We affirm the denial of the defendant’s post-conviction claim of ineffective assistance of appellate counsel but hold that an instruction on the requirement of proof beyond a reasonable doubt does not obviate the necessity, where the conduct of the defendant constituting the commission of a charged offense is proven exclusively by circumstantial evidence, of an additional jury instruction advising the jury that proof by circumstantial evidence must be so conclusive and sure as to exclude every reasonable theory of innocence.
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In appealing a denial of post-conviction relief, the defendant has asserted a single claim: that his appellate attorney rendered constitutionally ineffective assistance of counsel by failing to assert on direct appeal that the trial court erred in refusing, over defense objections, to instruct the jury that “[w]here proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence.” See Ind. Pattern Jury Instruction—Criminal 12.01 (Indiana Judges Association, 2d ed. 1991) (emphasis added). [Footnote omitted.] (This instruction has often previously been given using the word “hypothesis” instead of “theory,” but we favor “theory” as more understandable to jurors. See, e.g., 2 W.W. Thornton, Instructions to Juries §§ 2312–13 (1914).) . . . .
The Court of Appeals affirmed the denial of post-conviction relief, believing that the “instruction on proof beyond a reasonable doubt . . . nicely covered the issue and rendered harmless any potential error” in refusing the tendered instruction. Hampton v. State, 936 N.E.2d 1274, 1276–77 (Ind. Ct. App. 2010). Although we ultimately reject the defendant’s claim of post-conviction court error, we granted transfer to provide clarification for the bench and bar regarding the “reasonable theory of innocence” instruction because we disagree with the Court of Appeals that the giving of a conventional reasonable doubt instruction renders unnecessary the giving of the “reasonable theory of innocence” instruction.
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The importance of a “reasonable theory of innocence” instruction is deeply imbedded in Indiana jurisprudence. Nichols v. State, 591 N.E.2d 134, 136 (Ind. 1992) (citing Sumner v. State, 5 Blackf. 579 (Ind. 1841)). Our cases have long recognized the need for such an instruction where appropriate. . . . “[T]his Court has never departed from the conviction that the ['reasonable theory of innocence'] standard is a proper one to be employed at the trial court and a defendant is entitled to an instruction to that effect.” Spears, 272 Ind. at 638, 401 N.E.2d at 335.
We note that a number of more recent American appellate decisions appear to place less emphasis on the need for similar instructions. See Irene Merker Rosenberg & Yale L. Rosen-berg, “Perhaps What Ye Say Is Based Only on Conjecture”—Circumstantial Evidence, Then and Now, 31 Hous. L. Rev. 1371, 1400–01 nn.121–22 (1995) (noting that at least twenty-nine states have eliminated a specific jury instruction on circumstantial evidence). [Footnote omitted.] This trend sprang after the United States Supreme Court’s decision in Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954), in which the Court rejected a claim of reversible error for the refusal “to instruct [the jury] that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt.” Id. at 139, 75 S. Ct. at 137, 99 L. Ed. at 166. Without extensive explanation, the Court concluded that “the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.” Id. at 139–40, 75 S. Ct. at 137, 99 L. Ed. at 166. We understand Holland to hold that including an additional “reasonable theory of innocence” instruction is not required but not that it is constitutionally erroneous.
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We believe that discarding the “reasonable theory of innocence” jury instruction is unwise. While a criminal conviction may properly rest entirely upon circumstantial evidence, there is a qualitative difference between direct and circumstantial evidence with respect to the degree of reliability and certainty they provide as proof of guilt. Such a supplemental instruction is a safeguard urging jurors to carefully examine the inferences they draw from the evidence presented, thereby helping to assure that the jury’s reasoning is sound. Additionally, it serves to “reiterat[e] the magnitude of the ['proof beyond a reasonable doubt'] standard to juries when the evidence before them is purely circumstantial.” Nichols, 591 N.E.2d at 136. In this regard, the “reasonable theory of innocence” instruction informs the jury that if a reasonable theory of innocence can be made of the circumstantial evidence, then there exists a reasonable doubt, and the defendant is entitled to the benefit of that doubt.
Such a “reasonable theory of innocence” instruction, when appropriate, is not satisfied by the instruction on reasonable doubt. The State argues that our statement in Nichols—that the “reasonable theory of innocence” instruction is a way of restating “proof beyond a reasonable doubt”—renders the instruction “duplicitous.” [Footnote omitted.] Appellee’s Br. at 12. To the contrary, providing the jury with an additional cautionary instruction in evaluating circumstantial evidence not only supports but further enhances the concept of requiring proof beyond a reasonable doubt. It admonishes the jury to tread lightly where the evidentiary gap between logical certainty and guilt is more tenuous. For these reasons, we find it altogether appropriate that juries receive, where appropriate, a “reasonable theory of innocence” instruction in addition to the standard reasonable doubt instruction.
B. Language of the Instruction
This special advisement has traditionally been accomplished in Indiana by an instruction like the one rejected by the trial court in the present case. Language within Indiana Pattern Jury Instruction 12.01 provides: “Where proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence.” Ind. Pattern Jury Instruction—Criminal 12.01 (emphasis added). Effective juror comprehension and application, however, are compromised by impediments in the instruction’s language—especially the uncertainties embedded in the phrases “proof of guilt” and “by circumstantial evidence only.”
First, the instruction’s language—that it applies where proof of “guilt” is “circumstantial only”—is potentially confusing. “Proof of guilt” could require that any evidence which supports an individual element of the charged offense be circumstantial, or it could require that all the evidence related to all elements of a charge be circumstantial. Compare Spears, 272 Ind. at 636–40, 401 N.E.2d at 334–35 (finding sufficient absence of direct evidence to warrant “reasonable theory of innocence” instruction despite direct evidence that the defendant and the victim were fighting earlier in the evening and that the victim was later found unconscious in the hallway, and that he died from skull fractures likely caused when his head hit the floor), with Davenport v. State, 749 N.E.2d 1144, 1149–50 (Ind. 2001) (affirming refusal of “reasonable theory of innocence” instruction where victim died of strangulation and had thirty-nine injuries and witness observed defendant beating on the victim several hours earlier). In most criminal prosecutions, there is some direct evidence that the charged crime was committed by someone. Thus, if the phrase “by circumstantial evidence only” is construed to not require jurors to consider whether there exist reasonable alternative theories of innocence whenever the occurrence of a criminal offense is shown in part by direct evidence, then the instruction would rarely, if ever, be used. On the other hand, the mens rea element for a criminal offense is almost inevitably, absent a defendant’s confession or admission, a matter of circumstantial proof. Thus, requiring jurors to consider the possible existence of an alternate reasonable theory of innocence whenever proof of the mens rea element is circumstantial would lead to use of the instruction in most all criminal cases. See Spears, 272 Ind. at 639–40, 401 N.E.2d at 335 (requiring the “reasonable theory of innocence” instruction when circumstantial evidence is the exclusive proof of the actus reus [footnote omitted] but not when used to prove the mens rea: “To hold otherwise would require a circumstantial evidence instruction in every case involving a crime containing the element of intent. Unnecessary confusion would result from such a course.”).
From our review of jurisdictions employing an instruction similar to our “reasonable theory of innocence” instruction, we find no consistent approach to resolving these issues. . . . .
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These issues are not clarified by the present pattern instruction, which fails to clearly inform jurors whether the requirement of heightened scrutiny of circumstantial evidence applies only when there is a complete absence of direct evidence on every element of an offense, or when there is an absence of direct evidence with respect to a significant element or crucial component of guilt, or when there is an absence of direct evidence proving any single element of the charged statutory offense, or otherwise.
Second, the instruction unnecessarily calls upon the jury to determine whether evidence of guilt is “circumstantial.” Such an evaluation is already the province of the trial judge in deciding whether such instruction is required in light of the nature of the evidence presented. Distinguishing between direct and circumstantial evidence as proof of a particular fact is a legal determination appropriate for judicial evaluation. It may require intricate legal analysis.
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C. Reformulating the Use and Language of the Instruction
To preserve our historic recognition that juries in criminal cases should be reminded to use particular caution when considering whether to find guilt based solely on crucial circumstantial evidence, we conclude that a special instruction is appropriate, but we reformulate the manner of use and language of the instruction. First, we find it inappropriate to include language burdening the jury with the task of deciding whether to apply the reasonable theory of innocence standard. Whether an instruction is supported by the evidence is a matter for the trial court to determine, and it need not be reevaluated by the jury. Second, because Indiana jurisprudence recognizes the importance of such an instruction in certain cases involving circumstantial evidence but our case law reveals a reluctance to find reversible error for failure to give the instruction if there is substantial direct evidence of guilt, we elect to apply the approach taken in Spears and direct that the “reasonable theory of innocence” instruction is appropriate only where the trial court finds that the evidence showing that the conduct of the defendant constituting the commission of a charged offense, the actus reus, is proven exclusively by circumstantial evidence. As discussed above, to deny the availability of a “reasonable theory of innocence” instruction whenever there is any direct evidence of the fact that a criminal offense has occurred, however, could render the instruction unlikely ever to be used, but requiring the instruction whenever there is no direct evidence of any single element would compel its use in almost all criminal cases because mens rea is often shown only by circumstantial evidence.
We thus hold that, when the trial court determines that the defendant’s conduct required for the commission of a charged offense, the actus reus, is established exclusively by circumstantial evidence, the jury should be instructed as follows: In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence.
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As proof of the defendant’s guilt with respect to the offense of rape, [footnote omitted] the DNA evidence requires the inferential step that intercourse was “compelled by force or imminent threat of force,” or otherwise without the victim’s consent without providing a basis upon which that inference may be made. See Ind. Code § 35-42-4-1(a). “Direct evidence is a proposition which is consistent only with either the proposed conclusion or its contradictory; circumstantial evidence is consistent with both the proposed conclusion and its contradictory.” Lyman Ray Patterson, The Types of Evidence: An Analysis, 19 Vand. L. Rev. 1, 5–6 (1965). (emphasis added). In this context, the State asserts that DNA found in the victim and matched to the defendant, if accepted by the jury, is consistent only with the State’s “proposed conclusion” that the defendant raped the victim. We disagree. This same evidence is equally consistent with the contradictory proposition that the defendant and the victim engaged in consensual intercourse. [Footnote omitted.] To the extent that the DNA provided direct evidence of the defendant’s presence or relationship with the victim at or before the time the crimes were committed, it was not direct evidence of the defendant’s physical conduct comprising the actus reus of the charged offense of rape.
The same analysis applies to the role of the DNA evidence with respect to the crimes of murder and criminal deviate conduct in this case. As to both offenses, the DNA evidence, while consistent with a conclusion that the perpetrator of these crimes was the defendant, is simultaneously consistent with a conclusion that the defendant was at some point in the presence of the victim but did not “kill” her or force her “to perform or submit to deviate sexual conduct.” Ind. Code § 35-42-1-1 (murder); Ind. Code § 35-42-4-2 (criminal deviate conduct).
Application of our analysis today leads us to conclude that the DNA evidence in the present case should be considered as circumstantial and not direct evidence of the defendant’s conduct comprising the physical components of each of the charged criminal offenses (actus reus). . . . .
Shepard, C.J., and Sullivan, Rucker, and David, JJ., concur.