(concurring in the result):
I agree with the Chief Justice that the evidence here, although marginal, is legally sufficient to support defendants’ convictions. However, I agree with the majority that those convictions should be reversed, but on an entirely different ground, because jury instruction no. 14 contained an unconstitutional presumption. In my view, defendants could be retried and again convicted on the evidence adduced below.
At trial, the court gave instruction no. 14. It included the following statement:
I instruct you that in regards to the Count of Theft that there is a presumption that possession of property recently stolen, when no satisfactory explanation of such possession is made, shall be deemed prima facie evidence that the person in possession stole the property.
On appeal, the State concedes that this mandatory presumption language was constitutionally improper under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 83 L.Ed.2d 344 (1985), because it impermissi-*224bly shifts the burden of proof to the defendant. See State v. Chambers, 709 P.2d 321, 325-27 (Utah 1985). However, it argues that we should not reach the issue because defense counsel did not raise this objection at trial. In response, defendants contend that under the plain error doctrine, we should consider the question because the error is of constitutional magnitude.
I would reach the issue. This Court always has the discretion to consider claims raised for the first time on appeal where the error is “plain [and affects] substantial rights_” Utah R.Evid. 103. Normally, I would hesitate to exercise this discretion to relieve counsel’s failure to raise a proper objection since the trial judge is entitled to the first opportunity to address a claim of error. However, here the instruction is clearly unconstitutional under Franklin. And, given the extremely thin evidentiary case presented by the prosecution, it seems very likely that the instruction had a direct and substantial impact on the outcome of the trial. Accordingly, I would hold that the trial court erred in giving instruction no. 14 and would reverse the convictions.