                                 DISSENTING OPINION

                                                                     FILED
       I dissent fro m the m ajority’s finding that the evid ence w as sufficien t to
                                                                     November 3, 1998
susta in the c onvictio n of felo ny mu rder. O therw ise, I co ncur w ith the m ajority’s
decision.                                                           Cecil Crowson, Jr.
                                                                     Appellate C ourt Clerk


       The defen dant w as ind icted a nd co nvicted for unla wfully an d reck lessly
killing Ben jamin S mith du ring the pe rpetration of espec ially aggrava ted robb ery.
In my opinion, the State has failed to prove beyond a reasonable doubt that the
victim was killed during the perpetration o f this felony. I believe that the record
suppo rts convictio ns for the c rimes o f second degree murde r and the ft.


       The c ase of State v. Dunn, (No. 03S01-9211-CR-00104, S.Ct. 1993) which
is relied upon by the defendan t and discuss ed in the ma jority opinion, offers
rationale which is instructive in this case. In Dunn, there was circumstantial
evidence of sexual activity with the decedent, but the Court held that the evidence
was not sufficient to establish that the victim was raped before her death. Thus,
the Supreme Court dismissed the felony murder conviction. Similarly, in the case
at bar, it was necessary that the State establish the killing was done in pursuance
of the felony and not merely collateral to it. The evidence does not support the
conclusion that the defendant killed the victim while robbing him.


       According to the majority, the following evidence supports the felony
murder co nviction. The victim a nd the defen dant left the Mou se’s Ear and drove
around. The victim withdrew $200.00 from the ATM machine which the
defendant later stole. The defendant shot the victim in the head with a pistol
which she h ad in h er pos sess ion prio r to the h omic ide. Th e hom icide o ccurre d in
a remote location in McMinn County which is where the defendant lived. The
pants pock ets of th e victim were tu rned o ut and a few c oins w ere fou nd ne ar his
body. His wallet and checkbook were taken. The victim’s pickup truck was later
found at a motel parking lot and the keys to his vehicle were located at the
Mouse’s Ear. The defendant denied any knowledge of the victim’s death. I do not
agree with the m ajority that the elemen ts of especially aggra vated robbe ry are
established by these facts.


       The State’s strongest evidence of the crime is the pretrial statement of the
defend ant. The majority co rrectly states that a jury is en titled to acce pt part of a
defend ants pre trial statem ent and disregar d that wh ich it does n ot believe.
Unquestionably, the pretrial statement of the defendant contains admissions of
homicide and theft. However, I find no admission of robbery. Relevant parts of
the de fenda nt’s sta teme nt are s umm arized as follo ws. Afte r leaving the Mo use’s
Ear, the d efenda nt and the victim drov e aroun d in his truck and later in her truck.
The victim talked to her about having sex with him and obtained money from the
ATM machine. The victim told her to drive to her house in McMinn County. She
told him that she did not have a boyfriend but lived alone. He touched her and
rubbe d her le gs an d brea sts an d told h er she looke d goo d. After arriving in
McMinn County, the defendant told the victim she had a live-in boyfriend, and he
got ma d. The v ictim told he r to pull over to the side o f the road which sh e did.
They th en wen t into the wo ods at w hich poin t the defen dant killed h im. She left
but ca me b ack a nd too k his w allet an d che ckbo ok. Th e mo ney the victim
obtained from the ATM had been left in her truck.


       Othe r facts c ast do ubt up on the state’s theory . The d efend ant su gges ts in
her state ment th at she an d the victim were in this remote area in M cMinn C ounty
because of the victim’s desire to ha ve sex with her an d not becau se of her des ire
to rob him. The nature of the defendant’s occupation, the time and place at which
the defendant and the victim became acquainted, and the victim’s affinity for nude
bars give s credibility to th e defen dant’s sto ry that sex w as the re ason th ey went to
this remote area. These same circumstances also suggest that if it was the
defendant’s intent to take the victim’s money, that she could have accomplished
this result by mean s short of a homic ide.


       There is one final reason which supports my conclusion that the felony
murder conviction should be dismissed.


       The jury verdicts in this case were inconsistent. In Count 2, the jury found
the de fenda nt guilty o f first deg ree m urder during the pe rpetra tion of e spec ially
aggravated robbery. In Count 3 of the indictment, the defendant was indicted for
especially aggravated robbery; however, the jury found the defendant guilty of the
lesse r includ ed offe nse o f theft un der $5 00.00 , a mis dem eano r. The verdict in
Cou nt 3 su gges ts that th e jury be lieved th e defe ndan t’s state men t that sh e did
not kill the victim for the m oney an d that the th eft took pla ce after the murde r.


       In sum mary, I do not believe that there is sufficient evid ence u pon wh ich to
base a felony murder conviction.


                                    ___________________________________
                                    WILLIAM B. ACREE, JR., SPECIAL JUDGE
