion, the officer’s testimony that he found a metal bar in Stubbs’ car is also consistent with Stubbs’ theory of innocence: that the actual burglar dropped the bar into Stubbs’ car.

¶3A review of countless appellate opinions, including the several generated in this one case, leads to the conclusion that the difference between direct and circumstantial evidence lies only in the eye of the beholder. Because appellate courts are unable to provide a workable test that will clarify this area of the law, why do we continue to impose this additional burden on trial courts and continue to confuse juries? We should not continue to perpetuate distinctions in evidence when it is unnecessary to preserve fundamentally fair trials.

¶4As I said in Yarn v. State 7and Judge Pope said in his opinion in this case,8 the state must prove the defendant’s guilt beyond a reasonable doubt and the state’s evidence must exclude all reasonable theories of innocence whether the evidence is direct, circumstantial, or both. The continued life of the distinction between direct and circumstantial evidence serves no worthwhile purpose and should be eliminated.