State of Tennessee v. Michael Jarvis Shipp

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville July 25, 2012

STATE OF TENNESSEE v. MICHAEL JARVIS SHIPP

Appeal from the Circuit Court for Maury County

No. 2010-CR-20158 Robert L. Jones, Judge

No. M2011-01876-CCA-R3-CD - Filed August 31, 2012

A grand jury indicted appellant, Michael Jarvis Shipp, for one count of first degree murder

and one count of especially aggravated robbery. A jury found him guilty of first degree

murder and the lesser-included offense of aggravated robbery, for which the trial court

imposed concurrent sentences of life and eight years, respectively. On appeal, appellant

challenges the sufficiency of the convicting evidence underlying both counts. We find that

the evidence was sufficient to convict appellant on both counts and affirm the judgments of

the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.

and R OBERT W. W EDEMEYER, JJ., joined.

Robert C. Richardson, Jr., Columbia, Tennessee, for the appellant, Michael Jarvis Shipp.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; T.

Michel Bottoms, District Attorney General; and Kyle Dodd and Patrick Powell, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

A. Procedural History

A Maury County Grand Jury indicted the seventeen-year-old appellant for one count

of first degree murder and one count of especially aggravated robbery for his participation

in the crimes against Howard Baugh on April 1, 2010. The juvenile court held a detention

hearing on April 5, 2010, and ordered detainment and a psychiatric examination pending

trial. On April 7, 2010, the State filed a motion to transfer appellant to circuit court to be

tried as an adult. The juvenile court granted the State’s motion on August 24, 2010.1 Prior

to trial, appellant filed a notice of intent to raise self-defense as a defense to his participation

in the shooting. Following a two-day trial, the jury found appellant guilty of first degree

murder and the lesser-included offense of aggravated robbery. The trial court sentenced

appellant to concurrent sentences of life for the murder conviction and eight years for the

aggravated robbery conviction. The trial court denied appellant’s motion for a new trial, and

this appeal follows.

B. Facts

Lieutenant Bill Denton with the Columbia Police Department testified that on April

1, 2010, he responded to a call involving a shooting at 154 Morningside Lane. While driving

to the location, he noticed a black Dodge Charger on the roadway. The vehicle caught his

attention because it appeared unique; the car was solid black with black wheels and black

windows. When Lieutenant Denton arrived at the scene, a black male was lying in the

driveway and another individual was outside with him. Upon further inspection, he observed

that the black male on the ground was the victim of the shooting and recognized him as

Howard Baugh. Lieutenant Denton could not locate a pulse for the victim but nonetheless

initiated CPR until medical personnel arrived. As other officers arrived, they attempted to

secure the crime scene and gather as much evidence as possible before paramedics and other

emergency responders disturbed the scene. Lieutenant Denton collected bullet casings he

found beside the victim’s body. He later learned that the two suspects had fled the scene in

the black Dodge Charger he had noticed earlier.

Dr. Bridget Eutenier, an assistant medical examiner, testified as an expert witness in

the field of forensic pathology. She stated the victim suffered nine gunshot wounds (six

entry wounds and three exit wounds) and several blunt force trauma injuries. She recovered

three projectiles from the victim’s body. Dr. Eutenier testified that the gunshots were fired

from an indeterminate range and that she could not ascertain the order in which the gunshot

wounds were inflicted. She concluded that the manner of death was homicide, and the cause

of death was multiple gunshot wounds. The fatal injuries were a gunshot wound that

eventually lodged in the victim’s spine and a gunshot wound to the chest, which affected his

heart and both lungs. Dr. Eutenier further stated the victim was alive when each of the

wounds was inflicted.

1

The State filed a motion in circuit court to consolidate appellant’s trial with co-defendant Jonathan

Martin’s trial, which the court granted. However, the transcript bears no indication that the co-defendant was

tried during the same proceedings.

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Carissa Stone testified that the victim was her boyfriend and the father of her son. She

told the jury that on April 1, 2010, the victim took her in a black Dodge Charger to Tiffany

Conger’s house on Morningside Lane to dye Easter eggs. Several adults, including appellant,

and three children were also present. At some point, Ms. Stone’s brother gave her a

telephone charger, which she placed on a table. Subsequently, the victim returned to Ms.

Conger’s home, and Ms. Stone left with him, leaving the charger on the table. A short time

later, the victim brought Ms. Stone back to Ms. Conger’s house and left. When Ms. Stone

re-entered Ms. Conger’s house, the telephone charger was not on the table. She noticed that

appellant was in possession of the same kind of charger, so she asked him if it was her

charger. They “exchanged words,” and Ms. Stone called the victim to tell him that appellant

would not return her telephone charger. Shortly thereafter, two people who had been in a

different room approached Ms. Stone and returned her charger to her. Upon learning that the

cellular telephone charger that had been in appellant’s possession was not her charger, Ms.

Stone apologized to appellant. Appellant told her, “I don’t accept apologies.” She then

called the victim and told him not to come to Ms. Conger’s house. The victim arrived at Ms.

Conger’s house despite Ms. Stone’s telling him that he did not need to return. At that time,

Ms. Stone began to gather her child’s belongings so they could leave with the victim.

The victim parked his car on the street in front of Ms. Conger’s house. Ms. Stone

went outside to speak with him. As she was explaining to the victim that his return was not

necessary, he told Ms. Stone that he wanted to speak with appellant and “diffuse the

situation.” Simultaneously, appellant stepped outside and sat on the back of a car that was

parked in the driveway. The two vehicles were approximately fifteen feet apart. The victim

told Ms. Stone to ask appellant to walk to his vehicle and talk with him. Appellant said, “No.

Tell him to come here.” The victim exited his vehicle and walked over to appellant. Ms.

Stone stated that the victim did not appear to be angry and was not carrying a weapon. Ms.

Stone walked inside the house to get her son so they could leave. While inside, she did not

hear the men’s voices at all. They were not shouting or yelling. Ms. Stone was in the

process of placing her son in his car seat when she heard three gunshots in rapid succession.

She began to scream and “hit the floor.” She waited for the sound of more shots but did not

hear any more. She stood up, and appellant walked through the door. He approached

Jonathan Martin, who was inside the house, and said, “Give me the strap, cuz, so I can finish

this [expletive] off.” Martin handed appellant a gun. Appellant walked back outside. Ms.

Stone then heard two more gunshots. She stayed inside and waited for appellant to leave.

When she saw appellant drive away in the victim’s black Dodge Charger, she went outside

to check on the victim. He was lying on his stomach in the driveway. She observed blood

all over his back. Ms. Conger called 9-1-1. Ms. Stone thought that the victim was conscious.

His eyes were open but were beginning to roll back in his head. While waiting on the

ambulance, Ms. Stone and others placed blankets and towels on the victim and tried to put

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pressure on his wounds. She accompanied the victim in the ambulance as he was transported

to the hospital.

Charles Stone, Carissa Stone’s brother, testified that on April 1, 2010, he was visiting

Columbia, Tennessee, from Chicago, Illinois, and was “catching up” with people he had not

seen since moving to Chicago. He was visiting with people at Ms. Conger’s house at 154

Morningside Lane. While there, he witnessed the argument between his sister and appellant.

Mr. Stone testified that the argument involved a misplaced cellular telephone charger. He

told the jury that it was a misunderstanding and that Ms. Stone apologized to appellant when

she located her charger. He heard the victim’s car pull up to the house and saw Ms. Stone

walk outside. Shortly thereafter, appellant followed her outside. Thirty seconds to one

minute later, Ms. Stone re-entered the house. At the time, Mr. Stone was seated in the living

room area holding his nephew.

After several minutes passed, Mr. Stone thought that “it was too quiet” outside so he

walked out of the front door to see what was happening in the front yard. He looked to the

left side of the house where the driveway was located and, not seeing anything, stepped back

inside. As he was walking back to the living room, he heard three gunshots. Upon hearing

gunshots, Mr. Stone ran toward the back door. He circled around the rear of the house to the

driveway area and saw the victim lying on the ground. Mr. Stone observed that the victim

had been shot and was having a difficult time moving. He attempted to render aid to the

victim. As he was doing so, he looked toward the front of the house and saw appellant

walking toward them holding a gun. Mr. Stone fled toward the back of the house. When Mr.

Stone saw appellant moving closer to the victim, he moved closer to observe the next events.

He saw appellant load the weapon and heard him say, “This is for my [expletive]. I know

you had something to do with it.” The victim protested and tried to crawl toward the house,

but appellant shot him two more times. When Mr. Stone heard car doors closing, he believed

that appellant was leaving, so he rushed to the victim. He yelled for someone inside of the

house to call 9-1-1. He attempted to apply pressure to the victim’s gunshot wounds. Mr.

Stone remained with the victim until police arrived. He testified he and the victim were very

close friends.

Katricia Lowery testified her daughter was the victim’s first cousin. Ms. Lowery

owned the 2008 black Dodge Charger the victim was driving. The victim was going to have

the car cleaned for Ms. Lowery while she was at work on the day of the shooting. The victim

did not return the vehicle on the day he borrowed it; she received the car the following day

from a police detective. The front end of the vehicle was “messed up,” and the stereo and

“GPS” had been stolen.

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Detective Scott Knudson with the Columbia Police Department was the detective on

duty on the night of the shooting. Pursuant to the emergency call from the dispatcher, he

responded to the scene at Morningside Lane. When he arrived, officers had cordoned off the

scene with crime scene tape and had begun to place evidence markers. He first noted blood

in the driveway; however, the victim had been transported to the hospital. Detective

Knudson obtained statements and information pertaining to the victim. He believed that

police knew who the suspects were, so he had the intelligence unit begin “work-ups,”

including criminal histories, gang affiliations, and driving records. He then traveled to the

hospital where he spoke with a charge nurse. She directed him to a trauma room where the

victim’s body was located.

Detective Knudson testified that during the investigation, officers recovered six shell

casings, three .45 caliber casings, and three nine millimeter casings. They did not recover

any weapons. The black Dodge Charger was not located at the scene but was later recovered

by officers from the narcotics and vice division of the department.

Columbia Police Department Detective Brian Goats testified that he responded to the

location on Morningside Drive pursuant to a call from dispatch. When he arrived, patrol

officers had secured the scene with crime scene tape. He began taking photographs without

evidence markers, then placed the markers and photographed the areas a second time. He

also obtained measurements from fixed points to the pieces of evidence. As he processed the

scene, Officer Jonathan Stotler worked on a rough crime scene sketch. They also obtained

fingerprints and took DNA swabs from automobiles, particularly around the door handles.

Detective Goats recalled specifically that among the items of evidence collected were two

.45 caliber shell casings, several blood-soaked towels, two shoes (one child’s shoe and one

adult’s shoe), and a beer can. None of the items of evidence collected incriminated appellant

in the offenses.

Sergeant Jeremy Haywood, also from the Columbia Police Department, testified that

on April 2, 2010, he received, via dispatch, an anonymous telephone call providing him with

information regarding appellant’s whereabouts. The caller told him to investigate a location

on White Street. Sergeant Haywood and other officers traveled in that direction and

observed a male who matched appellant’s general description in terms of body size and build.

As Sergeant Haywood approached, he turned his spot light on the man and could see that it

was appellant. He and the officers exited their vehicles and gave appellant verbal commands

to stop and place his hands where officers could see them. As they placed appellant under

arrest, individuals whom Sergeant Haywood believed to be appellant’s family approached.

Appellant spontaneously told officers that “he had nothing to be sad about, wasn’t sorry for

anything.” Officer Jesse Lovett transported appellant to the detectives’ division of the

Columbia Police Department.

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Sergeant Jeff Duncan, a detective with the Columbia Police Department, testified that

he was dispatched to the location at Morningside Drive. Once there, he gathered a few of

the witnesses and asked them to go to the police department for interviews. In addition to

the witness interviews, Sergeant Duncan interviewed appellant the following day. He

administered Miranda warnings to appellant, and appellant initialed the form indicating that

he understood his rights.

As Sergeant Duncan began the interview, appellant immediately stated he was not

present at the scene. Sergeant Duncan informed appellant that several witnesses placed him

at the scene. Sergeant Duncan then asked appellant if he was ever in fear on the night in

question, to which appellant responded affirmatively. Appellant then recounted the argument

with Ms. Stone over the cellular telephone charger and how she had called her boyfriend, the

victim, to come to the house. He told Sergeant Duncan that when the victim arrived, Ms.

Stone went outside to speak with him, and appellant walked outside soon thereafter and sat

on a nearby vehicle. He confirmed that the victim called him over, that Ms. Stone went back

inside the house, and that the victim then walked toward him. Appellant told Sergeant

Duncan that he and the victim “exchanged words” over the argument involving the telephone

charger and that the victim became disturbed when appellant called Ms. Stone “[s]ome

unflattering names.” Appellant stated that at that point, the victim grabbed him and threw

him to the ground, and that while on the ground, appellant saw a pistol lying on the ground.

Appellant’s theory was that the gun must have fallen from the victim when the victim threw

him to the ground. He explained that while he was on the ground, the victim was still

approaching him, so he grabbed the pistol and fired three to four times.

Appellant originally told Sergeant Duncan that after he fired the initial shots, he drove

away in the victim’s automobile. He later admitted that another person, Jonathan Martin,

was with him when he drove away. Although Sergeant Duncan questioned appellant about

the second set of shots, he could not give an answer. Appellant said he threw the gun into

the woods adjacent to the location where officers recovered the abandoned vehicle. Officers

searched but did not recover a weapon. Appellant admitted stealing the radio from inside the

car and selling it to an unknown black male. Appellant’s written statement was admitted into

evidence at trial.

The State next called Special Agent Robert Royse, assistant director of the Tennessee

Bureau of Investigation Crime Laboratory in Nashville, Tennessee. The trial court accepted

Special Agent Royse as an expert in forensics, specifically in the areas of ballistics and tool

mark identification. He testified that he examined three nine millimeter cartridge cases, three

.45 caliber automatic cartridge cases, a sleeveless undershirt, a white t-shirt, and three fired

bullets that were recovered from the victim’s body. Based on his examination and

comparison, Special Agent Royse ascertained that the three nine millimeter cartridge cases

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were fired from the same weapon. Furthermore, the three .45 caliber automatic cartridge

cases were fired from the same weapon. He explained to the jury that one could not fire a

.45 caliber shell from a nine millimeter weapon, and that therefore, two weapons were used.

Based on the condition of the sleeveless undershirt and the white t-shirt worn by the victim,

he could not ascertain the distance from which the shots were fired. Special Agent Royse

also examined three bullets, one nine millimeter and two .45 caliber bullets, that were

removed from the victim. He concluded, based on his examination of the recovered bullets,

that the two .45 caliber bullets were fired from the same weapon.

Appellant called Officer Jason Terlecki with the Columbia Police Department as a

witness. Officers Terlecki and Jonathan Stotler were the first officers to arrive at the scene

of the shooting at 10:27 p.m. Officer Terlecki first noticed that the victim had been shot and

was lying face down on the pavement. He checked the victim’s pulse and, finding none, he

began CPR. The victim remained unresponsive. Paramedics continued to attempt to revive

the victim when they arrived.

Appellant also called Officer Jonathan Stotler, who testified that when he and Officer

Terlecki approached the victim, he did not appear to be breathing. He also observed a black

male whom he later identified as Charles Stone walking around in an agitated state. Mr.

Stone gave Officer Stotler a written statement after he calmed down. Mr. Stone wrote that

following the first set of shots, appellant went to a vehicle and retrieved the second weapon.

Mr. Stone neglected to write down the fact that he walked outside through the front door

prior to the shooting and did not see or hear anything. Mr. Stone’s statement did not include

his hearing appellant load or “rack” the gun, as he testified at trial.

C. Analysis

The sole issue for our consideration on appeal is whether the State presented sufficient

evidence by which the jury could convict appellant of first degree murder and aggravated

robbery.

1. Standard of Review

The standard for appellate review of a claim of insufficiency of the State’s evidence

is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

must demonstrate that no reasonable trier of fact could have found the essential elements of

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the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of

review is identical whether the conviction is predicated on direct or circumstantial evidence,

or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn therefrom.”

Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010));

State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and the

weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

has afforded the State all reasonable inferences from the evidence and resolved all conflicts

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729; State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v.

Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

2. Sufficiency of the Evidence: First Degree Murder

The fact that appellant shot the victim is undisputed. The crux of appellant’s

argument focuses on two distinct issues: his affirmative defense of self-defense and the

specious evidence connecting him with the second set of gunshots sustained by the victim.

In appellant’s statement, he told the detective that the victim threw him to the ground where

he saw a weapon, then fired at the victim because the victim was coming toward him again.

Appellant argues that “self-defense was available . . . under the proof put forth by the State

and should have been so received by the jury.” Mr. Stone testified that he witnessed

appellant fire the second set of gunshots toward the victim. Appellant argues that “[f]or the

jury to give the State’s theory weight . . . they had to find Charles Stone credible.”

Ms. Stone testified that appellant and the victim were standing outside of the house

talking when she walked back inside. Moments later, she heard several gunshots, witnessed

appellant come inside the house where he obtained a second weapon, and after he went back

outside, heard several additional gunshots. Mr. Stone testified that appellant and the victim

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were outside talking, and when he noticed that it was “too quiet” outside, he stepped outside

through the front door to check on matters and saw no one. Shortly thereafter, he was sitting

in the living room of the house, heard gunshots, ran around the house to the driveway by way

of the back door, and witnessed appellant, who was holding a gun, approach the victim and

fire additional shots toward him. In his statement to law enforcement, appellant admitted

firing three to four rounds at the victim.

Both of appellant’s arguments raise questions of fact for the jury. In rendering a

guilty verdict on the charge of first degree murder, the jury rejected appellant’s affirmative

defense. Moreover, the jury obviously credited the testimony of Charles Stone over

appellant’s statement. In doing so, the jury resolved questions of credibility of witnesses and

factual disputes raised by the evidence. See Bland, 958 S.W.2d at 659. We will not re-

evaluate the inferences drawn from the evidence by the jury or re-weigh the evidence. See

Dorantes, 331 S.W.3d at 379.

Viewing the evidence in the light most favorable to the prosecution, the State

presented sufficient evidence by which to sustain appellant’s conviction of first degree

murder. Appellant has failed to carry his burden of proving otherwise. He is not entitled to

relief on this issue.

3. Sufficiency of the Evidence: Aggravated Robbery

Appellant was indicted for especially aggravated robbery, and the jury found him

guilty of the lesser-included offense of aggravated robbery. Appellant asserts that the jury

could not have logically found that the State’s evidence established the element of “taking

by fear or violence” because he stole the automobile after the victim was deceased.

To establish the offense of aggravated robbery, the State must prove that appellant

intentionally or knowingly committed theft of property from the victim by violence or by

putting him in fear and that appellant accomplished the theft with a deadly weapon or “by

display of any article used or fashioned to lead the victim to reasonably believe it to be a

deadly weapon” or “where the victim suffers serious bodily injury.” Tenn. Code Ann. §§ 39-

13-401, -402 (2010).

In a similar case, we have previously held:

[Appellant] also contends that the [property] could have been stolen

after the death of the victim; [appellant] argues that the requisite element of

“forcible taking . . . by violence or putting the person in fear” is missing. . . .

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Given the continuing nature of these crimes, the time of the robbery in relation

to the point at which the victim died is irrelevant.

Even if the victim’s death occurred prior to the robbery, we think the

requisite elements of the offense are present. If [appellant] did not put the

victim in fear, he certainly participated in the “violence” against the victim

either before, during, or after the robbery. The statute provides that this

element of the crime may be proved by “violence or putting the person in

fear.” One or both were present in this instance.

In short, we find no merit to [appellant’s] argument.

State v. Robert Roger Brewington, Jr., No. No. 89-232-III, 1990 WL 83406, at *3 (Tenn.

Crim. App. June 20, 1990) (internal citations omitted). Consistent with our prior opinion,

we find that appellant is not entitled to relief on this issue.

As an alternative argument, appellant contends that the jury could not have found that

he had the intent to deprive the owner of the property because he abandoned the automobile

and police recovered it in close proximity to the crime scene in “relatively pristine

condition.” We reject this argument. Clearly, appellant had the intent to deprive the owner

of the property when he left the crime scene in the automobile. The fact that he soon

abandoned the vehicle is irrelevant to his intent at the time he stole the car. Furthermore, the

State presented evidence that the radio and “GPS” had been removed from the vehicle,

indicating a further intent to deprive the owner of property. The owner of the automobile

testified that the front end of the car was “messed up” when it was returned to her. Viewing

the evidence in the light most favorable to the prosecution, the State presented sufficient

evidence by which to sustain appellant’s conviction of aggravated robbery. Appellant has

failed to carry his burden of proving otherwise. He is not entitled to relief on this issue.

CONCLUSION

After careful review of the parties’ briefs and the entire record, we find no error and

affirm the judgments of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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