Mims v. State , 264 Ga. 271 ( 1994 )

Fletcher, Justice.

Mims’ conviction of child molestation was affirmed by the Court of Appeals in Mims v. State, 209 Ga. App. 901 (434 SE2d 832) (1993). We granted Mims’ petition for writ of certiorari to address the question of whether the trial court erred when it refused to give his requested charge on circumstantial evidence. We conclude that the trial court did err and reverse the decision of the Court of Appeals.

The trial court refused to give Mims’ written request to charge on the law of circumstantial evidence.¹ See OCGA § 24-4-6. The state introduced both direct and circumstantial evidence as to Mims’ guilt. In Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), we intended to establish a bright-line rule with regard to the trial court’s duty to charge the jury in circumstances where the case includes both direct and circumstantial evidence and the defendant has requested a charge on circumstantial evidence. In Robinson we held that

where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.

Id. at 699-700.

The Court of Appeals plurality interpreted the language in Robinson in such a manner as to make a defendant’s right to a charge on the law of circumstantial evidence contingent upon whether the state’s case “depends” on the circumstantial evidence. In defining the word “depends,” the plurality held that if the state presents direct evidence as proof for each essential element of its case, then the circumstantial evidence is merely “cumulative” and the case does not “depend” on circumstantial evidence. Applying this analysis, the plurality found that Mims was not entitled to a charge on circumstantial evidence.

In Robinson we recognized that it is impossible to determine whether a jury has based its verdict on direct or circumstantial evidence. When the state introduces both direct and circumstantial evidence, it is always possible that a jury will reject the direct evidence and base its decision solely on the circumstantial evidence, i.e., when the jury believes that the direct testimony is impeached. Also, the jury may determine the direct evidence insufficient and base its decision in part on circumstantial evidence. The test espoused by the Court of Appeals plurality requires the trial court to first identify what direct evidence has been presented with regard to each element of the case and then to either assume that the evidence will be accepted by the jury as true and sufficient or to pre-judge whether the jury will find the evidence true and sufficient. In either case this procedure is flawed because it requires the trial court to speculate as to what evidence the jury will consider in arriving at its verdict. We find such a procedure unsatisfactory and we reject the same.

If the state introduces circumstantial evidence into a case, that evidence has a purpose — to help the state prove the defendant’s guilt. As we recognized in Robinson, no one can predict whether the jury will rely on that circumstantial evidence and, regardless of how the state, the trial court or anyone else may characterize the importance of that evidence to the state’s case, the state’s case “depends” in whole or in part on each and every item of proof introduced into evidence because the jury may rely upon that particular item of proof to reach its verdict.

We set forth the rule in Robinson because we recognized the impossibility of pre-judging what evidence a jury will consider in reaching its verdict. Since a jury could consider circumstantial evidence in every instance where it has been introduced, upon request, the trial court must give the charge so that the jury will be familiar with how to weigh that circumstantial evidence.²

Applying the rule in Robinson to the facts of this case, it is clear that the state introduced circumstantial as well as direct evidence in its case against Mims. See Mims v. State, 209 Ga. App. at 908 (Smith, J., dissenting). Mims was therefore entitled to have his requested charge given to the jury³ and the Court of Appeals erred in not so holding. Additionally, we find that the evidence was close enough that failure to give this charge was not harmless. We likewise reject such part of the Court of Appeals’ holding which concludes that the requested charge, which essentially quotes OCGA § 24-4-6, was not adjusted to the evidence.

Judgment reversed.

All the Justices concur, except Benham, P. J., Hunstein and Carley, JJ., who dissent.

1 Mims’ requested charge tracks the language of OCGA § 24-4-6 and the pattern jury instruction based on such Code section, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2d ed. 1991), Part 2 Suggested General Charges Required in All Criminal Cases (V).

2 In Johnson v. State, 210 Ga. App. 99 (435 SE2d 458) (1993), Judge Birdsong’s majority opinion exactly stated the result intended by the rule we espoused in Robinson.

In light of . . . [Robinson], a trial court positively invites reversal of a criminal conviction when it fails to give the circumstantial evidence charge whenever such a charge is requested .... Virtually every case contains some circumstantial evidence and, if the charge is not given, stands in danger of being reversed for clearly harmful and erroneous error. The charge is a fundamental principle of law as to criminal guilt and there is no reason not to give it; the [sjtate is not harmed by it and has no right to have it omitted.

Id. at 100.

3 We note that even under the old rule found in Stanley v. State, 239 Ga. 260 (236 SE2d 611) (1977) (which required the charge if the direct evidence had been impeached), Mims would still have been entitled to a charge on the law of circumstantial evidence. The only direct evidence of criminal behavior on the part of Mims is the testimony of the victim. This testimony was impeached by Mims’ testimony wherein he related a different sequence of events (see OCGA § 24-9-82, impeachment by disproving the facts testified to by the witness). Since the direct evidence may have been discounted by the jury, the rest of the state’s case was based on circumstantial evidence.