                                                                                         03/07/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 6, 2017

           STATE OF TENNESSEE v. MICHAEL KEVIN SCHIPP

                 Appeal from the Criminal Court for Putnam County
                     No. 2015-CR-421 Gary McKenzie, Judge
                     ___________________________________

                           No. M2016-01933-CCA-R3-CD
                       ___________________________________

Defendant, Michael Kevin Schipp, was convicted of one count of burglary of an
automobile and one count of aggravated assault with a deadly weapon and received a
total effective sentence of fifteen years. On appeal, Defendant argues that the trial court
erred in failing to instruct the jury on self-defense with regard to his aggravated assault
conviction. After a thorough review of the record and relevant authorities, we affirm the
judgments of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Craig P. Fickling, District Public Defender, and L. Scott Grissom, Assistant Public
Defender, for the appellant, Michael Kevin Schipp.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Victor Gernt, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Facts

       In May of 2015, Marshall Thurman and Chase Eldridge lived in a fraternity house
near the campus of Tennessee Tech University in Cookeville, Tennessee. In the early
morning hours of May 19, 2015, they, along with their friend Cameron Carroll, were in
the front room of the house drinking and watching a movie when they heard a scream.
The three men went outside and walked around to investigate the source of the scream.
Having not seen or heard anything else, the men walked back toward the fraternity house.
Mr. Thurman then heard glass breaking and took off running toward the back of the
house. On the street directly behind the house, Mr. Thurman saw a man reaching inside
the front passenger window of Mr. Eldridge’s vehicle. Mr. Thurman knew it was not Mr.
Eldridge reaching into the car because Mr. Eldridge was still behind him. Mr. Thurman
described the man as bald, around five feet ten inches tall, and wearing a red and white
striped rugby-style shirt.

        Mr. Thurman, infuriated, ran up and tackled the man to prevent him from stealing
anything from the car. Mr. Thurman, who was six feet three inches tall and weighed 245
pounds, did not say anything to the man as he tackled him at a full sprint. Mr. Thurman
fell to the ground away from the car; he did not land on top of the man. The man got up
and did not try to run away but turned and engaged Mr. Thurman in a fight. The man
began throwing punches at Mr. Thurman, which he dodged or blocked. Mr. Thurman
denied throwing any punches. The man then pulled out a folding knife and opened it.
The man stating that he had a knife was the only communication between the two during
the confrontation. The man then stabbed Mr. Thurman on the left side underneath his
arm, puncturing Mr. Thurman’s lung. Mr. Thurman admitted that he punched the man at
the same moment that the man stabbed him. Mr. Thurman initially remained on his feet
but then fell to the ground. The man then punched Mr. Thurman in the head before
running off. Mr. Thurman walked to the hospital where he spoke to police. Mr.
Thurman was eventually transported to Vanderbilt Medical Center in Nashville and spent
two days in the hospital.

        Mr. Eldridge testified that as he and Mr. Thurman walked back toward the
fraternity house after unsuccessfully searching for the source of the scream, Mr. Thurman
suddenly took off running. Mr. Eldridge did not think anything of it and continued
walking in the same direction as Mr. Thurman had gone. When Mr. Eldridge reached the
driveway of the fraternity house and looked into the backyard, he saw Mr. Thurman in
the middle of the street engaged in a fight with a bald, white man of average height
wearing a red and white striped rugby-style shirt. The two men were “squared up to each
other like in a fighting posture, and they both just kind of swung at each other, and they
both hit each other.” Mr. Eldridge ran toward the pair as they were swinging at each
other. Mr. Eldridge testified that it appeared that Mr. Thurman got hit in the ribcage and
the other man got hit in the face. Mr. Thurman then fell, and the other man ran off down
the street. Mr. Eldridge walked with Mr. Thurman to the hospital. Mr. Thurman stated
that he had been stabbed and was clutching the side of his chest.

       After speaking with the police at the hospital, Mr. Eldridge was told to return to
the parking lot behind the fraternity house because his car had been broken into, which
Mr. Eldridge did not know at that time. Mr. Eldridge testified that the front passenger
side window was “smashed” and that there was broken glass both inside the car and in
the parking lot. Mr. Eldridge’s car, which was locked, contained several plastic totes
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filled with his belongings as well as an overnight bag. The bag, which had been in the
backseat prior to this incident, was in the front passenger seat of the car on top of the
broken glass that was in the seat. Mr. Eldridge did not give anyone permission to break
the window or enter the vehicle.

       Officer David Harris of the Cookeville Police Department responded to the
hospital and obtained a description of the suspect, which he relayed to other officers.
Defendant was developed as a suspect. Officer Harris, Officer Mike Herrick, and
Detective Tammy Goolsby arrived at an address associated with Defendant that was just
down the street from the scene of the incident. Detective Goolsby transported Defendant
to the Cookeville Police Department where he gave a statement claiming to have been
asleep prior to the police arriving at the residence. During a search of the residence, a
striped rugby-style shirt was discovered in a laundry basket. The shirt was damp while
the other clothes in the basket were dry; Officer Harris noted that there was a misting rain
that day. The shirt also had several spots that appeared to be blood. Testing by the
Tennessee Bureau of Investigation confirmed that at least one spot was consistent with
Mr. Thurman’s DNA and another was consistent with Defendant’s DNA.

Analysis

        On appeal, Defendant argues that the trial court erred in failing to give a jury
instruction regarding the law on self-defense. Defendant concedes that he was engaged
in unlawful activity by breaking into Mr. Eldridge’s car. However, Defendant contends
that his unlawful activity “is not a bar to self-defense completely, but is a bar to the ‘true
man’ doctrine” such that Defendant “would have had a duty to retreat before he used
force.” According to Defendant, the refusal to give a jury instruction on self-defense
under the facts of this case “is the equivalent of holding that someone who is ever in the
wrong has to not resist and take whatever punishment his captors believe fit the perceived
crime.” The State responds that the proof presented at trial did not fairly raise the
defense of self-defense and that the trial court properly denied Defendant’s request to
give the instruction.

       A trial court has a duty to provide a “complete charge of the law applicable to the
facts of the case.” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (quoting State v.
Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). This duty includes “giving jury
instructions concerning fundamental issues to the defense and essential to a fair trial.”
State v. Anderson, 958 S.W.2d 9, 17 (Tenn. Crim. App. 1998). “A trial court’s refusal to
grant a special instruction is error only when the general charge does not fully and fairly
state the applicable law.” State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013).
Erroneous jury instructions “are generally subject to a ‘harmless error’ analysis” unless
they “mislead the jury as to the applicable law or fail to ‘fairly submit’ the relevant legal
issues, such as available defenses.” Id. at 128 (citing State v. Williams, 977 S.W.2d 101,
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104-05 (Tenn. 1998); State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)). As a mixed
question of law and fact, our standard of review for questions concerning the propriety of
jury instructions is de novo with no presumption of correctness. State v. Smiley, 38
S.W.3d 521, 524 (Tenn. 2001).

        A defendant is entitled to an instruction on self-defense if it is fairly raised by the
evidence. Myers v. State, 206 S.W.2d 30, 32 (Tenn. 1947). “In determining whether a
defense instruction is raised by the evidence, the court must examine the evidence in the
light most favorable to the defendant to determine whether there is evidence that
reasonable minds could accept as to that defense.” State v. Sims, 45 S.W.3d 1, 9 (Tenn.
2001). “The quantum of proof necessary to fairly raise a general defense is less than that
required to establish a proposition by a preponderance of the evidence.” Hawkins, 406
S.W.3d at 129. If the defense is fairly raised by the admissible evidence, “the burden
shifts to the prosecution to prove beyond a reasonable doubt that the defense does not
apply,” id., and the issue of whether a defendant acted in self-defense becomes a factual
determination to be made by the jury, State v. Echols, 382 S.W.3d 266, 283 (Tenn. 2012).
However, “[t]he issue of the existence of a defense is not submitted to the jury unless it is
fairly raised by the proof.” T.C.A. § 39-11-203(c).

      As relevant to this case, Tennessee Code Annotated section 39-11-611(b)(2)
provides that:

       [A] person who is not engaged in unlawful activity and is in a place where
       the person has a right to be has no duty to retreat before threatening or
       using force intended or likely to cause death or serious bodily injury, if:

             (A) The person has a reasonable belief that there is an imminent
       danger of death or serious bodily injury;

              (B) The danger creating the belief of imminent death or serious
       bodily injury is real, or honestly believed to be real at the time; and

              (C) The belief of danger is founded upon reasonable grounds.

Additionally, the threat or use of force against another is not justified “if the person using
force provoked the other individual’s use or attempted use of unlawful force, unless: (A)
[t]he person using force abandons the encounter or clearly communicates to the other the
intent to do so; and (B) [t]he other person nevertheless continues or attempts to use
unlawful force against the person.” T.C.A. § 39-11-611(e)(2).

       The Tennessee Supreme Court has recently clarified that “the phrase ‘not engaged
in unlawful activity’ is a condition on a person’s statutory privilege not to retreat” rather
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than a complete bar to self-defense. State v. Antoine Perrier, __ S.W.3d __, No. W2015-
01642-SC-R11-CD, 2017 WL 5588864, at *8 (Tenn. Nov. 21, 2017). “[A] duty to retreat
does not mean that a person cannot defend herself or himself.” Id. at *10. Consistent
with the common law duty to retreat, a defendant engaged in unlawful activity “‘must
have employed all means in his power, consistent with his own safety, to avoid danger
and avert the necessity of’” using force. Id. (quoting State v. McCray, 512 S.W.2d 263,
265 (Tenn. 1974)). Furthermore, when the defendant’s unlawful activity is what
provokes the other individual’s use of force, the defendant must “abandon[] the encounter
or clearly communicate[] to the other the intent to do so.” T.C.A. § 39-11-611(e)(2)(A);
see also Antoine Perrier, 2017 WL 5588864, at *6 (noting that the portion of the “no-
duty-to-retreat rule” that required the defendant be “without fault in provoking the
confrontation” is presently codified in T.C.A. § 39-11-611(e)(2)).

        In this case, the trial court found that there was “not a single shred of evidence . . .
to satisfy abandonment of the unlawful activity.” Defendant has conceded that he was
engaged in unlawful activity by breaking into Mr. Eldridge’s car. Mr. Thurman’s use of
force against Defendant was clearly provoked by this unlawful activity as Mr. Thurman
testified that he tackled the auto-burglar in an attempt to prevent him from stealing
anything. Thus, for a self-defense instruction to be warranted in this case, there must be
some proof that Defendant abandoned the encounter or clearly communicated his intent
to do so and that Mr. Thurman nevertheless continued to engage in using force against
him. See Sims, 45 S.W.3d at 9 (“There is no dispute that Sims provoked the use of lethal
force in this case by burglarizing Smith’s home. The question is whether Sims
abandoned the encounter and Smith continued or attempted to use unlawful force against
Sims.”); State v. Bobby W. Jenkins and Tareaun D. Griffin, No. M2005-00593-CCA-R3-
CD, 2006 WL 618303, at *6 (Tenn. Crim. App. Mar. 13, 2006) (holding that “under these
factual circumstances, Defendant Griffin is only entitled to claim that self-defense is
‘fairly raised by the evidence’ if there is evidence that he ‘abandon[ed] the encounter or
clearly communicate[d] to the other the intent to do so’”), perm. app. denied (Tenn. Aug.
28, 2006).

        Even in the light most favorable to Defendant, there is no evidence that he
abandoned the encounter, communicated his intent to do so, or otherwise attempted to
retreat prior to stabbing Mr. Thurman. Mr. Thurman testified that after he tackled
Defendant, both men got up and faced each other ready to fight. While Mr. Eldridge did
not see the initial tackle, he did see both men in a “fighting posture.” Neither witness
testified that Defendant attempted to run away before he began punching Mr. Thurman.
Additionally, neither witness testified that Mr. Thurman punched Defendant before
Defendant punched Mr. Thurman. While Mr. Thurman was unarmed, Defendant pulled
out a folding knife and opened it. Defendant never said anything to Mr. Thurman except
to state that he had a knife. Mr. Eldridge saw each man punch each other simultaneously:
Defendant punched (or stabbed) Mr. Thurman in the ribcage and Mr. Thurman punched
                                             -5-
Defendant in the head. Only after Mr. Thurman fell to the ground did Defendant flee the
scene. On appeal, Defendant concedes that he had a duty to retreat prior to using force
but contends that he had no opportunity to do so. However, Defendant points to no
evidence in the record from which reasonable minds could accept that he “‘employed all
means in his power, consistent with his own safety, to avoid danger and avert the
necessity of’” using force against Mr. Thurman. See Antoine Perrier, 2017 WL 5588864,
at *10 (quoting McCray, 512 S.W.2d at 265). Because self-defense was not fairly raised
by the evidence presented in this case, the trial court did not err in failing to give a jury
instruction on self-defense.

                                      CONCLUSION

       Based on the foregoing, we affirm the judgments of the trial court.


                                   _________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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