         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    March 14, 2006 Session

               STATE OF TENNESSEE v. HENRY ZILLON FELTS

                 Direct Appeal from the Criminal Court for Sumner County
                          No. 549-2003    Jane Wheatcraft, Judge



                    No. M2005-01215-CCA-R3-CD - Filed August 25, 2006


Henry Zillon Felts, the defendant, was convicted of attempted first degree murder (Class A felony)
and aggravated burglary (Class C felony). The defendant was sentenced to an effective sentence of
twenty-one years at 100% in the Department of Correction. He now appeals as of right his
convictions. After review, we affirm the judgments of conviction.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
ROBERT W. WEDEMEYER , JJ., joined.

B. F. “Jack” Lowery, Lebanon, Tennessee, for the appellant, Henry Zillon Felts.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Lawrence Ray Whitley, District Attorney General; and C. Ronald Blanton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                        Factual Background

        In this case, the defendant was accused of aggravated burglary of his ex-wife’s home for
entering without her authority and with a loaded gun. The defendant then shot a guest in the home
four times and, consequently, was charged with attempted first degree murder.

        Kent Miller, the victim herein, testified that he first met Pam Felts, the defendant’s ex-wife,
at a basketball game. Miller’s and Ms. Felts’ relationship gradually grew into casual dating which
usually involved their children being present. Miller stated that he and Pam Felts only had one date
alone, a brief outing to hit golf balls. Shortly after Valentines Day of 2003, Miller had delivered a
Valentine basket to Ms. Felts’ residence when the defendant appeared outside. The defendant
shouted questions from outside the house such as “who is it?” or “what is he doing there?” No
confrontation occurred as a result of this encounter. The defendant began to call the victim’s home
and cell phone numbers about three weeks prior to May 5. According to the victim, the defendant
told him to stay away from Ms. Felts and made threats. On April 28, the defendant left a message
on the victim’s cell phone saying, “Mf, you have f–ked up.”

        On May 4, the victim and Ms. Felts devised a plan to leave the victim’s truck at her house
overnight. The avowed purpose was to show the defendant that Ms. Felts was “getting on with her
life.” On May 5, Ms. Felts brought the victim back to retrieve his truck. The victim learned that the
defendant had been at Ms. Felts’ house that morning and was very upset. The victim and Ms. Felts
went into her kitchen. The victim heard a banging on the door and saw the defendant outside with
a gun. The defendant then entered the house. The victim told Ms. Felts to call the police. The
defendant pushed Ms. Felts aside and came toward the victim. The victim went into the living room
and armed himself with a bat. When the defendant entered the room, the victim swung the bat once
and hit the defendant in the head. The blow knocked the defendant back, and the victim heard
gunfire. The victim swung again at the defendant’s knees, then said he became dazed and heard
more gunshots. The victim remembered hearing three shots but was actually shot four times. The
victim fell to the floor and was unable to get up. The victim’s last memory was of a paramedic
speaking before the victim lapsed into a coma for three and one-half weeks. The victim
acknowledged that the statement he gave to Detective Witherow during his convalescence varied
somewhat from his testimony. The victim attributed the earlier variances to being “kind of in a fog.”

        On cross-examination, the victim stated he was aware that the defendant had lived with Ms.
Felts during the latter part of 2002. He said that Ms. Felts had changed the locks to her house in
January of 2003. The victim admitted telling Detective Witherow that he had placed the bat in the
living room “just in case.” The victim also told Detective Witherow that he had driven to Ms. Felts’
house on May 5. The victim said he was unaware that Ms. Felts had scheduled a meeting with the
defendant at 1:00 p.m. on May 5, 2003. The victim stated he may have told Ms. Felts that he could
“take” the defendant in a fist fight.

       Dean Hall was a paramedic who responded to Ms. Felts’ house on May 5. He testified that
he found the victim laying face up on the floor, pale in complexion, and with rapid breathing. The
victim answered questions appropriately.

        Shannon Helmig, an emergency medical technician, was also on the responding team. Ms.
Helmig first went to the defendant and assessed his condition. The defendant told Ms. Helmig that
he had shot a man who had hit him in the head with a baseball bat. After satisfying herself that the
defendant was not in critical condition, she went to the victim. She stated that she observed the
gunshot wounds of the victim, two in the chest, one in the groin area, and one in the left leg. She
saw two exit wounds. Ms. Helmig said that, based on her experience, all the shots were fired from
close range.

      Penny Ross, a paramedic, tended to the defendant. She said he had a laceration over one eye,
which was swollen and bleeding. The defendant’s left knee had a contusion. She described the


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defendant’s condition as “very much alert” and aware that he had shot someone and that he had been
hit with a baseball bat.

       Randy Tope, a Hendersonville policeman, was one of the responding officers. He saw the
defendant sitting on the lawn of a residence. Officer Tope also saw a gun at another location on the
lawn. He stated that he stayed with Ms. Felts until 3:30 p.m. During that time, he took a statement
from Ms. Felts.

        Pam Felts testified that she and the defendant had been divorced since late 1999 or early
2000. She characterized their relationship as being “a roller coaster ride.” During the periods that
Ms. Felts was seeing the defendant, he stayed with her some nights and also maintained his residence
in Mt. Juliet. The defendant paid Ms. Felts $500 per month for rent. The parties lived separately
from September to December of 2002, but then resumed their relationship. In February of 2003, the
defendant had Ms. Felts arrested for domestic assault. Ms. Felts then changed the locks at her
residence and did not furnish the defendant with a key. The defendant, however, still stayed with
Ms. Felts on some nights and continued paying her. Ms. Felts said the defendant was sometimes
“intimidating” to her when he would “scream, curse, and stomp his feet.” The defendant did not
approve of Ms. Felts associating with the victim. She stated that the defendant had warned the
victim to “get out of the middle of our relationship” and also told the victim, “I’m going to kick your
ass.”

        On May 2, Ms. Felts placed the defendant’s possessions on her porch during his absence.
On May 4, she and the victim agreed to leave the victim’s vehicle at Ms. Felts’ house overnight
although the victim did not stay there. Ms. Felts said this was intended as a signal to the defendant
that she had begun a “dating, romantic type situation.” Ms. Felts also called the defendant to ensure
that he saw the victim’s vehicle parked at her residence.

         The defendant came to Ms. Felts’ residence early on May 5. He placed calls to her which
were at first ignored. Ms. Felts eventually answered the defendant and arranged to meet with him
at 1:00 p.m. that day. The defendant then left. Ms. Felts transported the victim back to her house
to retrieve his vehicle. While the victim and Ms. Felts were in her kitchen, the defendant returned
and called on the phone. Ms. Felts stated that she handed the victim the telephone but did not know
what the defendant said. She recalled that the victim laughed. The defendant entered the house by
using a key. Ms. Felts denied ever having given the defendant a key since the locks were changed.
The defendant came in quickly, holding a handgun. Ms. Felts heard the victim say, “Call the police.”
She also thought the defendant said, “Where is he?” She followed the defendant and saw the victim
hit the defendant with a bat three times. The defendant and victim went out of Ms. Felts’ view, and
she heard a gun shot. She then ran into the garage and hid. She stated she heard four or five shots.
While Ms. Felts was talking to the 9-1-1 operator, she saw the defendant in her neighbor’s lawn. She
stated that he was staggering and dropped the gun before sitting on the neighbor’s door steps.

        On cross-examination, Ms. Felts said her impression was that the defendant had the gun to
get attention but not to shoot anyone. She affirmed that the defendant always paid her on the fifth


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of each month. She said she had never given the defendant a notice to vacate other than placing his
possessions outside. Ms. Felts also stated that the victim could have left the house when the
defendant entered as there was no need to protect her.

       Detective Jim Vaughn, of the Hendersonville Police Department, stated that he took
possession of the defendant’s gun. He identified it as a Bryco Arms, 9-mm semiautomatic pistol.
The gun was jammed when Detective Vaughn found it. Detective Vaughn found the defendant’s
keys just inside the door of Ms. Felts’ residence. One key fit the door lock that the defendant
entered. Six empty casings were found in the house and one casing was in the pistol, indicating that
seven shots were fired. Detective Vaughn stated that rolling papers and a substance appearing to be
marijuana were recovered from the defendant’s truck.

        Sergeant James Lawson of the Hendersonville Police Department, testified that he responded
to the shooting scene and supervised securing the area. The defendant told Sergeant Lawson that
he had been staying with his ex-wife, that a man assaulted him with a bat, and that the defendant shot
him.

         Mrs. Barbara Harrison stated that she lived directly across the street from Ms. Felts. On May
5, she had seen the defendant arrive at Ms. Felts’ house at approximately 9:00 a.m. The defendant
appeared agitated and was knocking on Ms. Felts’ front and back doors. The defendant left and
returned later in the day. The defendant repeated his actions of knocking on Ms. Felts’ doors and
then sat in his truck a short time. The defendant then entered the back door of the residence. Later,
Mrs. Harrison saw the defendant coming out of Ms. Felts’ house holding his hands up with the
appearance that “something was very wrong.” She saw the defendant walk out of sight, then return
to her lawn. Other neighbors went to the defendant, then the police and other emergency responders
arrived.

       Mr. Geoffrey Brown stated that he lived in the neighborhood of Ms. Felts. While walking
outside on May 5, he heard someone groaning in pain. Upon investigating, Mr. Brown saw the
defendant, who was bleeding and in distress. Mr. Brown questioned the defendant on what happened
to him. The defendant told him that he could not stand his ex-wife being in the house with another
man. The defendant pointed out to Mr. Brown where the gun lay at the street corner.

        Ryan Brown, the son of Geoffrey Brown, testified that he also saw the defendant on May 5.
The defendant told Ryan Brown, “I couldn’t stand him being in there with her. I shot him five or
six times.” On cross-examination, Ryan Brown said the defendant also told him that the man had
hit him with a baseball bat.

       Detective Dirk Witherow was the lead investigator in this case. He visited the defendant at
Vanderbilt Hospital to take photographs and to perform a gunshot residue test. The defendant
refused to make a formal statement but volunteered that he did not mean to shoot the victim, but the
victim “came at him with a bat.”



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       On cross-examination, Detective Witherow said the victim had told him that he only hit the
defendant once with the bat. Detective Witherow stated that he knew the defendant was hit more
than once.

       The State then rested. The defendant produced one witness, the defendant’s daughter who
was not present during the incident. After voir dire, the defendant chose not to testify and the
defense concluded.

                                             ANALYSIS

       The defendant, in this appeal of his convictions, poses the following issues:
       1) The evidence was insufficient to support the convictions;
       2) The trial court erred in refusing to instruct the jury as to the termination of
          periodic tenancy, T.C.A. § 66-28-512;
       3) The trial court erred in refusing to allow the introduction of the victim’s
          statement;
       4) The defendant was not properly advised of his right to testify; and
       5) The trial court erred in allowing the introduction of other crimes and bad acts by
          the defendant.

                                     Sufficiency of the Evidence

       The defendant challenges both convictions, alleging that the State failed to prove an essential
element in each offense. Our standard of review when the defendant questions the sufficiency of the
evidence on appeal 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, 99 S. Ct. 2781, 2789 (1979). We do
not reweigh the evidence but presume that the jury has resolved all conflicts in the testimony and
drawn all reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn . 1978). Questions
concerning witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997).

        In order to prove first degree murder, it must be shown that the defendant, with
premeditation, intentionally killed another person or, in this instance, attempted such a killing. See
T.C.A.§ 39-13-202(a)(1). As used in this definition, “‘premeditation’ means that the intent to kill
must have been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in
the mind of the accused for any definite period of time. The mental state of the accused at the time
the accused allegedly decided to kill must be carefully considered in order to determine whether the
accused was sufficiently free from excitement and passion to be capable of premeditation.” Id. at
(d).




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         The determination of whether a defendant acted with premeditation is a jury question, and
it may be inferred by the manner and circumstances of the killing. State v. Holder, 15 S.W.3d 905,
914 (Tenn. Crim. App. 1999). Factors which tend to support the existence of premeditation are: the
use of a deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations
by the defendant of an intent to kill; evidence of procurement of a weapon; preparations before the
killing for concealment of the crime; and calmness immediately after the killing. State v. Bland, 958
S.W.2d 651, 660 (Tenn. 1997). The infliction of multiple wounds is also a factor indicating
premeditation. State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).

        Viewing the evidence and inferences therefrom in a light most favorably to the State, we
conclude that sufficient evidence was present to convict the defendant for attempted first degree
murder. The defendant contends that evidence of premeditation was insufficient. However, the
evidence showed that the defendant, on several occasions, threatened the victim with physical harm.
The defendant armed himself with a loaded weapon and entered the house with a key that he was
unauthorized to possess. Upon entry, the defendant was focused on the victim and pursued him into
another room. The previously unarmed victim acquired a bat and attacked the defendant. The
evidence showed that the defendant fired seven rounds, hitting the defendant four times. A witness,
who saw the defendant shortly after the shootings, quoted the defendant as saying, “I couldn’t stand
him being in there with her. I shot him five or six times.” Under these factual circumstances,
sufficient evidence of premeditation was evinced to support the jury verdict. We will not disturb the
findings of the jury.

       The defendant next asserts that the defendant enjoyed a periodic (month to month) tenancy
at Ms. Felts’ house subject to the Uniform Residential Landlord and Tenant Act. T.C.A. § 66-28-
512. This, the defendant contends, vested him with a lawful right to be on the premises and thus
removes an essential element of the offense of aggravated burglary.

       A conviction for aggravated burglary requires proof that the defendant entered a habitation
without the effective consent of the property owner with the intent to commit a felony, or attempts
or commits a felony. T.C.A. § 39-14-402, -403. “The focus is on whether the property owner
consented to the entry and the defendant’s purpose for entering.” State v. Langford, 994 S.W.2d
126, 128 (Tenn. 1999).

        The defendant contends that his monthly rent payments entitled him to entry on the premises.
However, the evidence showed that the defendant had enjoyed only limited privileges of entry. The
owner, Ms. Felts, had not provided the defendant with a key and had, three days before the incident,
placed the defendant’s possessions outside. There is a statutory prescription to determine possessory
rights of property. T.C.A. §§ 29-18-101, -102. The defendant, however, chose to enter by the use
of an unauthorized key and by brandishing a loaded weapon.




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                                      Requested Jury Instruction

       The defendant next contends that the trial court erred by refusing to instruct the jury on the
termination of a periodic tenancy under the Uniform Residential Landlord and Tenant Act, T.C.A.
§ 68-28-512, and its application to the facts of this case. After careful review, we respectfully
disagree.

        The function of a special instruction is to correct mistakes or omissions made in the general
charge; to present a material question not treated in this general charge; or to limit, extend, eliminate,
or, more accurately, define a proposition already submitted to the jury. State v. Cozart, 54 S.W.3d
242, 245 (Tenn. 2001); Chesapeake, O & S.W.R. Co. v. Foster, 88 Tenn. 671, 13 S.W. 694, 694
(1890). This court must review the entire jury charge; we can find error only if, when read as a
whole, the charge fails to fairly submit the legal issues or misleads the jury as to the applicable law.
State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994).

       As previously discussed herein in the analysis of the sufficiency of the evidence, the
defendant attempted to use the Uniform Landlord and Tenant Act as a defense against the charge of
aggravated burglary. Essentially, the defendant contends that he was a periodic tenant based on his
payment of what both he and the owner, Ms. Felts, characterized as “rent.” The tenant had not
formally been served with notice of termination pursuant to the statute. Therefore, the defendant
contends that he was entitled to enter the premises without the owner’s consent.

        As we noted before, the focus of the aggravated burglary is on whether the owner consented
to the entry and on the defendant’s purpose for entering. Langford, 994 S.W.2d at 128. “Owner”
is defined as a person in lawful possession of property. T.C.A. § 39-14-401(3). The evidence was
uncontradicted that Ms. Felts was the owner. Whatever privileges the defendant acquired by his
payments, they were obviously limited. The owner, Ms. Felts, had intentionally not furnished the
defendant with a key. On the day of this incident, the defendant did not have Ms. Felts’ effective
consent to enter. Under these circumstances, the requested instruction would have served no
enlightening purpose but, instead, would have potentially injected confusion into the deliberative
process. Our review of the entire jury instruction revealed that the charge provided fairly submitted
the legal issues. The refusal to give the requested instruction was proper.

                                        The Victim’s Statement

        The defendant next alleges error by the trial court in its refusal to allow the defendant to
introduce the complete transcript of a statement given to Detective Witherow by the victim.
Following the victim’s testimony at trial, he was cross-examined concerning certain inconsistencies
between his testimony and the earlier statement. The defendant then moved to introduce the
transcribed statement in its entirety into evidence. The trial court refused this request. The
defendant now asserts that the statement should have been introduced under the rule of completeness
and cites to State v. Belser, 945 S.W.2d 776, 785 (Tenn. Crim. App. 1996). Belser, however, was



                                                   -7-
concerned with the failure of the trial court to allow inquiry about the context of inconsistent
statements and not the introduction of the statement.

        In the instant case, the defendant was not limited in his inquiries concerning the
inconsistencies. There had been no attempt by the State to introduce a portion of the statement or
to mislead the jury concerning its contents or context. We conclude that the proferred statement was
properly excluded.

                                          Momon Hearing

       The defendant alleges that he was denied his constitutional right to testify because procedural
guidelines of Momon were not followed. Specifically, the defendant now contends his waiver was
not knowingly, intelligently, and voluntarily made; that defense counsel induced him not to testify;
and that the trial judge played an improper role in the questioning.

        To ensure that criminal defendants are not deprived of their fundamental right to testify, our
supreme court in Momon v. State, 18 S.W.3d 152 (Tenn. 1999), set forth a procedure to be followed
when the defendant does not testify. The hearing, in the presence of the trial judge, requires no
particular litany. Id. at 162. The Court described the minimal requirements to be elicited:
        (1) the defendant has the right not to testify and, if the defendant does not testify,
             then the jury (or court) may not draw any inferences from the defendant’s failure
             to testify;
        (2) the defendant has the right to testify and that, if the defendant wishes to exercise
             that right, no one can prevent the defendant from testifying;
        (3) the defendant has consulted with his or her counsel in making the decision
             whether or not to testify; the defendant has been advised of the advantages and
             disadvantages of testifying; and the defendant has voluntarily and personally
             waived the right to testify.
Id.

        The trial judge should play no role in the procedure but may question the defendant to the
extent necessary to ensure a valid waiver. Id.

       The examination of the defendant by his trial counsel was as follows:
       BY MR. PHILLIPS:
       Q.     You’re Zillon Felts?
       A.     Yes, I am.
       Q.     You’re my client in this case?
       A.     Yes, sir.
       Q.     Charged with two very serious offenses, attempted first-degree murder and
              aggravated burglary?
       A.     Yes.



                                                 -8-
       Q.   You and I discussed these offenses on many occasions, these allegations
            against you?
       A.   Yes.
       Q.   You and I have discussed the fact you have the right to testify or not to
            testify?
       A.   Yes, sir.
       Q.   And you’re aware that if you do not testify, it cannot be – the Judge will
            instruct the jury that could not be used against you?
       A.   Yes, sir.
       Q.   But you’re aware that you have every right to get upon the witness stand and
            tell your story from beginning to finish?
       A.   Yes, sir.
       Q.   You and I and Mr. Scott Parsley, our lawyer from Nashville that brought me
            into the case, we sat down with you about this several times?
       A.   Yes, sir.
       Q.   And tell the Judge what our decision is, you and me and Scott Parsley and
            particularly you?
       A.   Our decision, and they did give me the final decision, was not to testify.
       THE COURT:            Is that your final and are you comfortable with that decision?
       THE DEFENDANT: Yes, ma’am.
       THE COURT:            All right. Thank you.

         In our view, the examination was within the minimal requirements of Momon. The
defendant demonstrated that he was aware he was waiving an important right after a thorough
discussion with his attorneys. The defendant also clearly indicated that it was his decision to refrain
from testifying. The single question posed by the trial court at the conclusion of the hearing does
not cast an unflattering light on the defendant’s right not to testify. Accordingly, we find no merit
in this issue.

                                     Evidence of Other Crimes

       In his final issue, the defendant claims error by the trial court in allowing testimony
concerning apparent marijuana and rolling papers which were seized from the defendant’s vehicle.
The defendant argues that the trial court should have conducted a hearing pursuant to Tennessee
Rule of Evidence 404(b). The State responds that the evidence was introduced without objection
by the defendant and, therefore, was waived pursuant to Tennessee Rule of Appellate Procedure
36(a).

        The record reveals that the defendant made no contemporaneous objection to the evidence
nor was a pre-trial motion in limine filed regarding this evidence. We are therefore unable to review
the issue due to the defendant’s effective waiver by failure to take action available to prevent or
nullify the harmful effect of the error. Tenn. R. App. P. 36(a); State v. Alder, 71 S.W.3d 299, 303
(Tenn. Crim. App. 2001).


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                                            Conclusion

       Our review has failed to reveal any reversible error in the record. Accordingly, the judgments
of conviction are affirmed.




                                                       ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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