dissenting.
Defendant David Ratliff claims that the record fails to establish that he knew the property in this case was stolen, one of the necessary elements of concealing stolen property. Because Tennessee law permits the jury to draw an inference of guilty knowledge from the unexplained possession of recently stolen property, a conviction for concealing stolen property is rarely subject to reversal on the basis of insufficient evidence, especially where (as here) the defendant fails to testify. In my judgment, however, this case represents one of those rare instances when the record proves to be legally insufficient.
The majority’s decision to uphold Ratliff’s conviction rests on two authorities: State v. Hatchett, 560 S.W.2d 627 (Tenn.1978), and Brown v. State, 489 S.W.2d 855 (Tenn.Crim.App.1972). In Hatchett, the Tennessee Supreme Court noted that “[pjossession of recently stolen property, if not satisfactorily explained, is a circumstance from which the trier of fact may draw an inference and find that the person in possession knew the property had been stolen.” 560 S.W.2d at 629. But the court went on to say that such “unsatisfactorily explained possession of very recently stolen property” must be viewed “in the light of surrounding circumstances.” Id. It is the “surrounding circumstances” that are troubling in this case.
For example, the jury was told that the stolen items, two tablecloths and an ashtray decorated with a bank logo, were ordinary looking household items, completely “undistinguished.” They were turned over to police by the defendant’s wife, who took the tablecloths out of a closet. (There was no testimony about the location of the ashtray.) Although his wife said that the defendant was living on the premises, he was not present at the time the stolen items were produced. Moreover, there is no proof at all, direct or circumstantial, that he knew the stolen items were in his home.
Thus, this case is unlike Brown, cited by the majority to establish that possession need not be exclusive in order to give rise to the inference of guilty knowledge. When Brown was arrested, he was a passenger in an automobile which contained the fruits of a burglary committed less than a mile away and just shortly before officers gave chase to the vehicle. 489 S.W.2d at 856. Numerous stolen items were located “in plain sight” in the automobile, and the items were not the kind usually found in a vehicle. Id. By contrast, the stolen property in this case consisted of ordinary household items, not recovered in “plain sight” of the defendant. Nor was there any competent evidence concerning how the items came to be in the Ratliff home. Ratliff’s wife testified at trial and, because of the marital privilege, could not be asked if her husband had brought the goods into the house. But surprisingly, she also was not asked if she or the children had brought the stolen property into the house. All the record shows is that it was there.
Thus, this case is distinguishable from Brown, and instead appears to be controlled by Bennett v. State, 1 Tenn.Cr.App. 241, 435 S.W.2d 842 (1968). There the police found stolen property on the defendant’s premises while executing a search warrant. This court reversed Bennett’s conviction, citing lack of evidence of guilty knowledge and noting that “[tjhere is not a word of proof in this entire record that the defendant knew that these items were stolen property.” 435 S.W.2d at 844. The same can be said about the proof in this case.
Reading the record as a whole, one is tempted to suspect that Ratliff was guilty. According to police, his wife became angry after he beat her and in retaliation called law enforcement officials, telling them that *887her husband had earlier brought several items into the house but that only the tablecloths and ashtrays then remained. However, this information was not offered in the form of competent testimony and did not reach the jury. What did come before the jury, I believe, was not legally sufficient to permit a rational trier of fact to find guilt beyond a reasonable doubt, because there was no direct proof of guilty knowledge and the surrounding circumstances were so tenuous as to prevent a fair inference of guilty knowledge from arising. I therefore conclude that the state failed to prove its case, that the evidence was legally insufficient, and that the trial court should have directed a verdict of acquittal.