¶1(dissenting).
¶2I agree with the majority’s conclusion that the court of appeals applied an improper standard in considering the motion for judgment of acquittal as if the hearsay statement had not been admitted into evidence. Such motions must be determined on the basis of the evidence that has been admitted rather than the evidence that should have been admitted. I disagree, however, with the conclusion of the majority that, if the evidence presented by the State is viewed as including the challenged hearsay statement, the evidence was sufficient to support the verdict of guilt. The mysterious message to “B” is so lacking in probative value and the other evidence so inconclusive that, even if the message is considered to be a part of the record on which the sufficiency-of-evidence ruling is to be based, the motion for judgment of acquittal should have been sustained. I would reverse defendant’s conviction and remand for an entry of judgment of acquittal.
¶3LAVORATO, C.J., joins this dissent.