                                            FILED
      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                        AT KNOXVILLE

                                              September 11,
                       MAY 1998 SESSION
                                                  1998

                                            Cecil Crowson, Jr.
                                            Appellate Co urt Clerk
STATE OF TENNESSEE,           )
                              )
          Appellee,           )    C.C.A. No. 03C01-9711-CR-00492
                              )
vs.                           )    Knox County
                              )
TADARYL SHIPP,                     )      Hon. Mary Beth Leibowitz,
Judge
                              )
          Appellant.          )    (First Degree Murder,
                              )    Conspiracy to Commit First
                                   Degree Murder)




FOR THE APPELLANT:                 FOR THE APPELLEE:

M. CHRISTOPHER COFFEE              JOHN KNOX WALKUP
Attorney at Law                    Attorney General & Reporter
P.O. Box 870
Knoxville, TN 37902                ELIZABETH B. MARNEY
                                   Asst. Attorney General
                                   425 Fifth Ave. N., 2d Floor
                                   Nashville, TN 37243-0493

                                   RANDALL E. NICHOLS
                                   District Attorney General

                                   S. JO HELM
                                   WILLIAM CRABTREE
                                   Asst. District Attorneys General
                                   P.O. Box 1468
                                   Knoxville, TN 37901-1468
OPINION FILED:________________

CONVICTIONS AFFIRMED, CONSECUTIVE SENTENCES VACATED,
AND REMANDED

CURWOOD WITT, JUDGE




                                 2
                                     OPINION

              The defendant, Tadaryl Shipp, appeals the convictions of first degree

murder and conspiracy to commit first degree murder that he received at his jury

trial in the Knox County Criminal Court. Shipp is presently serving consecutive

sentences of life and 25 years in the Departmentof Correction. In this direct appeal,

he challenges the sufficiencyof the convicting evidence and the propriety of the trial

court's sentencing determination. Having reviewed the record and the briefs of the

parties and having heard oral arguments, we affirm both convictionsand sentences;

however, we vacate the imposition of consecutive sentences and remand in order

for the trial court to make the appropriate findings before determining whether the

defendant will serve his sentences concurrently or consecutively.




              The defendant's convictionsstem from the 1995 "Job Corps murder"

involving four students from the Knoxville Job Corps. The victim was Colleen

Slemmer. The defendant and two young women have been convictedof her murder.

Christa Gail Pike is on death row for her part in the murder. State

v. Christa Gail Pike, No. 03C01-9611-CR-00408 (Tenn. Crim. App.,

Knoxville, Nov. 26, 1997) (Tenn. R. Sup. Ct. 12, § 2 review pending).

According to the evidence of record, Shadolla Peterson pleaded

guilty to being an accessory after the fact and received a six year

probationary sentence.




              A few days prior to January 12, 1995, the defendant told Kip O'Hara he

                                          3
had to make a human sacrifice because the celestialbodies were in alignment. The

defendant had a Ouija board with him when he had this conversation with O'H




              On January 12, 1995, Daniel Wayland encountered Pike, Peterson and

the defendant off the Job Corps campus. Pike and Peterson inquired whether

Wayland had seen Slemmer, and the defendant said, "[W]hen we find her, she's

dead." Wayland admitted, however, that he may have attributed this assertion to

Pike in a previous statementto law enforcement, but he contended he was "shook

up" at the time and his recollection had since improved. He said that Pike, Peterson

and the defendant were all in agreement when the assertion was made.




             On the day of the murder, Pike told Kimberly Ann Iloilo Rhodes that she

was going to kill Slemmer. Pike also said she was looking for Peterson to get a box

cutter from her.




             According to the statement the defendant gave law enforcement

shortly after the murder, Pike, Peterson, Slemmer and the defendant left the Job

Corps campus at 8:50 p.m. and walked to Tyson Park. Pike confronted Slemmer

about Slemmer'ssupposed romantic interest in the defendant. Pike made Slemmer

take off her shirt. Pike became physically violent, hitting Slemmer. Peterson also

struck Slemmer. As the confrontation escalated, Slemmer began grabbing the

defendant, who pushed and slapped her. Pike began cutting Slemmer with a

miniature meat cleaver. Pike was growing madder as the confrontation continued.

                                         4
Peterson had a box cutter and joined Pike in cutting and stabbing the victim.

Slemmer pleaded for the attack to end and promised she would walk to her home in

Florida if she were released. The defendant admitted tripping Slemmer as she tried

to run away, causing her to hit her head on a rock. The defendant also admitted

cutting Slemmer three or four times, including on the arm with the box cutter. After

Slemmer had been seriously injured,she was talking and screaming loudly. At Pike's

request, the defendant went to see whether there was anyone in the area. While

searching, he found a rag by a dumpster, which he tied over Slemmer's mouth to

keep her quiet. Slemmerattemptedto flee, but she fell in some mud. The defendant

went to her and brought her back. Pike began hitting Slemmer with rocks. Peterson

hit Slemmer with a brick or piece of asphalt. When Pike began hitting Slemmer with

the rocks, the defendant became uncomfortable with the assault and walked down

a hill but later returned to the scene to find Slemmer's head "all busted open on the

side." Slemmer was gurgling and breathing. Pike and the defendant carved a

pentagram in Slemmer'schest. The defendant helped Pike move Slemmer to a "hill

of mud" with bushes and little trees around it. Peterson and the defendant threw

Slemmer'sshirt and jacket in the bushes. The three assailants washed their hands

in a mud puddle. Then they went to a gas station,where Peterson and Pike washed

again and threw away some of Slemmer'spersonal effects. The defendant said he

returned to the Job Corps campus before Pike and Peterson, at 10:50. He said it

took him 30 minutes to walk from Tyson Park to the Job Corps campus.




              When Pike and Peterson returned to the Job Corps campus, Pike told

                                         5
her friendRhodes that she had killed Slemmerbecause she was afraid she was going

to get caught. Rhodes thought Pike said the defendant had assisted in killing

Slemmer, although she admitted having testified at Pike's trial that Pike said she

killed Slemmer.




              An employee of the University of Tennessee grounds department

discovered Slemmer's body on the morning of January 13. University and Knoxville

police officers responded to the scene.




              During the afternoon of January 13, Pike and the defendant went to get

identification cards from Robert Alfred Pollock, the Job Corps orientationspecialist.

Pike left her jacket in Pollock's office, and he later turned the jacket over to William

Hudson, the Job Corps security supervisor. Hudson, in turn, surrendered the jacket

to a Knoxville Police Department officer, who found a piece of skull bone in a pocket.




              Jennifer McCrary testified that she and Pike went to Tyson Park on

January 13. The police would not allow them to go into the area where they had

planned to go. As they were walking on "The Strip," they saw the defendant coming

toward the park. The defendant asked Pike why she was coming from the park, and

the two began arguing. McCrary had walked away and could not hear the specifics

of the argument.




              Detective Randy York of the Knoxville Police Department interrogated

                                           6
Pike and the defendant in the early morning hours of January 14, 1995. In addition

to the contents of the defendant's statementsummarized above, the defendant told

Det. York that he had dabbled in satanism since he was ten years old.1 He said Pike

was "pretty deep" into satanic worship. Both he and Pike were wearing pentagram

necklaces when they were taken into custody on January 14, and the defendant

admitted he had satanic paraphernalia in his room at the Job Corps campus. The

defendant was also wearing a hexagram earring and hat pin.2 The defendant

claimed, however, that the killing had not been a planned satanic offering. He said

he carved the pentagram on the victim'schest and then thought that Slemmer could

be a satanic sacrifice. The defendant claimed that in his mind the killing had

nothing to do with the fact that the following day was Friday the 13th, "Devil's

birthday."




              The defendant professed to Det. York that he was unaware of any plan

to kill Slemmer prior to the events taking place. Pike and Peterson told him they

were going to "get [Slemmer] somewhere and do . . . whatever they could to her."

He thought this meant they were "going to beat her up or something." He knew Pike

and Peterson had the box cutter and miniature meat cleaver, but he thought they

were "just going to scare her with them or something." He claimed he had no idea



      1
          The defendant was seventeen at the time of his crimes.
      2
      Detective York testified that he had been trained to
recognize the pentagram as a symbol representative of a goat
head. In satanism, the goat head represents Satan. The
hexagram is a symbol for conjuring or controlling demons.

                                        7
they were going to cut Slemmer.




              Doctor Sandra Elkins, the Knox County Medical Examiner, performed

an autopsy of the victim. Bruises on the victim'sbody were inflictedbetween 30 and

45 minutes prior to death. The numerous lacerations and slash wounds inflicted

prior to death were insufficient to render the victim unconscious. The cause of

death was blunt force trauma to the head. The victim'ssinuses and lungs filled with

blood following the head injury to the base of the skull, and she essentially drowned

in her own blood.




              DNA profiling of blood found on the shirt and pants the defendant wore

on the night of the murder matched Slemmer's DNA profile.




                                          I

              In his first issue, the defendant claims the evidence is insufficient to

sustain his convictions. When a defendant challenges the sufficiency of

the evidence, an appellate court’s standard of review is, whether

after considering 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, 324, 99 S. Ct. 2781, 2791-92 (1979); State v.

Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt based upon direct

                                          8
evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence.        State v. Dykes, 803 S.W.2d 250, 253

(Tenn. Crim. App. 1990).




            Moreover, a criminal offense may be established exclusively by

circumstantialevidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v.

Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire,

634 S.W.2d 608 (Tenn. Crim. App. 1987). However, before an

accused may be convicted of a criminal offense based upon

circumstantial evidence alone, the facts and circumstances "must

be so strong and cogent as to exclude every other reasonable

hypothesis save the guilt of the defendant." State v. Crawford, 225

Tenn. 478, 470 S.W.2d 610 (1971); Jones, 901 S.W.2d at 396.                In

other words, "[a] web of guilt must be woven around the defendant

from which he cannot escape and from which facts and

circumstances the jury could draw no other reasonable inference

save the guilt of the defendant beyond a reasonable doubt."

Crawford, 470 S.W.2d at 613; State v. McAfee, 737 S.W.2d 304, 305

(Tenn. Crim. App. 1987).




            In determining the sufficiency of the evidence, this court

should not reweigh or reevaluate the evidence. State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning

                                      9
the credibility of the witnesses, the weight and value of the

evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Nor may this court substitute its inferences for those

drawn by the




trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305,

286 S.W.2d 856,859 (1956); Farmer v. State, 574 S.W.2d 49, 51

(Tenn. Crim. App. 1978). On the contrary, this court is required to

afford the State of Tennessee the strongest legitimate view of the

evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence.

Cabbage, 571 S.W.2d at 835.




                      A. First Degree Murder

           Once a homicide is established, it is presumed to be

second degree murder. Witt v. State, 46 Tenn. (6 Cold.) 5, 7 (1868),

overruled on other grounds, Campbell v. State, 491 S.W.2d 359

(Tenn. 1973). In order to elevate the offense to first degree murder,

the state must prove premeditation and deliberation.3       State v.


     3
       On January 12, 1995, first degree murder was "[a]n
intentional, premeditated and deliberate killing of another."
Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1994) (amended 1995).
The element of deliberation has since been omitted. See Tenn.

                                 10
Brown, 836 S.W.2d 530, 543 (Tenn. 1992) (citing Bailey v. State, 479

S.W.2d 829, 733 (Tenn. Crim. App. 1972)).




            At the time of this offense, the Criminal Code defined a

deliberate act as "one performed with a cool purpose." Tenn. Code

Ann. § 39-13-201(b)(1) (1991) (amended 1995). A premeditated act

was one which was "done after the exercise of reflection and

judgment." Tenn. Code Ann. § 39-13-201(b)(2) (1991) (amended

1995). Both premeditation and deliberation may be established by

circumstantial evidence. See Brown, 836 S.W.2d at 541.




           In pertinent part, an individual is criminally responsible

for another's conduct if "[a]cting with the intent to promote or

assist the commission of the




offense, or to benefit in the proceeds or results of the offense, the

person solicits, directs, aids or attempts to aid another person to

commit the offense." Tenn. Code Ann. § 39-11-402(2) (1997).




           The defendant's challenge to the sufficiency of his first




Code Ann. § 39-13-202(a)(1) (1997).

                                 11
degree murder conviction centers on the proof of premeditation and

intent. We are convinced, however, that both premeditation and

deliberation were sufficiently proven to sustain the defendant's

conviction based upon his criminal responsibility for the actions of

Pike and/or Peterson.




           In the light most favorable to the state, Pike told her

friend Kimberly Rhodes she was going to kill Slemmer.           The

defendant confided to Kip O'Hara in the days prior to the murder

that he had to make a human sacrifice because the celestial bodies

were in alignment.      On the day of the murder, he told Daniel

Wayland that when he, Pike and Peterson found Slemmer she was

dead.    Pike and Peterson procured weapons prior to the

confrontation with Slemmer.       The defendant knew Pike and

Peterson had weapons.      Pike, Peterson and the defendant lured

Slemmer to a remote area in or near Tyson Park. The three inflicted

a chilling assault on Slemmer for 30 to 45 minutes. When Slemmer

tried to get away, the defendant twice thwarted her escape. The

defendant helped conceal the crime by checking to see if anyone

was within earshot of Slemmer's screams and binding her mouth so

that she would be unable to make noise.        After Slemmer was

mortally wounded, the defendant helped Pike move the victim to a

brushy area and helped Peterson conceal the victim's clothing in

                                 12
the bushes. The next day, the defendant became upset with Pike

for returning to the scene of the crime.




            From this evidence, a rational jury could find the

defendant criminally responsible for first degree murder based upon

his aid to Pike and/or Peterson in the commission of the murder and

his common intent to murder the victim.            See State v. Frank

Whitmore, No. 03C01-9404-CR-00141, slip op. at 10 (Tenn. Crim.

App., Knoxville, June 19, 1997) (defendant's guilt of first degree

murder by criminal responsibility for conduct of another supported

in part by defendant's participation in burglary during which murder

was committed, failure to assist the wounded victim, and disposing

of evidence); State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App.

1995)   (planning    activity   prior   to   the   crime   relevant   to

premeditation); Brown, 836 S.W.2d at 541 (facts relevant to

premeditation include the use of a deadly weapon on an unarmed

victim, a particularly cruel killing, and declarations of intent to kill

the victim); State v. McBee, 644 S.W.2d 425, 428-29 (Tenn. Crim.

App. 1982) (criminal intent may be inferred from presence,

companionship, and pre- and post-offense conduct of defendant).




          B. Conspiracy to Commit First Degree Murder

            A person is guilty of conspiracy where he acts with one

                                   13
or more other persons, "each having the culpable mental state

required for the offense which is the object of the conspiracy and

each acting for the purpose of promoting or facilitating commission

of an offense, [and] agree[s] that one (1) or more of them will

engage in conduct which constitutes such offense." Tenn. Code

Ann. § 39-12-103(a) (1997).




           The defendant claims there is insufficient proof that he

entered into an agreement with Pike and/or Peterson to murder the

victim. Although the defendant is correct to the extent that there

is no direct evidence of an agreement, the record is replete with

circumstantial evidence that the defendant conspired with Pike and

Peterson. See State v. Shropshire, 874 S.W.2d 634, 641 (Tenn.

Crim. App. 1993) (conspiracy may be proven by circumstantial

evidence). In the light most favorable to the state, days before

Slemmer's murder the defendant said he had to make a human

sacrifice. The defendant and Pike carved a satanic pentagram on

Slemmer's chest. Pike and the defendant were wearing necklaces

bearing the same symbol when they were taken into custody. On

the day of the murder,        both Pike and the defendant made

statements foretelling Slemmer's death.      The defendant was

accompanied by Pike and Peterson when he made his statement in

this regard. Pike and Peterson procured weapons. The defendant

                                 14
knew Pike and Peterson were armed, and he accompanied them

and the victim to Tyson Park. The defendant participated in the

horrific torture of Slemmer. When Slemmer tried to escape, the

defendant tripped her once and brought her back another time so

that he, Pike and Peterson could continue their assault.             The

defendant gagged Slemmer so she would not scream.            A rational

jury could find the defendant's claim of ignorance of Pike's and

Peterson's plan incredible and accredit the state’s evidence as

strong circumstantial proof beyond a reasonable doubt that the

defendant conspired with Pike and Peterson to murder the victim.




           We    find   the   evidence   sufficient   to   sustain   the

defendant's convictions of first degree murder and conspiracy to

commit first degree murder.




                                  II

           Next, the defendant challenges the maximum 25-year sentence

imposed for conspiracy and the imposition of consecutive sentencing. In

determining whether the trial court has properly sentenced an

individual, this court engages in a de novo review of the record with

a presumption that the trial court's determinations were correct.

Tenn. Code Ann. § 40-35-401(d) (1997).          This presumption is

"conditioned upon the affirmative showing in the record that the

                                  15
trial court considered the sentencing principles and all relevant

facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). In conducting our de novo review, we must consider

the evidence at sentencing, the presentence report, the sentencing

principles, the arguments of counsel, the statements of the

defendant, the nature and characteristics of the offense, any

mitigating     and     enhancement         factors,     and    the    defendant’s

amenability to rehabilitation. Tenn. Code Ann. §§ 40-35-210(b), 40-

35-103(5) (1997); Ashby, 823 S.W.2d at 168.




              In the appellate courts, the party appealing the

sentencing determination has the burden of showing that it is

improper.     Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n

Comments (1997); Ashby, 823 S.W.2d at 169. A component of this

burden is preparing a record "which conveys a fair, accurate and complete

account of what transpired in the trial court with respect to the issues which form

the basis of the appeal." State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991);

Tenn. R. App. P. 24(b). If the record fails to contain necessary items with respect

to an appellate issue, the court is precluded from consideringthe merits of the issue.

State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993); Tenn. R. App. P. 24(b).




              In the case at bar, the defendant has not included the presentence

report in the record. Because this document is necessary for a de novo review of

                                         16
the trial court's sentencing determination,4 we are unable to review the

sentencing issues on their merits. In this situation, a waiver of the

sentence enhancement and mitigation issues and affirmance of the

trial court’s sentence length determination is the result. Oody, 823

S.W.2d at 559. However, we discern an error of law in the trial

court’s consecutive sentencing determinations, and we conclude

in this case that justice is better served by remanding the case to

the trial court for a new determination as to concurrent or

consecutive service of the sentences.




           We review questions of law de novo. State v. Davis, 940

S.W.2d 558, at 561 (Tenn. 1997). As part of such a de novo review,

we conclude that the trial court’s rationale for ordering consecutive

sentences was legally erroneous.




            In announcing its decision to order consecutive service

of the defendant’s sentences, the trial court declared the defendant

a “dangerous offender”. See Tenn. Code Ann. § 40-35-115(b)(4)

(1997). The dangerous offender is one of the categories of offender

for which consecutive sentencing is allowed. Tenn. Code Ann. § 40-

35-115(b) (1997). However, in State v. Wilkerson, our supreme court


     4
     Tenn. Code Ann. § 40-35-210(b); § 40-35-103(5) (1997);
Ashby, 823 S.W.2d at 168.

                                  17
held that merely finding the defendant to be a dangerous offender

is an insufficient basis for ordering consecutive sentencing. State

v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

     The proof must also establish that the terms imposed
     are reasonably related to the severity of the offenses
     committed and are necessary in order to protect the
     public from further criminal acts by the offender.

Id. The record of the sentencing hearing reflects no attempt by the

trial judge to consider or apply these two factors mandated by

Wilkerson. There were no findings of fact relative to these factors.

On remand, should the trial court find the defendant to be a

dangerous offender, it should follow the principles announced in

Wilkerson in considering the use of consecutive sentences.




           Because of the incomplete status of the sentencing

record before us, we have not reviewed the trial court’s sentencing

determinations except for the legal issue addressed above. The

absence of the presentence report precludes not only our further

review of the other sentencing issues raised by the defendant but

also precludes our taking any action on the consecutive sentencing

issue other than remanding the case for new findings of fact and

determinations.   We leave it to the trial court to determine, in its

discretion, whether a further hearing is to be conducted or whether

the necessary determinations should be made on the record that is


                                 18
already before the court.




            Accordingly, the convictions and sentences are affirmed,

the imposition of consecutive sentences is vacated, and the case

is remanded for the trial court to make appropriate findings of fact

and to determine whether the sentences shall run concurrently or

consecutively.




                                  _______________________________
                                  CURWOOD WITT, JUDGE



CONCUR:




_____________________________
JOSEPH M. TIPTON, JUDGE




_____________________________
JOE G. RILEY, JUDGE




                                 19
