
    Andrew ROBINSON, James Crenshaw, and Booker Davis, Appellant, v. STATE of Florida, Appellee.
    No. CC-418.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearings Denied July 26, 1977.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Justice.

Appellants and a co-defendant Ronnie McDougal, were convicted after jury trial of burglary and grand larceny. Appellants appeal the judgments and sentences contending that the trial court erred in denying their motion for directed verdict of acquittal made at the close of the state’s case. We find such was not error and affirm.

No question has been raised as to the sufficiency of the total evidence, and we are concerned only with whether or not the state presented a prima facie case in its case in chief. The state’s evidence shows the following: The photography studio of one Lester Humphrey was broken into between the hours of 7:40 and 8:40 p. m. on January 21, 1976, while he was away on errands. He had locked the business and upon his return at approximately 8:40 p. m. he discovered that the lock had been jimmied and camera equipment valued at approximately $2,200 and blank checks had been stolen. Appellant Crenshaw was identified as having been a temporary worker at the studio in November of 1975 and during that period and for a time subsequently he had a key to the business. The key, however, had been returned prior to the burglary.

Shortly before 9:00 p. m., police officers received a radio dispatch concerning a possible robbery in progress and were directed to a liquor store for investigation. Upon arrival, appellant Davis and co-defendant McDougal were inside the store and appellants Robinson and Crenshaw were seated in the car outside. After Davis and McDougal re-entered the car and drove away, the officers followed and stopped the automobile. As appellants’ car stopped, the officers observed appellant Crenshaw, who was seated in the right front passenger side, reach under the seat. One of the stolen checks was later found under the right front seat where Crenshaw was observed reaching. A number of attached checks were observed by an officer in plain view lying between the feet of appellant Robinson, and one of the checks bore the fingerprint of co-defendant McDougal. All of the checks were identified as stolen from the studio during the burglary in question. There was evidence that appellants and co-defendant McDougal were together at the time Humphrey’s studio was burglarized. That, taken with the evidence that the stolen checks were within the automobile and some of them were in plain view, supports a strong inference that appellants were jointly in possession of the stolen checks because they stole them. The evidence supports the conclusion that appellants knew of the presence of the checks and had the ability to exercise dominion over them. This evidence of appellants’ possession of recently stolen property (stolen an hour to an hour and a half prior to their apprehension) is prima facie evidence that they committed the burglary. See Palmer v. State, 323 So.2d 612 (Fla. 1 DCA 1975). In addition we have the circumstance that one of the appellants had previously worked at and had had a key to the studio and could easily have had a duplicate key made to give him continued access thereto. These circumstances presented a prima facie case sufficient to withstand the defendants’ motion for directed verdict.

Affirmed.

SMITH, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting). “When circumstantial evidence is relied upon for conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense.
“ . . . The cloak of liberty and freedom is far too precious a garment to be trampled in the dust of mere inference compounded. As was stated in Adams v. State, this court is fully cognizant of the rule that conviction may be had upon circumstantial evidence alone, and although the State’s burden does not extend to an absolute metaphysical and demonstrative certainty in proving a crime by circumstantial evidence, it must be sufficient as to every essential element of the crime charged to meet the requirement of the rule as set forth above. »

What evidence did the state adduce to prove that Robinson, Crenshaw and Davis, on the 21st day of January, 1976, did unlawfully enter the property of Mr. Humphrey with the intent to commit grand larceny and did steal camera equipment and blank checks of more than $100.00 value? My answer is “not enough”. Mr. Humphrey testified that Crenshaw had been temporarily employed by him in November of 1974; that he (Humphrey) was absent from his locked store on the day in question from 7:40 to 8:40 p. m., and upon returning found that the door had been jimmied and camera equipment valued at $2,000.00 along with blank checks had been stolen. The breaking and entering and theft was, without contradiction, proven.

As to appellants’ involvement in this criminal episode, the state adduced the testimony of two police officers (they were in separate vehicles) who testified that on the subject date, they stopped an automobile at about 9:00 p. m. which appellant Davis was driving, with Crenshaw in the right front seat and Robinson in the left rear seat. The officers found a pile of checks on the rear floorboard of the car between Robinson’s feet and a check under the right front seat which had been endorsed by a Robert Lewis. These checks were identified as having been stolen from Mr. Humphrey.

In my view, the trial court erred in denying appellants’ motion for directed verdict at the close of the state’s case. The above recited evidence is the sole proof adduced by the state to sustain its burden of proof that these appellants broke and entered into Humphrey’s store, stole some $2,000.00 worth of camera equipment and a “pile” of his business checks. Equally important is what the state failed to prove. No evidence, circumstantial or otherwise, was offered placing these appellants in the vicinity of Humphrey’s store at the time of the burglary; no evidence as to any burglary tools used; no evidence as to the disposal of the stolen camera equipment; and no evidence, other than McDougal’s fingerprints on a check, of knowing possession of the stolen checks. Glaringly missing is any other circumstantial evidence to bolster the state’s case, such as flight, concealment, resistance to a lawful arrest, presence at the scene of the crime, or incriminating fingerprints of these appellants. The possession of stolen goods is a fact from which appellants’ complicity may be inferred. But, the possession must be personal and must involve a distinct and conscious assertion by the appellants. The missing factual link which distinguishes these facts from Palmer v. State is that, there, the stolen property was “under the knowing dominions of all the defendants”. The facts here are more analogous to those recited in Taylor v. State, supra; Harris v. State; and Thomas v. State.

I would reverse with directions that appellants be discharged. 
      
      . Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958). See also Taylor v. State, 330 So.2d 91 (Fla. 1st DCA 1976).
     
      
      . Humphrey also testified that nothing was found missing from his business during the time Crenshaw as employed by him.
     
      
      . Another defendant McDougal, was occupying the right rear seat. His fingerprints were found on the checks. He is not a party in this appeal.
     
      
      . State v. Young, 217 So.2d 567 (Fla.1968).
     
      
      . Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975).
     
      
      . Harris v. State, 307 So.2d 218 (Fla.3rd DCA 1974).
     
      
      . Thomas v. State, 297 So.2d 850 (Fla.4th DCA 1974).
     