Smith v. State

KENNEY, Judge, in which SONNER and SHARER, JJ., join I concur in the result. I write separately in response to the sufficiency of the evidence issues discussed by the dissenting ⁴²⁸ opinions in regard to competing inferences in a case involving only circumstantial evidence. Here, the State’s case rests on circumstantial evidence that appellant “knowingly” transported a handgun while traveling on the public roads and highways of the State of Maryland. As indicated in the various dissents, a greater nexus between the weapon and the alleged transporter may or may not negate or undermine any inference of the transporter’s knowledge of the weapon and, thus, the alleged transporter’s guilt.

Although we are not directly concerned with whether appellant “possessed” the weapon, individually or jointly, evidence of possession might obviously aid an inquiry as to appellant’s knowledge of the weapon. In fact, the trial court in this case concluded appellant was in joint possession of the weapon. Notwithstanding the extended discussion regarding the concepts of “equal access” and “greater nexus,” the plurality opinion and the dissents recognize that the ultimate question is whether the evidence was legally sufficient to convict appellant. Concepts of “equal access” and “greater nexus” are no more than analytical aids to be used in evaluating the evidence presented.

As in all criminal cases, it was the State’s burden to prove appellant’s guilt beyond a reasonable doubt. That burden can be met by the use of direct or circumstantial evidence, but the evidence produced must be sufficient to fairly convince a rational fact finder, beyond a reasonable doubt, of a defendant’s guilt. Whether the evidence is sufficient to support a conviction in a particular case is a question of law for the court that does not involve weighing or choosing between competing inferences reasonably generated by the evidence. See Hebron v. State, 331 Md. 219, 234 , 627 A.2d 1029 (1993).

In making that determination, the court is only concerned with whether a claimed inference is reasonably generated by the evidence. Such an analysis does not require the court to select the more persuasive of the inferences, but only to determine that the suggested inference is in accordance with reason. ⁴²⁹ This exercise, reserved to the court, is different than any implied weighing of inferences of fact by the fact finder in Jordan v. State, 219 Md. 36 , 148 A.2d 292 (1959), where the competing inferences supported a finding of guilt of both a greater and a lesser offense. Confronted with that situation the Court of Appeals held that the defendant was entitled to the benefit of the doubt and could only be convicted of the lesser offense. In this case, we are faced with an inference of innocence and an inference of guilt.

The whole of the evidence admitted by the trial court that was directly related to the transportation charge and resulting in appellant’s conviction was produced through the testimony of one officer. The following “facts” were established: (1) A loaded handgun was found in the trunk of a vehicle rented by appellant “a week or so” earlier and driven by appellant at the time of the incident. (2) In addition to appellant, two male passengers occupied the vehicle. (3) One of the two male passengers in the vehicle was in the backseat, from which there was direct access to the trunk.

(4) The handgun was not in plain view, but was covered by a jacket, the ownership of which was claimed by one of the two passengers in the vehicle; the jacket was returned to the passenger. (5) Everyone in the vehicle disclaimed ownership or knowledge of the weapon. (6) No effort was made to gather fingerprints from the weapon or the ammunition because the officer had handled the gun. There was no conflicting testimony and no need to resolve issues of credibility.

For our purposes, the “facts” testified to by the officer are the facts. The question is what inferences related to the transportation charge are reasonably generated by those facts. Therefore, there is little value to engaging in speculation about the pockets in the jacket, how access to the trunk might have been gained, who knew what regarding that access, how well the occupants knew one another, or even how ⁴³⁰ long they had been in the car together. The record is silent on these matters.

In the same way, little is to be gained by speculation on what other evidence might have been produced by the State. In the resolution of this case, we can consider only the facts that are presented. “Circumstantial evidence is proof of a chain of facts that point to a particular conclusion, a conclusion based on reason, experience, collective wisdom and common sense.” J.F. Murphy, Jr. Maryland Evidence Handbook, § 408 at 135-136 (3rd ed.1999). The general principle regarding a conviction based solely on circumstantial evidence is set forth in Wilson v. State, 319 Md. 530, 536-537 , 573 A.2d 831 (1990): A conviction may rest on circumstantial evidence alone. To ensure that the trier of fact bases a finding of guilt on the appropriate degree of certainty, we have long held that a conviction upon circumstantial evidence alone is not to be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence. [Citations omitted; emphasis in original.] The long running discussion in this Court and in the Court of Appeals concerning “single strands” of circumstantial evidence or circumstantial evidence “alone,” and its inconsistency ■with any reasonable hypothesis of innocence has related to whether a case is to be sent to a jury and if a jury instruction reflecting the Wilson principle should be provided.

Then Chief Judge Wilner, now of the Court of Appeals, said for this Court in Hebron v. State, 92 Md.App. 508, 516-17 , 608 A.2d 1291 (1992), aff'd, 331 Md. 219 , 627 A.2d 1029 (1993), in regard to circumstantial evidence and the effect of Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954), in Maryland: Assuming arguendo that a case based solely on a single strand of circumstantial evidence is properly presentable to the jury in the first instance, which we think is not allowed, an instruction on reasonable doubt is all that is needed. If the jury finds from the evidence a reasonable hypothesis of ⁴³¹ innocence, it will necessarily entertain a reasonable doubt as to guilt and will be obliged to acquit.... Equally cogent in our view is the fact that, under the language used in Wilson and earlier cases, the issue raised by a case resting entirely on a single strand of circumstantial evidence is not one of reasonable doubt, which is for the jury to determine, but of evidentiary sufficiency, which is for the judge to determine. Wilson , it will be recalled, confirmed that a conviction based solely on a single strand of circumstantial evidence “is not to be sustained” unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.

This is, and always has been, a rule relating to evidentiary sufficiency. If the State’s case is based solely on a single strand of circumstantial evidence and that evidence does not exclude every reasonable hypothesis of innocence, neither the judge nor a jury can lawfully return a verdict of guilty. [Bold emphasis added; italics in original.] In affirming this Court’s opinion in Hebron, 331 Md. at 234-35 , 627 A.2d 1029 , Judge Bell, now Chief Judge, said for the Court of Appeals: The cases referring to circumstantial evidence not excluding every reasonable hypothesis of a defendant’s innocence are cases in which there is circumstantial evidence of the defendant’s guilt and other evidence, either circumstantial or direct, tending to negate that evidence and no basis upon which a rational finder of fact could return a verdict of guilty without speculating as to which of the two versions is the correct version. A jury faced with that state of the evidence could not logically, nor lawfully, return a guilty verdict; hence, as the Court of Special Appeals pointed out, given that scenario, “there is nothing for the jury to decide, and, upon proper motion, the judge is duty-bound, as a matter of law, to enter a judgment of acquittal.” Hebron, 92 Md.App. at 517 , 608 A.2d at 1296 . ⁴³² Whether the evidence is direct or circumstantial, consists of multiple strands or just a single strand, it must initially be considered by the judge for its sufficiency to sustain a conviction. [Emphasis supplied.] This is consistent with Judge Moylan’s statement in Eiland v. State, 92 Md.App. 56, 69 , 607 A.2d 42 (1992), rev’d on other grounds, 330 Md. 261 , 623 A.2d 648 (1993): The small kernel of residual vitality is to be found not in cases where circumstantial evidence of guilt combines with direct evidence of guilt nor even in exclusively circumstantial cases where multiple strands of circumstance point in the same direction, reinforcing and corroborating each other. It is to be found, rather, in those cases where the State’s proof of guilt depends exclusively upon a 'single strand of circumstantial evidence.

As part of the very nature of such proof, the circumstance must serve as the predicate for an inference of guilt. The treacherous 'language (because it is so frequently abused) simply states the truism that a fact finder could not fairly be convinced beyond a reasonable doubt if the circumstantial predicate could also give rise to reasonable inferences of innocence. It is self-evident that a finding of guilt based upon a process of elimination must effectively eliminate the other reasonable possibilities. See, e.g., Tucker v. State, 244 Md. 488 , 224 A.2d 111 (1966). [Bold emphasis added; italics in original.] See also Davis v. State, 100 Md.App. 369 , 641 A.2d 941 (1994) (“The circumstantial evidence recovered from [appellant’s] home and the testimony provided concerning it, therefore, did not eliminate the reasonable possibility that appellant kept the marijuana and paraphernalia strictly for personal use.

Likewise, physical evidence presented at trial in no way precluded a conclusion that if kept for use by others, the drugs and paraphernalia were to be used there on only one occasion.”). To be sure, concerns about the policy implications and the practical consequences of that “small kernel’ of residual vitality” left in Wilson , as limited ás it is, are valid, especially in ⁴³³ cases involving drags and guns. This case fairly presents the issue and raises important questions: Can we adequately protect the innocent person without aiding the savvy criminal? Are we to presume guilt, as this statute set out to do, or are we going to continue to require that guilt be proven by the State?

Is a driver/owner or lessee of a vehicle obligated to know what his passengers are carrying? Obviously, as a society we want to retain the ability to convict the knowing transporter of contraband, and yet, at the same time, we recognize a need to protect innocent drivers and passengers from guilt by association or as a result of their mere presence at the scene of a crime. . One of the dissenting opinions suggests that, “based primarily upon Jackson and Hebron, ... the Wilson principle has no practical vitality.” (Eyler, James R., J., dissent, op. at 443). Whatever quarrel there may be with the Wilson principle it appears to be alive and well even though its appearances are thankfully infrequent.

As pointed out by Judge Eyler, Wilson was recently cited with approval by the Court of Appeals in Moye v. State, 369 Md. at 14, 796 A.2d 821 (2002). In publishing Wilson’s premature obituary, I believe too much is read into the quote from State v. Edwards, 298 S.C. 272 , 379 S.E.2d 888, 889 (1989), which was included by Chief Judge Bell in Hebron and cited in Judge Eyler’s dissent. The Edwards quote affirms the principle that, in considering the sufficiency of the evidence, the judge is not concerned with the weight of the evidence. Saying that it is the judge’s duty to submit the case to a jury if “there be any substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced,” (emphasis supplied), is not inconsistent with the previous holdings of this Court and the Court of Appeals that, in cases involving only circumstantial evidence, a fact finder could not fairly be convinced beyond a reasonable doubt if that evidence also generates a reasonable inference of innocence.

Similarly, Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), speaks of the “rational” trier of fact, id., 443 U.S. at 319 , 99 S.Ct. 2781 , and that the evidence must “fairly” ⁴³⁴ support a conclusion that the elements of the crime have been established beyond a reasonable doubt. See id., 443 U.S. at 313-314 , 99 S.Ct. 2781 . The essence of Hebron and Eiland is that, in a case dependent upon circumstantial evidence and the inferences generated by that evidence, a fair fact finder, confronted with a reasonable inference of innocence, cannot be fairly convinced of guilt beyond a reasonable doubt. Choosing between two reasonable inferences ultimately involves some speculation.

An inference is a “conclusion reached by considering other facts and deducing a logical consequence from them.” Black’s Law Dictionary at 781 (7th ed.1999). Neither the plurality opinion nor the dissents appears to take issue with the proposition that the presence of a weapon in a vehicle could support a rational inference that the driver/owner or lessee is “knowingly” transporting a weapon. In other words, a fact finder may, but need not, infer that the transportation of the weapon is done knowingly. See MPJI-CP 4:35.3, comment at 438.

Here, however, there are other circumstances. The vehicle had three occupants, at least two of whom, if not all three, might have had access to the trunk, including, in the case of one passenger, direct access to the trunk from the backseat. The weapon was not in plain sight, but was covered by a jacket, ownership of which was claimed by one of the passengers. Thus, the circumstantial predicate permits a reasonable hypothesis of innocence.

That the weapon was placed in the trunk by a passenger and covered with a coat without the driver’s knowledge is a reasonable possibility that cannot be eliminated without some speculation. In that situation, a rational fact finder could not be fairly convinced beyond a reasonable doubt of appellant’s guilt. Judge SONNER and Judge SHARER authorize me to state that they join in this concurring opinion. JAMES R. EYLER, Judge, in which MURPHY, C.J., DEBORAH S. EYLER, KRAUSER, and GREENE, JJ., join As the majority thoroughly reviewed cases with facts sufficiently similar to the one before us to be relevant to its ⁴³⁵ disposition, there is no need for me to engage in further review of those cases.

Factual situations of the type presented are not subject to the formulation of bright line rules. Each case must be determined by its facts, and the question of sufficiency of the evidence must be decided by application of the standard enunciated in Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). I believe the evidence in the case sub judice satisfied the Jackson standard, thereby creating an issue that was properly decided by the fact-finder. As a result, I dissent.

Appellate courts do not engage in fact-finding and operate, as they must, under a standard of review. Frequently, the standard of review for a particular issue is expressly set forth in an opinion. .Often, however, it is set forth in boilerplate fashion as a lead in to the real subject of the discussion-the merits. I agree with the majority on the standard but disagree on its application to the facts. I believe it is instructive to take a close look at the standard because an in-depth look aids courts in applying the standard in a given case.

Additionally, there is language in other cases which, from time to time, creates confusion. Prior to the adoption of the Federal Rules of Civil Procedure in 1938, the Federal Rules of Criminal Procedure in 1946, the Maryland Rules of Civil Procedure in 1941, and the Maryland Rules of Criminal Procedure in 1949, there was no appellate review of facts by federal or Maryland courts in civil cases at law or in criminal cases. See Edwards v. State, 198 Md. 132, 154-55 , 83 A.2d 578 (1951). When they were adopted, the Maryland Rules of Criminal Procedure authorized appellate review of the evidence after a non-jury criminal conviction.

The standard was clearly erroneous, essentially the same as the standard in present Maryland Rule 8-131(c). This standard was applied in Edtoards, supra. The Maryland Rules of Criminal Procedure further provided that, in a jury trial of a criminal charge, a defendant could request an instruction to the jury that the evidence was legally insufficient, but such an instruction was merely advisory. See ⁴³⁶ Wright v. State, 198 Md. 163, 169 , 81 A.2d 602 (1951).

The Maryland Constitution provided that, in criminal cases, the jurors were the judges of law and of fact. Effective December 1, 1950, the Maryland Constitution was amended to permit a court to pass upon the sufficiency of evidence in a jury trial. This provision currently appears as Article 23 of the Declaration of Rights (“except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”). Article 23 is implemented by Article 27, section 593, of the Maryland Code and by Rule 4-324.

Since 1950, therefore, criminal convictions in non-jury and jury trials have been reviewable for legal sufficiency of the evidence. The interplay between sufficiency of evidence and the degree to which the trier of fact had to be convinced in a criminal case—beyond a reasonable doubt—different from that required in a civil case—coupled with perceived qualitative differences between circumstantial and direct evidence, created some confusion in subsequent cases. There was early and general agreement, however, that there was no real difference in the standard for determining sufficiency of evidence as between jury and non-jury cases. See, e.g., Williams v. State, 5 Md.App. 450, 458 , 247 A.2d 731 (1968).

In Edwards, the Court of Appeals reviewed a criminal conviction after a non-jury trial. The State’s evidence was circumstantial in nature. The defendant argued that the State was required to negate to a moral certainty all reasonable hypotheses of innocence, and the State failed to do so. The court, applying the clearly erroneous standard contained in the Maryland Rules of Criminal Procedure, affirmed the conviction.

The Court stated that, given the evidence, the result would be the same even if it assumed that. circumstantial evidence had to exclude to a moral certainty every reasonable hypothesis other than that of guilt. See Edwards, 198 Md. at 157-58 , 83 A.2d 578 . I discuss Edwards because the Court, in Shelton v. State, 198 Md. 405 , 84 A.2d 76 (1951), discussed below, relied on that opinion. I note in passing, however, that Edwards seemed to recognize the distinction between the ⁴³⁷ quantum of proof necessary to present an issue to a fact-finder, on the one hand, and the degree to which the fact-finder had to be convinced, on the other hand.

In Shelton v. State, supra, the defendant was convicted by a jury of violating a Prince George’s County lottery law. The Court of Appeals reviewed the sufficiency of the evidence under the December 1, 1950 constitutional amendment and held that it was sufficient to support the verdict. The Shelton Court referred to Edwards and explained that the test of sufficiency was whether the evidence showed directly the fact to be proven or supported a rational inference of the fact to be proven. See Shelton, 198 Md. at 412 , 84 A.2d 76 .

This sounds very much like the constitutional test later enunciated in Jackson . The Court went on to state, however, that, “[i]n a criminal case the fact must be shown or the inference supported beyond a reasonable doubt or to a moral certainty, or a reasonable doubt of an opposite fact must be created. Before a verdict of guilty is justified, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.” Id. at 412 , 84 A.2d 76 (citing Bullock v. Commonwealth, 249 Ky. 1 , 60 S.W.2d 108 (1933)). Interestingly, the Court in Bullock , the case relied upon by the Shelton Court, after stating that circumstantial evidence must exclude every reasonable hypothesis of innocence, explained that, if circumstances tending to show guilt “are as consistent with” the defendant’s innocence as with his guilt, they are insufficient.

See Bullock, 60 S.W.2d at 110-11 . This language implies some weighing of the strength of inferences to be drawn from underlying facts and also implies that excluding every reasonable hypothesis of innocence is not literally required. In other words, these and other early cases wherein the courts affirmed convictions based on circumstantial evidence, did so even though the defendant could have been innocent, i.e., the evidence did not rule out innocence. The evidence was simply strong enough to enable the trier of fact to find guilt. ⁴³⁸ On the federal side, the Supreme Court, in Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954), rejected the argument advanced by the defendant in Edwards.

The Court held that if the government’s evidence was circumstantial in nature, it was inappropriate to instruct the jury that the evidence must be such as to exclude every reasonable hypothesis other than that of guilt. The Court explained that circumstantial evidence is not qualitatively different from direct evidence, and even though the evidence is circumstantial, the government is not required to negate every possible explanation. The Court further opined that a jury uses its everyday experiences with people and events to weigh the probabilities, and if a jury is convinced beyond a reasonable doubt, a court can require no more. See Holland, 348 U.S. at 139-40 , 75 S.Ct. 127 .

In 1970, the Supreme Court, in In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), held that the right to due process prohibits a criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. In 1979, the Supreme Court decided the landmark case of Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). The Court, in rejecting the notion that a mere modicum of relevant evidence is legally sufficient, held that, in viewing the evidence in the light most favorable to the prosecution, the constitutional test is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 , 99 S.Ct. 2781 (emphasis in original). The Court explained that the evidence must “fairly” support a conclusion that every element of the crime has been established beyond a reasonable doubt.

See id. at 313-14 , 99 S.Ct. 2781 . Finally, I note that in the Jackson opinion, the Court reaffirmed Holland and stated that if the proven facts support conflicting inferences, a court will presume that the fact-finder resolved the conflict in favor of the prosecution. See id. at 326 , 99 S.Ct. 2781 . The Jackson principles were reaffirmed in Wright v. West, 505 U.S. 277 , 112 S.Ct. 2482 , 120 L.Ed.2d 225 (1992).

In that case, the Court stated that it had explained in Jackson the defer ⁴³⁹ ence owed to the fact-finder, made it clear that all of the evidence (not each piece separately) is to be considered in a light favorable to the prosecution, and that the prosecution need not rule out every hypothesis except that of guilt. If conflicting inferences are supported on the record, a court, on review, shall presume the trier of fact resolved the conflict in favor of the prosecution. See id. at 296-97 , 112 S.Ct. 2482 . Prior to Jackson , Maryland courts, on occasion, articulated a standard for sufficiency of the evidence in criminal cases very similar to, if not the same as, that enunciated by the Supreme Court in Jackson.

See, e.g., Nichols v. State, 5 Md.App. 340, 348-49 , 247 A.2d 722 (1968); Cobb v. State, 2 Md.App. 230, 234 , 234 A.2d 155 (1967). Among other things, the standard recognized that there is no qualitative difference between direct and circumstantial evidence. See Nichols, 5 Md.App. at 350 , 247 A.2d 722 . Despite the fact that, prior to 1979, many Maryland cases recited the substantive equivalent of the Jackson test and, since 1979, the Jackson test, and despite the fact many stated there is no difference between direct and circumstantial evidence, there is language in several cases implying that the test is different when circumstantial evidence is present.

The case often cited is Wilson v. State, 319 Md. 530 , 573 A.2d 831 (1990). There the Court of Appeals, after reciting the Jackson test, stated that if the State’s case consists of circumstantial evidence alone, the circumstances, taken together, must be inconsistent with any reasonable hypothesis of innocence. See Wilson, 319 Md. at 535-37 , 573 A.2d 831 . This case continues to be cited with approval, as recently as in Moye v. State, 369 Md. 2, 14 , 796 A.2d 821 (2002).

In Wilson , the defendant house cleaner was charged with stealing three rings out of an upstairs bedroom in the victim’s house. The evidence was that the defendant had been in the upstairs of the house cleaning during the pertinent time period, but that at least five other people also had access to the upstairs of the house during that time period. The defendant was convicted of theft, non-jury. The Court of ⁴⁴⁰ Appeals reversed, holding that evidence of the defendant’s mere presence in the upstairs area of the house where others also were present, without more, was insufficient.

The Court explained that when proof of a fact is based on circumstantial evidence, the trier of fact need not be convinced “ ‘beyond a reasonable doubt of each link in the chain of circumstances,’ ” but rather the circumstances are to be considered collectively, with “the final analysis affording the basis of an inference of guilt beyond a reasonable doubt.” Wilson, 319 Md. at 536 , 573 A.2d 831 (quoting Pressley v. State, 295 Md. 143, 148-19 , 454 A.2d 347 (1983)). The Court continued, however, and stated that “a conviction upon circumstantial evidence alone is not to be sustained unless the circumstances, taken together, •are inconsistent with any reasonable hypothesis of innocence.” Id. at 537, 573 A.2d 831 (citing Brown v. State, 222 Md. 290 , 159 A.2d 844 (1960), Shelton v. State, supra, and West v. State, 312 Md. 197 , 539 A.2d 231 (1988)). In Brown , the Court of Appeals repeated the language contained in Edwards and Shelton and stated that “when guilt is based solely on circumstantial evidence, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.” Brown, 222 Md. at 296 , 159 A.2d 844 (emphasis in original). The Court added, however, that this did not mean that the inculpatory facts had to be absolutely incompatible with innocence and not susceptible of explanation upon any hypothesis other .than that of guilt.

See id. at 296 , 159 A.2d 844 . In West, the defendant was convicted of robbery and related offenses. The charges arose out of a purse snatching incident, and the State’s evidence was circumstantial. The Court reversed certain theft convictions based on insufficiency of evidence.

The evidence at trial was that the defendant was in possession of property stolen from the victim. The State argued that possession supported an inference of receiving stolen property or of theft. The defendant argued that, because there was direct evidence by a witness that he was not the thief, coupled with evidence, that someone was with him when he was found in possession, this vitiated the infer ⁴⁴¹ ence of theft (distinguished from receiving stolen property). The Court agreed with the defendant, stating that the evidence would have supported an inference of theft absent evidence to the contrary.

The Court stated: “This accords also with the principle, deeply rooted in the common law, that a conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.” West, 312 Md. at 211-12 , 539 A.2d 231 (citing Hodges Case, 168 Eng. Rep. 1136-37 (1838); People v. Galbo, 218 N.Y. 283 , 112 N.E. 1041, 1045 (1916); L. Hochheimer, The Laiv of Crimes and Criminal Procedure, section 158 (1904); cf. J. Stephen, A History of the Criminal Law of England 438 (1883)). The Court of Appeals of New York, in People v. Galbo, 218 N.Y. 283 , 112 N.E. 1041 (1916), reviewed a murder conviction where the State’s evidence was that the defendant was found in possession of the body. The Court held that the evidence was insufficient to permit an inference that the defendant was the murderer in the face of other evidence that the victim was large and put up a struggle, and that the defendant was physically handicapped and had no injury.

See Galbo, 112 N.E. at 1044-45 . This Court, in Eiland v. State, 92 Md.App. 56 , 607 A.2d 42 (1992), rev’d sub nom on other grounds, Tyler v. State, 330 Md. 261 , 623 A.2d 648 (1993), reviewed a murder conviction. The defendant, relying on the language in Wilson that circumstantial evidence must be inconsistent with any reasonable hypothesis of innocence, argued that the evidence was legally insufficient. This Court stated that Wilson reaffirmed Jackson as the ultimate test and then expressed doubt regarding the value of the Wilson statement in question, but recognized that the Wilson Court had, at least, limited the application of the principle to the situation where there is only one strand of circumstantial evidence and no direct evidence.

See Eiland, 92 Md.App. at 68-69 , 607 A.2d 42 . In 1993, the Court of Appeals decided Hebron v. State, 331 Md. 219 , 627 A.2d 1029 (1993). The Court affirmed a convic ⁴⁴² tion rendered by a jury for breaking and entering a dwelling. The defendant had asked the trial court to instruct the jurors that if they concluded that they could draw a reasonable inference of innocence from the circumstantial evidence presented, they had to find the defendant not guilty.

After reiterating the principle that a conviction based solely on circumstantial evidence cannot stand unless the circumstances are inconsistent with any reasonable hypothesis of innocence, the Court held that the principle relates to legal sufficiency—a question of law for the court—and should not be part of instructions to the jury. See Hebron, 331 Md. at 233-34 , 627 A.2d 1029 . ' The Hebron Court stated that the requested instruction was based on the notion that circumstantial evidence is inferior to direct evidence, a notion rejected by Holland and by a number of states, and then observed that Maryland has long held there is no difference between direct and circumstantial evidence, citing several cases from the late 1960’s. See id. at 226 , 627 A.2d 1029 . After discussing Wilson and similar cases, the Court reiterated the statement from Wilson that the principle in question has no application when the circumstances consist of more than a single strand.

It then stated: “This is no more than a