FILED

September 11,

1998

Cecil Crowson, Jr.

Appellate Co urt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MAY 1998 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) C.C.A. No. 03C01-9711-CR-00492

)

vs. ) Knox County

)

TADARYL SHIPP, ) Hon.MaryBeth 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
2

OPINION FILED:________________

CONVICTIONS AFFIRMED, CONSECUTIVE SENTENCES VACATED,

AND REMANDED

CURWOOD WITT, JUDGE
3

OPINION

Thedefendant,TadarylShipp,appealstheconvictionsoffirstdegree

murderandconspiracytocommitfirstdegreemurderthathereceivedathisjury

trialintheKnoxCountyCriminalCourt. Shippispresentlyservingconsecutive

sentencesoflifeand25yearsintheDepartmentofCorrection. Inthisdirectappeal,

hechallengesthesufficiencyoftheconvictingevidenceandtheproprietyofthetrial

court'ssentencingdetermination. Havingreviewedtherecordandthebriefsofthe

partiesandhavingheardoralarguments,weaffirmbothconvictionsandsentences;

however,wevacatetheimpositionofconsecutivesentencesandremandinorder

forthetrialcourttomaketheappropriatefindingsbeforedeterminingwhetherthe

defendant will serve his sentences concurrently or consecutively.

Thedefendant'sconvictionsstemfromthe1995"JobCorpsmurder"

involvingfourstudentsfromtheKnoxvilleJobCorps. ThevictimwasColleen

Slemmer. Thedefendantandtwoyoungwomenhavebeenconvictedofhermurder.

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.

AfewdayspriortoJanuary12,1995,thedefendanttoldKipO'Harahe
4

hadtomakeahumansacrificebecausethecelestialbodieswereinalignment. The

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

OnJanuary12,1995,DanielWaylandencounteredPike,Petersonand

thedefendantofftheJobCorpscampus. PikeandPetersoninquiredwhether

WaylandhadseenSlemmer,andthedefendantsaid,"[W]henwefindher,she's

dead." Waylandadmitted,however,thathemayhaveattributedthisassertionto

Pikeinapreviousstatementtolawenforcement,buthecontendedhewas"shook

up"atthetimeandhisrecollectionhadsinceimproved. HesaidthatPike,Peterson

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

Onthedayofthemurder,PiketoldKimberlyAnnIloiloRhodesthatshe

wasgoingtokillSlemmer. PikealsosaidshewaslookingforPetersontogetabox

cutter from her.

Accordingtothestatementthedefendantgavelawenforcement

shortlyafterthemurder,Pike,Peterson,SlemmerandthedefendantlefttheJob

Corpscampusat8:50p.m.andwalkedtoTysonPark. PikeconfrontedSlemmer

aboutSlemmer'ssupposedromanticinterestinthedefendant. PikemadeSlemmer

takeoffhershirt. Pikebecamephysicallyviolent,hittingSlemmer. Petersonalso

struckSlemmer. Astheconfrontationescalated,Slemmerbegangrabbingthe

defendant,whopushedandslappedher. PikebegancuttingSlemmerwith a

miniaturemeatcleaver. Pikewasgrowingmadderastheconfrontationcontinued.
5

PetersonhadaboxcutterandjoinedPikeincuttingandstabbingthevictim.

Slemmerpleadedfortheattacktoendandpromisedshewouldwalktoherhomein

Floridaifshewerereleased. ThedefendantadmittedtrippingSlemmerasshetried

torunaway,causinghertohitherheadonarock. Thedefendantalsoadmitted

cuttingSlemmerthreeorfourtimes,includingonthearmwiththeboxcutter. After

Slemmerhadbeenseriouslyinjured,shewastalkingandscreamingloudly. AtPike's

request,thedefendantwenttoseewhethertherewasanyoneinthearea. While

searching,hefoundaragbyadumpster,whichhetiedoverSlemmer'smouthto

keepherquiet. Slemmerattemptedtoflee,butshefellinsomemud. Thedefendant

wenttoherandbroughtherback. PikebeganhittingSlemmerwithrocks. Peterson

hitSlemmerwithabrickorpieceofasphalt. WhenPikebeganhittingSlemmerwith

therocks,thedefendantbecameuncomfortablewiththeassaultandwalkeddown

ahillbutlaterreturnedtothescenetofindSlemmer'shead"allbustedopenonthe

side." Slemmerwasgurglingandbreathing. Pikeandthedefendantcarved a

pentagraminSlemmer'schest. ThedefendanthelpedPikemoveSlemmertoa"hill

ofmud"withbushesandlittletreesaroundit. Petersonandthedefendantthrew

Slemmer'sshirtandjacketinthebushes. Thethreeassailants washedtheirhands

inamudpuddle. Thentheywenttoagasstation,wherePetersonandPikewashed

againandthrewawaysomeofSlemmer'spersonaleffects. Thedefendantsaidhe

returnedtotheJobCorpscampusbeforePikeandPeterson,at10:50. Hesaidit

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

WhenPikeandPetersonreturnedtotheJobCorpscampus,Piketold
6

herfriendRhodesthatshehadkilledSlemmerbecauseshewasafraidshewasgoing

togetcaught. RhodesthoughtPikesaidthedefendanthadassistedinkilling

Slemmer,althoughsheadmittedhavingtestifiedatPike'strialthatPikesaidshe

killed Slemmer.

AnemployeeoftheUniversityofTennesseegroundsdepartment

discoveredSlemmer'sbodyonthemorningofJanuary13. UniversityandKnoxville

police officers responded to the scene.

DuringtheafternoonofJanuary13,Pikeandthedefendantwenttoget

identificationcardsfromRobertAlfredPollock,theJobCorpsorientationspecialist.

PikeleftherjacketinPollock'soffice,andhelaterturnedthejacketovertoWilliam

Hudson,theJobCorpssecuritysupervisor. Hudson,inturn,surrenderedthejacket

toaKnoxvillePoliceDepartmentofficer,whofoundapieceofskullboneinapocket.

JenniferMcCrarytestifiedthatsheandPikewenttoTysonParkon

January13. Thepolicewouldnotallowthemtogointotheareawheretheyhad

plannedtogo. Astheywerewalkingon"TheStrip,"theysawthedefendantcoming

towardthepark. ThedefendantaskedPikewhyshewascomingfromthepark,and

thetwobeganarguing. McCraryhadwalkedawayandcouldnothearthespecifics

of the argument.

DetectiveRandyYorkoftheKnoxvillePoliceDepartmentinterrogated
1The defendant was seventeen at the time of his crimes.

2Detective 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

PikeandthedefendantintheearlymorninghoursofJanuary14,1995. Inaddition

tothecontentsofthedefendant'sstatementsummarizedabove,thedefendanttold

Det.Yorkthathehaddabbledinsatanismsincehewastenyearsold.

1

 HesaidPike

was"prettydeep"intosatanicworship. BothheandPikewerewearingpentagram

necklaceswhentheyweretakenintocustodyonJanuary14,andthedefendant

admittedhehadsatanicparaphernaliainhisroomattheJobCorpscampus. The

defendantwasalsowearingahexagramearringandhatpin.2

 Thedefendant

claimed,however,thatthekillinghadnotbeenaplannedsatanicoffering. Hesaid

hecarvedthepentagramonthevictim'schestandthenthoughtthatSlemmercould

beasatanicsacrifice. Thedefendantclaimedthatinhismindthekillinghad

nothingtodowiththefactthatthefollowingdaywasFridaythe13th,"Devil's

birthday." 

ThedefendantprofessedtoDet.Yorkthathewasunawareofanyplan

tokillSlemmerpriortotheeventstakingplace. PikeandPetersontoldhimthey

weregoingto"get[Slemmer]somewhereanddo...whatevertheycouldtoher."

Hethoughtthismeanttheywere"goingtobeatheruporsomething." HeknewPike

andPetersonhadtheboxcutterandminiaturemeatcleaver,buthethoughtthey

were"justgoingtoscareherwiththemorsomething." Heclaimedhehadnoidea
8

they were going to cut Slemmer.

DoctorSandraElkins,theKnoxCountyMedicalExaminer,performed

anautopsyofthevictim. Bruisesonthevictim'sbodywereinflictedbetween30and

45minutespriortodeath. Thenumerouslacerationsandslashwoundsinflicted

priortodeathwereinsufficienttorenderthevictimunconscious. Thecauseof

deathwasbluntforcetraumatothehead. Thevictim'ssinusesandlungsfilledwith

bloodfollowingtheheadinjurytothebaseoftheskull,andsheessentiallydrowned

in her own blood.

DNAprofilingofbloodfoundontheshirtandpantsthedefendantwore

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

I

Inhisfirstissue,thedefendantclaimstheevidenceisinsufficientto

sustainhisconvictions. Whenadefendantchallengesthesufficiencyof

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
9

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,acriminaloffensemaybeestablishedexclusivelyby

circumstantialevidence. Duchacv.State,505S.W.2d237(Tenn.1973);Statev.

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
3On 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

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.
Code Ann. § 39-13-202(a)(1) (1997).

11

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
12

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
13

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
14

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 defendantconspired 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
15

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,thedefendantchallengesthemaximum25-yearsentence

imposedforconspiracyandtheimpositionofconsecutivesentencing. 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
16

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

burdenispreparingarecord"whichconveysafair,accurateandcomplete

accountofwhattranspiredinthetrialcourtwithrespecttotheissueswhichform

thebasisoftheappeal." Statev.Oody,823S.W.2d554,559(Tenn.Crim.App.1991);

Tenn.R.App.P.24(b). Iftherecordfailstocontainnecessaryitemswithrespect

toanappellateissue,thecourtisprecludedfromconsideringthemeritsoftheissue.

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

Inthecaseatbar,thedefendanthasnotincludedthepresentence

reportintherecord. Becausethisdocumentisnecessaryforadenovo reviewof
4Tenn. Code Ann. § 40-35-210(b); § 40-35-103(5) (1997);

Ashby, 823 S.W.2d at 168.

17

thetrialcourt'ssentencingdetermination,4 we areunable toreviewthe

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
18

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
19

already before the court.

Accordingly, the convictions and sentencesare 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