
    STATE of Florida, Appellant, v. Joann RUDOLPH, Appellee.
    No. 91-205.
    District Court of Appeal of Florida, Fifth District.
    March 20, 1992.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellant.
    Joyce A. Savage, Maitland, for appellee.
   PER CURIAM.

REVERSED for the reasons given in the separate opinions of the panel judges.

COBB and COWART, JJ., concur in result with opinions.

GRIFFIN, J., concurs in result without opinion.

COBB, Judge,

concurring in result with opinion.

The issue is whether the trial court erred in granting the defendant’s motion to dismiss per Florida Rule of Criminal Procedure 3.190(c)(4). The state demurred to the motion and it was stipulated that the facts stated in the motion would be considered by the court together with the depositions of the state’s witnesses and the defendant’s recorded statement to the police.

This is a circumstantial evidence case. Therefore, the legal question posed is whether the state failed to present evidence from which the jury could exclude every reasonable hypothesis except that of guilt. State v. Law, 559 So.2d 187, 188 (Fla.1989); Wilson v. State, 493 So.2d 1019, 1022 (Fla.1986). In Law, the Florida Supreme Court explained the circumstantial evidence standard as follows:

Consistent with the standard set forth in Lynch [v. State, 293 So.2d 44 (Fla.1974) ], if the state does not offer evidence which is inconsistent with the defendant’s hypothesis, “the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.” 293 So.2d at 45. The state’s evidence would be as a matter of law “insufficient to warrant a conviction.” Fla.R.Crim.P. 3.380.
It is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state. Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). The state is not required to “rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. See Toole v. State, 472 So.2d 1174, 1176 (Fla.1985). Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

If the rule were not applied in this manner, a trial judge would be required to send a case to the jury even where no evidence contradicting the defendant’s theory of innocence was present, only for a verdict of guilty to be reversed on direct appeal. We agree with the Fowler \v. State, 492 So.2d 1344 (Fla.App.1986)] court that

it is for the court to determine, as a threshold matter, whether the state has been able to produce competent, substantial evidence to contradict the defendant’s story. If the state fails in this initial burden, then it is the court’s duty to grant a judgment of acquittal to the defendant as to the charged offense, as well as any lesser-included offenses not supported by the evi-dence_ Otherwise, there would be no function or role for the courts in reviewing circumstantial evidence, as was stated so well in Davis v. State, 436 So.2d [196 (Fla. 4th DCA 1983)], 200: “If we were to follow the state’s logic, a trial judge could never ... grant a motion for judgment of acquittal pursuant to Florida Rule of Criminal Procedure 3.380 when the evidence [is] circumstantial. Instead, every case would have to go to the jury.” [Footnote omitted].

Fowler, 492 So.2d at 1347.

State v. Law at 188, 189.

The facts before the trial court in the instant case were that the defendant Rudolph was working at a diner when she heard a banging noise coming from outside. She went out to investigate and found the victim, Rose, who was very intoxicated, banging his head against a wall. He then threatened to kill her, hit her in the head, and grabbed her. She escaped from his grasp, and got back inside the building. Rose did not follow her. She picked up a kitchen knife and went back out onto the porch. Rose thereupon took another swing at her. She took the knife out and told him to leave her alone. He repeated the threat to kill her, then fell on her and was fatally stabbed, either intentionally or inadvertently.

As observed by the state in its appellate brief, there is competent evidence from which a jury could infer guilt to the exclusion of every reasonable hypothesis of innocence beyond a reasonable doubt. Even if the jury were to conclude that the actual stabbing was inadvertent, the uncontro-verted testimony of the defendant was that she armed herself with a deadly weapon and renewed the conflict when she could reasonably have avoided it — simply by staying inside the building and seeking help from the owner or the police, or leaving by another route. See State v. Coles, 91 So.2d 200 (Fla.1956).

Consequently, I concur in reversal of the trial court’s order of dismissal based upon the standard set forth in State v. Law. I cannot agree, however, with the implication of Judge Cowart’s opinion that the reasonableness of any asserted hypothesis of innocence is always a question of fact to be determined by a jury, since that concept directly contravenes Law and would render meaningless pretrial motions to dismiss and motions for judgment of acquittal at trial.

COWART, Judge,

concurring in result with opinion.

After an encounter between the defendant, appellee Joann Rudolph, and an alleged victim, the victim died as a result of an abdominal stab wound caused by a knife. The State charged the defendant with manslaughter alleging that the defendant’s “own act, procurement, or culpable negligence, without lawful justification or excuse,” killed the victim by stabbing the victim with a sharp instrument. Immediately prior to trial the defendant filed a motion to dismiss the information under Florida Rule of Criminal Procedure 3.190(c)(4) arguing that the sworn depositions of the State’s witnesses were insufficient to show culpable negligence. The trial court heard the motion and considered the depositions of the witnesses and a sworn statement of the defendant, and although it found many controverted facts and expressed reluctance to take the fact finding from the jury, granted the defendant’s motion to dismiss because it was of the opinion that the State’s evidence did not meet the State’s high burden of proof in a criminal case.

Motions under Florida Rule of Criminal Procedure 3.190(c)(4) are no substitute for a trial. Nor are they the equivalent of a motion for summary judgment in a civil case under Florida Rule of Civil Procedure 1.510. The result of the State’s traverse or demurrer under Rule 3.190(d) in a criminal case is powerful and effective, whereas in a civil case, such a traverse, not being based on admissible evidence, would not even qualify as an opposing affidavit under Florida Rule of Civil Procedure 1.510(e). Where, as in this circumstantial evidence case, the facts and inferences therefrom, viewed in a light most favorable to the State, establish a prima facie case against the defendant, the “(c)(4)” motion should not be granted, because the credibility of witnesses is involved and inferences must be drawn from the facts accepted by the trier of fact, and the determination of the questions as to credibility of witnesses, the reasonableness and strength of inferences to be drawn from accepted facts, and the total convincing force and effect of the weight of evidence, including the reasonableness of asserted hypotheses of innocence, are all questions of fact to be determined by a jury. See State v. Stewart, 404 So.2d 185 (Fla. 5th DCA 1981); State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); State v. Cramer, 383 So.2d 254 (Fla. 2d DCA 1980), rev. denied., 388 So.2d 1111 (Fla.1980).

The order granting the defendant’s motion to dismiss is properly reversed. 
      
      . When the State’s case does not include any direct evidence as to some essential element and includes no evidence from which any reasonable person (including those “among the selected twelve”) could draw a logical inference as to the existence of some essential element, then the trial court should grant a judgment of acquittal. This is a process of looking at the lack of evidence (quantity) as to a fact essential to the State’s case, not a matter of weighing the strength of the inferences flowing from circumstantial evidence which is a consideration of convincing power or quality. Part of the problem is semantics in stating the conceptual rule. The statements in this opinion are harmonious with State v. Law, 559 So.2d 187 (Fla.1989), which found the views, stated in different words, in Lynch v. State, 293 So.2d 44 (Fla. 1974) and Fowler v. State, 492 So.2d 1344 (Fla. 1st DCA 1986), rev. denied, 503 So.2d 328 (Fla. 1987), to be harmonious. The greater problem is when courts, trial or appellate, give lip service to the words of a correct statement of the law then proceed to weigh the reasonableness and strength of the inferences of either guilt or innocence, or both, that exist in the controverted, or even uncontroverted, facts of most any contested case. Guilt is always inconsistent with innocence; therefore, if the State’s circumstantial evidence is sufficient to establish a prima facie case of guilt (úe., some evidence as to each element of the offense and some evidence that the defendant was the perpetrator), and the inferences are strong enough to convince a group of disinterested, reasonable people experienced in the every day affairs of mankind (the jury chosen especially for this purpose) of the guilt of the accused beyond and to the exclusion of every reasonable doubt, then the State’s case necessarily includes evidence which is inconsistent with the defendant’s hypothesis (and evidence) of innocence. Further, hypothesis of innocence must be understood to mean not every possible purely hypothetical set of facts that can be imagined by a defense counsel (úe., a phantom (not seen by any witness) did it — not my client) but reasonable real-life possibilities based on facts in evidence and accepted as true by the trier of fact. All verdicts and other decisions in life based on evidence as to mutually exclusive alternatives (such as guilt or innocence) are matters of weighing all probabilities (more likely than not) against all possibilities (possibly but not likely) and then weighing the net preponderance of the probabilities against any applicable standard or burden of proof to reach a conclusion. Proof is always a matter of probabilities and probabilities are always a matter of degrees. See 1A Wigmore, Evidence § 37.4 (Tillers Rev.1983).
     
      
      . See, State v. Law, 559 So.2d 187 (Fla. 1989); Cochran v. State, 547 So.2d 928 (Fla. 1989); Hei-ney v. State, 447 So.2d 210 (Fla. 1984), cert, denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); State v. Williams, 444 So.2d 13 (Fla. 1984); Williams v. State, 437 So.2d 133 (Fla. 1983), cert, denied, 466 U.S. 909, 104 S.Ct. 1690, 80 L.Ed.2d 164 (1984); Rose v. State, 425 So.2d 521 (Fla. 1982), cert, denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983); In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 595 (Fla.1981) citing with approval-Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed.150 (1954); Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff’d., 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Herman v. State, 472 So.2d 770 (Fla. 5th DCA 1985), rev. denied, 482 So.2d 348 (Fla. 1986); Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984); State v. Stewart, 404 So.2d 185 (Fla. 5th DCA 1981); Teague v. State, 390 So.2d 405 (Fla. 5th DCA 1980); Bouler v. State, 389 So.2d 1197 (Fla. 5th DCA 1980); Lowery v. State, 450 So.2d 587 (Fla. 1st DCA 1984); Knight v. State, 392 So.2d 337 (Fla. 3d DCA 1981), rev. denied, 399 So.2d 1143 (Fla.1981); Lynch v. State, 293 So.2d 44 (Fla. 1974). See also Thomas, B., The Proper Standard of Review of Circumstantial Criminal Convictions, 62 Florida Bar Journal 21 (June 1988); Hill, R., Circumstantial Evidence in Criminal Cases in Florida, 61 Florida Bar Journal 57 (May 1987).
     
      
      . See State v. Saufley, 574 So.2d 1207 (Fla. 5th DCA 1991).
     