         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs May 16, 2006

 STATE OF TENNESSEE v. WILLIAM ARTHUR SHELTON AKA JOHN
                         SHELTON

                 Direct Appeal from the Criminal Court for Bradley County
                      Nos. M-04-096-M04-103 R. Steven Bebb, Judge



                   No. E2005-02014-CCA-R3-CD - Filed November 9, 2006


The appellant, William Arthur Shelton aka John Shelton, was convicted by a jury in the Bradley
County Criminal Court of three counts of false imprisonment, two counts of vandalism, and one
count of premeditated first degree murder. He received a total effective sentence of life
imprisonment in the Tennessee Department of Correction. On appeal, the appellant challenges the
trial court’s denial of a motion for severance of the murder counts from the remaining counts, the
trial court’s exclusion of a witness’s complete statement to police, and the sufficiency of the
evidence. From our review of the record and the parties’ briefs, we affirm the judgments of the trial
court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

Richard Hughes, Cleveland, Tennessee, for the appellant, William Arthur Shelton.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Jerry
N. Estes, District Attorney General; and William A. Reedy and Shari Young, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

       In January 2004, the Bradley County Grand Jury returned a multi-count indictment charging
the appellant with the especially aggravated kidnapping of Charlene Hyatt; the vandalism of
Charlene Hyatt’s automobile in an amount between $500 and $1000; the especially aggravated
kidnapping of Brian Hyatt, Jr.; the especially aggravated kidnapping of Shera Holt; the especially
aggravated kidnapping of Melissa Proctor; the especially aggravated kidnapping of Bobby Holt; the
especially aggravated kidnapping of Robin Holt; the vandalism of Sue Hyatt’s automobile in an
amount between $500 and $1000; and the premeditated first degree murder of Brian Hyatt.

        The State’s proof at trial revealed that Melissa (Missy) Proctor, who was the appellant’s
cousin, and her boyfriend, Robert Holt, lived at1341 Overhead Bridge Road in Cleveland with their
two minor children, Robin and Bobby.1 On the night of October 20, 2003, Proctor and her children
were home, and Robert was at work. Robert’s daughter, Charlene Hyatt (hereinafter “Mrs. Hyatt”),
brought her two minor children, Shera Holt and Brian Hyatt, Jr., to visit. Thereafter, the appellant
and his wife, Natalie Shelton (hereinafter “Mrs. Shelton”), also came to visit. The appellant
repeatedly asked the whereabouts of Mrs. Hyatt’s husband, Brian Hyatt. The appellant thought Brian
might be there because two vehicles Brian typically drove, one of which he owned with his wife and
the other his mother owned, were parked in front of Proctor’s mobile home. Proctor told the
appellant that Brian was still at work with Robert. The appellant said that he had been told that his
wife and Brian were having an affair, “and he had come to hurt him real bad” or “mess [him] up.”
During the conversation, Mrs. Shelton appeared scared and was crying. The appellant was “pacing
back and forth, going in and out of the trailer.” He told everyone present that they must stay in the
home. The appellant would occasionally check to make sure everyone remained in the home. Those
inside did not feel free to leave.

         Robert came home at approximately 9:00 or 9:30 p.m. The appellant was outside, pacing.
Robert did not see the appellant’s car. When Robert asked about the car, the appellant explained that
he had hidden it at the mobile home behind Robert’s. The appellant told Robert that he was going
to kill Brian. The appellant vandalized Brian’s vehicles, rendering them inoperable so Mrs. Hyatt
could not leave. The appellant then called the house of Mrs. Hyatt’s mother and stepfather, where
Mrs. Hyatt and Brian were living at that time. The appellant left a message for Brian, advising that
Mrs. Hyatt’s car was “messed up,” and Brian needed to pick her up at Robert’s home. Afterward,
a neighbor, Audrey Conner, and Robert talked to the appellant, attempting to calm him. The effort
seemed to work. The appellant left with his wife at 11:00 or 11:30 p.m. Robert’s other two
daughters came by the mobile home to take Mrs. Hyatt and her children home.

        The next morning, at 6:10 or 6:20 a.m., the appellant, accompanied by his wife and two
children, returned to Proctor’s home. The appellant said that he was waiting for Brian to arrive,
believing Brian would be riding to work with Robert. The appellant again threatened to kill Brian.
Robert left for work at just after 6:30 a.m., but the appellant stayed until 8:30 a.m. While there, he
paced constantly across the floor and would not sit. When the appellant got ready to leave, he told
Proctor, “We are going up on the hill.”

        The appellant went to Brian’s house and beat on the kitchen door and windows. Brian got
out of bed, picked up a pair of bolt cutters, and started out of the bedroom. Mrs. Hyatt told Brian
to put the bolt cutters down, and he complied. Brian went into the yard, with no weapon in his


         1
        Some of the witnesses in this case share a surname. Therefore, for clarity, we have chosen to utilize their first
names. We mean no disrespect to these individuals.

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hands. The appellant was standing in the yard, and his wife was in the driveway, sitting in the
driver’s side of the appellant’s car.

        Brian asked the appellant what he was doing there. The appellant said, “You know what I’m
doing here.” The appellant hit Brian on the side of his head with a baseball bat then stabbed him in
the chest. Brian fell back into the open kitchen door. The appellant told Mrs. Hyatt “[k]ind of in
a smart aleck way” to call 911. The appellant left when he heard sirens approaching. Brian died as
a result of his injuries.

        The defense proof at trial was substantially similar to the proof adduced by the State. The
only difference was the testimony of Natalie Shelton which reflected that the appellant told her that
Brian came toward him with a knife prior to the stabbing. Mrs. Shelton was unsure of whether Brian
had a weapon during the fight. The appellant did not testify at trial.

         Based upon the foregoing, the jury found the appellant guilty of first degree premeditated
murder; the false imprisonment of Charlene Hyatt, Brian Hyatt, Jr., and Shera Holt; and two counts
of vandalism of property in an amount less than $500. On appeal, the appellant challenges the trial
court’s denial of a motion to sever the kidnapping counts from the murder count, the trial court’s
failure to admit Mrs. Shelton’s “complete” statement to police, and the sufficiency of the evidence
supporting his conviction for first degree premeditated murder. We will address each of these issues
in turn.

                                             II. Analysis

                                      A. Severance of Offenses

        On appeal, the appellant argues that the trial court erred in denying his motion to sever the
aggravated kidnapping and vandalism offenses from the murder offense. The appellant contends that
the offenses did not constitute a common scheme or plan and that, regardless, the proof of the
aggravated kidnapping and vandalism offenses would be prejudicial to the appellant.

        Tennessee Rule of Criminal Procedure 8(b) states that two or more offenses may be joined
in the same indictment if the offenses constitute parts of a common scheme or plan or if they are of
the same or similar character. See Tenn. R. Crim. P. 8(b)(1) and (2). Tennessee Rule of Criminal
Procedure 13(b) provides that the trial court may order severance of offenses prior to trial if such
severance could be obtained on motion of a defendant or the State pursuant to Rule 14. See Tenn.
R. Crim. P. 13(b). Rule 14(b)(1) provides that “[i]f two or more offenses have been joined or
consolidated for trial pursuant to Rule 8(b), the defendant has the right to a severance of the offenses
unless the offenses are part of a common scheme or plan and the evidence of one would be
admissible in the trial of the others.”

       Our supreme court has held that “decisions to consolidate or sever offenses pursuant to Rules
8(b) and 14(b)(1) are to be reviewed for an abuse of discretion.” State v. Shirley, 6 S.W.3d 243, 247


                                                  -3-
(Tenn. 1999). “A holding of abuse of discretion reflects that the trial court’s logic and reasoning was
improper when viewed in light of the factual circumstances and relevant legal principles involved
in a particular case.” State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999).

         As we have noted, in the instant case the appellant filed a motion to sever the aggravated
kidnapping and vandalism charges from the murder charge. Accordingly, we must consider the
motion by the severance provisions of Rule 14(b)(1). See State v. Spicer, 12 S.W.3d 438, 443
(Tenn. 2000); see also State v. Denton, 149 S.W.3d 1, 13 (Tenn. 2004). In other words, it was within
the trial court’s discretion to refuse to sever the cases if the offenses were part of a common scheme
or plan and if evidence of one case would be admissible in the other(s).

        In examining a trial court’s determination on a severance issue, the primary consideration is
whether the evidence of one offense would be admissible in the trial of the other if the offenses
remained severed. See Spicer, 12 S.W.3d at 445. Essentially, “any question as to whether offenses
should be tried separately pursuant to Rule 14(b)(1) is ‘really a question of evidentiary relevance.’”
Id. (quoting Moore, 6 S.W.3d at 239). As such, the trial court must determine from the evidence
presented that:

                (1) the multiple offenses constitute parts of a common scheme or
                plan, (2) evidence of each offense is relevant to some material issue
                in the trial of all the other offenses, and (3) the probative value of the
                evidence of other offenses is not outweighed by the prejudicial effect
                that admission of the evidence would have on the defendant.

Id. (citations omitted).

       We note that this court has previously concluded, “A common scheme or plan for severance
purposes is the same as a common scheme or plan for evidentiary purposes.” State v. Hoyt, 928
S.W.2d 935, 943 (Tenn. Crim. App. 1995), overruled on other grounds by Spicer, 12 S.W.3d at 447.
Typically, common scheme or plan evidence tends to fall into one of three categories:

                (1) offenses that reveal a distinctive design or are so similar as to
                constitute “signature” crimes; (2) offenses that are part of a larger,
                continuing plan or conspiracy; and (3) offenses that are all part of the
                same criminal transaction.

Moore, 6 S.W.3d at 240.

        In the instant case, the trial court denied the appellant’s motion to sever, ruling:

                [I]f in fact the state can prove the day before in the kidnapping
                scheme that he indicated an intent to kill the person that he killed the
                next day then that certainly would be relevant and part of a common


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               scheme or plan, and those offenses would be relevant as to his intent
               in the murder trial. The only question then would be the probative
               value of other offenses not outweighed by the prejudicial effects the
               admission would have on the [appellant].

                       ....

                       The motion to sever is overruled at this time. . . . You know,
               I think when people involve themselves in this kind of conduct and
               the issues are relevant in the homicide trial I’m not inclined to grant
               a severance. They put themselves in that position.

The trial court noted that it did not believe that the appellant would be unfairly prejudiced or denied
a fair trial by proceeding with a joint trial.

       In analyzing the trial court’s denial of the motion to sever, we note that the offenses alleged,
aggravated kidnapping and murder, did not relate to “signature” crimes. Additionally, we do not
believe that the offenses are part of the same criminal transaction. Accordingly, denial of the
appellant’s motion to sever was proper only if the offenses were part of a larger, continuing plan or
conspiracy.

        Our supreme court has elucidated that “a larger, continuing plan or conspiracy ‘involves not
the similarity between the crimes, but [rather] the common goal or purpose at which they are
directed.’” Denton, 149 S.W.3d at 15 (quoting Hoyt, 928 S.W.2d at 943). In other words, “[a] larger
plan or conspiracy . . . contemplates crimes committed in furtherance of a plan that has a readily
distinguishable goal, not simply a string of similar offenses.” Id. Moreover, the plan requires
“evidence that the defendant had a working plan operating towards the future such as to make
probable the crime with which the defendant is charged.” Id.

       In the instant case, the State’s theory at trial was that on the night of October 20, 2003, the
appellant detained the occupants of Proctor’s home, including Mrs. Hyatt and her children, in an
attempt to lure the victim, Brian Hyatt, to the residence so he could kill him. The appellant
repeatedly threatened the victim’s life while refusing to allow anyone to leave the residence.
Moreover, the appellant vandalized the victim’s vehicles so Mrs. Hyatt could not leave. Then, the
appellant left a message for Brian to pick up Mrs. Hyatt at Robert’s home. When his plan for the
night of October 20 was foiled, the appellant woke early the next morning and again sought out
Brian with the stated intention of killing him. On the morning of October 21, 2003, the appellant
was successful in carrying out his plan. We conclude that the foregoing facts constitute a clear
example of a larger, continuing plan.

       Next, we must determine whether the evidence of the aggravated kidnapping and vandalism
offenses would be admissible in the murder trial and evidence of the murder offense would have
been admissible in the aggravated kidnapping and vandalism trial if the cases had been severed. In


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order to make this determination, we must review the standard for admitting prior acts testimony as
is outlined in Tennessee Rule of Evidence 404(b).2

        Rule 404(b) allows evidence that a defendant committed a harmful act other than the one for
which he is on trial. See Neil P. Cohen, et al., Tennessee Law of Evidence, § 4.04[7][a], at 4-85 (5th
ed. 2005). In connection with this issue, we note that establishing the identity of an offender is the
most common basis for presenting evidence of a distinctive design. See Shirley, 6 S.W.3d at 248.
However, identity is not the only basis for presenting evidence of a distinctive design. Other crimes
evidence is also admissible to show, motive, intent, guilty knowledge, absence of mistake or
accident, or a common scheme or plan for commission of two or more crimes so related to each other
that proof of one tends to establish the other. See Hoyt, 928 S.W.2d at 944.

        We agree with the trial court that the evidence of both offenses was relevant to show the
appellant’s motive and intent for committing the offenses. As we previously noted, the offenses
against the occupants of Proctor’s home and the acts of vandalism were committed by the appellant
as part of his plan to lure the victim, Brian Hyatt, to his death. Therefore, the evidence against the
appellant on the aggravated kidnapping and vandalism charges would be admissible in the
appellant’s murder trial and vice versa. See State v. Chivous Sirrell Robinson, No. E2001-00865-
CCA-R3-CD, 2003 WL 649115, at *4 (Tenn. Crim. App. at Knoxville, Feb. 28, 2003); see also
Denton, 149 S.W.3d at 15.

                                          B. Rule of Completeness




       2
           Tenn. R. Evid. 404 provides:

                 (b) Other Crimes, W rongs, or Acts. - Evidence of other crimes, wrongs, or acts is
                 not admissible to prove the character of a person in order to show action in
                 conformity with the character trait. It may, however, be admissible for other
                 purposes. The conditions which must be satisfied before allowing such evidence
                 are:

                 (1) The court upon request must hold a hearing outside the jury’s presence;

                 (2) The court must determine that a material issue exists other than conduct
                 conforming with a character trait and must upon request state on the record the
                 material issue, the ruling, and the reasons for admitting the evidence;

                 (3) The court must find proof of the other crime, wrong, or act to be clear and
                 convincing; and

                 (4) The court must exclude the evidence if its probative value is outweighed by the
                 danger of unfair prejudice.




                                                        -6-
        As his next issue, the appellant argues that the trial court erred in denying his motion to admit
all portions of Natalie Shelton’s statements to police. As part of his defense proof, the appellant
called Mrs. Shelton as a witness. During direct examination, the appellant established that Mrs.
Shelton gave a recorded interview to police. The proof indicated that at some point during the
recording process, police stopped the interview and asked Shelton to write in her own words her
recollection of events. After the completion of the written statement, police again recorded a
statement given by Mrs. Shelton.

        On cross-examination, the State asked Shelton about certain comments she made to police
during the second recorded statement. The State submitted a transcript of this last recorded
statement as an exhibit at trial. The trial court dismissed the jury for the day, and began trial again
the following morning. The defense called two more witnesses then rested, and the trial court
instructed the jury. After the instructions, the appellant moved the court to submit as exhibits to the
jury Shelton’s first recorded statement and her written statement, arguing that the rule of
completeness required that the jury see not only Shelton’s final recorded statement but also the first
two statements. The trial court denied the motion, finding that Shelton was questioned only about
her second recorded statement. On appeal, the appellant contends that based upon the rule of
completeness, all of Shelton’s statements should have been submitted to the jury.

         We note that the record on appeal does not contain Shelton’s first recorded statement or her
written statement. We are unable to determine the merits of the appellant’s claim without reviewing
the first and second statements. Therefore, the failure to include the pertinent portions of the record
on appeal results in waiver of the issue. See Tenn. R. App. P. 24(b).3

                                          C. Sufficiency of the Evidence

        As his final issue, the appellant contests the sufficiency of the evidence supporting his
conviction for first degree premeditated murder.4 On appeal, a jury conviction removes the
presumption of the appellant’s innocence and replaces it with one of guilt, so that the appellant
carries the burden of demonstrating to this court why the evidence will not support the jury’s
findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that
no reasonable trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P.
13(e).



         3
            W e note that the transcript of the motion for new trial hearing seemed to indicate that the appellant attempted
to make Shelton’s first recorded statement and her written statement exhibits to the motion for new trial. Upon inquiry,
this court learned that the first recorded statement and the written statement were never submitted as exhibits at trial.
W e caution that it is the appellant’s burden to ensure that the record on appeal is complete; therefore, counsel should not
rely on this court’s largesse to ensure that the record is sufficient for a review of the appellant’s complaints.

         4
           The appellant does not challenge the sufficiency of the evidence supporting his false imprisonment or
vandalism convictions.

                                                            -7-
        Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence
and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990).

        In order to obtain the appellant’s conviction for first degree premeditated murder, the State
was required to prove, beyond a reasonable doubt, that the appellant committed the “premeditated
and intentional killing of [the victim].” Tenn. Code Ann. § 39-13-202(a)(1) (2003). Premeditation
“is an act done after the exercise of reflection and judgment” and “means that the intent to kill must
have been formed prior to the act itself. [However,] [i]t is not necessary that the purpose to kill pre-
exist in the mind of the accused for any definite period of time.” Id. at (d). Although there is no
concrete test for determining the existence of premeditation, Tennessee courts have relied upon
certain circumstances to infer premeditation. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998).
Specifically, the following factors have been used to support a jury’s inference of premeditation: (1)
the appellant’s prior relationship to the victim which might suggest a motive for the killing; (2) the
appellant’s declarations of intent to kill; (3) the appellant’s planning activities before the killing; (4)
the manner of the killing, including the appellant’s using a deadly weapon upon an unarmed victim,
killing the victim while the victim is retreating or attempting escape, or killing the victim in a
particularly cruel manner; (5) the appellant’s demeanor before and after the killing, including a calm
demeanor immediately after the killing. See Pike, 978 S.W.2d at 914-915; State v. Bland, 958
S.W.2d 651, 660 (Tenn. 1997).

        In the instant case, numerous witnesses testified that the appellant repeatedly threatened to
kill Brian because he believed Brian had been having an affair with the appellant’s wife. The night
prior to the murder, the appellant attempted to lure Brian to Proctor’s residence by vandalizing Mrs.
Hyatt’s car then calling to say that Mrs. Hyatt wanted Brian to pick her up at the Proctor’s home.
Unsuccessful in that attempt, the appellant then hunted Brian down the next morning, still
threatening to kill him. The appellant confronted Brian about the affair. At trial, Mrs. Hyatt testified
that Brian went into the confrontation unarmed. The appellant struck Brian in the head with a
baseball bat before stabbing him with a knife. Brian died as a result of the injuries inflicted by the
appellant. The proof indicates that the appellant went to Brian’s house armed in order to kill him.
We conclude that the proof amply supports the conviction for first degree premeditated murder.

                                            III. Conclusion

        Finding no reversible error, we affirm the judgments of the trial court.


                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE



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