Cosby v. Jones

¶5GODBOLD, Chief Judge:

¶6Cosby appeals from the denial of his petition for writ of habeas corpus. We reverse and remand with directions to grant relief.

¶7I. Facts

¶8Petitioner, Elijah “Tootie Pie” Cosby, is presently serving a 20-year sentence under a 1979 Georgia burglary conviction. He challenges this conviction on the ground that there was insufficient evidence to constitutionally support the conviction, under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

¶9An apartment in Carrollton, Georgia was burglarized December 10, 1978. Cosby lived in the same apartment complex as the victim. A camera and zoom lens, and a stereo, were taken. Some time between December 11 and 13 (inclusive) Cosby pawned the camera and lens.1 Cosby was *1375arrested. He told a Carrollton police detective that he bought the camera and lens for $40 from a Bobby Williamson. There is conflicting evidence as to two details of this alleged transaction. First, the police detective testified that Cosby told him the purchase was made in Villa Rica,2 whereas Cosby testified that he bought the camera from Williamson in Carrollton and that he told the detective only that Williamson lived in Villa Rica. Second, based on the pawnbroker’s uncertain testimony as to when the camera might have been pawned, see note 1 supra, the asserted purchase could have been made on December 11, but Cosby testified he bought the camera December 12 and pawned it a day or two later. Also, the detective made a limited but unsuccessful search for Williamson in Villa Rica, and Cosby did not procure Williamson’s appearance at the trial.

¶10Otherwise Cosby’s testimony was uncon-tradicted and in fact was corroborated. Cosby testified that Williamson and a companion, both black males, drove up to the King Street Pool Room in Carrollton where Cosby was standing outside. Williamson called Cosby over to the car and offered to sell him the camera for $40. Cosby had only a $50 bill and Williamson had no change, so Cosby got change from an acquaintance, Charlie Hammett, who lives next door to the pool room, and then Cosby bought the camera. Charlie Hammett testified that some time before Christmas while he was talking with Cosby outside of the pool room, a car with two black men drove up and the driver motioned for Cosby. Cosby went over and spoke with them briefly and returned to ask Hammett to change a $50 bill. Hammett gave him two $20 bills and a ten, and Cosby went back to the car and then walked away with what appeared to be a camera resembling the one stolen.

¶11Cosby also presented at trial an alibi that he was at a party in Rome, Georgia3 the day of the robbery and that he did not return to Carrollton until December 11 or 12.4 Several witnesses corroborated this alibi, but their testimony was inconsistent as to the number - and identity of persons at the party.

¶12Cosby moved for a directed verdict on the ground that, in the light of his uncontra-dicted version of how he obtained the camera, the circumstantial evidence of recent possession of the camera after the burglary was not sufficient to carry the state’s burden of proof. The court denied this motion. In its instruction to the jury the court charged that, if a burglary has been committed, Georgia law permits the inference that a person in recent, unexplained possession of the goods stolen is the one who committed the burglary. See Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981). The court told the jury that recent possession is one circumstance along with all the other evidence in the case from which the jury may infer guilt if it should see fit, but that the inference is not a conclusive one and that the jury may choose to believe the defendant’s explanation for possession of the goods.5

¶13*1376The jury convicted Cosby and he was sentenced to 20 years imprisonment.

¶14II. Exhaustion

¶15Cosby appealed his conviction to the Georgia Court of Appeals, alleging that the evidence was insufficient to support the verdict. The court rejected this challenge, Cosby v. State, 151 Ga.App. 676, 261 S.E.2d 424, 425 (1979), and the state concedes that Cosby’s sufficiency argument has been exhausted.6

¶16The state contends, however, that Cosby has raised a second claim, not exhausted, concerning the constitutionality of the inference of burglary that Georgia allows from recent possession of stolen goods, and therefore this case must be dismissed under Rose v. Lundy, - U.S. -, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), which holds that habeas petitions stating mixed exhausted and unexhausted claims cannot be considered by the district court but must be dismissed to allow the petitioner to either exhaust all claims or to bring only exhausted claims.

¶17A. Background

¶18To address the Rose v. Lundy contention we must make some prefatory explanation of the law of the constitutionality of presumptions and inferences. In Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Supreme Court explained that there are two broad classes of inferences or presumptions, permissive and mandatory. Permissive inferences, as the one here appears to be, see note 5 supra; Williamson v. State, supra, 281 S.E.2d at 514, 521,7 serve the purpose of directing the jury’s attention to inferences that it might draw and thus tend to encourage particular conclusions. Ulster, supra, 442 U.S. at 170, 99 S.Ct. at 2231, 60 L.Ed.2d at 800 (Powell, J., dissenting); Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 Harv.L.Rev. 321, 330-31 (1980). Therefore, the Supreme Court requires that in order for a permissive inference instruction to be valid there must be a rational connection between the circumstance giving rise to the suggested inference and the conclusion drawn. The specific test is whether the ultimate fact is “more likely than not to flow from” the basic fact. Ulster, 442 U.S. at 165, 99 S.Ct. at 2228. This test is less stringent than the Jackson v. Virginia test for sufficiency of the evidence, that a rational trier of fact could find the ultimate fact beyond a reasonable doubt. Ulster, supra, at 165, 99 S.Ct. at 2228. The rationality of the inference under an Ulster analysis is judged not in the abstract but in the light of the circumstances giving rise to the inference in a particular case. Id. at 162-63, 99 S.Ct. at 2227-28.

¶19The Ulster analysis of the validity of a permissible inference instruction is independent from a Jackson v. Virginia analysis of the sufficiency of the evidence, for the former tests whether it is rational to infer an element of the crime from a specific fact and related circumstances, while the latter tests whether such an inference is supported by the record as a whole. Thus a permissive inference might be invalid even though there is sufficient evidence other*1377wise to uphold the verdict.8 The independence of the Ulster analysis and a Jackson v. Virginia analysis is clear from the Court’s opinion in Ulster. The Court explained that a permissive inference need not meet the more stringent Jackson v. Virginia standard for the very reason that such an inference is only “one ... part” of the prosecution’s case, and that “the prosecution may rely on all of the evidence in the record to meet the reasonable-doubt standard.” Id. at 166-67, 99 S.Ct. at 2229-30 (original emphasis). Moreover, in its last paragraph the Court was careful to observe that, in addition to the permissive inference being valid, the record as a whole had been found sufficient to establish guilt beyond a reasonable doubt. Id. at 167, 99 S.Ct. at 2230.9 Therefore, determining that a permissive inference instruction is valid does not settle whether the verdict is supported by sufficient evidence.

¶20B. Discussion

¶21The preceding discussion of Ulster illustrates that, although the validity of a permissive inference instruction and the sufficiency of the evidence in theory are distinct issues, in practice, where the primary evidence of guilt is the same as the evidence that gives rise to a permissive inference-instruction, it is difficult to separate an Ulster analysis from a Jackson v. Virginia analysis. See, e.g., Williams v. State, supra, 281 S.E.2d at 512-20 (raising a Jackson v. Virginia issue but analyzing it under Ulster). In the present case we recognized that the inference of burglary from recent possession of the stolen goods is central to our consideration, and we requested supplemental briefing from the parties on the validity of this inference. We did not frame our request in pure sufficiency terms but asked to be briefed on whether the inference “relieves the state of its burden of proving beyond a reasonable doubt every element of the offense.” This burden-shifting tenor of the request prompted the parties to focus on Ulster and its progeny (e.g., Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)), and it was then that the state contended that two claims were present in this case and therefore Rose v. Lundy, supra,required dismissal. We hold that Rose does not apply because Cosby raised only a sufficiency issue in the district court, and therefore any subsequent raising of an Ulster issue in the court of appeals, whether by the petitioner or by the court, does not present grounds for dismissal.

¶22In Rose v. Lundy the Supreme Court announced its “rigorously enforced total exhaustion rule,” - U.S. at -, 102 S.Ct. at 1203, 71 L.Ed.2d at 388, under which a district court must dismiss habeas petitions containing both unexhausted and exhausted claims rather than simply dismissing the unexhausted claims. One month later the Court clarified that even though the total exhaustion rule is to have “strict enforcement,” id.- U.S. at-, 102 S.Ct. at 1204, 71 L.Ed.2d at 389, the federal courts are to be “reluctant to interpolate an unexhausted claim not directly presented by the petition.” Engle v. Isaac, — U.S. -, -, 102 S.Ct. 1558, 1563, 71 L.Ed.2d 783, 798 n.5 (1982). The majority explained that, although an unexhausted claim appeared in Isaac’s case at the court of appeals level, the claim “formed no part of Isaac’s original habeas petition,” and therefore Rose v. Lundy did not apply. The court warned against a “creative appellate judge . . . distill[ing] from [a “confused petition”] an unexhausted ... claim.” From *1378Engle v. Isaac the rule is clear, then, that in applying the total exhaustion rule of Rose v. Lundy, we look to the original habeas petition presented in the district court, not to the contentions made on appeal, and we do not construe ambiguous petitions as raising unexhausted claims.

¶23In his original habeas petition Cosby claimed that he “was convicted based on evidence which was insufficient to justify a rational trier of fact in finding guilt beyond a reasonable doubt,” and he cited Jackson v. Virginia. The Georgia rule of inference of guilt from recent possession was mentioned only by way of contending that this was the only evidence to support the verdict, and that such evidence was not sufficient. Nowhere in Cosby’s initial petition does he cite Ulster and other presumption cases or contend that the jury was improperly instructed.

¶24The case was initially referred to a United States magistrate under 28 U.S.C. § 636(b)(1)(B) for his recommendation. In the magistrate’s recommendation that the writ should be denied, which was accepted by the district judge, the magistrate mentioned the inference allowed by Georgia law, but he also spoke entirely in terms of sufficiency of the evidence. He did not mention the permissive inference instruction given the jury.

¶25Cosby first began to speak to the district court in terms of an unconstitutional presumption in his objections to the magistrate’s recommendation.10 We do not read his argument as departing from a simple sufficiency claim, however. In essence Cosby argued that if the verdict is allowed to stand on the evidence presented, which he contended consisted only of the presumption and his unrebutted explanation of possession, this “in effect” shifted the burden to the defendant of proving his innocence. This said no more than the obvious proposition that in any case where the prosecution has not proven guilt beyond a reasonable doubt it has not met its burden of proof, and therefore to let the verdict stand is to “in effect” shift the burden of proof. Cosby did not mention or challenge the instruction given the jury. His only contention to the district court was that the magistrate improperly relied on the inference as sufficient evidence. The heart of Cosby’s argument was that because there “was no rebuttal of petitioner’s explanation [of possession] . . . the standard under Jackson v. Virginia . . . was not met.” Any discussion of presumptions or burden shifting was but an inartful way of rephrasing this contention.

¶26Were there any $oubt concerning this question, under Engle v. Isaac, supra,it would be resolved in favor of Cosby. Moreover, the state in response to the identical arguments made in Cosby’s original brief to this court viewed the issue as only one of sufficiency and did not raise any exhaustion contention. See note 6 supra.

¶27Finally, the district judge, in his issuance of a certificate of probable cause, also considered the case as presenting a single claim, sufficiency of the evidence.

¶28In sum, the inference of burglary from recent possession, allowed under Georgia law, was unavoidably discussed in the dis*1379trict court, for the principal evidence against defendant was his recent possession. Nowhere, however, is this inference challenged as an unconstitutional permissible inference instruction to the jury. It was not until this court requested the parties to focus on the inference as relieving the state of its burden of proof that the Ulster analysis was developed fully enough to be termed a second issue. Thus, even if the Ulster issue could be a separate “claim” or “ground” under Rose v. Lundy,11it was not properly raised by petitioner at the district court level and thus presents no ground for dismissing the case.

¶29III. Sufficiency of the evidence

¶30Turning to the merits, Cosby contends that his conviction was not supported by sufficient evidence. The state relies primarily on the inference to be drawn from recent, unexplained possession of goods taken during a burglary that the one in possession committed the burglary. Cosby responds that he presented an unimpeached and reasonable explanation of possession inconsistent with burglary and therefore the inference cannot be drawn unless the state were to rebut his explanation. The state replies that Cosby’s explanation is an issue of fact that the jury is entitled to disbelieve, as it obviously did.

¶31The standard for weighing the constitutional sufficiency of the evidence is set forth in Jackson v. Virginia :

[T]he applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.

¶32443 U.S. at 324, 99 S.Ct. at 2791.12 We are to “view the evidence in the light most favorable to the prosecution,” and “all of the evidence is to be considered.” Id. at 319, 99, S.Ct. at 2789. The Supreme Court has further explained that the Jackson standard is a “more stringent test” than a “more likely than not” standard. Ulster, supra, 442 U.S. at 166, 99 S.Ct. at 2229. How much more stringent is uncertain, but it is at least clear that if the reviewing court is convinced by the evidence only that the defendant is more likely than not guilty then the evidence is not sufficient for conviction.

¶33The inference of burglary from recent possession of stolen goods on which the state relies is of ancient vintage and has widespread acceptance. See generally, U. S. v. Jones, 418 F.2d 818, 821-22; 9 Wigmore on Evidence § 2513 (Chadbourn ed. 1981); cases collected in West’s Federal Practice Digest at Burglary # 42, Larceny # 64, and Robbery # 24.1(5). We note particularly the Supreme Court’s acceptance of this inference. In Dunlop v. United States, 165 U.S. 486, 502, 17 S.Ct. 375, 330, 41 L.Ed. 799 (1897), the Court stated broadly in dictum that “if property recently stolen be found in the possession of a certain person, it may be presumed that he stole it, and such presumption is sufficient to authorize the jury to convict, notwithstanding the presumption of innocence.” In McNamara v. Henkel, 226 U.S. 520, 524-25, 33 S.Ct. 146, 147, 57 L.Ed. 330 (1913), where the issue was whether there was any com*1380petent evidence to support an arrest for burglary, the Court held that “[possession [of “the fruits of the burglarious entry”] in the[] circumstances [of this case] tended to show guilty participation in the burglary.” Finally, in Wilson v. U. S., 162 U.S. 613, 619-20, 16 S.Ct. 895, 898, 40 L.Ed. 1090 (1896), a murder case, the Court stated generally that “[p]ossession of the fruits of crime recently after its commission justifies the inference that the possession is guilty possession.”13

¶34Despite the apparent breadth of these statements in distant Supreme Court precedents, we hold that recent possession of stolen goods will not automatically support a guilty verdict for theft or burglary under the Jackson v. Virginia standard in every case. Instead, recent possession is to be viewed as probative evidence of the crime, see 1 Wigmore on Evidence § 152 (3d ed. 1940), and reviewed along with the other evidence in the case to determine whether any rational juror could find the defendant guilty beyond a reasonable doubt. Thus the inference of participation in the crime drawn from possession of fruits of the crime is to be judged like any other inference, that is, on the strength of that inference in the light of the facts of each particular case.

¶35Support for this treatment of the inference is found first in the fact that the Supreme Court has never squarely held that the inference standing alone will support a guilty verdict without the existence of corroborating evidence or circumstances. The Court’s statement in Dunlop, supra,was broad dictum, used simply as one example of the many inferences traditionally drawn from circumstantial evidence.14 In McNamara, supra,the Court stated no more than that the inference was probative evidence; it gave no indication that the inference was sufficient to sustain a verdict. In Wilson, the only case where the Court has squarely upheld a verdict based on this inference, there, was a tremendous amount of additional corroborating evidence and very little exculpatory evidence,15 and thus the Court did not hold that the inference alone was sufficient.

¶36Second, many courts, including the former Fifth Circuit, have reversed convictions in the face of this inference (or similar inferences). See, e.g., U. S. v. Mann, 557 F.2d 1211, 1217 (5th Cir. 1977); U. S. v. Jones, 418 F.2d 818 (8th Cir. 1969); see generally cases collected in U. S. v. Burns, 597 F.2d 939, 944 n.7 (1979), and in Barfield v. U. S., 229 F.2d 936, 944 n.6 (5th Cir. 1956).

¶37Third, there is widespread agreement that the bare inference of theft from possession is insufficient for conviction without corroborating circumstances or evidence. The early English and American sources for this common law inference “reflect guarded circumspection in the use of the doctrine,” and generally evince the view that “ ‘the presumption arising from this fact of pos*1381session, standing by itself, ... is too slender to support a conviction.’ ” See the thorough analysis contained in U. S. v. Jones, 418 F.2d 818, 822-25 (8th Cir. 1969) (quoting a 19th Century edition of Wharton’s Am.Crim.Law). At least two circuits have held that corroboration is necessary in order for this inference to be sufficient evidence. Id. at 823; Torres v. U. S., 270 F.2d 252, 258-59 (9th Cir. 1959). See also U. S. v. Bamberger, 456 F.2d 1119, 1134 (3d Cir. 1972) (dictum) (“the inference of guilt is justified only in the presence of factors which suggest the probability that the person could not have obtained possession in any way other than by theft”). Even where there is no explicit holding to this effect the case law supports this proposition by implication, for all cases applying this inference do so where circumstances have “such force and bearing as to justify the jury[’s] finding,” quoting Barnes v. U. S., 341 F.2d 189, 192 (5th Cir. 1965), or where there is other corroborating evidence. See Barfield v. U. S., 229 F.2d 936, 941-44 & nn. 1, 6 (5th Cir. 1956) (Brown, J., specially concurring) (collecting cases) (“the total circumstances must furnish a legitimate basis for such an inference”; all cases sustaining the verdict “show on careful examination some additional circumstances”).

¶38Careful distinction must be drawn between the inference proffered by the state in this case — that the possessor of stolen goods actually committed the burglary— and the inference from possession of stolen goods that the possessor has knowledge of their stolen quality. Accord, U. S. v. Jones, supra,418 F.2d at 824-25. The latter inference is much more widely accepted without qualification or corroborating evidence. E.g., Barnes v. U. S, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); U. S. v. Strauss, 678 F.2d 886, 893 (11th Cir. 1982); U. S. v. Burns, 597 F.2d 939, 942-43 (5th Cir. 1979). This is true because the inference of mere knowledge is a much more likely one. Inferring that one in possession of the goods stolen actually entered the victim’s dwelling place and stole the goods is a great deal more specific than inferring that one in possession of stolen goods is aware of their stolen quality. Cf. Ulster, supra, 442 U.S. at 158 n.16, 99 S.Ct. at 2226 n.16 (from the evidence of presence at the site of a still, there is a “much higher probability” of association with operation of the still than there is of being in possession of the still; the former inference is valid; the latter is not).16

¶39To summarize, cases approving the inference of guilt from possession of recently stolen goods fall into four categories: (1) those where knowledge of the theft is sufficient to convict, e.g., Barnes v. U. S., 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); (2) those that hold only that possession constitutes probative evidence, e.g., McNamara v. Henkel, 262 U.S. 520, 33 S.Ct. 146, 57 L.Ed. 330 (1913); (3) those that only approve an instruction on the inference, e.g., Dunlop v. U. S, 165 U.S. 486, 501-502, 17 S.Ct. 375, 380-381, 41 L.Ed. 799 (1897); and (4) those that apply the inference where there are corroborating circumstances or other evidence, e.g., Wilson v. U. S., 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896). We have found no case in Fifth Circuit, Eleventh Circuit or Supreme Court jurisprudence, or elsewhere, sustaining the sufficiency of the evidence to convict for actual commission of theft, burglary or robbery where the prosecution’s case rested on the bare inference of guilt from possession. If such a case exists, the great weight of authority is still clear.

¶40Looking then to the facts of this case, the state relies almost exclusively on the fact that Cosby pawned the camera and *1382lens stolen during the burglary within a few days of the burglary. Cosby’s principal contention is that his explanation of possession, which is consistent with innocence, is forceful enough that the jury cannot be allowed to discredit it without some rebuttal by the government. Cosby’s testimony that he purchased the camera for $40 from a black man outside of the King Street Pool Room in Carrollton, Georgia is corroborated in detail by eyewitness testimony and is not seriously contradicted by any evidence proffered by the state.17 Also, Cosby points to his alibi, corroborated by several eyewitnesses, that he was out of town the weekend of the burglary. Jackson v. Virginia’s requirement that the evidence be viewed in the light most favorable to the prosecution, 443 U.S. at 319, 99 S.Ct. at 2789, however, commands that we assume that the jury in its assessment of credibility did not believe this exculpatory testimony, and we must defer to the jury’s prerogative in this area. Glasser v. U. S., 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (“It is not for us ... to determine the credibility of witnesses.”); U. S. v. Fairchild, 505 F.2d 1378, 1381 (5th Cir. 1975) (“the jurors are entitled to give [defendant’s explanation] whatever weight they feel it deserves”); U. S. v. Gianni, 678 F.2d 956, 958, (11th Cir. 1982) (we make “all credibility choices in support of the jury verdict”).18

¶41Although in testing the sufficiency of the evidence we are required to disbelieve all of the defense testimony, the guilty verdict may not stand unless the state has proven its case with sufficient evidence to allow a reasonable juror to find guilt beyond a reasonable doubt. We conclude that the state has not done so. The inference of possession of stolen goods is too weak in the circumstances of this case to justify the verdict. First, although Cosby’s possession of the camera was fairly recent to the burglary, it was not so recent that it is unlikely that he could have purchased it. Compare, U. S. v. Wilson, supra,(defendant found with stolen car 40 feet from garage in early morning hours trying to crank start it); Williamson v. State, supra, 281 S.E.2d at 520 (possession within a few hours of burglary). Second, Cosby did not possess a large number of stolen items or a large majority of the items stolen. A camera and lens and a stereo were taken; Cosby had only the camera and lens. Compare, Williamson, supra (in possession of stereo, television, clock radio, and checks, all of the items stolen). Third, Cosby did not try to conceal the camera or otherwise act in a suspicious manner concerning his possession of it. To the contrary, he openly pawned the camera in his real name despite the obvious fact that serial number identification of it could easily be made. Compare, Rugendorf v. U. S., 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964) (defendant stored 81 stolen furs in basement closet); Crone v. U. S., 411 F.2d 251 (5th Cir. 1969) (defendant used fictitious name, tried to flee); U. S. v. Williams, 405 F.2d 14 (4th Cir. 1968) (defendant arrested attempting to throw away stolen wallet). Fourth, although the jury was not required to believe Cosby’s explanation of possession, still the inference of theft is at its strongest when the defendant wholly fails to make a credible explana*1383tion or makes a demonstrably false explanation. Compare, U. S. v. Williams, supra (defendant’s only explanation where caught throwing away stolen wallet was that he didn’t know anything about it); Wilson v. U. S., supra, 162 U.S. at 620, 16 S.Ct. at 898 (defendants falsely stated that victim was their uncle). Finally, there is no other corroborating evidence of significance.19

¶42In sum, the state relies on an inference that does not have great strength even in the best of circumstances, and the best of circumstances were not present here. Absent some type of corroborating evidence or circumstances, the most that we can say from the bare fact of possession and pawning of the stolen camera a day or two after the burglary is that it gives equal support to an inference of burglary and an inference that Cosby was fencing stolen goods.20 This is not enough to support a burglary conviction. As discussed above, the Court’s Ulster case clarifies that if the reviewing court can only say that the ultimate fact is more likely than not, then the Jackson v. Virginia standard has not been met. See text following note 12 supra. This is because Jackson requires that a reasonable juror be able to find the defendant guilty beyond a reasonable doubt, and if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt. Accord, U. S. v. Jones, supra,418 F.2d at 824-26. This is not to say that whenever the evidence supports a reasonable inference consistent with innocence the jury must acquit, for the Supreme Court has rejected the “theory that the prosecution [must] rule out every hypothesis except that of guilt,” Jackson, 443 U.S. at 326, 99 S.Ct. at 2793, as have we U. S. v. Bell, 678 F.2d 547, 550 (5th Cir. 1982) (Unit B en banc). It is only where, after viewing the evidence in its most favorable light and making all credibility decisions in favor of the state the evidence still fails to at least preponderate in favor of the state, that we become concerned with conflicting inferences.21

¶43REVERSED and REMANDED for entry of appropriate relief.