                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 93-KA-00620-SCT
BOB BROOKS
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                              4/27/93
TRIAL JUDGE:                                   HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED:                     OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        MARK G. WILLIAMSON
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                               BY: W. GLENN WATTS
DISTRICT ATTORNEY:                             NA
NATURE OF THE CASE:                            CRIMINAL - FELONY
DISPOSITION:                                   AFFIRMED - 6/5/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                6/26/97




     EN BANC.


     BANKS, JUSTICE, FOR THE COURT:




¶1. The matter before the Court involves an appeal from a conviction of burglary. We are asked to
determine whether the circumstances of possession are sufficient to permit the conclusion beyond a
reasonable doubt that Bob Brooks is guilty of burglary. We hold that they are. Accordingly we
affirm.

                                                  I.

¶2. On or around December 18, 1991, Don Rule's house in Oktibbeha County, Mississippi, was
burglarized. This house was unfinished and Rule was in the process of working on it. The back
window of the house had been broken. Items missing included a lawnmower, a folding scaffold
ladder, a Homelite chainsaw, a reciprocating saw, a Makita palm sander, a Skil plunge router, fishing
tackle, two boxes of Corning dishes, a Black and Decker quarter inch drill, a table saw, a five gallon
wet and dry vac, and a Bostick stapler.
¶3. On December 18, 1991, Rule noticed one set of tire tracks leading up to the front porch of the
house. Rule testified that the deputies and he believed that the tracks were probably made by a truck.
Rule further testified that there was a set of boot prints that did not belong to him.

¶4. Several of the items stolen from Rule were found in various pawnshops. The pawnshops had
documentation that these items were pawned by Brooks as well as his girlfriend. Deputy Burton then
obtain and executed a search warrant for Brooks' residence, where he recovered a table saw, various
saws, hand tools, a toolbox, a footlocker, rod and reels, and fishing tackle. Burton also found an
empty Makita palm sander box and an empty electric stapler box. All of the property seized from
Brooks' house during the search was later identified as among those items stolen from Rule's
property.

¶5. Sharon Williams, Brooks' girlfriend, testified that Brooks had given her a saw, a sander, an
electric stapler, and a wet vac on December 18, 1991, to pawn for him, which she did. Brooks had
also given her a set of dishes as a Christmas gift between December 18th and 25th.

¶6. Archie James, owner of Big Daddy's Pawn Shop, testified that Brooks had pawned a Milwaukee
Sawzall and a Toro lawnmower in March or February of 1992. Heath Beard of City Pawn and Gun
Shop testified that Brooks had pawned a four-way scaffling ladder. The defendant presented no
evidence at the trial.

                                                  II.

¶7. Brooks contends that possession of stolen property without an explanation is not sufficient
evidence to convict him of burglary. He further contends that other evidence at the crime scene
exonerates him.

¶8. The standard of review applied when the assignment of error turns on the sufficiency of evidence
has been stated as:

     When on appeal one convicted of a criminal offense challenges the legal sufficiency of the
     evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by
     considering all of the evidence--not just that supporting the case for the prosecution--in the light
     most consistent with the verdict. We give the prosecution the benefit of all inferences that may
     reasonably be drawn from the evidence. If the facts and inferences so considered points in favor
     of the accused with sufficient force that reasonable men could not have found beyond a
     reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if
     there is in the record substantial evidence of such quality and weight that, having in mind the
     beyond a reasonable doubt burden of proof standard, reasonable and fair minded jurors in the
     exercise of impartial judgment might have reached different conclusions, the verdict of guilty is
     beyond our authority to disturb.

Carr v. State, 655 So. 2d 824, 837 (Miss. 1995); Clayton v. State, 652 So. 2d 720, 724 (Miss. 1995)
.

¶9. This Court has consistently held that unexplained possession of recently stolen property is prima
facie, although no means conclusive, evidence of burglary. Weaver v. State, 481 So. 2d 832, 834
(Miss. 1985); Huddleston v. State, 220 Miss. 292, 70 So. 2d 621 (1954). The concern with this rule
is that it violates a defendant's right not to testify and shifts the burden from the prosecution to the
defense. We have recently revisited this rule and determined that under appropriate circumstances
guilt beyond a reasonable doubt may be based upon the possession of recently stolen property.
Shields v. State, No. 92-KA-01067-SCT (Miss. Feb. 27, 1997).

¶10. In Shields, we rejected the notion that the constitutional right to remain silent contravenes the
presumption that arises from the unexplained possession of recently stolen property. We held:

     "the inference of participation in the crime drawn from possession of the fruits of the crime is to
     be judged like any other inference, that is, on the strength of that inference in the light of the
     facts of each particular case." Cosby, 682 F. 2d at 1380. The circumstances of possession and
     the presence or absence of evidence of participation in the crime other than mere possession
     must be viewed. Id. at 1380, 1382-83.

Shields, slip op. at 5-6.

¶11. We identified circumstances to be considered as follows:

     1. The temporal proximity of the possession to the crime to be inferred;

     2. The number or percentage of the fruits of the crime possessed;

     3. The nature of the possession in terms of whether there is an attempt at concealment or any
     other evidence of guilty knowledge;

     4. Whether an explanation is given and whether that explanation is plausible or demonstrably
     false.

Id. at 3; see also Cosby v. United States, 682 F. 2d 1373 (11th Cir. 1982); West v. Wright, 931 F. 2d
262 (4th Cir. 1991), rev. on other grounds, 502 U. S. 1021 (1992). Here as there, the inference must
gain strength from the circumstances of possession as there exists no other corroborating evidence.

¶12. The first factor, the temporal proximity of possession, lends great strength to the inference that
Brooks committed the burglary. He was shown to have been in possession of several items of the
property taken on the day after the burglary. The second factor also lends strength. Almost all of the
items taken were identified in Brooks' possession. The third factor also supports the inference in that
he used his girlfriend to pawn the items in the transaction which took place immediately after the
burglary. Finally, the fourth factor lends strength to the inference, because Brooks offered no
explanation whatever.

¶13. Brooks' contention that he did not own a truck at the time of the burglary does not detain us.
Clearly, gaining temporary access to a truck is not so far beyond the range of possibility as to
sufficiently detract from the inference of guilt to demand acquittal.

¶14. The Cosby Court observed that "the inference is at its strongest when the defendant wholly fails
to make a credible explanation or makes a demonstrably false explanation." Id. That observation
which we applied in Shields is consistent with our precedents. Murphy v. State, 566 So. 2d 1201
(Miss. 1990).

¶15. Considering all of the indicia of strength of the inference together, we must conclude that under
the circumstances of this case the inference of burglary is sufficient to support a conviction.
Accordingly, we affirm.

¶16. CONVICTION OF BURGLARY OF A BUILDING AS AN HABITUAL OFFENDER
AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, ROBERTS, SMITH AND MILLS, JJ., CONCUR.
McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN,
P.J.


     McRAE, JUSTICE, DISSENTING:




¶17. By allowing the State to prove guilt of burglary beyond a reasonable doubt by merely showing
possession of recently stolen property, the majority unfairly shifts the burden of proof to the
defendant. Requiring the defendant to explain or testify violates the principles of our Constitution. I
strenuously oppose the notion that this Court may compromise the absolute right of a defendant to
remain silent, even in the face of allegedly damning evidence, by allowing the State to proffer
unexplained possession of recently stolen property as prima facie evidence of guilt.

¶18. While in this case Brooks might have been guilty of another charge, such as receiving stolen
property, the State chose to prosecute him on the charge of burglary. This Court should hold the
State responsible for proving all elements of any charge against a defendant beyond a reasonable
doubt. Instead, the majority allows the State to rely on shallow inferences based on a defendant's
exercise of his constitutionally protected right.

¶19. The Fifth Amendment precludes the drawing of unfavorable inferences from a defendant's failure
to testify. When the State has commented on a defendant's refusal to testify, we have not hesitated to
reverse in other criminal contexts. Simply put, this Court must not allow the State to benefit from a
defendant's refusal to explain or testify. It is for these reasons, along with those noted in my dissent
to Shields v. State, No. 92-KA-01067-SCT (Miss. Feb. 27, 1997), that I am compelled to dissent.

SULLIVAN, P.J., JOINS THIS OPINION.
