         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                              MAY SESSION, 1997
                                                             FILED
STATE OF TENNESSEE,                     )   C.C.A.# W1999-02144-CCA-RM-CD
                                                         December 29, 1999
                                        )
             Appellee,                  )               Cecil Crowson, Jr.
                                        )              Appellate Court Clerk
                                              SHELBY COUNTY
                                        )
V.                                      )     HON. FRED AXLEY, JUDGE
                                        )
COLLIER V. HARRIS,                      )
                                        )     (FIRST DEGREE MURDER IN
             Appe llant.                )     THE PE RPET RATIO N OF T HEFT )




FOR THE APPELLANT:                      FOR THE APPELLEE:

A. C. WHARTON                           JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

W. MARK WARD                            DEB ORA H A. TU LLIS
Assistant Pu blic Defende r             Assistant Attorney General
147 Jefferson, Suite 900                2nd Floor, Cordell Hull Building
Memphis, TN 38103                       425 Fifth Avenue North
                                        Nashville, TN 37243

                                        JOHN W. PIEROTTI
                                        District Attorney General

                                        EDGAR PETERSON
                                        Assistant District Attorney General

                                        LOR RAIN E CR AIG
                                        Assistant District Attorney General
                                        201 Poplar Avenue, Ste. 301
                                        Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

                                OPINION

             The Defen dant, Collier V. Harris, was co nvicted in the She lby Cou nty

Criminal Court of first degree murder committed during the perp etration of th eft,
in violation of Tennessee Code Annotated section 39-13-202(a)(2). He received

a sentence of life imprisonment. He raised ten (10) issues on appeal. In an

opinion filed on December 3, 1997, this court affirmed the conviction. Defendant

subs eque ntly filed an application for permission to appeal to the Tennessee

Supreme Court pursua nt to Rule 11 of the T ennes see Ru les of Ap pellate

Procedure.



              On September 13, 1999, the Supreme Court of Tennessee filed an

order reman ding the c ase to this court. The order states in its entirety as follows:


      Upon consideration of the application for permission to appeal and
      the entire record before us, the Court is of the opinion that the
      application should be, and is, hereby, granted for the sole purpose
      of rema nding the ca se to th e Cou rt of Crim inal Appeals for
      reconsideration in light of the Court’s opinion in State v. Buggs, 995
      S.W.2d 1 02 (Tenn. 1 999).

                                                       PER CURIAM


              Based upon o ur review of Buggs, the sole issue raised by the

Defendant on ap peal w hich w ould b e relev ant to th e sup reme court’s opinio n in

Buggs, is the Defendant’s challenge to the sufficiency of the evidence to support

a conv iction for “felon y murd er” com mitted du ring the pe rpetration of theft.



              Our opinion previously filed in this case provides a detailed

statement of the facts proven at trial. Of course, the State is entitled to the

strongest legitimate view of the evidenc e and a ll inference s therefro m. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In this light, the proof at trial

showed that Defendant entered the victim’s home after 1:00 a.m. and before 5:00

a.m. on November 29, 1992. The Defe ndant and victim knew each other. The

Defendant strangled the victim, struck her with a blunt object which smashed or

actua lly burst h er liver at four (4) different sites causing it to “bleed out,” and

stabbed her at least twelve (12) times, including two (2) wounds through the

victim ’s heart. When he left her home, he took her new bank ATM card to a First


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Tennessee Bank in Millington, where the victim resided, and withdrew $30.00

from her acco unt at approximately 5:10 a.m. on November 29, 1992. The

Defe ndan t’s activities at the ATM machine were recorded on video tape. When

Walter Blaydes, another acquaintance of the victim, left her home at

appro xima tely 1:00 a.m. on Novem ber 29, she w as fine, and the A TM card

remained on a table in her h ome w here Blayd es had ob served it earlier in the

evenin g.



             In State v. Buggs, supra, our supreme court held:


      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.

Buggs, 995 S.W.2d at 106.



             How ever, the court furthe r held that:


      Thus, in a felony-murder case, intent to commit the underlying
      felony must exist prior to or concurrent with the commission of the
      act caus ing the de ath of the v ictim.

      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
      circum stance s. [citations o mitted].

Id. at 107


             The supreme court further overruled Mullen dore v. S tate, 183 Tenn.

53, 191 S.W .2d 149 (1945), to the “exten t that Mullendore stands for the

proposition that intent to commit a felony may be presumed from the act of

comm itting that felony.” Buggs, 995 S.W.2d at 108.



             More significantly, however, the supreme court further noted that

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


                                         -3-
a defendant’s actions immediately after a killing that the defendant had the intent

to comm it the felony prior to, or concu rrent with, the killing.” Id. at 108.



              As the supreme court did in State v. Buggs, supra, we conclude

herein that the re wa s am ple proof fr om w hich th e jury c ould rationally infer that

the victim’s m urder w as com mitted in th e perpe tration of the ft, and specifically

that the Defendant had the intent to commit the theft prior to, or concurrent with,

the killing. Th e jury c ould e asily rationally infer that when the Defendant left the

victim ’s residence, he took the ATM card with him . The ho ur that it wa s used to

obtain the $30.00 also shows that by Defendant’s actions “immediately after the

killing,” he had the intent to commit the felony prior to or concurrent with, the

killing. See Buggs, 995 S.W.2d at 108.



              We hereby affirm the conviction of Defendant for first degree murder

committed in the perpetration of theft on the issue of sufficiency of the evidence

in light of State v. Buggs, 995 S.W .2d 102 (Te nn. 1999) an d in addition reaffirm

and ratify all other portions of our o pinion filed in this cause on December 3,

1997.


                                   ____________________________________
                                   THOMAS T. WO ODALL, Judge



CONCUR:



___________________________________
GARY R. WADE , Judge


___________________________________
JOHN H. PEAY, Judge




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