      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON                 FILED
                                                           Nov. 19, 1997
                           MAY SESSION, 1996
                                                         Cecil Crowson, Jr.
                                                           Appellate Court Clerk



STATE OF TENNESSEE,               )
                                  )      No. 02C01-9511-CR-00336
      Appellee,                   )
                                  )      SHELBY COUNTY
vs.                               )
                                  )      Hon. L. T. Lafferty, Judge
MALUNDA L. MYERS,                 )
                                  )      (First Degree Murder)
      Appellant.                  )


                    SEPARATE CONCURRING OPINION


      I concur with my colleague's conclusion that the evidence was insufficient

to establish the elements of first degree murder.



      The facts of this case are heinous. The appellant beat, kicked and

stomped a defenseless human being to the extent that death resulted. This was

neither a fight nor an attempt to defend oneself from violent physical aggression.

This was simply a brutal and savage one-sided beating.



      On a sufficiency of the evidence review, we must affirm if the facts give

rise to legitimate inference supporting the jury's findings. Otherwise, we merely

supplant the jury's inferences with those of our own.



      The facts in the case sub judice may lend themselves to a reasonable

inference that the appellant intended to kill the victim. Had the appellant simply

intended bodily harm, he could have ceased the savage beating either after the

first blows or after the victim assumed a modified fetal position and pleaded for

his life. The appellant, however, apparently had another agenda. That agenda

may well have supported the jury's finding of first degree murder.



      Nevertheless, in light of State v. Brown, 836 S.W.2d 530, 543 (Tenn.
1992), I am constrained to concur in the majority's decision. I therefore conclude

that the appellant is guilty of murder in the second degree.



                                         ________________________________
                                         PAUL R. SUMMERS, Special Judge




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