        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 4, 2014

      STATE OF TENNESSEE v. MICHAEL BAKER a/k/a MICHAEL
                          SIMMONS

                 Appeal from the Criminal Court for Shelby County
                         No. 13-00845  Chris Craft, Judge




              No. W2013-02184-CCA-R3-CD - Filed January 27, 2015




Michael Baker a/k/a Michael Simmons (“the Defendant”) was charged with first degree
murder in the attempt to commit robbery, criminal attempt: especially aggravated robbery,
and criminal attempt: aggravated robbery. The jury convicted the Defendant as charged, and
the trial court sentenced him to life plus ten years. On appeal, the Defendant argues the
evidence was insufficient to support his convictions. After a review of the record and
applicable law, we affirm the judgments of the trial court.

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

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and A LAN E. G LENN, J., joined.

Stephen Bush, District Public Defender; Robert Trent Hall and Jim Hale, Assistant Public
Defenders (at trial); and Phyllis Aluko, Assistant Public Defender (on appeal), Memphis,
Tennessee, for the appellant, Michael Baker a/k/a Michael Simmons.

Robert E. Cooper, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Alanda Dwyer and Lora Fowler,
Assistant District Attorneys General, for the appellee, State of Tennessee.
                                                OPINION

      Following a jury trial, Michael Baker a/k/a Michael Simmons (“the Defendant”)1 was
convicted and sentenced as follows:


   Count                       Charge                          Victim                    Sentence
      1            First Degree Murder in the              Ronald Farmer                    Life
                  Commission of or Attempt to
                        Commit Robbery

      2           Criminal Attempt: Especially             Ronald Farmer                 20 years
                      Aggravated Robbery

      3                 Criminal Attempt:                  Michael Griffin               10 years
                       Aggravated Robbery

The trial court ordered the sentences for Counts 1 and 2 to run concurrently with each other
but consecutively to the sentence for Count 3, for a total effective sentence of life plus 10
years.

        On appeal, the Defendant claims the evidence was insufficient to support the
convictions. Upon review of the record and the applicable law, we affirm the judgments of
the trial court.

                                         Factual Background

        Around 12:00 a.m. August 26, 2011, Michael Griffin and Ronald Farmer were
walking down Elvis Presley Boulevard in Memphis toward Mr. Griffin’s mother’s
neighborhood for the purpose of buying marijuana. Because there was very light traffic at
that time of night, they noticed that a black van passed them three times. The third time the
van turned off Elvis Presley Boulevard onto Dunn Avenue. Because he was concerned about
the van, Mr. Griffin asked Mr. Farmer if he was armed, and Mr. Farmer responded that he
was.

        As Mr. Griffin and Mr. Farmer approached Dunn Avenue, a man wearing a black
shirt, black hat, black gloves, and a black “veil” across his face came running toward them,
waiving a gun. Mr. Griffin and Mr. Farmer immediately froze and put their hands in the air.


       1
           A co-defendant, Jamarius Barnum, was also charged for the same incident but was tried separately.

                                                     -2-
The gunman told Mr. Griffin and Mr. Farmer to give him their money. Mr. Farmer said,
“Bro, we ain’t got nothing.” The gunman then shot Mr. Farmer. While pointing the gun at
Mr. Griffin, the gunman backed toward Dunn Avenue and got into the van on the passenger’s
side. The van drove away.

        Mr. Griffin tried to help Mr. Farmer. First, Mr. Griffin threw Mr. Farmer’s gun into
the bushes on the side of the road because he did not want Mr. Farmer to get into trouble for
having a gun. Then he picked up Mr. Farmer and tried to walk down Elvis Presley
Boulevard to flag down a car for help. He stated that four cars passed him during this time,
but none stopped to help. However, the police arrived a few minutes after the shooting. Mr.
Griffin told the police that he and Mr. Farmer had been followed by “a black van that had a
silver chrome ladder on the right side of it [and a] spare tire marking on the back left side of
it.”

       Approximately five minutes after the police arrived at the scene, Mr. Griffin learned
that other police units had stopped the van. The officers transported Mr. Griffin from the
scene of the shooting to the location where the van had been stopped. Mr. Griffin identified
the van and the passenger as the gunman.

      Later that morning, Mr. Griffin was transported to the police department to give a
second statement. Mr. Griffin was shown a photo spread, but he was unable to identify the
gunman.

       Mr. Griffin stated that he was standing about a foot away from Mr. Farmer when the
gunman appeared, and the gunman was about four to five feet away from Mr. Farmer when
he fired. According to Mr. Griffin, Mr. Farmer never reached for his own gun.

        At trial, Mr. Griffin testified that even though the lighting conditions were not good
that night, he could see the gunman and the van. He did not see the driver. He confirmed
that the van parked on Dunn Avenue was the same van that he had seen before Mr. Farmer
was shot.

       On cross-examination, Mr. Griffin confirmed that he had given statements to the
police, in which he said the suspect never pointed the gun at him. However, Mr. Griffin
maintained that this portion of his statements was incorrect. On redirect examination, Mr.
Griffin explained that the gunman waived the gun back and forth, before he intentionally
pointed the gun at Mr. Farmer. Mr. Griffin testified he was afraid for both his and Mr.
Farmer’s lives.




                                              -3-
       Charles Benson testified that he was driving southbound on Elvis Presley Boulevard
around 12:15 am on August 26, 2011, when he saw two men coming out from a side street.
He stated that one of the men had his companion’s arm draped around his shoulder like he
was trying to help him. After Mr. Benson passed them, he continued to watch the men in his
rearview mirror and saw one of the men fall to the ground. When Mr. Benson crested the
next hill, he saw a police car. He stopped and told the officer that there were two men who
needed help. The police left in the direction he indicated, and Mr. Benson continued to a
nearby store. After he left the store, Mr. Benson stopped at the scene of the shooting to
check on the men. He also gave a statement to the police.

       Officer Melissa Mahan of the Memphis Police Department testified that she and her
partner were completing a traffic stop near Elvis Presley Boulevard when a car pulled over
and reported that there was a man down near Dunn Avenue, which according to Officer
Mahan, was “literally just over the hill” from where they were. “Within a second” of leaving
the traffic stop she and her partner arrived at the scene. One black male was lying in the
roadway and another black male was standing beside him, screaming that they had been
robbed. Officer Mahan got a description of the suspect and van and radioed other units.
Within a few minutes, she received a radio communication that officers had stopped a van
matching the description. Officer Mahan’s partner left to help with the van, while Officer
Mahan stayed behind to secure the scene until additional officers arrived. Officer Mahan
observed that the man lying in the road appeared to have been shot and was bleeding.

        Officer Justin Tutor of the Memphis Police Department testified that he responded to
Officer Mahan’s radio broadcast about the shooting. The description of the van matched a
vehicle he had previously seen in the neighborhood. Officer Tutor stopped the van a couple
of blocks from the scene of the shooting. He approached the passenger-side, and ordered the
occupants out of the vehicle. When the occupants did not comply, Officer Tutor opened the
passenger-side door and physically removed the passenger from the vehicle. Officer Tutor
identified the Defendant as the person he removed from the van.

       Officer Tutor and his partner transported the Defendant and the van’s driver to the
police department. When the officers escorted the Defendant through a door bearing a sign
that read “homicide,” the Defendant asked, “Damn, is dude dead?” Neither Officer Tutor
nor his partner had said anything about the victim to the Defendant before the Defendant’s
comment.

       Officer Marcus Mosby of the Memphis Police Department Crime Scene Investigation
Unit testified that he responded to the scene of the shooting at approximately 1:30 a.m. on
August 26, 2011. When he arrived at the scene, it had already been secured by uniformed
officers. He stated that the scene was not well lit but that street lights provided some light.

                                              -4-
While at the scene, Investigator Mosby photographed a .380 handgun found in the grass by
the road, a nine millimeter cartridge case found at the intersection of Dunn Avenue and Elvis
Presley Boulevard, and a substance he suspected was blood found on the street at the same
intersection. Officer Mosby collected the cartridge case and .380 handgun as evidence.

       Sergeant Tim Murphy of the Memphis Police Department testified that he took Mr.
Griffin’s preliminary statement at the scene and a second statement at the police department.
Mr. Griffin explained that the gun found at the scene belonged to Mr. Farmer and that he
threw it into the grass because he was afraid Mr. Farmer would get into trouble for having
a weapon. Sergeant Murphy also photographed the Defendant when he was brought into the
police department. At the time of his arrest, the Defendant was wearing a black shirt and
black jeans.

       On cross-examination, Sergeant Murphy read a portion of Mr. Griffin’s statement that
said, “Did the suspect ever point the gun in your direction? No, he just pointed his words at
me.” Sergeant Murphy confirmed that Mr. Griffin reviewed the statement and initialed the
bottom of each page.

        Officer David Payment of the Memphis Police Department Crime Scene Investigation
Unit testified that after taking photographs, he conducted a search of the van at the police
department pursuant to a search warrant and recovered a nine millimeter pistol, two black
blouses, two brown gloves, two black gloves, and a red bandana. The pistol loaded with ten
live rounds was found under the mat on the front passenger-side floorboard. Officer Payment
stated that he was unable to find any fingerprints on the pistol. However, he stated that, if
the shooter was wearing gloves, then he would not expect to find fingerprints.

        Dr. Karen Chancellor, Chief Medical Examiner for Shelby County, testified that she
conducted the autopsy of Mr. Farmer. Mr. Farmer had one gunshot wound on the left side
of his chest. Through x-rays, Dr. Chancellor determined that the bullet was still inside Mr.
Farmer’s body. She removed the bullet and sent it to the Tennessee Bureau of Investigation
(“TBI”) for analysis. Dr. Chancellor stated that there was no gunshot residue on Mr.
Farmer’s body or clothing, so she was unable to calculate the distance from which Mr.
Farmer was shot. However, she was able to determine that the bullet passed through both
lungs and the heart, causing massive internal bleeding and death.

       TBI Special Agent Cervinia Braswell testified as an expert in firearms identification.
Agent Braswell compared the bullet identified as being recovered during Mr. Farmer’s
autopsy and the nine millimeter cartridge case found at the scene with bullets and cartridge
cases test fired by the Jimenez nine millimeter pistol identified as being recovered from the
van. Agent Braswell determined that the bullet recovered from the autopsy and the cartridge

                                             -5-
case found at the scene had the same unique markings, which she referred to as the
“mechanical fingerprint,” as those found on the bullets and cases from the test fired pistol.
She opined the bullet identified as coming from the autopsy and cartridge case identified as
being found at the scene were fired by the Jimenez nine millimeter pistol.

        Sergeant Joe Stark of the Memphis Police Department testified that he took the
Defendant’s statement. Before questioning him, Sergeant Stark advised the Defendant of his
Miranda rights. The Defendant waived his rights and gave a statement, which was reduced
to writing. In his statement, the Defendant admitted to killing Mr. Farmer. The Defendant
stated that, earlier in the day on August 26, 2011, Jamarius Barnum asked him if he wanted
to participate in a robbery. At first, the Defendant said no, but he eventually agreed to
participate and told Mr. Barnum to pick him up at his house at 10:30 that evening.

        By the time that Mr. Barnum arrived at the Defendant’s house, the Defendant claimed
he had decided not to participate in the robbery, but he did not communicate that to Mr.
Barnum. Instead, the Defendant drove the van around the neighborhood trying to run the van
out of gas so that he would have an excuse to abandon the robbery plan. However, when the
Defendant stopped to use the restroom, Mr. Barnum took over driving and drove the van
through the Bunker Hill neighborhood to find someone to rob. While driving down Elvis
Presley Boulevard, they saw two men walking down the road. Mr. Barnum turned into a side
street and parked the van. He gave the Defendant a gun and showed him how to operate the
safety. Mr. Barnum instructed the Defendant to leave the safety on. The Defendant exited
the van and jogged toward the two men. When he was about four to five feet away from
them, the Defendant demanded their money. At this point, the Defendant said:

       . . . I realized I still have the safety on from when [Mr. Barnum] put it on, so
       I’m fumbling with the safety trying to get it off. When I felt like I did turn the
       safety on I aimed the gun back at [Mr. Farmer] and kept asking for the money.
       The next thing I know the gun went off and when I regained focus I looked
       back at the dude and I seen [sic] him holding his face and falling to the ground.
       That’s when I realized I might [sic] hit him so I panicked and ran to the van.

        When asked what he was wearing at the time of the shooting, the Defendant said he
was wearing a black t-shirt, black shoes, black gloves, and a black blouse as a mask. He said
the last time he saw the gloves and blouse, they were in the van. He also stated that Mr.
Barnum was a member of a gang. At the end of his statement, the Defendant said he did not
want to harm anyone; he was confused as to whether the gun’s safety mechanism was on, and
he thought he had turned it on so that it would not shoot.




                                              -6-
       Based upon the evidence, the jury found the Defendant guilty as charged on all three
counts.

                                          Analysis

        First degree felony murder is, “A killing of another committed in the perpetration of
or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery,
burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child,
aggravated rape of a child, or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (2010).
The mens rea required for a conviction of first degree felony murder is the intent to commit
the underlying offense. Tenn. Code Ann. § 39-13-202(b) (2010). In this case, the underlying
offense was criminal attempt: especially aggravated robbery of Mr. Farmer and/or criminal
attempt: aggravated robbery of Mr. Griffin. As charged in this case, a person commits
criminal attempt when the person, acting with the kind of culpability otherwise required for
the offense, “acts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the person
believes them to be, and the conduct constitutes a substantial step toward the commission of
the offense.” Tenn. Code Ann. § 39-12-101(a)(3) (2010). Additionally, “[c]onduct does not
constitute a substantial step under subdivision (a)(3) unless the person’s entire course of
action is corroborative of the intent to commit the offense.” Tenn. Code Ann. § 39-12-101(b)
(2010). Especially aggravated robbery is a robbery accomplished with a deadly weapon
where the victim suffers seriously bodily injury. Tenn. Code Ann. § 39-13-403(a) (2010).
Robbery is “the intentional or knowing theft of property from a person of another by violence
or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2010).

       Regarding the Defendant’s conviction for criminal attempt: aggravated robbery of Mr.
Griffin, as charged in this case, aggravated robbery is defined as a robbery “[a]ccomplished
with a deadly weapon or by display of any articles used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-402(a)(1) (2010).
Criminal attempt as charged in this case and robbery are defined above.

                                 Sufficiency of the Evidence

       Our standard of review for a sufficiency of the evidence challenge 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); see also Tenn. R. App. P. 13(e).
Questions of fact, the credibility of witnesses, and weight and value to be given the evidence
are resolved by the fact finder. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),

                                              -7-
superseded on other grounds by Tenn. R. Crim. P. 33 as stated in State v. Moats, 906 S.W.2d
431, 434 n.1 (Tenn. 1995). This Court will not reweigh the evidence. Id.2

       A guilty verdict destroys the presumption of innocence, replacing it with a
presumption of guilt. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). The defendant bears the burden of illustrating why the
evidence was insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639
S.W.2d at 914. Our standard of review “is the same whether the conviction is based upon
direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)) (internal quotation marks
omitted). On appeal, the “State must be afforded the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

        The Defendant argues that the evidence was insufficient to convict him because the
State failed to “disprove” the Defendant’s claims in his statement to the police that he did not
want to participate in the robbery and that he mistakenly shot Mr. Farmer while trying to
ensure the gun’s safety mechanism was on.3 Additionally the Defendant argues that the jury
should have received an instruction as to the affirmative defense of renunciation, and that if
the jury had been so instructed, there was insufficient evidence to prove beyond a reasonable
doubt that he intended to commit robbery.

       Tennessee defines renunciation, in pertinent part, as “an affirmative defense to a
charge of criminal attempt . . . that the person, after committing the criminal attempt . . .
prevented the successful commission of the offense attempted . . . under circumstances
manifesting a complete and voluntary renunciation of the person’s criminal purpose.” Tenn.
Code Ann. § 39-12-104 (2010). Since renunciation is an affirmative defense, the defendant
bears the burden of raising it at trial, and it must be established by a preponderance of the
evidence. State v. Jackson, 946 S.W.2d 329, 332 (Tenn. Crim. App. 1996), Id., Sentencing


        2
          In his brief, the Defendant urges this Court to reconsider the Jackson standard, contending that a
closer look at that case requires us to affirm a conviction only if the evidence would convince “the average
mind” of the defendant’s guilt beyond a reasonable doubt. We decline.


        3
          The Defendant did not file a pretrial notice of his intent to rely on the affirmative defense of
renunciation. Even so, the Defendant claims the trial court should have instructed the jury on renunciation
because the State had notice of the defense as a result of the Defendant’s written statement that the Defendant
did not want to commit the robbery, attempted to prevent the robbery from occurring, and fled without
completing the robbery. The defendant claims that a renunciation defense was “fairly raised” by the proof
at trial.

                                                     -8-
Comm’n Comments (2010). The defense only applies “when the offender: (1) prevents
successful completion of the ultimate offense; and (2) voluntarily renunciates the criminal
purpose.” Id., Sentencing Comm’n Comments (2010).

       The State argues that, because the Defendant did not raise the affirmative defense of
renunciation at trial, this Court is barred from considering the issue on appeal. Additionally,
the State notes that renunciation only applies to criminal attempt, solicitation, or conspiracy,
see Tenn. Code Ann. § 39-12-104 (2010), and therefore it does not apply to the Defendant’s first
degree murder conviction. Finally, the State contends that, although the Defendant did not
consummate the robbery, his failure to do so did not amount to “circumstances manifesting
a complete and voluntary renunciation of [his] criminal purpose.” See id. .

        In this case, the Defendant did not give pretrial notice that he intended to rely on a
renunciation defense. Additionally, the Defendant never argued renunciation as a defense
at trial. Therefore, he failed to comply with the notice requirement to justify a jury
instruction as to renunciation.

        In some circumstances, without the request of the defendant, trial courts are obligated
to give instructions to the jury as to the law governing issues or defenses raised by the
evidence presented at trial. State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013). However,
that obligation only extends to general defenses. Id. Affirmative defenses require pretrial
notice,4 and the question of their existence cannot be submitted to the jury unless it has been
“fairly raised” by the proof and proper notice has been provided. Tenn. Code Ann. § 39-11-
204 (c)(1), (d) (2010); Hawkins, 406 S.W.3d at 129 n.9. We conclude that renunciation was
not fairly raised by the proof and that the Defendant was not entitled to a renunciation
instruction.

      Viewed in a light most favorable to the State, the evidence shows that the Defendant
and Mr. Barnum were looking for victims to rob. The Defendant exited the van with a gun
and approached the victims with the intent to rob them. The Defendant pointed the gun at
Mr. Farmer and demanded he and Mr. Griffin give him their money. During the
confrontation, the Defendant shot Mr. Farmer who died as a result of the gunshot wound.
The Defendant does not deny any of these events happened. Moreover, by convicting the
Defendant as charged, the jury discredited his statement to police that he did not want to go
through with Mr. Barnum’s robbery scheme. See Bland, 958 S.W.2d at 659 (stating a guilty


        4
          “If a person intends to rely upon an affirmative defense, the person shall, no later than ten (10) days
before trial, notify the district attorney general in writing, or at such time as the court may direct naming the
affirmative defense(s) to be asserted, and file a copy of the notice with the clerk.” Tenn. Code Ann. § 39-11-
204(c)(1) (2010).

                                                      -9-
verdict accredits the testimony of the State’s witnesses and resolves all conflicts in the
evidence in favor of the State’s theory). Therefore, we find that the evidence was sufficient
to support the Defendant’s convictions for first degree felony murder and criminal attempt:
especially aggravated robbery of Mr. Farmer.

        Viewed in a light most favorable to the State, the evidence shows that the Defendant
approached Mr. Griffin and Mr. Farmer with a gun. He waived the gun back and forth
between the victims, eventually aiming the gun at Mr. Farmer. He demanded Mr. Griffin and
Mr. Farmer to give him money. Mr. Griffin stated that the was in fear for his life. We find
that this evidence was sufficient to support the Defendant’s conviction of criminal attempt:
aggravated robbery of Mr. Griffin.

                                        Conclusion

       For the aforementioned reasons, we affirm the judgment of the trial court.




                                                   _________________________________
                                                   ROBERT L. HOLLOWAY, JR., JUDGE




                                            -10-
