State v. Grim

*417 ROBERTSON, Chief Justice,

dissenting.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits the conviction of any defendant “except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 314-15 , 99 S.Ct. 2781, 2786-87 , 61 L.Ed.2d 560 (1979). [Emphasis added.] With respect to the majority, the State’s case against Robert Grim falls far short of this standard. By affirming these convictions, the majority rescues the State from the consequences of having charged crimes it could not prove. I submit that such is not the role of this Court and must, therefore, respectfully dissent.

In holding that the reasonable doubt standard of proof is grounded in the constitution, the United States Supreme Court stated:

[U]se of the reasonable doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.

In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068, 1072 , 25 L.Ed.2d 368 (1970).

The standard of proof beyond a reasonable doubt ... ‘plays a vital role in the American scheme of criminal procedure,’ because it operates to give ‘concrete substance to the presumption of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding.

Jackson, 443 U.S. at 315 , 99 S.Ct. at 2787 (quoting Winship, 397 U.S. at 363 , 90 S.Ct. at 1072 ).

It is the duty of the trial court, on motion by the defendant, to determine that the threshold of reasonable doubt has been met before allowing the case to go to the jury. Where the trial court has failed in that duty and where the jury has returned a verdict of guilty, it is the unpleasant duty of the reviewing court to reverse the conviction. Respectfully, I believe the majority fails in that duty today.

The constitutional protections embodied in the presumption of innocence and the requirement of proof beyond a reasonable doubt are not reserved simply for the morally blameless, nor are they reserved for use only in “easy” cases. Rather, “[ujnder our system of criminal justice, even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.” Id. 443 U.S. at 323-24 , 99 S.Ct. at 2791 .

The majority holds that the evidence presented in this case was sufficient to support convictions for second degree murder, armed criminal action and first degree burglary. In doing so, I contend that the majority indulges in probabilities and speculation. Because I do not believe that the evidence presented provides a sufficient basis for any reasonable juror to find every element of these crimes beyond a reasonable doubt, I would reverse each of the convictions entered in the trial court. I respectfully dissent.

I. Standard of Review

Before addressing the substance of Grim’s appeal, the majority turns its attention to the standard of review. The State has requested,- and the majority obliges, that this Court abandon the so-called “circumstantial evidence rule.” Finding that “[n]o reason remains to perpetuate this different rule,” the majority holds that “[w]e no longer need to hold circumstantial evidence cases to a higher standard than direct evidence cases.” Maj. Op. at 406. Because I believe that the circumstantial evidence rule is not a higher standard of review, but is instead a means of subjecting circumstantial evidence cases to the same standard as other cases, I respectfully dissent from the majority’s rejection of that analysis today.

In discarding the circumstantial evidence rule, the majority asserts that the rule is a “higher standard” courts have applied to circumstantial evidence because of a “basic distrust,” or a “societal distrust,” of circumstantial evidence that is now “outdat *418 ed.” Maj. Op. at 405, 406, 407. I disagree, unless due process is also “outdated.”

In one of the earliest cases employing this rule, this Court stated exactly the opposite of the majority’s claim. “Although [a crime] may be established by circumstantial evidence alone, its certainty must be equal to that attained by direct evidence and it must be proved beyond a reasonable doubt.” State v. Wheaton, 221 S.W. 26 , 28-29 (Mo.1920). [Emphasis added.] I continue to believe that the circumstantial evidence rule is based on an understanding that, while circumstantial evidence is not inherently less probative than direct evidence, it is fundamentally different than direct evidence. Courts must account for this difference in judging the submissibility of criminal cases. See also State v. Lasley, 583 S.W.2d 511, 515-516 (Mo. banc 1979). The circumstantial evidence rule is a viable tool serving that purpose.

Direct evidence is testimony, given under oath, as to the existence or nonexistence of an element of the crime concerning which the witness claims personal knowledge. Confronted with direct evidence, the jury’s only function is to weigh the witness’ credibility. If the jury believes the witness, the element has been established; if the jury does not believe the witness, the element has not been established. Weighing credibility and resolving competing versions of the facts are critical tasks that our society entrusts only to juries. Courts, especially appellate courts, recognize that these tasks are singularly within the competence of the jury and rarely, if ever, invade this province of the jury to hold a witness’ testimony “unbelievable” as a matter of law. To be submissible, therefore, due process demands only that direct evidence be such that any reasonable juror could believe it.

With circumstantial evidence, however, the State asks more from the jury. There, the jury is first asked to believe the State’s witness, just as with direct evidence. Then, if the jury is persuaded that the witness is truthful, the jury is asked to infer, from the evidentiary facts, the existence of some essential element of the crime charged. This second step, the process of deducing the existence of an element from an evidentiary fact, is unique to circumstantial evidence. It is this step that is subjected to the test of reasonable doubt by the circumstantial evidence rule.

Few, if any, cases can be proved without some reliance on deduction. For instance, it is often said that a defendant’s culpable mental state must be proved (absent an admission) by circumstantial evidence. Thus, courts have determined that certain acts give rise to an inference of certain mental states, as a matter of law. The process of deduction in cases based entirely on circumstantial evidence, however, is much more involved. There, the State is asking the jurors not only to infer the defendant’s culpable mental state, but also to infer the defendant’s criminal acts that underlie the inference of mens rea. This multi-leveled inference demands scrutiny to ensure that a reasonable jury could conclude the defendant’s guilt, based on the circumstances shown, beyond a reasonable doubt.

Where the State’s proof is entirely circumstantial, the circumstantial evidence rules requires only that submissibility be determined, not just in terms of whether any reasonable juror could believe the State’s witnesses, but also whether any reasonable juror could draw the inferences the State requires in order to convict. Not only must a reasonable juror be able to infer the essential elements from the circumstances shown, but the strength of this inference must be such that a reasonable juror could be convinced of those elements beyond a reasonable doubt. Finally, and most important, where guilt depends on the piling of inference upon inference — as it does in this case — the sum of the inferences must be strong enough to convince a reasonable juror of the defendant’s guilt beyond a reasonable doubt.

In short, I read the circumstantial evidence rule simply as a means of determining when a reasonable doubt exists as a matter of law in cases based entirely on circumstantial evidence. Despite the assertions of the majority, I believe that this has *419 always been the interpretation, and the role, of the circumstantial evidence rule in this state. Because the rule continues to have value in ensuring that the due process standard of Jackson is met, and because the majority has not shown that the rule fails in that task — either in the present case or in decades of actual practice 1 — I see no reason for abandoning it. 2 While the majority will carry the day on this point, it should be understood by my colleagues on the trial and appellate benches that it is the rule that is abandoned today and not the duty that underlies it.

II. Sufficiency of the Evidence

In determining on appeal whether a case was constitutionally submissible, it is (or should be) irrelevant that the jury returned a verdict of guilty. Because we cannot know how or why a jury reaches its verdict, our review is limited to whether the State has introduced sufficient evidence for any reasonable juror to have been convinced of guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319, n. 13 , 99 S.Ct. at 2789, n. 13 . To ensure that reviewing courts do not engage in futile attempts to weigh evidence or judge credibility, “the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” Id. at 319 , 99 S.Ct. at 2789 .

In light of these standards, the only evidence in this case linking Robert Grim to any of the charged crimes is a partial thumbprint, matching Grim’s right thumb, lifted from inside a wallet found in the victim’s house. That’s it. From this single piece of evidence, the majority holds that a juror could reasonably infer the following:

First, that Grim unlawfully entered the home of Ms. Bradford with the purpose of committing a crime therein and was inside the home sometime prior to her death (first degree burglary);

Second, that, with the purpose of killing, or seriously wounding, Ms. Bradford, Robert Grim stabbed her or aided someone else in stabbing her to death (second degree murder); and

Third, that he did so with a dangerous or deadly weapon (armed criminal action).

The majority holds not only that a reasonable juror could infer the above based solely on the thumbprint, but also that a reasonable juror could be convinced of these facts beyond a reasonable doubt.

The majority’s reasoning is as follows:

1. Grim’s thumbprint was in the victim’s blood. Maj.Op. at 412.

2. It follows, then, that Grim stabbed the victim to death, Maj. Op. at 412, or aided whoever did the stabbing. Maj. Op. at 413.

—Therefore, he is guilty of murder in the second degree and armed criminal action.

3. If follows, then, that since Grim killed, or helped kill, the victim, he must have been in the house prior to her death. Maj.Op. at 415.

—Therefore, he is guilty of burglary in the first degree.

With all due respect in this horrendously difficult case, I believe the majority, in its detailed and lengthy analysis, has been distracted by the question of whether it is possible to conclude Grim is guilty in this case. We already know that it is possible — the jury’s verdict tells us that. The inquiry at issuer-one we are bound by the constitution and our oaths to make — is *420 whether a juror could reasonably conclude from the evidence that Grim was guilty and whether such a juror could conclude this beyond a reasonable doubt. This is a question of law to be determined, in the first instance, by the trial court and then on review by an appellate court.

In this case, I believe that the majority’s first conclusion is permissible, barely. As discussed below, the second and third conclusions are the products of mere speculation and are, therefore, constitutionally insufficient to support a conviction. With respect to my colleagues, I would reverse all three convictions.

A. The “bloody” thumbprint

There was evidence from which the jury could conclude that the substance on the outside of the wallet was Ms. Bradford’s blood. Expert testimony established that substance as blood, as human blood and as containing chemical properties found only in approximately seventeen percent of the Black population in St. Louis. Expert testimony also established that Ms. Bradford’s blood contained these same chemical properties. The fact that the human whose blood was on the outside of the wallet and Ms. Bradford wére both members of a relatively small demographic group, coupled with the nature and extent of Ms. Bradford’s wounds, provided a sufficient basis from which a reasonable juror could have inferred that the blood on the outside of the wallet came from Ms. Bradford.

As to the print-bearing substance on the inside of the wallet, however, there is much less to go on. There was no objective evidence that the substance was blood, or that it was human blood, or that it was of the same “type” as Ms. Bradford’s blood. The only evidence offered by the State as to the nature of this substance was criminologist Margaret Owens’ testimony that the substance “looked like” the blood on the outside of the wallet. She did not testify, nor could she have, that it “looked like” human blood or that it “looked like” blood of any specific “type.” Rather, the jury — and now this Court — is left to determine as to the nature of this substance by deduction.

Given that the jury could reasonably infer that the blood on the outside of the wallet belonged to Ms. Bradford, should we allow the jury to use that inference as a basis from which to infer that the substance inside the wallet was also her blood?

“An inference is a logical and reasonable conclusion of a fact not presented by direct evidence but which by the process of logic and reason, a trier of fact may conclude exists from the established facts.” State v. Hyde, 682 S.W.2d 103, 106 (Mo.App.1984), ce rt. denied, 471 U.S. 1056 , 105 S.Ct. 2120 , 85 L.Ed.2d 484 (1985). As this Court has said:

An inference is a conclusion drawn by reason from facts established by proof; a deduction or conclusion from facts or propositions known to be true.... A supposition is a conjecture based on the possibility that a thing could have happened. It is an idea or a notion founded on the probability that a thing may have occurred, but without proof that it did occur.

[Emphasis added and quotation marks omitted.] Draper v. Louisville & N.R. Co., 348 Mo. 886 , 156 S.W.2d 626, 630 (1941).

This Court has long been skeptical of convictions that depend upon inferences drawn from other inferences, i.e., “inference stacking.” See State v. Rector, 328 Mo. 669 , 40 S.W.2d 639, 643 (1931); State v. Knight, 296 S.W. 367 , 369 (Mo.1927). However, when a court reverses such a conviction, it is important to realize that the ground of decision is not the so-called rule against “inference stacking” but rather that the evidence is not sufficient to support a finding of guilt beyond a reasonable doubt.

The [inference stacking] rule is essentially based on the fact that an inference cannot be based on insufficient evidence. It has been said to be not a rule of general application but a rule of reason governing only when the proved facts and their reasonable implications furnish no basis for agreement or disagreement *421 by persons of average intelligence as to whether the factum probandum has been established, or where there is some doubt as to the first inference. It has been said to be at most a convenient way of guarding against what is regarded as attenuated reasoning on the part of the jury or evidence thought to be too remote or uncertain or lacking in probative force.

However, there is in fact no absolute rule of law that forbids the resting of one inference on facts whose determination is the result of other inferences. On the contrary, inferences may be based on facts whose determination is the result of other inferences, so long as the first inference is based on such evidence as to be regarded as a proved fact and the conclusion reached is not too remote or conjectural.

[Emphasis added.] 31A C.J.S. Evidence § 116 (1964). See also Wills v. Berberich’s Delivery Co., 345 Mo. 616 , 134 S.W.2d 125, 129 (1939) (same).

Applying this reasoning, it appears that the jury could reasonably conclude that the substance inside the wallet was Ms. Bradford’s blood. The inference that it was Ms. Bradford’s blood on the outside of the wallet is sufficiently free from doubt that the secondary inference, i.e., that it was her blood inside the wallet, is not too remote or conjectural.

B. Grim murdered the victim

The majority explains this “inference” as follows:

That the print was in blood supports a number of inferences. One reasonable inference is that Mr. Grim got blood on his thumb as he held the knife and stabbed Ms. Bradford in the chest and arm. Another inference is that Mr. Grim came into the house after the murder, but before the blood was dry, touched some wet blood, and then touched the inside of the wallet. However, we are bound to consider the inferences favorable to the State unless the contrary inference is such that it would necessarily give rise to a reasonable doubt in a reasonable juror’s mind. See [State v.] Dulany, 781 S.W.2d 52, 55 [(Mo. banc 1989)].

Maj.Op. at 412-413. I believe that the majority has, in this brief statement, misstated the law 3 and confused the word “inference” with the word “possibility.” Respectfully, I do not believe “possibility” has any place in a legal construct founded on reasonable doubt.

An inference, as previously discussed, is a “conclusion drawn by reason from facts established by proof.” Draper, 156 S.W.2d at 630 . The two “inferences” acknowledged by the majority above are not drawn from “facts established by proof.” Instead, they are drawn from an underlying inference — “that the print was in blood”— which was, as just discussed, the product not of proven facts but of inferences drawn from inferences drawn from proven facts. At this point, the inference “pile,” barely strong enough to support the conclusion just discussed, collapses under the sheer weight of its own speculation.

Thus it seems apparent to me that what the majority refers to above as “inferences” are not really inferences at all. They are simply two contradictory hypotheses— two possibilities — both of which are consistent with the evidence and either of which adequately explains the “bloody” thumbprint. They are what this Court condemned in Draper as “supposition;” that is, “conjecture based on the possibility that a thing could have happened.... [or] founded on the probability that a thing may have occurred but without proof that it did occur.” Draper, 156 S.W.2d at 630 . *422 [Emphasis added.] I thought that the question of whether convictions may be supported by supposition was no longer open for decision. See State v. Carter, 36 S.W.2d 917 , 919 (Mo.1931) (court cannot “resort to conjecture, suspicion and surmise” to affirm conviction); State v. Hardy, 326 Mo. 969 , 34 S.W.2d 102, 103 (1930) (“It is not the province of a jury to choose between suspicions, and a verdict based upon suspicion will not be permitted to stand.”); State v. Huff, 317 Mo. 299 , 296 S.W. 121, 122 (1927) (jury must not be allowed simply to “choose between suspicions”).

The majority, in an attempt to turn its reasonable theory of guilt into a reasonable inference of guilt, relies upon the totality of the circumstances in which the print was found. When the police arrived, the wallet in which Grim’s thumbprint was discovered was lying in plain view on a table just inside a wide-open back door. The door had stood unguarded for not less than seven, and perhaps as many as twenty-four, hours. The outside of the wallet was stained with what we can reasonably infer to be the victim’s blood. Supra at 408. Inside of the wallet was a thumbprint formed in the smallest trace of what we can reasonably infer was also the victim’s blood. Supra at 408. There were two sets of shoeprints and one footprint on the floor, none of which was linked in any way to Grim.

The majority explains that, to reach any of the “pools” of blood, someone coming along after the murder would have had to “step over the body and walk into the bedroom, or would have to reach under Ms. Bradford’s head or chest.” Maj. Op. at 413. Why anyone would be concerned with “reach[ing] any of the pools of blood” is not explained by the majority. The only amount of blood that we “know” was on Grim’s hand was the amount left behind as a thumbprint; an amount so small that its source need hardly have amounted to a “pool.” That Grim may have picked up this trace of blood from some other source, such as the outside of the wallet, is studiously ignored by the majority.

Next, the majority makes passing reference to the fact that, since “a fingerprint cannot be made in dried blood,” this “limits, to a certain extent, the time during which Mr. Grim might have wandered into the house and left his print.” Maj.Op. at 413. The State failed to introduce any evidence of how long blood takes to dry to the point it cannot form a print. The only testimony that the blood was ever dry comes from an investigator who did not arrive on the scene until more than an hour after the crime was discovered. For all we know or may reasonably infer, the blood was still wet when the first officer got there; a time which, we are told, was seven to twenty-four hours after Ms. Bradford was killed. I can hardly see how this limits, to any extent, the time during which Grim might have left the thumbprint but not been guilty of the crimes charged. Instead, it indicates a great deal of time.

The majority also remarks on the fact that the wallet was found closed. Maj. Op. at 413. Evidently, the majority finds it incredible, assuming that Grim had entered the house after the murder to steal the contents of a wallet lying in plain view from outside, that he would “thumb through Ms. Bradford’s wallet, close the wallet, lay it on the table, and leave without telling anyone about the crime.” Id. Indeed, the majority asserts that this explanation is “implausible.” Maj.Op. at 413. Apparently, the majority believes it implausible that a burglar would close a wallet behind him but plausible that a killer would. What is implausible is the majority’s explanation.

In its resort to the totality of the surrounding circumstances, the majority inexplicably ignores the fact that, given the two sets of shoeprints, we know at least one person other than Grim was in Ms. Bradford’s house after her death, and maybe two. The possibility that Grim came onto the scene after the murder but before the blood was dry is strengthened immeasurably by the State’s evidence affirmatively showing that others were there. Unfortunately, the majority ignores that part of the State’s ease which it cannot reconcile with guilt.

*423 Ultimately, the majority reveals the true basis of its decision. After acknowledging that there are two competing explanations for the “bloody” thumbprint, and after ignoring the fact that the evidence provides no basis for electing between the two, the majority dismisses Grim’s innocence as “so unique and unusual as to be implausible.” Maj.Op. at 413. This statement alone proves the fallacy of the majority’s position; innocence is presumed, it is guilt which must be proven.

The majority has stood the presumption of innocence on its head. So long as the State can articulate a reasonable hypothesis of guilt, one which is not inconsistent with the proven circumstances, the majority seems to indicate that the case is sub-missible unless, and until, the defendant’s innocence appears beyond a reasonable doubt. I am of the opinion that since innocence is ordinarily presumed, the State labors under a burden of producing evidence of guilt beyond a reasonable doubt. Thus, in purely circumstantial evidence cases, where the State’s evidence does not preclude a plausible, innocent explanation for the circumstances, I would hold that a reasonable doubt exists as a matter of law and, thus, the case is not submissible.

In the present case, the State’s evidence gives rise to two plausible explanations for the circumstances shown; one guilty and the other innocent. There is simply no basis in the evidence for choosing one over the other. Not even the Dulany rule, oft-cited by the majority as urging deference to the State’s position, contemplates that a reviewing court is bound to provide the evidence the State lacks by resorting to speculation.

The majority, faced with an almost complete absence of evidence, seeks support in prior cases. With apparent relief, the majority remarks that its result is “not entirely unprecedented.” Maj.Op. at 414. The majority first cites State v. Maxie, 513 S.W.2d 338 (Mo.1974), cert. denied, 420 U.S. 930 , 95 S.Ct. 1132 , 43 L.Ed.2d 402 (1975), in which this Court affirmed a second degree murder conviction arising out of a gruesome double-homicide. See also State v. Lindsey, 507 S.W.2d 1, 2 (Mo. banc 1974) (first degree murder conviction affirmed for Maxie’s accomplice). In Maxie , the Court held that the State’s case, based largely on fingerprint evidence, was sufficient when coupled with the defendant’s testimony. The Court explained its holding, stating that, by offering testimony, the “defendant has ruled out any reasonable possibility that his fingerprint was ... [made] under circumstances other than at the time of the homicide.” Id. at 343 . [Emphasis added.] Unlike the defendant in Maxie , however, Grim has not eliminated the “innocent” explanation that the print was left after Ms. Bradford was killed.

The majority also cites State v. Gales, 507 S.W.2d 35 (Mo.App.1974), in which the court of appeals affirmed a single conviction for felony murder. Maj.Op. at 414. Compared to the present case, the evidence in Gales was overwhelming. There, the defendant was seen with a television and fan, which had been taken from the victim’s house, and was arrested with several article’s of the victim’s jewelry on his person. Additionally, the defendant’s fingerprints were found on the victim’s jewelry box. Id. at 36-37 . As noted by the majority, there was no possibility, in Gales , that the defendant came along after the killing and left his print. Maj.Op. at 414. The victim’s house was found locked on the morning following the burglary and murder. Gales, 507 S.W.2d at 36 . Thus, the court held that the circumstances showed, beyond a reasonable doubt, that the fingerprints could only have been left at the time the crime was committed. Id. at 37 .

Prior to today, the rule in cases relying primarily on fingerprint evidence was that

fingerprints found in the place where a crime is committed, under such circumstances that they could only have been impressed at the time the crime was committed — corresponding to those of thé accused — may be sufficient proof of identity to sustain a conviction.

State v. Thomas, 452 S.W.2d 160, 163 (Mo. 1970). [Emphasis added.] The holding in Maxie is consistent with this rule; there, the defendant eliminated any “innocent” *424 explanation for his prints. Similarly, Gales is consistent with Thomas in that the short period of time before the crime was discovered, and the fact that the perpetrator left the victim’s house locked, provided some basis for concluding that the defendant’s print must have been left during the crime.

It is unclear why the majority fails to apply Thomas to this case, especially after citing and relying on Maxie and Gales — both of which expressly rely on Thomas . The State’s proof fails to link Grim’s print with evidence of other circumstances tending to exclude beyond a reasonable doubt Grim’s theory of innocence, that he came along after the Ms. Bradford was dead. Therefore, I would hold that Thomas controls and, on that basis, would reverse.

C. Grim was in the house while the victim was alive

To prove first degree burglary in this case, the State must present evidence sufficient to find, beyond a reasonable doubt, that Grim was inside Ms. Bradford’s house while she was there and still alive. Maj. Op. at 414. The majority affirms the sub-missibility of the State’s case on the following reasoning:

[T]he fact that the print is in Ms. Bradford’s blood supports the conclusion that Mr. Grim participated in the murder. If Mr. Grim was in the house while Ms. Bradford was being stabbed to death, then Mr. Grim was in the house while Ms. Bradford was in the house.

Maj. Op. at 415. Thus, once the majority’s argument for submitting the murder charge is accepted, the burglary charge is submissible a fortiori. In my view, the burglary charge is not submissible because the State’s evidence shows no more than that Grim was in the victim’s house after her death. 4

As noted, the only piece of evidence linking Grim to any of the crimes charged is the “bloody” thumbprint. And, as noted, a fingerprint cannot be left in dried blood. Therefore, given the evidence, and drawing all reasonable inferences in favor of the State, one can conclude that Grim was in the victim’s house at some point in time after she was killed and before the blood dried, a period which may have been as long as twenty-four hours. The evidence does not show, however, when Grim arrived or when he left. Nor does it provide any basis for inferring that, because he was there after she was killed he must have been there while she was being killed. We just don’t know. Worse, we have no basis from which to reasonably deduce the answer.

Again, the majority confuses an “inference,” that which is logically drawn from the evidence, with a “possibility” that is not inconsistent with the evidence. Again, given that we may conclude only that Grim was in the house after Ms. Bradford’s murder, two contradictory explanations arise: first, that Grim was there when she was killed, and second, that he came along after she was killed. This is not the first time this Court has faced such a situation and, prior to today, we have recognized that when the evidence is no more consistent with guilt than it is with innocence, reasonable doubt exists as a matter of law and the case may not go to the jury. State v. Roberts, 709 S.W.2d 857, 862 (Mo. banc), cert. denied, 479 U.S. 946 , 107 S.Ct. 427 , 93 L.Ed.2d 378 (1986); State v. Prier, 634 S.W.2d 197, 200 (Mo. banc 1982); State v. Black, 611 S.W.2d 236, 240 (Mo.App.1980). In fact, the court of appeals has expressly *425 stated that this rule is a necessary incident to the constitutional standard in Jackson. State v. Gardner, 737 S.W.2d 519, 521 (Mo. App.1987) (“federal constitutional requirement of establishing guilt beyond a reasonable doubt dictates the rule in the Black case take precedence over the usual [Dula- ny ] standard of review in appeals alleging insufficient evidence”). I agree.

Therefore, I would hold that the State’s evidence in this case provides no basis for finding that Grim was in Ms. Bradford’s house while she was alive, beyond a reasonable doubt. It is possible, given the evidence, that he was. It is just as possible, on the basis of the evidence, that he was not. Such a case cannot, constitutionally, go to the jury if the due process guaranties of the constitution are to be given their historic meaning.

III.

No one likes an “unsolved” crime; no one likes to see a defendant acquitted when he may have “done it.” Common sense may point to Grim; evidence beyond a reasonable doubt does not. This Court’s duty is to ensure that criminal convictions are based on constitutionally sufficient evidence — evidence from which guilt beyond a reasonable doubt may be found. When this duty rests too heavily, there is comfort in the knowledge that we are not the first to bear it.

We have carefully analyzed all the [evidence] and, while it may be said that it is calculated to arouse a suspicion of guilt of this defendant, yet suspicions or even strong probabilities of guilt do not authorize a conviction. Giving every circumstance its full force, ... it falls far short of ... [that] upon which the citizen should be deprived of his liberty. The law should be universal in its application; it should be applied to the humble and the exalted alike. This defendant may be guilty, but the facts as disclosed by the record in this cause fail to show it. If there was any substantial evidence upon which to base this verdict, it would not be disturbed; but, in view of the insufficiency of the testimony to authorize this conviction, we must decline to sanction it.

State v. Scott, 177 Mo. 665 , 76 S.W. 950, 952 (1903).

The majority frets that this dissent weighs the evidence and would have this Court sit as a “super jury.” I regret that the majority so misunderstands what I say. Our job is not to act as a “super jury,” but neither is it our job to abandon to the jury our responsibilities as guardians of the law.

Every appellate court addressing an attack on the submissibility of a criminal case bears the responsibility of deciding whether the State has presented sufficient evidence from which the jury can find all of the elements of the crime on the basis of the facts presented, not speculation or emotion. This appellate responsibility is not one of weighing the evidence anew as a jury, but of making sure that the jury’s deliberations comport with due process. Every case does not go to a jury; sometimes the State fails to make its case. Respectfully, submissibility review is an appellate court’s only opportunity to safeguard this requirement of the Constitution. To abandon this role to the jury is not only to make the jury the final arbiter of the facts, which it is, but also of the law, which it is not.

Our society long ago rested its faith in a system that declares it far better to let a guilty person go free than to imprison an innocent one. It is this commitment to the rule of law that separates us from the barbarians. I respectfully dissent.

. The majority makes cryptic reference to the "inconsistencies," "confusion” and "unfairness" that have been "caused” by the use of the circumstantial evidence rule by appellate courts. Maj.Op. at 406, 407, 407. A review of the cases in which this Court and the court of appeals have applied the rule, however, reveals neither inconsistency nor confusion and, in fact, neither the State nor the majority has cited to any specific examples of either.

. I agree with the majority that, in light of our jury instruction defining the reasonable doubt standard, there is no need to continue giving the second paragraph of MAI-CR3d 310.02 concerning circumstantial evidence. Maj.Op. at 408. But to conclude, as the majority has, that the circumstantial evidence rule is of no use in judging the submissibility of a case on appellate review is to throw the proverbial baby out with the bath.

. The majority states that it is “bound” by those inferences favorable to the State. This is not, and never has been, the standard of review. In judging submissibility, the Court is only "bound" by those inferences that are reasonable and that can be drawn from the evidence. See, e.g., State v. Davis, 814 S.W.2d 593, 594 (Mo. banc 1991), cert. denied, — U.S.-, 112 S.Ct. 911 , 116 L.Ed.2d 812 (1992); State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990). See also Jackson, 443 U.S. at 319 n. 12, 99 S.Ct. at 2789 n. 12; United States v. Henson, 939 F.2d 584 (8th Cir.1991). Respectfully, I suggest that the majority’s conclusions, while in some sense reasonable, they are in no sense drawn from the evidence.

. It should be noted that the evidence presented by the State was sufficient to prove that Robert Grim had committed burglary in the second • degree, punishable by up to seven years in prison. The State's circumstantial evidence would support, beyond a reasonable doubt, a reasonable juror’s belief that Grim "knowingly enter[ed] unlawfully or knowingly remainfed]” unlawfully in Ms. Bradford’s house "for the purpose of committing the crime therein.” Section 569.170, RSMo 1986. The State did not charge this crime, however, electing instead to charge Grim with burglary in the first degree. Additionally, the State charged Grim with murder in the first degree and armed criminal action. Only after two trials, nineteen hours of jury deliberation and a "hammer" instruction, was the State successful in obtaining guilty verdicts on the armed criminal action and burglary charges and a guilty verdict on the lesser-included offense of second degree murder.