IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 18, 2009

STATE OF TENNESSEE v. JEREMY A. JARVIS

Direct Appeal from the Circuit Court for Montgomery County

No. 40800726 Michael R. Jones, Judge

No. M2008-02711-CCA-R3-CD - Filed October 1, 2010

Following a jury trial, Defendant, Jeremy A. Jarvis, was found guilty of the second degree

murder of Willard Ross, a Class A felony; the attempted second degree murder of Jovan

Dixon, a Class B felony; one count of reckless endangerment, a Class E felony; and one

count of possession of a weapon with the intent to go armed, a Class A misdemeanor. The

trial court sentenced Defendant as a Range I, standard offender, to twenty-five years for his

murder conviction, twelve yearsfor his attempted murder conviction, two yearsfor hisfelony

reckless endangerment conviction, and eleven months, twenty-nine daysfor his misdemeanor

conviction. The trial court ordered Defendant to serve his sentence for attempted second

degree murder consecutively to his sentence for second degree murder, and the remaining

sentences concurrently with each other and with his sentence for second degree murder, for

an effective sentence of thirty-seven years. On appeal, Defendant argues that the evidence

is insufficient to support his convictions of second degree murder and attempted second

degree murder. After a thorough review, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JERRY L. SMITH and

CAMILLE R. MCMULLEN, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, (on appeal), and Thomas Overton, Nashville,

Tennessee, (at trial), for the appellant, Jeremy A. Jarvis.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; John Wesley Carney, Jr., District Attorney General; Steven L. Garrett, Assistant

District Attorney General; Christopher G. Clark, Assistant District Attorney General; and

Robert J. Nash, Assistant District Attorney General, for the appellee, the State of Tennessee.
OPINION

I. Background

Rebecca Ross and the murder victim, Willard Ross, were married forty-one years

before the shooting. Mr. Ross had taught in the Montgomery County school system for

approximately forty years, and he had been a coach for approximately twenty-four years. Mr.

Ross retired on June 25, 2006, exactly one year before the incident. Ms. Ross testified that

she and her husband, along with other family members, sold fireworks during the summer

from a tent in the parking lot of the Wal-Mart located on Ft. Campbell Boulevard in

Clarksville.

Ms. Ross stated that at approximately 12:50 p.m. on June 25, 2007, Mr. Ross finished

setting up a display of fireworks and walked over to Ms. Ross who was at the front of the

tent. Mr. Ross and Ms. Ross stood next to each other looking out into the store’s parking lot.

Ms Ross heard “popping” sounds and thought at first that someone had set off some

fireworks. She looked at her husband whose head jerked backwards. Mr. Ross turned

toward Ms. Ross and she saw blood “gushing out of his mouth.” Ms. Ross reached for Mr.

Ross, and both of them fell to the floor. Ms. Ross called 911, but she was too upset to speak.

A man took the cell phone from Ms. Ross and relayed the necessary information to the 911

operator. Ms. Ross said that the emergency personnel transferred her husband to Vanderbilt

Hospital in Nashville by helicopter, where he died.

Dr. Tom Deering, an assistant medical examiner with Forensic Medicine Management

Services, performed an autopsy on Mr. Ross. Dr. Deering testified that Mr. Ross died from

a gunshot wound to the head. Dr. Deering said that the bullet entered the right lower lip area

and exited from the lower left side of the back of the deceased victim’s head. Dr. Deering

said that the bullet broke some of the Mr. Ross’s teeth and traveled to the left side of the neck

where it struck the internal carotid artery and jugular vein.

James Eure, a police officer with the Clarksville Police Department, testified that he

arrived at the fireworks tent at approximately 12:50 p.m. on June 25, 2007, in response to the

dispatcher’s call. Officer Eure described the scene as “chaotically crazy,” and he began to

clear the area so that the emergency personnel could assist Mr. Ross. Officer Eure identified

several potential witnesses and separated them from the crowd into a secure location. From

these witnesses, Officer Eure learned that an African-American man in a blue Pontiac with

a white top and several African-American men in a black Ford Expedition had exchanged

gunfire in the parking lot. One of the witnesses told Officer Eure that the driver of the

Pontiac had bought a pack of cigarettes from a gas station near Wal-Mart shortly before the

shooting. Officer Eure said that he reviewed the surveillance tapes of the gas station’s

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parking lot and identified a blue 1976 Pontiac Lemans with a white top and no hub caps.

Officer Eure stated that he was familiar with the vehicle because of its unusual

characteristics. Officer Eure said that the owner of the Pontiac was Jevon Dixon. (Mr.

Dixon was also charged with Defendant in the same indictment, but his case was severed

from Defendant’s prior to trial).

Kim Mercado testified that she is employed by Wal-Mart in the loss prevention

security department. After the shooting on June 25, 2007, Ms. Mercado pulled the

surveillance tapes of the store’s parking lot for the time period between approximately 12:00

p.m. until shortly after 1:00 p.m. Copies of the tapes were introduced as exhibits at trial

without objection. The final videotape shows Mr. Dixon’s blue Pontiac pull out of a parking

spot and drive straight toward the fireworks tent. People exited a nearby Ford Expedition.

The Pontiac continued to travel down the row and then veered suddenly to the right. From

an aerial map of the parking lot, Ms. Mercado identified the location where the black Ford

Expedition and the older blue vehicle had been parked as observed on the surveillance tape.

Stephanie Wendland testified that she heard gunshots as she exited Wal-Mart on June

25, 2007. Ms. Wendland stated that she observed an African-American man standing near

the driver’s side of a black Ford Expedition fire a gun over the top of the Expedition at the

driver of a blue vehicle. Ms. Wendland said that the shooter was firing in the direction of

the fireworks tent as the Pontiac drove away. Ms. Wendland said that the people in the

Expedition did not immediately drive away but stayed in the parking lot for approximately

five minutes. On cross-examination, Ms. Wendland stated that she heard more than three

gunshots, but she did not know if all of the gunshots were fired from the Expedition.

Carmen Moore also heard gunshots as she exited Wal-Mart on June 25, 2007. Ms.

Moore testified that she saw a large black vehicle with tinted windows speed out of the

parking lot. On cross-examination, Ms. Moore said that she also saw a blue car in the

parking lot.

Sandra Simpson testified that she heard a gunshot on June 25, 2007, as she was

putting her groceries in the trunk of her car. Ms. Simpson said that she heard a second bullet

go past her face and ducked down. Ms. Simpson personally knew Mr. Ross, and she looked

toward the fireworks tent. Ms. Simpson saw Mr. Ross drop to the ground, and she knew that

he had been shot. Ms. Simpson stated that a large black SUV drove past her. A man had his

arm stuck out of the vehicle’s window holding a large gun. Ms. Simpson said that the arm

was pulled back into the vehicle, and the window was rolled up. Ms. Simpson stated that a

“blue-green” vehicle drove past her. The vehicle veered to the right and drove away from

the fireworks tent. Ms. Simpson said that she heard approximately five gunshots.

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On cross-examination, Ms. Simpson said that the black vehicle drove past her first.

Ms. Simpson said that her statement to the investigating officers after the incident that both

vehicles were stopped was incorrect. Ms. Simpson acknowledged that her statement did not

mention seeing a gun held out of the black vehicle’s window. Ms. Simpson said that the blue

vehicle was driving toward her when she heard the second bullet pass by her head. Ms.

Simpson stated that she could not identify any of the occupants of the two vehicles.

Eboney Harrell testified that she arrived at Wal-Mart on June 25, 2007, at

approximately 1:00 p.m. Ms. Harrell pulled into the parking lot and stopped for traffic. Ms.

Harrell said that a blue vehicle drove past her in the direction of the fireworks tent, and an

African-American man jumped out of the driver’s side backseat of a black Ford Expedition.

The man looked around for “a couple of seconds,” and then started firing his gun toward the

blue car. Ms. Harrell heard approximately seven gunshots. Ms. Harrell yelled at the shooter,

“What are you doing.” The shooter responded, “He shot at me first.” Ms. Harrell asked the

man, “Does that make it right?” Ms. Harrell stated that the man just kept repeating, “he shot

at me first.” Ms. Harrell parked her car but the Ford Expedition drove out of the parking lot

before she could talk further with the man. On cross-examination, Ms. Harrell acknowledged

that she did not know if all of the gunshots were fired by the man in the Expedition.

William Coleman testified that Charles Mitchell picked him up on June 25, 2007, in

a black Ford Expedition. Mr. Coleman stated that Mr. Mitchell’s wife, Evelyn Harris, was

in the front passenger seat, Defendant was sitting in the back behind Mr. Mitchell, and a man

Mr. Coleman knew only as “Jerrigan” was sitting in the middle of the back seat. Mr.

Coleman got into the backseat behind Ms. Harris. Mr. Mitchell drove to Wal-Mart and

pulled into a parking space. Ms. Harris went into the store, and the rest of the group waited

in the vehicle. Mr. Coleman said that a man, later identified as Mr. Dixon, was exiting the

store as Ms. Harris was entering, and Mr. Dixon stared at Ms. Harris. Defendant rolled his

window half-way down and yelled to Mr. Dixon that Ms. Harris was “already taken.”

Mr. Coleman stated that Mr. Dixon kept staring at the group in the Expedition as he

walked toward them. Defendant, Mr. Mitchell, Jerrigan and Mr. Coleman got out of the

Expedition. Mr. Dixon sat down in his vehicle, started the ignition, and “cruise[d] out just

a little bit.” Jerrigan asked Mr. Dixon, “Hey, n____, you got a problem?” Mr. Dixon replied,

“No, n___, you got a problem.” Mr. Dixon then raised a gun up and fired at the group. Mr.

Coleman ducked down. He heard three shots in succession, and then after approximately two

seconds, five to six more shots. After the shooting stopped, Mr. Coleman stood up and saw

people running through the parking lot and heard a woman scream.

Mr. Coleman said that he tried to explain to a Wal-Mart employee in the parking lot

that the man in the blue Pontiac had opened fire first, but the employee did not seem to

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understand. Another employee ran up, and again Mr. Coleman explained that the man in the

blue Pontiac had fired first. Mr. Coleman said that at that point, the group decided “to split

from the situation.” Mr. Mitchell drove to a nearby grocery store and dropped off Defendant

and Mr. Coleman. Melissa Sowell, Defendant’s friend, picked up Mr. Coleman and

Defendant, and then drove back to Wal-Mart to get Ms. Harris. Ms. Sowell took Defendant

to his house and Mr. Coleman to his mother’s house.

Mr. Coleman stated that he did not see Defendant with a gun that afternoon. He then

said that Defendant “might have had something in his pocket,” but he did not know for sure

if it was a gun. Mr. Coleman said, “I can say I seen [sic] a black handle or something like

that, but how can I just call it a gun?” Mr. Coleman denied that he told the prosecutor prior

to trial that he saw Defendant put a gun back in his pocket after Defendant got back into the

vehicle. On cross-examination, Mr. Coleman said that none of the group knew Mr. Dixon,

and everyone, including Defendant, was scared when the shooting began.

Jennifer Gipson, a detective with the Clarksville Police Department, testified that the

following items were found in the parking lot and the fireworks tent: five .40 caliber shell

casings between rows eight and nine; three 9 mm shell casings in rows eight and nine; two

bullet fragments and one projectile inside the fireworks tent; bullet fragments in and on a

cardboard box at the entrance of the tent; and a bullet fragment in row eight. On crossexamination, Detective Gipson stated that the .40 caliber shell casings were located closer

to the store while the 9 mm shell casings were located closer to the fireworks tent.

Brad Crowe, a detective with the Clarksville Police Department, testified that the

projectile found inside the fireworks tent was approximately four hundred feet from the

cluster of .40 caliber shell casings in the parking lot. Detective Crowe processed Mr.

Dixon’s Pontiac. A bullet strike was found in the area of the rear window, and a 9 mm shell

casing was found inside the vehicle in the passenger side back seat. A Bryco Jennings 9 mm

handgun was found in Mr. Dixon’s house during the execution of a search warrant. On

cross-examination, Detective Crowe stated that a 9 mm Ruger P95 and a Rock Island .45

revolver were also found in the house.

Gary Hodges, a detective with the Clarksville Police Department’s crime scene unit,

testified that he photographed a black Ford Expedition which had two bullet strikes. One

strike was located above the latch that opened the trunk, and the second strike was

underneath the right rear of the vehicle.

Special Agent Dan Royse, a forensic scientist with the Tennessee Bureau of

Investigation (“TBI”), testified that the five .40 caliber shell casings found at the scene were

fired from the same Glock semi-automatic pistol. Special Agent Jennings stated that the 9

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mm shell casings found in the Wal-Mart parking lot and in the back seat of the blue Pontiac

were all fired from the Bryco Jennings 9 mm pistol. Special Agent Jennings said that the .40

caliber projectile that struck the Pontiac and the bullet fragments found in the fireworks tent

had the same characteristics as bullets fired from a .40 caliber Glock pistol. Special Agent

Jennings stated that there was no evidence from the crime scene that indicated the use of the

9 mm Ruger during the shooting. Special Agent Jennings said that none of the ballistics or

firearms evidence found in the fireworks tent was linked to the Brico Jennings 9 mm pistol.

Alan Charvis, a detective with the Clarksville Police Department, interviewed

Defendant two days after the shooting. A videotape of the interview was introduced as an

exhibit and played for the jury. Defendant said that on June 25, 2007, he rode to Wal-Mart

in a black Ford Expedition driven by Mr. Mitchell. Mr. Coleman and a man named Jerrigan

were also in the vehicle. Mr. Mitchell parked close to the store, and the men sat in the

vehicle talking. Defendant said that a light-skinned African-American man exited the store

and walked toward the Expedition. The man kept staring at the Expedition as he walked

toward them. The man said something to the group, but Defendant could not hear what he

said. The man sat down in a blue car and started the ignition. Still staring at the Expedition,

he pulled out a gun and began firing. Defendant stated that he was standing next to the

Expedition when the man discharged his weapon, and that he was “close to” getting shot.

Defendant reached inside the Expedition for his gun and “retaliated back.” Defendant stated

that he fired four times and then got back into the Expedition. A Wal-Mart employee ran up

to the Expedition and asked what had happened. Defendant said that he tried to explain to

the man, but the man did not seem to understand. Defendant heard people screaming, and

the group drove out of the parking lot.

II. Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to support his convictions for the

second degree murder of Mr. Ross, and the attempted second degree murder of Mr. Dixon.

Defendant acknowledges that he discharged his gun in the Wal-Mart parking lot on June 25,

2007, and that Mr. Ross was killed as a result of the exchange of gunfire. Defendant

submits, however, that he only fired his weapon because he was fired upon first. Defendant

contends that his conduct and the circumstances surrounding the shooting was at best only

criminally negligent. Alternatively, Defendant argues that at most he should be found guilty

of voluntary manslaughter because he and Mr. Dixon were engaged in “mutual combat”

which adequately provoked that shooting.

When a defendant challenges the sufficiency of the convicting evidence, we must

review the evidence in a light most favorable to the prosecution in determining whether a

rational trier of fact could have found all the essential elements of the crime beyond a

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reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

Once a jury finds a defendant guilty, his or her presumption of innocence is removed and

replaced on appeal with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn.

1991). The defendant has the burden of overcoming this presumption, and the State is

entitled to the strongest legitimate view of the evidence along with all reasonable inferences

which may be drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). The jury is presumed to have resolved all conflicts and drawn any reasonable

inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

Questions concerning the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not

this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to

findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination

of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.

Crim. App. 1990).

Second degree murder is defined as “[a] knowing killing of another.” T.C.A. § 39-13-

210(a)(1). A person acts “knowingly” with respect to the result of the person’s conduct when

the person is aware that the conduct is reasonably certain to cause the result. Id. § 39-13-

302(b). A person commits criminal attempt when that person “[a]cts 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.” Id. § 39-12-101(a)(3). For conduct

to be a “substantial step,” a person's “entire course of action” must be “corroborative of the

intent to commit the offense.” Id. § 39-12-101(b).

Defendant did not include the jury instructions in the record on appeal. See Tenn. R.

App. P. 24(b) (placing the duty to prepare an adequate record for appellate review on the

appealing party). Nonetheless, based on the discussions between the trial court and counsel

which are included in the record, as well as counsel’s closing argument, it is apparent that

the trial court charged the jury with the lesser included offenses of voluntary manslaughter

and criminally negligent homicide.

“Criminally negligent conduct which results in death constitutes criminally negligent

homicide.” T.C.A. § 39-13-212. A person acts with criminal negligence

with respect to the circumstances surrounding that person’s conduct or the result of

that conduct when the person ought to be aware of a substantial and unjustifiable risk

that the circumstances exist or the result will occur. The risk must be of such a nature

and degree that the failure to perceive it constitutes a gross deviation from the

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standard of care that an ordinary person would exercise under all the circumstances

as viewed from the accused’s person’s standpoint.

Id. § 39-11-202(d). Voluntary manslaughter is “the intentional or knowing killing of another

in a state of passion produced by adequate provocation sufficient to lead a reasonable person

to act in an irrational manner.” Id. § 39-211(a).

Thus, the difference between criminal negligence and second degree murder is that

criminally negligent homicide has a lesser level of culpability. See State v. Ely, 48 S.W.3d

710, 720 (Tenn. 2001). Second degree murder and voluntary manslaughter have the same

mental state of knowing, but a voluntary manslaughter conviction depends on the existence

of adequate provocation. “Whether the act constitutes a ‘knowing killing’ (second degree

murder) or a killing due to ‘adequate provocation’ (voluntary manslaughter) is a question for

the jury.” State v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995); see also State

v. Williams, 38 S.W.3d 532, 538 (Tenn. 2001).

Viewing the evidence in a light most favorable to the State, Defendant, Mr. Coleman,

Mr. Mitchell, Ms. Harris and “Jerrigan” drove to Wal-Mart at approximately 1:00 p.m. on

June 25, 2007. Defendant was armed at the time. Ms. Harris entered the store as Mr. Dixon

was exiting. There was a verbal confrontation with Mr. Dixon, and racial slurs were

exchanged. Mr. Dixon sat down in his blue Pontiac and started the ignition. Defendant

exited the Expedition. Mr. Dixon pulled out a gun and began firing as he drove away.

Defendant ducked down and then reached inside the Expedition for his weapon. Defendant

fired several shots at the Pontiac as it drove toward the fireworks stand through the crowded

parking lot.

Based on our review, we conclude that a rational trier of fact could find beyond a

reasonable doubt that Defendant knowingly, and not with criminal negligence, fired his

weapon at Mr. Dixon in the direction of the fireworks tent where Mr. Ross was standing. See

Millen v. State, 988 S.W.2d 164, 168 (Tenn. 1999) (holding that if a defendant knowingly

fires his weapon at a specific person, and an innocent bystander is killed, the element of

intent as to the criminal liability for the death of the bystander is satisfied).

Although mutual combat is not a statutory defense, “the facts and circumstances

surrounding the killing occasioned by mutual combat may establish that the defendant was

impassioned as a result of adequate provocation.” State v. Williams, 38 S.W.3d 532, 539

(Tenn. 2001). The jury heard evidence and considered Defendant’s theory of defense that

he was provoked into engaging in gunfire with Mr. Dixon. Viewing the evidence again in

a light most favorable to the State, a hostile verbal exchange occurred between Mr. Dixon

and the men in the Expedition in the parking lot immediately prior to the shooting. Mr.

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Dixon sat down in his car, pulled out a gun, shot at the Expedition, and then drove away.

Instead of getting back into the Expedition and leaving the area, Defendant reached into the

Expedition, pulled out his gun, and fired several shots toward the retreating Pontiac in a

parking lot crowded with shoppers. Defendant and his group remained in the parking lot

after the shooting and tried to explain to the bystanders that the shooting was not Defendant’s

fault.

The jury was given the option of voluntary manslaughter as a lesser included offense

and chose to reject the notion of provocation which was well within its prerogative. Based

on our review, we conclude that the evidence is sufficient beyond a reasonable doubt to

support Defendant’s conviction of the second degree murder of Mr. Ross and the attempted

second degree murder of Mr. Dixon. Defendant is not entitled to relief on this issue.

CONCLUSION

After a thorough review, we affirm the judgments of the trial court.

_________________________________

THOMAS T. WOODALL, JUDGE

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