State v. Buggs

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON

STATE OF TENNESSEE )
)
FILED
FOR PUBLICATION
FILED: June 28, 1999
Appellee, )
) SHELBY CRIMINAL 28, 1999
June
v. ) Hon. Arthur T. Bennett, Judge
) Cecil Crowson, Jr.
STEVEN B. BUGGS ) Appellate Court Clerk
No. 02S01-9803-CR-00020
)
Appellant ) (Felony Murder)
)

For the Appellant: For the Appellee:

A. C. Wharton John Knox Walkup
District Public Defender Attorney General and Reporter

Michael E. Moore
W. Mark Ward Solicitor General
Asst. Public Defender
Memphis, Tennessee Daryl J. Brand
Assistant Attorney General

OPINION

AFFIRMED BARKER, J.

OPINION
 This is an appeal by the defendant from the judgment of the intermediate

appellate court affirming his conviction for felony murder in the perpetration of a

robbery. The sole issue is whether the evidence was sufficient to establish intent to

commit robbery at the time of the murder.

The defendant contends that the evidence does not support a finding that he

intended to rob the victim, Karen Beasley, at the time he killed her. Instead, he

asserts that his taking of Ms. Beasley’s money occurred as an “afterthought,” and that

the evidence was therefore insufficient to support a conviction for felony murder. We

conclude that the evidence presented at trial was sufficient to support a finding that

the defendant killed Ms. Beasley because she stood in his way of retrieving money

from their joint funds to buy cocaine. The use of force and violence to take the

property of another which results in the death of the victim, whether or not that death

was originally intended, will support a conviction of felony murder in the perpetration of

robbery. Accordingly, we affirm the conviction.

BACKGROUND

The defendant and Ms. Beasley, lived together in a duplex located at 2425

Shasta Street in Memphis. Both were employed as certified nursing assistants at the

Overton Park Health Care Center, a nursing home.

On June 21, 1994, the defendant and Ms. Beasley received their biweekly

paychecks from the nursing home. The defendant testified that the amount of his

paycheck was approximately $500.00; Ms. Beasley’s paycheck amounted to

approximately $270.00. After work, they cashed their checks, and the defendant gave

Ms. Beasley $150.00 towards his share of the living expenses. Before going home,

they paid an unspecified amount on Ms. Beasley’s car note and bought a tire for her

2
car. They also stopped by the defendant’s sister’s house where the defendant gave

his sister an unspecified amount of money. From there, they stopped by Ms.

Beasley’s mother’s house to visit with Ms. Beasley’s children before returning home.

While Ms. Beasley left to run some errands, the defendant stayed at home

drinking beer and smoking marijuana. When solicited by a drug dealer, he purchased

a $25.00 rock of crack cocaine. After Ms. Beasley returned home, they agreed that

the defendant would go out and purchase fried chicken for dinner. The defendant

took Ms. Beasley’s car. He did not return home until over five hours later, at

approximately 11:30 p.m. or 12:00 a.m.

During the time the defendant was gone, he associated with a prostitute and

spent $150.00 on crack cocaine and a substance he referred to as “ice.” When he ran

out of drugs, he returned home. According to him, his purpose in returning home was

to get money to purchase more cocaine.

Not surprisingly, when the defendant returned home five hours late and without

fried chicken, there was a confrontation between him and Ms. Beasley. He did not

specify the subject matter of Ms. Beasley’s ire. However, he admitted that during the

confrontation he “snapped.” He went into the kitchen and obtained a “big” knife, then

stabbed Ms. Beasley with the knife until she stopped resisting. 1 After washing the

blood from his hands and changing clothes, the defendant went back into the

bedroom where his and Ms. Beasley’s remaining cash was located. He took all of the

money and left the apartment, proceeding to purchase and use cocaine for the rest of

the night.

1
The medical examiner testified that Ms. Beasley was stabbed multiple times in the chest and
back, with defensive wounds to her knees and hands.

3
 The next morning, the defendant returned to the house. To prevent anyone

from looking inside and seeing Ms. Beasley’s body, he dragged the body into a

hallway. He then gathered his clothes, along with several items belonging to Ms.

Beasley, including two (2) television sets, a hair dryer, and a lamp. Using Ms.

Beasley’s car, the defendant drove to the American Loan Pawn Shop in Memphis,

where he pawned the two (2) televisions. The next day, he pawned the hair dryer and

the lamp. With the money he received from the pawned items, the defendant bought

and smoked more crack cocaine. Realizing that he would have to leave Memphis to

avoid arrest for Ms. Beasley’s murder, the defendant drove Ms. Beasley’s car, first to

Victoria, Mississippi, and later to Milwaukee, Wisconsin, where he stayed with an aunt.

The defendant was ultimately arrested at his aunt’s house in Milwaukee.

Two competency and sanity evaluations were conducted upon the defendant

by Dr. Wyatt Nichols, a clinical psychologist with the Midtown Mental Health Center in

Memphis. Based upon what the defendant told Dr. Nichols about his use of cocaine

on the night of the murder, Dr. Nichols concluded that the defendant’s judgment and

ability to understand the consequences of what he was doing were impaired at the

time of the murder. Nevertheless, Dr. Nichols concluded that this impairment did not

rise to the level of legal insanity. He found that the defendant was sane at the time of

the offense and competent to stand trial.

At the conclusion of the evidence, the jury received the following instruction

concerning the evidence necessary to convict for murder committed in the

perpetration of a robbery:

Any person who commits murder in the perpetration of a robbery
is guilty of a crime.

For you to find the defendant guilty of this offense, the state must
have proven beyond a reasonable doubt the existence of the following
essential elements:

4
 (1) that the defendant unlawfully killed the alleged victim; and

(2) that the killing was committed in the perpetration of or the
attempt to perpetrate the alleged robbery; that is, that the killing was
closely connected to the alleged robbery and was not a separate, distinct
and independent event; and

(3) that the defendant intended to commit the alleged robbery;
and

(4) that the killing was the result of a reckless act by the
defendant.

Robbery was defined in the instructions as well:

Any person who commits the offense of robbery is guilty of a
crime.

For you to find the defendant guilty of this offense, the state must
have proven beyond a reasonable doubt the existence of the following
essential elements:

(1) that the defendant knowingly obtained or exercised control
over property owned by Karen D. Beasley; and

(2) that the defendant did not have the owner’s effective consent;
and

(3) that the defendant intended to deprive the owner of the
property; and

(4) that the defendant took such property from the person of
another by the use of violence or by putting the person in fear; and

(5) that the defendant took such property intentionally or
knowingly.

Following the jury’s deliberation, the defendant was convicted of felony murder

and was sentenced to life imprisonment without the possibility of parole. We affirm.

DISCUSSION

The defendant challenges the sufficiency of the evidence to support the

conviction of felony murder. Specifically, he alleges that there is no evidence to

support a finding that he formed the intent to rob prior to, or concurrent with, the

5
murder. He alleges that without such proof, a conviction of felony murder cannot be

sustained. He also argues that because the jury did not receive a specific instruction

that a killing is not “in the perpetration of” a robbery if the design to steal is first

formulated after the homicide, the jurors were deprived of an opportunity to reach a

decision on the merits of the substantive question, a fundamental error requiring

reversal of his conviction.

When the sufficiency of the evidence is challenged, the standard for review by

an appellate court is whether, after considering the evidence in a light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19,

99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); State v. Burns, 979 S.W.2d 276,

286-87 (Tenn. 1998); Tenn. R. App. P. 13(e). On appeal, the State is entitled to the

strongest legitimate view of the evidence and to all reasonable and legitimate

inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). In determining the sufficiency of the evidence, this Court does not

reweigh the evidence, id., or substitute its inferences for those drawn by the trier of

fact. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). A guilty

verdict rendered by the jury and approved by the trial judge accredits the testimony of

the witnesses for the State, and a presumption of guilt replaces the presumption of

innocence. Burns, 979 S.W.2d at 287; State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973). On appeal, the appellant bears the burden of proving that the evidence is

insufficient to support the jury verdict. State v. Pike, 978 S.W.2d 904, 914 (Tenn.

1998); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The statute under which the defendant was convicted defined felony murder as

“a reckless killing of another committed in the perpetration of, or attempt to perpetrate

6
any . . . robbery . . . .” Tenn. Code Ann. § 39-13-202(a)(2)(1991). 2 The key question

in this case is the meaning of the phrase “in the perpetration of.”

This Court has previously given guidance regarding the meaning of this phrase.

In Farmer v. State, 201 Tenn. 107, 296 S.W.2d 879 (1956), the Court said that in

order for an offense to constitute first-degree murder under the felony-murder rule,

it must have been done in pursuance of the unlawful act, and not
collateral to it. In other words, “[t]he killing must have had an intimate
relation and close connection with the felony . . . , and not be separate,
distinct, and independent from it . . . . “

Id., 201 Tenn. at 115-16, 296 S.W.2d at 883 (quoting Wharton on Homicide, § 126

(3rd ed.)) The Court also suggested that there should be a causal connection

between the killing and the felony. Farmer, 201 Tenn. at 117, 296 S.W.2d at 884;

accord, State v. Severs, 759 S.W.2d 935, 938 (Tenn. Crim. App. 1988) (killing that

resulted when the intended robbery victim shot the defendant’s accomplice was done

not in pursuance of the unlawful act, but rather to thwart it; conviction of felony murder

reversed).

Other authorities have defined “in the perpetration of” as inclusive of situations

where the homicide is so closely connected with the underlying felony as to be within

the res gestae thereof, or where the homicide is so linked to the felony as to form one

continuous transaction. See 40 Am. Jur. 2d (Homicide) § 67 (1999), and authorities

cited therein. Under this theory, where there is a break in the chain of events between

the felony and the killing, the homicide will not fall within the felony-murder doctrine.

Tennessee cases applying these concepts have noted that consideration of

such factors as time, place, and causation is helpful in determining whether a murder

2
This sta tute was ame nded e ffective Ju ly 1, 1995, to re mov e the elem ent of rec kless inte nt.

7
was committed “in the perpetration of” a particular felony. See State v. Lee, 969

S.W.2d 414, 416 (Tenn. Crim. App. 1997) (where victim was killed in a collision that

followed a high-speed chase as defendant fled from the scene of a robbery, the

homicide occurred in the furtherance of the robbery; flight from the scene of a crime is

an integral part of the crime); State v. Brown, 756 S.W.2d 700, 702-03 (Tenn. Crim.

App. 1988) (fact that robbery was complete before the victim was killed did not make

the murder “collateral” to the robbery where defendant picked up the victim with the

intent of robbing him and killed him to prevent identification).

The law does not require that the felony necessarily precede the murder in

order to support a felony-murder conviction. The killing may precede, coincide with, or

follow the felony and still be considered as occurring “in the perpetration of” the felony

offense, so long as there is a connection in time, place, and continuity of action.

Where the killing precedes the commission of the felony, however, there is a split of

authority between the various jurisdictions as to whether intent to commit the felony

must exist concurrent with the commission of the homicide, or whether intent formed

after a killing is nonetheless sufficient to bring a case within the felony-murder rule.

See generally 40 C.J.S. Homicide §§ 47 & 53 (1991 ed. & 1998 Supp.).

The prevailing view is that in order for the felony-murder doctrine to be invoked,

the actor must intend to commit the underlying felony at the time the killing occurs;

there is no felony-murder where the felony occurs as an afterthought following the

killing. United States v. Bolden, 514 F.2d 1301, 1307 (D.C. Cir. 1975); Ex parte

Johnson, 620 So.2d 709, 713 (Ala. 1993); Grigsby v. State, 542 S.W.2d 275, 280-81

(Ark. 1976); People v. Ainsworth, 755 P.2d 1017, 1037 (Cal. 1988); Long v. United

States, 364 A.2d 1174, 1177 (D.C. Ct. App. 1976); People v. Brannon, 486 N.W.2d

83, 85-86 (Mich. App. 1992), app. denied, 495 N.W.2d 384 (Mich. 1992); State v.

Newman, 605 S.W.2d 781, 787 (Mo. 1980); State v. Montgomery, 215 N.W.2d 881,

8
883 (Neb. 1974); People v. Joyner, 257 N.E.2d 26, 27 (N.Y. 1970); Commonwealth v.

Legg, 417 A.2d 1152, 1154 (Pa. 1980); Robertson v. State, 871 S.W.2d 701, 705

(Tex. Crim. App. 1993); Bouwkamp v. State, 833 P.2d 486, 492 (Wyo. 1992); But see

Hightower v. State, 901 P.2d 397, 402 (Wyo. 1995).

The rationale for the felony-murder rule underlies the requirement of intent in

the above jurisdictions. As we stated in State v. Kimbrough, 924 S.W.2d 888 (Tenn.

1996):

One of the original purposes of the felony-murder rule was to deter the
commission of certain felonies in a dangerous or violent way. 2 Charles
E. Torcia, Wharton's Criminal Law § 147 at 300-01 (15th ed. 1994).
Felony murder differs from other forms of murder because it holds the
actor strictly accountable even where the killing is unintended. Id. at
300.

In the typical case of felony murder, there is no malice in
"fact" with respect to the homicide; the malice is supplied
by the "law". There is an intended felony and an
unintended homicide. The malice which plays a part in the
commission of the felony is transferred by the law to the
homicide. As a result of the fictional transfer, the homicide
is deemed committed with malice. Id. at 296.

Kimbrough, 924 S.W.2d at 890. If an accused had no intent to commit the underlying

felony at the time of the killing, the basis for the felony-murder rule does not apply.

A minority of jurisdictions, however, hold that a killing will constitute felony

murder even if the intent to commit the underlying felony arises after the murderous

act, if there is a continuity of action so as to constitute one continuous transaction.

See Higginbotham v. State, 655 A.2d 1282, 1288 (Md. App. 1995), cert. denied, 664

A.2d 886 (Md. 1995); State v. Williams, 660 N.E.2d 724, 732-33 (Ohio 1996); Perry v.

State, 853 P.2d 198, 200 (Okla. Crim. App. 1993). These latter cases tend to apply a

res gestae theory; if the act causing death is “part and parcel” of the same occurrence

or episode as the felony, then a felony-murder conviction is justified. Particularly with

respect to robbery-murder, if the act causing the death of the victim also constituted

9
the element of force in the robbery, then the act of murder is considered a part of the

underlying felony. Higginbotham, 644 A.2d at 1288.

We agree with the majority position. Given the fact that the felony-murder rule

is a legal fiction in which the intent and the malice to commit the underlying felony is

“transferred” to elevate an unintentional killing to first-degree murder, we are reluctant

to extend the doctrine to include cases in which there was no intent to commit the

felony at the time of the killing. Thus, in a felony-murder case, intent to commit the

underlying felony must exist prior to or concurrent with the commission of the act

causing the death of the victim.

Proof that such intent to commit the underlying felony existed before, or

concurrent with, the act of killing is a question of fact to be decided by the jury after

consideration of all the facts and circumstances. Hall v. State, 490 S.W.2d 495, 496

(Tenn. 1973); State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). In

Mullendore v. State, 183 Tenn. 53, 191 S.W.2d 149 (1945), this Court addressed the

question of proof of intent in a robbery-murder case. Quoting Wharton on Homicide §

188 (3rd ed.), the Court held that:

evidence that a person took the property of another after killing him and
appropriated it to his own use, is sufficient to sustain a conviction of
murder in an attempt to commit a robbery, though no previous purpose
to rob appears, since his act raises a strong presumption that he
intended to do what he afterwards voluntarily did.

Id., 183 Tenn. at 63, 191 S.W.2d at 152.

To the extent that Mullendore stands for the proposition that intent to commit a

felony may be presumed from the act of committing that felony, it is overruled. Intent

cannot be presumed, because such a presumption would impermissibly shift the

burden of proof. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d

39 (1979); State v. Martin, 702 S.W.2d 560, 564 (Tenn. 1985). Nonetheless,

10
Mullendore still stands for the proposition that a jury may reasonably infer from a

defendant’s actions immediately after a killing that the defendant had the intent to

commit the felony prior to, or concurrent with, the killing. State v. Addison, 973

S.W.2d 260, 266 (Tenn. Crim. App. 1997), perm. app. denied (Tenn. 1998). See also

State v. Johnson, 661 S.W.2d 854, 861 (Tenn. 1983); Holland, 860 S.W.2d at 59.3

Applying these principles to the facts in this case, we find considerable

evidence from which the jury could rationally infer that the murder of Ms. Beasley was

committed in the perpetration of a robbery. The defendant returned home for the

express purpose of obtaining more money to buy cocaine. When Ms. Beasley

attempted to thwart this purpose, he stabbed her until she no longer resisted. He then

3
The princ iple in r obb ery-m urde r cas es th at the inten t to rob ma y be inf erre d fro m a defe nda nt’s
actions im med iately following a k illing, is one that is g enerally acc epted. See e.g., Hoke v. Netherland,
92 F.3d 1350, 13 63 (4th C ir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 630 (1996) (defendant killed
the victim, then took drugs from her possession; jury entitled to infer that killing was in perpetration of
robbery); Savino v. Murray, 82 F.3d 593, 601 (4th Cir. 19 96), cert. denied, 518 U.S . 1036, 11 7 S. Ct. 1
(1996) ( motiva ted by a de sire for co caine, de fendan t killed victim , then took victim’s c ash; jury en titled to
infer that k illing was in pe rpetration o f robber y); Tafero v Wainwright, 796 F.2d 1314, 1319 (11th C ir.
1986), cert. denied, 483 U.S. 1033, 107 S. Ct. 3277 (1987) (defendant asleep in his car, when roused by
police offic er, sh ot an d kille d off icer, th en fle d in of ficer ’s pat rol ca r; jury e ntitled to infe r that k illing wa s in
perpetra tion of robb ery); Ex parte Johnson, 620 So .2d at 714 (Ala. 1993 ) (defen dant bea t one victim to
uncon scious ness, to ok cas h from another victim, the n set hou se on fire , killing first victim ; jury entitled to
infer that k illing of first victim was in pe rpetration o f robber y of seco nd victim ); Gadd y v. State, 698 So.2d
1100, 11 34 (Ala. C rim. Ap p. 1995) , aff’d , 698 So.2d 1150 (Ala. 1997) (defendant stabbed victim to death,
then took cas h and vario us pe rson al item s fro m th e victim ’s hom e; jury e ntitled to infe r that k illing wa s in
perpetra tion of robb ery); Clevelan d v. State , 865 S.W .2d 285, 2 88 (Ark . 1993), judgment vacated on
other grounds, 511 U.S. 1080, 114 S. Ct. 1828 (1994) (defendant shot and killed clerk at convenience
store, took a hostage to his car, then returned inside the store and took cash box; jury entitled to infer
that killing wa s in perpe tration of rob bery of stor e); Jack son v. Sta te, 597 N.E.2d 950, 960 (Ind. 1992),
cert. denied, 507 U.S. 976, 113 S. Ct. 1414 (1993) (victim kidnapped and killed; within minutes of the
killing , victim ’s car was used to co mm it ban k rob bery; ju ry entitle d to inf er tha t killing of vic tim w as in
perpetra tion of ban k robb ery); Maho ne v. State , 541 N.E.2d 278, 280 (Ind. 1989) (drunken defendant
shot and stabbed two victims to death during altercation, then took videocassette recorder and television
from victim’s ho me; ju ry entitled to infer th at killing was in perpetra tion of robb ery); People v. Brannon,
486 N.W.2d at 86 (Mich. App.) (defendant stabbed victim to death, then took victim’s wallet from her
purse; ju ry entitled to infer th at killing was in perpetra tion of robb ery); People v. Goddard , 352 N.W.2d
367, 371 (Mich. A pp. 1984 ), rev’d on other grounds, 418 N.W.2d 881 (Mich. 1988) (defendant shot and
killed victim outside victim’s home, then broke into the home and stole various items belonging to the
victim; jury en titled to infer that k illing was in pe rpetration o f robber y); People v. Joyner, 257 N.E.2d at 27
(def end ant s tabb ed vic tim, t hen took mo ney fr om victim ’s poc kets ; jury en titled to infer t hat k illing wa s in
perpetra tion of robb ery); Legg, 417 A.2d at 11 55, n . 4 (de fend ant s tabb ed vic tim in the b ack , killing him ,
then took the vic tim’s wallet , keys , mo ney an d aut om obile; jury en titled to infer t hat k illing wa s in
perpetra tion of robb ery); Robe rtson v. Sta te, 871 S.W.2d at 705-06 (defendant killed first victim outside
victim’s home, went inside the home and killed second victim, then ransacked the house, stealing
vario us ite ms of pe rson al pro perty a nd se con d victim ’s car ; jury en titled to infer t hat k illing wa s in
perpetra tion of robb ery); Nelson v. State, 848 S.W .2d 126, 1 31-32 (T ex. Crim . App. 199 2), cert. denied,
510 U.S. 30, 114 S. Ct. 100 (1993) (defendant beat and stabbed victim to death, then took items of
personal property from victim’s hom e; jury entitled to infer that killing was in perpetration of robbery);
B ou wk a mp, 833 P.2d at 492 (defendant beat victim to death, stripped victim’s body, and removed items
of pe rson al pro perty f rom the vic tim’s cloth es be fore burn ing th em ; jury en titled to infer t hat k illing wa s in
perpetration of robbery).

11
proceeded to fulfill his original purpose; he went into a drawer in the bedroom where

he removed all the cash that remained of his and Ms. Beasley’s paychecks. 4 He took

that cash and went back to the crack house, where he spent the remainder of the

night smoking crack cocaine and consorting with a prostitute. The sad truth which can

be reasonably gleaned from the defendant’s own confession is that he was desperate

for funds to buy more cocaine and willing to do anything to get it, including killing Ms.

Beasley. Such a scenario as occurred here clearly supports a conviction of murder in

the perpetration of a robbery.5

The defendant suggests that the trial court’s failure to specifically instruct the

jury that a killing is not “in the perpetration of” a robbery if the design to steal is not

conceived until after the homicide, is plain error requiring reversal of his conviction.

We note that the defendant did not specifically request such an instruction; neither did

he raise this issue before the Court of Criminal Appeals. Therefore, this issue has

been technically waived. Tenn. R. App. P. 3(e); Tenn. R. App. P. 36(a).

We choose, however, to address this issue on the merits. Initially, we note that

the jury instruction given this jury on the elements of felony murder closely tracked the

language of the Tennessee Pattern Jury Instruction on the subject and the language

of the felony-murder statute. T.P.I. (Crim.) § 7.03 (1992); Tenn. Code Ann. § 39-13-

202 (1991). The jurors were told that in order to find the defendant guilty of felony

murder they would have to find that the defendant unlawfully killed Ms. Beasley in the

perpetration of a robbery, that such killing was closely connected to the robbery and

not a separate, distinct and independent event, and that the defendant intended to

4
The defendant argues that even if there were proof he was returning for money to purchase
cocaine, there was no proof that he intended to take Ms. Beasley’s money. In light of the fact that the
defend ant did, in fac t, take M s. Beas ley’s mon ey as well as his own, w e believe th e jury was entitled to
give little or no cre dence to this argu men t.

5
It is the taking of Ms. Beasley’s cash immediately after the killing, and not the taking of various
items of personal property the next day, that brings this killing under the felony-murder rule. The
defe nda nt’s a cts o n the day fo llowin g the killing were too fa r rem oved in tim e for a jury to reas ona bly
infer the existence of intent to steal those items at the time of the killing.

12
commit the robbery. Furthermore, they were instructed that robbery was the knowing

or intentional taking of the property of another by the use of violence or by putting the

person in fear.

A review of the instructions indicates the jury was fully informed of the elements

of the offense of felony murder, including the meaning of the phrase, “in the

perpetration of,” as it relates to a murder committed in connection with an offense of

robbery. The instruction permitted a consideration of whether or not the defendant

intended to rob Ms. Beasley at the time he killed her. Defense counsel argued in

closing that he did not intend to take the money at the time he killed her. The jury was

adequately advised of the law that governed its deliberation. Compare Gaddy, 698

So.2d at 1134; State v. Newman, 605 S.W.2d at 786-87.

Finally, the defendant makes an argument that the only evidence of intent to

rob was circumstantial; that is, the fact that he actually took Ms. Beasley’s money. He

maintains that this evidence is insufficient to prove intent to commit robbery because it

did not exclude every reasonable hypothesis except that of his guilt. We disagree.

There was direct evidence of the defendant’s intent to take Ms. Beasley’s

money as well as evidence of the actual taking. That evidence came from the

defendant’s own confession to the police and later in his testimony at trial. During

cross-examination the follow colloquy took place:

Q. And when you took the money, you knew you were taking the
money, didn’t you?

A. Yes, sir.

Q. Because that’s what you went there for--to get the money?

A. Um-um.

Q. Yeah, it’s kind of hard to answer that one, isn’t it?

13
 A. Yes, sir.

Q. Because you’ve already lied about it so many times. Right?

A. Well, ‘cause--

Q. But you took the money. Right?

A. Yes, sir.

Q. You took her property. Right?

A. Yes, sir.

Q. You stole from her, killed her, and ran?

A. Yes, sir.

In light of those admissions by the defendant, this argument is wholly without merit.

CONCLUSION

The facts and circumstances of this case support the jury’s finding, after

adequate instruction as to the law of felony murder, that the defendant killed Karen

Beasley in the perpetration of a robbery. The judgments of the trial court and the

Court of Criminal Appeals are affirmed, with costs taxed to the State of Tennessee.

_____________________________
WILLIAM M. BARKER, JUSTICE

CONCUR:

Anderson, CJ.
Drowota, Birch, Holder, JJ.

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