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

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No. M2016-01933-CCA-R3-CD

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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. 

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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 “noduty-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 
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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.

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THOMAS T. WOODALL, PRESIDING JUDGE