### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 17, 2000 Session

STATE OF TENNESSEE v. CHARLES A. REYNOLDS

Direct Appeal from the Circuit Court for Marion County

No. 3482 Buddy Perry, Judge

No. M2000-00087-CCA-R3-CD - Filed February 1, 2001

The appellant, Charles A. Reynolds, was convicted by a jury in the Marion County Circuit Court of

one count of first degree felony murder committed during the perpetration of

a kidnapping or robbery and one count of especially aggravated kidnapping. The trial court imposed concurrent sentences of life imprisonment in the Tennessee Department of Correction for the felony murder conviction and fifteen ye

ars in carceration in the Department for the especially aggra vated kidnapping conviction. On appeal, the appellant raises the following issues for our consideration: (1) whether the trial court erred in denying the appellant’s motion for judgments of acquittal at the close of the State’s case-in-chief; (2) whether the trial court erred in denying his motion for new trial in which he challenged

the sufficiency of all the evidence underly ing the jury’s verdicts; and (3) whether the trial court erred in a

dmitting evidenc

e of another cri

me committed by the appellant on the night of the murder. Following a thorough review of the recor d and the parties’ briefs, we affirm the judgments of the t

rial court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nts of the Circuit Co

urt are Affirmed

.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which T HOMAS T. W OODALL a nd R OBERT W. W EDEMEYER , JJ., joined.

Leonard M. Caputo, Chattanooga, Tennessee, Charles G. Jenkins, Sr., and Charles G. Jenkins, Jr., Jasper, Tennesse

e, for the appell

ant, Charles A. Re

ynolds.

Paul G. Summers, Attorney General and Reporter, Da

vid H. Findley

, Assistant Attorne

y General
, J. Michael Taylor, District Attorney Ge neral, and

Steve Strain, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Backgr

ound On February 7, 1995, a Marion Coun ty Grand Jury returned an indictment charging th e appellant, Charle

s A. Reynolds , with one count of f irst degree pr

emeditated and de

li berat e-2-

mu rder, one count of first degree felony murder committed during the perpetration of either a kidnapping or

a robbery, one count of especially aggravated kidnapping, and one count of especially aggravated

robbery. The indictment arose from the murder of Glendon F. Hicks, Jr., on July 17, 1993, following his forcible removal to a remote location where, over a period of several hours, he

wa s beaten with a lug wrench, shot in the head with a rifle, and dragged by a car for at least two miles. The appellant’s c

ase proceeded

to trial on August 14 and 15 , 1995. The State de clined to seek either the death

penalt y or a sentence of life imprisonment without parole for the murder charges.

At

the appellant’s trial, the evidence adduc ed by the Sta

te established tha

t on July 16, 1993, at approximately 1:00 p.m., the appellant encountered his friend and co-defenda nt, Charles God sby, Jr., at a gasoline station in Kimball, Tennessee. Godsby had just bought an “SKS” rifle, which he showed to the appellant. Godsby also invited the appellant “to go ou t [ with him that evening] and mess around some.” Upon consulting with his girlfriend, the appellant agreed.

At approximately 5:00 p .m., the appellant drove to Godsby’s home, where he met bothGodsby and Godsby’s father (G odsby, Sr.). The

appellant and

God sby a ccom pan ied God sby, Sr., to a rock qua rry, where they practiced shooting the SKS rifle.The appellant and co-defendant then borrowed a car belonging to Godsby, Sr., and drove to South Pittsburg and South Pittsburg Mountain, purchasing bee r along the way

. Later that e

vening, they

also drove to Monteagle, ini tially stopping at the Hillbilly Restaurant. The manager, however, refuse d to serve alcohol to the eighteenyear-old app ellant . Accordingly, at approximately 10:30 p.m. or 11:00 p.m., the appellant a nd Godsby drove to a bar in Mo

nteagle named

the “Caddy Sh

ack,” where th

e appellant was able to obtain beer.

At

the Caddy Shack, the ap pellant and his co-defe

ndant began to pl

ay pool. Sometime

thereafter, Glendon Hicks and a companion joined them for a game of

pool, insisting upon gambling money on the

outcome of the game. A dispute developed over the amount of money at stake. Kendra Melton, another patron of the Caddy Shack, noticed the dispute. She recalled at the appellant’s trial that

[the appellant, Godsby, and Hicks were] kind of, I don’t kno w , picking back and forth. L ike [Hicks] was pret

ty well lit,

and they would go by where he was setting on a flip thing from the bar. And they was kicking at hi m. And he j ust, I don’t know, there was something over a pool game . I don’t know w hat it was. [Hicks] slung balls across the table and said, “The game’s over.”

Then [Hicks] . . . went up to [the appellant] and took chalk, the hand chalk and put [it] on top of [the

appellant’s] head and turned it around and [the appellant] . . . sa id, “You o ught not to have done. That wasn’t a smart thing to do.” And [Hicks] took and popped [the chalk] right on top of [the appellant’s] head and broke it into a million little pieces.-3- Add iti ona lly, Godsby began annoying one of the waitresses, Anna Lee Thomas, and Hicks intervened on her behalf. Thomas recalled at the appellant’s trial that Godsby t

hreatened to ki ll Hicks, and the appellant, who was standing nearby, “g rinned.” At some point, in an apparen t attempt to diffuse tensions, Godsby bought Hicks a beer. After

drinking the beer, Hicks went outside the bar into the parking lot, while the appellant and Godsby remained inside.

At approxim ately 12:15 a. m., the app ellant and Godsby began argu ing wi th one another. During this argument, Patsy Meeks, the bartender at the Caddy Shack, overheard Godsby declar e to th e appellant that “he would keep [Hicks] under control.” Because the argument was disruptive, Meeks asked the appellant and Godsby to leave, and they went outside into the parking lot. As to the ensuing events in the parking lot and in Godsby, Sr.’s vehicle, the evidence adduced by the State a

t trial posed two pos sible scenarios.

One scenario was supp orted bythe State’s introduction into evidence of the appellant’s statement on July 18, 1993, to William Barbrow, a special agent with the Tennessee Bureauof Investigation (T.B.I.). According to this statement, when the appellant and Godsby went into the parking lot of

the Caddy Sha

ck, Hicks provoke

d a fight with Gods

by. During

the fight, Godsby grabbed a lug wr ench and hit Hicks in the head. Hicks

fell to the groun

d, apparently unconscious,

and the appellant and Godsby lifted Hicks and placed him in the backseat of their car. Theythen drove with the unconscious Hicks to Conservation Corp Lake on South Pittsburg Mountain.

A second scenario was supported by the testimony of the State’s witnesses, Rodney Meeks and Allan Weeks. Rodney Meeks, who was the Caddy Shack bartender’s son, testified at the appellant’s trial that

on July 17, 1993, sometime between midnight and 1:00 a.m., he encountered the appellant and Godsby in the parking lot of the Caddy Shack. According to Rodney , the two men

were seated in a car. Specifically, the appellant was seated in the driver’s seat of the car, and Godsby

was seated in the fron t passenger’s seat. The two men i nquired whether

Rodney wishe

d to accompany

them to aparty, but Rodney declined their invitation. Soon thereafter
, at approximately 12:50 a.m. or 1:00 a.m., Rodney observed Hicks e nter the backseat of Godsby, Sr.’s vehicle and lea ve w ith the app ell ant and God sby.

Allan Weeks, an investigator with the District Attorney’s Office for the Twelf

th Judicial District, testifie

d concerning th

e appellant’s sta

t ement to him on July

21, 1993. In thi

s statement, the appellant indicated that Hicks entered Godsby, Sr.’s car volunt ar ily. The appellant further recounted that, upon leaving the parking lot of the Caddy Shac k i n Godsby, Sr.’s car and while Hicks was seated in the backseat, Godsby picked up a lug wrench and hit Hicks in the head, rendering hi m u nconscious. The a ppellant and Godsb

y then drove

with the unconscio

us Hicks to Conservation Corp Lake.

The State’s evidence further established that, once at the lake, the appellant and Godsby turned off o f the m ain highway onto gravel and dirt roads before stopping and removing-4-

Hicks from the car. When Hick s began to regain consciousness, Godsby beat him with the lug wrench“all over his body.” Afterwards, the appellant and Godsby began to leave t

he lake area, abandoning the unconscious Hicks. However, upon reaching the highway

and driving towa

rd South Pittsbur g, they reconsidered and returned to Hicks’ location. Hicks had a gain reg ain ed consciousness

and was attempting to rise to his feet. Godsby removed his SKS rifle from his father’s
car, threw the weapon to the appellant, and hit Hicks once ag

ain with the lug wrench. When Hicks continued his attempts

to stand, Godsby invited the appellant to shoot Hicks. The appellant fired a bulletinto the ground beside Hic ks before surrendering the rifle to his companion; Godsby shot Hicks in the head.

Godsby next stole

Hic ks’ wal let , wh ich con tai ned onl y a few d oll ars . Ad dit ion all y, Godsby remo

ved Hicks’ belt, wrapping one end around the victim’s ankle and attaching the other end to the back of Godsby, Sr.’s car. The appellant and Godsby then dr ove back to the main high way, dragging Hicks’ body behind them. They drove an additional one o r one and one half miles down the highway toward South Pittsburg before stopping, detaching the body from the car, and rolling the body into a ditch.

While Godsb y and th e appe llant were i n the C onser vatio n Corp Lake area on th e night in question, they

twice encounter

ed a group of te

enagers, who were camping alone beside the lake. During the first encounter, the appellant and Godsby drove

by the teena

gers’ campsite

and briefly spoke with them. During the secondencounter, the a ppellant and Godsb

y were dri ving on the main highway and observed the teenagers leaving the lake area in their ve hicles. Godsby, who was driving, a sk ed the appellant to give him the SKS rifle. The appellant complied and also held the steering wheel while Godsb y repeate dly fired the weapon at the

teenagers’ vehicles, forcing one of themoff the road. When the occupants of the disabled vehicle fled, Godsby stole a cooler containing beer from the vehicle.

As daylight

approached on the morning of July 17, the appellant and Godsby drove
to the home of Godsby

’s grandmother

, where they

found Godsb

y’s grandmother and his uncle. Godsby recounted to his family the events of the preceding nig

ht, and hisfamily assisted him and the appellant in devising an alibi. Godsby’s uncle also supplied cleaning materials to the appellant and Godsby, and the two drove to a car wash to clean Godsby , Sr.’s car. The two also stopped at a local market

named “Favorite Market” and purchased something to eat before re turning to Godsby’s grandmother ’s home. Th e appellant slept ther e for several hours befor e departing.

On July 18, the appellant informed his father, Hobart Reynolds, and h is uncle, Marvin York, about Hicks’ murder. Reynolds and York then a cco mpanied the appellant to the Marion County Jail, where the appellant provided the previously mentioned statement to Special Agent Barbrow. Again, the appellant did not deny to Barbrow his presence during , and some lim

ited participation in, the kidnapping and murder of Glendon H icks. Rather, he asserted that he cooperated with

Godsby bec

ause he was afr

aid of Godsby

, and because Go

dsby threat

ened him.-5- The appellant testifi

ed on his own behalf at tria l. In contras

t to both his statement to Barbrow and his statement to Investigat

or Weeks, the appe

llant now claimed t

hat he could not re

call the events in the parking lot of the Caddy Shack following his departure with Godsby from the bar. He could only recall awakening at some point and discovering that he was in the front passenger’s
seat of Godsby, Sr

.’s car. Godsby

was driving the c

ar, and Hicks wa

s lyin g unco nscious in the backseat with his head “busted through.” The appellant asked Go dsby what had happened, but Godsby merely ordered the appellant to go back to sleep. The appellant compliedand, when he next awakened, they were at Conservation Corp Lake. At the L

ake, according

to the appellant, Godsby beat Hicks with the lug wrench for at least thirty or forty minutes before shooting him in the head withthe SKS rifle. Overall, the kidnapping and murder o f Glendon Hicks spanned a period of approximately

five hours. The appellant claimed that he was intoxic ated at the time of these offenses. Primarily, howev er, he ag ain asserted that he cooperated with Godsby at the lake and the reaf ter beca use he w as af rai d of God sby.

In addition to his own testimony, the appellant presented the testimony

of his uncle, Marvin York, and an acquaintance, Paul Williams. York testified that, prior to these offenses, the appellant possessed a

reputation as a pe

aceful and hone

st boy. Williams

similarly testified that the appellant possessed a reputation as a “good kid.”

As to Godsby, the parties agreed to the following st

ipulation at the ap

pellant’s trial: On December 13, 19

94, Godsby pl

ed guilty to the first degree murder of Glendon Hicks and received

a sentence of life imprisonment in the Tennessee Department of Cor

rection. Godsby

also pled guilty
to especially aggravated robber y and received a sentence of fifteen y ears incarceration in the Department. The trial court ordered consec

utive service of

Godsby’s se

ntences. Addition

ally, both Godsby and the appellant were charged with attempt to commit second degree murder. Godsby pled guilty to attempted

second degree murder

and received a

sentence of twe

lve years i

ncarceration i

n th e Department, which sentence was to be served concurrently with the sentence for e speciall y aggr avat ed ro bbe ry.

At the conclusion of t

he appellant’s tr

ia l, the ju ry acquitte

d the appellant of

first degree premeditated and deliberate murder and especially aggravated robber y and returned verdic

ts of guilt of one count of first degree felony murder committed during the perpetration of a kidnapping

or robbery and

one count of especially aggravate d kidnapping. The trial court imposed concurrent
sentences of life imprison ment in the Tennessee Department of Correction for the felony murde r conviction and fifteen years incarceration in the Depa rtment for the especially

aggravated kidnapping conviction.

II. Analysis

a. Motion for Judgments of Acquittal

On appeal, the appe

llant first conten

ds that, withrespect to his con victions of both first degree felony murder and especia lly aggravated kidnapping, the trial court e rroneously denied his motion for judgments of acquittal at the conclusion of the State’s proof. A trial court must grant

a motion for a judgm

ent of acquittal a

t th e close of the State’s proof if th e evidence is leg

ally-6-

insuffi cient to sustain

a conviction of the

charged offe

nse. Tenn. R. Crim. P.

29. In making

this determination, the trial court may not address the weight

of the evidence

but must afford the

State the strong est le gitimate view of the evidence, including all reasonable inferences which may be drawn from the evidence, and must discard any countervailing evide n ce. State v. Blanton , 926 S.W.2d 953, 957-958 (Tenn. Crim. App. 1 996); State v. Price , No. E1999-02684-CCA-R3-C, 2000 WL 1015914, at *25 (Tenn. Crim. App. at Knoxville, July 25, 2000) . This standard is applicable
to direct evidence, circumstantial evidence, or a combination of both. State v. Hall , 656 S.W.2d 60, 60-62 (Tenn. Crim. App. 1983); State v. Willis , No. 01C01-9802-CC-00068, 1999 WL 510602, at *7 (Tenn. Crim. App. at Nashville, July 15, 1999), perm. to appeal denied , (Tenn. 2000); cf. State

v. Nesbit , 978 S.W.2d 872, 898 (T enn. 1998). Moreo

ver, an appella

te court applies th

e same standardas the trial court when resolving issues predicated upon the grant or denial

of a motion for judgment of acquittal. State v. Adams , 916 S.W.2d 471, 473 (Tenn. Crim. App. 199 5); see also Statev. Smith , No. 02C01 -9506-CR- 00157, 199

9 WL 162958, at

*2 (Tenn. Crim. App. at Jackson, March 25, 1999).

With respect to the appellant’s conviction of felony murder, Tenn. Code Ann. § 39- 13-202(a)(2) (1993) defined first degree felony murd

er, in relevant part, as “[a] reckless killing of another committed in the perpetration of . . . any . . . robbery [or] . . . kidnapping.” Our legislature has defined robber

y, in turn, as “the intentional or knowing theft of property from the person of another by viole nce or putt

ing the person in fear.” Tenn. Code Ann. § 39-13-401 (1997). Kidnapping is the knowing and unlawful removal or confinement of a nother “ so as to interfere substantially

with the other’s lib

erty” and “ [u]nder circumstan ces exposi ng the other per son to substantial risk of bodily injury.” Tenn. Code Ann. § 39-13-303(a)(1) (1997); Tenn. Code Ann. § 39-13-302(a) (1997). An “unlawful” removal or confi nement is defined as “one w hich is accomplishedby force, threat or fraud .” Tenn. Code Ann.

§ 39-13-301(2) ( 1997). With respect to the appellant’s conviction of espe cially aggravated kidnapping, kidnapping is especially aggravated when the victim has suffered serious bodily injury. Te nn. Code Ann. § 39-13-305(a)(4) (1997).

In prosecuting the appellant for both felony murder and especi ally aggravated kidnappin g, the State in this case proffered to the jury the theory of

criminal responsibility for the conduct of another. A defendant may be found criminally responsible for the conduct of another if, "[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds

or results of the offense, [he] solicits, directs, aids, or attempts to aid another person to commit the offense." Ten

n. Code Ann. § 39-11 -402(2) (1997). Thus, “[i]n order to aid and abet another to commit a crime, it is necessary that [the] accused in some

sort associate him

self with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent

of the principal in

the first degre

e; the same

criminal intent must exist in the minds of both.” Statev. Carson , 950 S.W. 2d 951, 954 (Tenn. 1997 )(quoting Jenkins v. State , 509 S.W.2d 240, 245 (Tenn. Crim. App. 1974))(alteration in original).-7- Although a defendant’s me re presence du

ring the c ommission of a crime will not render him criminally responsible for the conduct of another, “[n]o particular act [by the de

fendant] needbe shown.” State v. Jones , 15 S.W.3d 880, 890 (Tenn. Crim. App. 1 999)(emphasis added); see also State v. Ball , 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). In other words, it is

not necessary that the defendant

took physical part in the crime; “[e]ncouragement of the principal is sufficient.” Jones
, 15 S.W.3d at 890. Moreover, “[p]resence and companionship with the perpetrator of a felony before and after the commission of the offense are circumstances from which one's par ticipation in the crime may be inferred.” Ball , 973 S.W.2d at 293.

In challenging the trial court’s denial of his motion for jud gments of acquittal, the appellant argues that the

State failed to est

ablish beyon

d a reasonable d

oubt his guilt of

kidnappin g. According to the appellant, his guilt of kidnapping was a necessary prer equisite to both his convictions of felony murder and especially aggravated kidnapping. We initially note that the State charged the appellant with first degree felony murder committed during the perpetration of either a kidnapping or a robbery. However, the a ppella nt a sserts in his brief that, “had the jury returned a verdict of felony murder in conjunction with aggravated r obbery, perhaps

the trial court

could have approved the [felony mu

rder] verdict due

to the fact that the co-defendant . . . took two dollars from the wallet of

the victim after the homicide. However, by its verdict, the jur

y found [the a

ppellant] not guilty of especially ag gravated robbery.”

It has long been held in Tennessee that consistency be tween v erdicts on separ

ate counts of an indictment is n ot necessa

ry. Wiggins v. State

, 498 S .W.2 d 92, 9 3 (Ten n. 197 3). In other words, “[i]f satisfied that the proof established guilt of theoffense upon which the convictions

were returned, cour

ts willnot upset a

seemingly inco nsistent verdict by spec ulating as t o the jury's reasoning.” State v. Bivens , No. E1999-00086-CCA-R3-CD, 2000 WL 968789, at *7 ( Tenn. Crim. App. at Knoxville, July 14, 2000). Thus, the jury’s effective acquittal of the appellant of robbery for

one count of the indictment did not necessarily pr eclude the jur y’s conviction of the appellant of felony murd

er committed durin

g the perpetra

tion of a robbery

for another cou

nt.

Nevertheless,

the appellant’s argument raises an issue that has been ignored by the parties, both at trial and in their briefs on appeal, and that may be subject to plain error analy sis according to the standard first enunciated by this court in State v. Adkisson , 899 S.W.2d 626, 641- 642 (Tenn. Crim. App. 1994), and later adopted by our supreme court in State v. Smith , 24 S.W.3d 274, 282-283 (Tenn. 2000). In Smith , 24 S.W.3 d at 282 (cit ing Adkisson , 899 S.W.2d at 641-642),

our supreme court

approved the consideration of the following five factors in determining whether trial error rises to the level of “plain error”:

“(a) [T]he record must clearly establish what oc cur red in the trial court; (b) a clear and unequivocal rul e of law must have been breached; (c) a

s ubstantial right of the accused must have been adversely affected; (d) the accused

did notwaive the issue for tactical
reasons; and (e) consideration of the error is ‘necessary to d o substantial justice.’”-8-

The court emphasized that the presence of all five factors must be established by the re cord, and “complete

co nsideration of

all the factors is not necessary when it is clear from the rec ord that at least one of the factors cannot be established.” Id. at 283. In shor t, “[t]he plain

error rule is to be used sparingly

by this court and invoked only in exceptional circumstances in which an e rror has had ‘an unfair prejudici al effect w hich undermined the fundamental fairness of the trial.’” State v. Newmon
, No. W1999-01497-CCA-R3-CD, 2000 WL 1156688, at *9 (Tenn. Crim. App. at Jackson, August 4, 20 00)(quoti ng Adkisson , 899 S.W.2d at 639, 641-642).

In State v. Lemacks , 996 S.W.2d 166, 171 (Tenn. 199 9), our supreme c

ourt recently emphasized that “[t]he right of jury unanimity has never required mor e than a general verdict in cases where only one offense is at issue based upon a single criminal occurrence.” Cf. State v. Keen , 31 S.W.3d 196, 208-210 (Tenn. 2000). However, the court also reaffirmed that

ques tions of jury unan

imity may

arise in cases wh

ere an accuse

d is indicted and prosecuted for a single offense, but the jury is

permitted
to consider

multiple criminal a

cts of the type which, if found beyond

a reasonable doubt, would each support a conviction of the charged offense. To avoid a “patchwo rk” verdict of g

uilt in those cases, the trial judge must “augment the general

unanimity instruction to insure that the jury understandsits duty to agree unanimously to a particular set of facts.” Lemacks , 996 S.W.2d at 170 (citations omitted). In State v. Young , No. 01C01-9605-CC-00208, 1998 WL 258466, at *1 (

Tenn. Crim. App. at

Nashville, May

22, 1998), this cour

t engaged in pl

ain

error analysis under Adkisson in its application of the above principle in the context of an indictment chargingthe defendant wi th felony murder committed during the perpetration of either a rape or an attempted rape. The rape and attempted rape referre

d to two distinct and s

eparate sexual of

fenses, the rape referring to the defendant’s digital penetration of the victim’s anus and the a ttempted rape referringto the de fendant’s attem pted penile penetration of the victim. Id. at *4. The trial court failedto provide an augmented unanimity instruction to the jury, and the jury’s felony murder ver dict did not reflect the predicate felony. Id. Accordingly , this court noted that the indictment, the jury instructions,

and the verdict had raised the specter of a patchwork verdict. Id. at *5. Neverthel ess, we concluded that any error was harmless under the pa rticular facts of that case. Id.

Sim ila rly, in the instant case, the indictment offered to the jury, in the alternative, two distinctand separ ate felo nies upon which to predicate the appellant’s guilt of felony murder. Moreover, the trial court did not provide to the jury an augmented

unanimity instruction “to ensure that all twelve jurors agreed

on the same set of facts for the underlying felony ,” id. at *4, nor did the jury specify the

predicate felony in its felony murder verdict. Nevertheless, as in Young
, id. at *5,

we conclude that there was no real potential in this ca se for a non-unanimous verdict. Rather, regardless

of whether some or all of the jurors found that the appellant recklessly killed during the commission of a robbery , the jurors did una

nimously find

, by their ve

rdict o f guilt

of especially aggravated

kidnapping, that

the appellant

recklessly kil led during t he commiss ion of a kid napping.1 Our conclusion is b uttressed by the jury’s submission of the following quest ion to the trial court duri ng deliberation: “Without evidence to prove the defendant pulled the tri gger, can we return averdict of felony murd er if we beli eve he pa

rtic ipate d in th e kidna pping wh

ich re sult

ed in Hicks deat

h?”

-9- Acco rdi ngly, under the particular facts of thi s cas e, an y error was harml ess beyond a

reasonable doubt. 1

We now address the a ppellant’s compla

int that the State failed to prove beyond a reasonable

doubt the appellant’ s guilt of kidnapping. The appellant rests his complaint upon the State’s failure to

adduce any “independent direct testimony that Glen Hicks was either abducted or forced into [Godsby, Sr.’s] automobile” at the Caddy Shack. M or eover, the appellant asserts that the State failed to adduce evidence that the appellant was criminally responsible for any conduc t by his co-defendant.

First, we have already noted the State’s introduction into evidence of the appe llant’s
statement to Special Agent Barbrow that Hicks was forcibly place d in Godsby, Sr.’s car. However, the State also introduced into evidence the appellant’s statement to Investigator Weeks that Hicks entered the car voluntarily. “The rule of law in Tennessee is that contradictory statements made by

a witness as to the same fact can ca ncel each other out.” State v. Caldwell , 977 S.W.2d 110, 118 (Tenn. Crim. App. 1997).

“The question here is notone of the credibility of a witness or of the weight of evidence; but it is whethe r th ere is any e vidence at all to prove the fact. If two witnesses contradict each other, there is proof

on both sides, and it is

for the jury to say

where the truth li

es. But if the proof of the fact lies wholly withone witness, and he

both affirms and denies it, and ther

e is no explanation, i

t cannot stand othe

rwise than unproven. For

his testimonyto prove it is no stron ger than his testimonyto disprove it, and i t would be mere capric

e ina jury upon such evidence to decide it either way.” Statev. Matthews , 888 S.W.2d 4 46, 449-45 0 (Tenn. Cri m. App. 199 3)(quotin g Johnston v. Cincinnati, N. O. & T. P. Ry. Co. et al. , 240 S.W. 429, 436 (Tenn. 1922)). That having been said,

we have previously ob served t hat the above “rule of cancellation” applies only to two sworn statemen ts. State v . Bennett, No. 01C01-9607-CC -00139, 1998 WL 9

09487, at *5 (Tenn . Crim. App. at Nashville, December 31, 1998 ); see also Brown v. Georgia Life and Health I nsurance Company
, No. 1173, 1986 WL 7435, at *3 (Tenn. App. at Jackson, July 1, 1986). Agent Barbrow testified that he possessed “the authority to put someone under oath and take a sworn statement” and that the appellant’s statement t o him was, in fact, a “sworn statement.” In contrast, the evidence adduced at trial s uggest s that the appellant’s statement to Investigator Weeks was not a sworn
statement.

In any event, even if the appellant had made both statements under oath, the appellant would not be entitled to relief. The “rule of cance llation” applies on

ly when the i

nconsistency

in the witness' testimony is unexplained and when neither version of his testimony is corroborated by other-10-

evidence. Caldwell , 977 S.W.2d at 118; Matthews , 888 S.W.2d at 450. In this regard, we agree with the appellant that the “totally inde pen dent and unimpeached” testimony of Rodney Me eks corroborated

the app ell ant ’s s tat eme nt t o We eks con cern ing H ick s’ v olu nta ry ent ry in to G ods by, Sr.’s car. However, we disagree with the appellant that his guilt of kidnapping depended upon the State’s presentation of evidence refuting Hicks’ voluntary e ntry into the car.

Again, kidnapping requires the knowing and unlawful removal or confinement of another “so as to interfe

re substantially

with the other’s l

ibe rty” and “[u]nd er circumstances exposing the oth erperson to substantial risk of bodily injury.” Tenn. Code Ann. § 39-13-303(a )(1); Tenn. Code Ann. § 39-13-302(a). An “unlawful” re moval or confinem

ent is “one which is accomplished by force, threat or fraud.” Tenn. Code Ann. § 39-13-301(2). The State’s evidence established and, indeed, it was undisputed at trial that, regardless of whether Hicks initially entered God sby, Sr.’s car voluntarily

or involuntarily, he was forcibly held in the ca r by virtue of being s

truck in the head w

ith

a lug wrench and was thereby transported to Conservation Corp Lake. At the lake, Hicks was further detained for a significant period of time, during whic

h he was beaten w

ith the lug wrenc

h, shot in the head, and dra

gged by a car for sever

al miles.

The sole dispute at trial concerned the role of the appellant in the commission of the offenses,namely whether the appellant shared his co-defendant’s criminal intent and whether any participation by the appellant in the offenses resulted from duress. On appeal, the appellant

asserts that “there was simply no proof before the jury, that

[th e app ell ant ] ha d an y kno wle dge t hat [Go dsb y] would attack the victim as he sat in the backseat of the vehicle.” We must disagree. In all criminal
cases, the one element w

hich is most often proven by circumstantial evidence is the culpable mental
state of the defendan

t. State v. Smith

, No. 02C01-9602-CR-00051, 1997 WL 291179, at *3 (Tenn. Crim. App. at Jackson, June 3 , 1997). The State i n this case adduced strong circumstantial evidence that the appellant sha

red his co-defe

ndant’s criminal i

ntent. To briefly recapitulate, th e State establ ished at the appellant’s trial that Hicks quarreled with both the appellant and Godsby at the Caddy Shack. Indeed, Hicks humiliated the appellant by crushing chalk on his head in addition to interfering with Godsby’s attempt to flirt with one of the waitresses. While the appellant was present and with his apparent approval, Godsby threatened to kill Hicks. Moreover, before leaving the bar, Godsby was overheard reassuring the appellant that “he would keep [Hicks] under control.” Later, the appellant assisted Godsby, at a minimum, by driving Godsby
, Sr.’s car to Conservation Corp Lake with the unconscio

us Hicks inside, by

firing Godsby ’s rifle

in the direction of

Hicks’ head as the victim attempted to rise to his feet during his ordeal at the lake, by providing the rifle to Godsby withthe knowledge th

at Godsby de

sired to shoot Hicks
, and by cleaning Godsby, Sr.’s car following the commission of the instant offenses. In short, the State adduced overwhelming evidence of the appellant’s guilt, not only of kidnapping but also of the cha rged offenses. This issue is without merit.

b. Motion for New Trial

The appellant additionally asserts that the trial court erred in denying

his motion for

new trial in which he challenged the sufficiency of all the evidence underly ing the jury’s v

erdicts. Under Tenn. R. Crim. P. 33(f), a trial court may grant a defendant a new trial following a verdict of-11-

guilty if it disagrees with the jury about the weight of the evidence. Howe

ver, as in resolving issues predicated

upon the grant or

denial of a motion for

judgment of acquittal following the State’s casein-chief, this court will not re-weigh the evidence adduced at trial when reviewing the trial court’s denial of a motion for new tria l at the close of a

ll the proof. Rathe

r, questions conc

erning th e

cr edibility

of witnesses and the weight and value to be given the evidence, as well as all factua l issues raised by the

evidence, are resolved by the trier of fact and not the appellate courts. State v. Pr uett , 788 S.W.2d 559, 561 (T enn. 1990). Acco

rdingly, th

e burden is upon the

appellant to establish that no “reasonable trier of fact” could have found the essential elements of the charg ed offenses beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979); State v. Tuggle

, 639 S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e).

We have previously concluded that the evidence adduce d by the State overwhelmingly

established the appellant’s guilt of the charged off enses. A further review of the evidence adduced by the appellant does not require a different re sult. Because the appellant has failed to carry

his burden, this issu

e is likewise withou

t merit.

c. Tenn. R. Evid. 404

Fin all y, the appellant complains that the trial court erroneously introduced evidence concerning the attempted shoo ting of the teena

gers at Conserv

ation Corp Lak

e on the night of H

icks’ murder. On appeal, the appellant predicates his compla int wholly

upon Tenn . R. Evid. 4

04(b). We
must agree with the State that the appellant has waived this issue for purposes of appellate review.

In this regard, we are initially struck by the appellant’ s entry into a stipulation with the Stat e that, in a ddition to the charges currently before the jury , the appellant had been charged withattempt to

commit second degree murder. Moreover, at no time prior to trial did the appellant seek the redac

tion of his statement to Special Agent Barbrow of the T.B.I., in which the appellant extensively

referred to the shooting incident. Also, the appe llan t failed to object to testimony by Stacy Williams, a trooper with the Tennessee State Highway Patrol, that in the early morning hours of July 17, 1993, in the Conservation Cor p Lake ar

ea, the occupants of a vehicle matching the description of

Godsby, Sr.’ s were shooting a t the teenager

s’ vehicles. The

soleobjection proffered by the appellant to the introduction of evidence concerning the attempted shooting of the teenagers occurred during the tes timony of Ama nda Baker, one

of the teenage

victims. Not only

did this objection come too late, b ut the appellant apparently based his objection on the relevance of the
tes tim ony, or lack thereof, rather than, more specifically, on Te nn. R. Evid. 404(b). Defense counsel stated, “We’d like to interpose an objection to the relevance of this. This man is not being charged with that particular case. He’s being charged with first degre e murder.”

Despite the appellant’s failure to cite Rule 404(b), the State acknowledged that the testimonydescribed “other bad acts” and argued that the testimony wa

s nevertheless a

dmissible “to show that [the appellant] was coo

perating and pa

rticipating in al

l these criminal a

ctivities” and “to show the whole story.” The trial court agreed with the latter justification and provided the following ins tru cti on t o th e ju ry:-12- I’m overruling the objection and I’m going to allow some testimony that may relate

to other bad condu

ct on behalf

of the defendant and/or co-defendant.

I’m allowing

this testimony

in to allo w you to ge t a complete view of the circumstances that existed on this night. I need
to cauti on you a nd I will cha rge you at the conclusion of the case, however, that

proof of other bad

acts is not proof that the charge that the defendant is indicted for necessarily occurred, and you m ay n ot consider this testimony

as substantive pro

of on that is sue. I am allowing it solely for you to get a picture of wha t o ccurred on this particular nig

ht. The trial court provided a similar instructionto the jury immediately prior to the jury ’s deliberation.

Tenn. R. Evid. 103(a)(1) provides that “[e]rror may not be predicated upon a ruling which admits . . . evidenc e unless a substant

ial right of the party

is affected, and

. . . a timely objection or motion to strike appears of record, stating the spec ific ground of o

bjection if the spe

cific ground was not apparent from the context.” Arguably

, the more specif

ic Rule 404(b) obje

ction to the disputed testimony in this case was “appare n t from the context.” However, we note that the appellant never requested a jury-out hearing in ac cordance with Rule 404(b). “As the rule indic ates, the trial court was not obligated to conduct such a hearing absent a request.” State v. Hall , 958 S.W.2d 679, 707 (Tenn. 1997). Moreover, in his motion for newtrial, the appella nt again failed

to base his objection to the disputed testimony upon Rule 404(b), instead rely ing upon Tenn. R.

Evid. 403.

In sum, assuming that the appellant’s Rule 404(b) objection was not apparent from the context, “a party

is bound by the ground asserted when making an objection. The party cannot
assert a new or different theory to support the objection in the motion f or a new tria

l or in the appellate court.” Adkisson , 899 S.W.2d at 634-635; see also State v. Korsakov , E1999-01530-CCAR3-CD, 2000 WL 968812, a t *11 (Tenn. Crim. A

pp. at Knoxville, July

13, 2000); State v. Harper
, No. M1999-00451-CCA-R3-CD, 2000 WL 739672, at *2 (Tenn. Crim. App. at Nashville, June 9, 2000); State v. Shropshire , No. 03C01-9303-CR-00078, 1994 WL 421395, at *2 (Tenn. Crim. App.
at Knoxville, August 12, 1994). Alternatively, if the specific ground was apparent, “ [f]ailure on the part of [a] defendant to raise an issue [in] his motion for new trial requires waiver.” State v. Perry
, 13 S.W.3d 724, 739 n.3 (Tenn. Crim. App. 1999). Accordingly, the appellant’s Rule 404 (b ) objection has been waived , and this court will not addr ess it absent plain error. Tenn. R. Evid. 103(d); Tenn. R. Crim. P. 52(b ); Smith , 24 S.W.3d at 282-283. For reasons discussed below, we decline to exercise our discretion to recognize plain error in this case. Tenn. R. Crim. P. 52(b).

Evidence that a defendant has committed crimes, wrongs, or acts, other than tho se crimes for which he is be

ing tried, is not admi

ssible to prove his

character and

thereby show action in conformity with the

character tra

it. Tenn. R. Evid. 404

(b); see also H all , 9 58 S.W.2d at 707. Nevertheless,

such evidence is

admissible under Ru

le 404(b) if it

is relevant

to a material issue

in the case on trial and if its probative value is not outweighed by the danger of its prejudicial ef

fect. Hall
, 958 S.W.2d at 707. Material issues in clude identity, moti

ve, common scheme

or plan, intent,-13-

or the rebuttal of accident or mistake defenses. Id. Additionally, contextual background evidence, which contains proof

of other crimes, wrongs, or acts, may be admitted consistent with Rule 404(b). Statev. Gilliland , 22 S.W.3d 266, 272 (Tenn. 2000). How ever, the trial court must make the following findings prior to admitting such contextual background evidence:

(1) [T]h e abse nce of the evidence would create a chronological or conceptual void in the state’s presentation of its case; (2) the vo id created by the absence of the evide nce would likely result in significant

jury confusion as to the material issues or evidence in the
case; and (3) the proba

tive value of the e

vidence is not outweighed by the danger of unfair prejudice. Id.

Of

course, if the ev

idence of other c

rimes, wrongs, or

acts does n ot clearly and convincingly

establish that the d

efendant was the

perpetrator, its

admission is governed wholly by Tenn. R. Evid. 401, 402, and 403. State v. DuBose , 953 S.W.2d 649, 653 (Tenn. 1997). Under the particular facts and circumstances of this case, consideration of this preliminary question under scores the absence of plain error.

As previously noted, it was undisputed at trial that the appellant was present during the commission of the charged offenses and, moreover, that the appellant participated to some extent in these offenses. The only issues concerning the

appellant’s guilt of these offenses were whether the appellant and his co-defendant possessed the same criminal intent

and whether any participation by the appellant in th

e offenses resu

lted from duress.

The resolution of t

hese issues depe

nded largely upon the jur y’s asse ssment, in the face of strong circumstantial evidence to the contrary , of the appellant’s claims that he was an unwilling participant in the offenses.

It was also undisputed at trial that the appellant was present during, and participated
to some extent in, the attempted shooting of the teenagers. Moreover, the charged offenses and the attempted shooting o f th e teenagers were part of the same criminal transaction. I ndeed, the jury reasonably

could have inferred from the evidence adduced by the State that the attempted shooting of the teenager

s was an effort,

albeit ineffect

ual, to eliminate possible witnesses to the kidnapping and murder

of Glendon Hicks. Thus, the appella nt’s claims that he

was an unwilling p

articipant in th e charg ed offenses applied with equal force to his participation in the attempted shooting of the teenagers. In other words, because the charged offe nses and this “othe

r crime[], wrong[], o

r act[]”

were part of

the same criminal transaction, the appellant’s presence during and participation in the latter neither negat ed nor strengthened the credibility of his assertions concerning his unwilling participation in the former or vice versa. Cf. Gilliland , 22 S.W.3d at 272.

Acco rdi ngly, the appellant’s participation in the attempted shooting of theteenagers

was irrelevant to any material issue at trial. We also co nclude t hat the absence of the disputed testimony would not have created a chronological or conceptual void in the State’s presentation of its case, r esulting in significant jury confusion about a material issue or evidence in the case. Gilliland
, 22 S.W.3d at 272. Yet, a primary cause

of the inadmissibility of the disputed testimony also renders the consideration of any error unnecessary to the attainment of substantial justice, as it-14-

is does not affirmatively appear that the jury’s assessment of the

appellant’s cla

ims concerning his unwilling participation in the charged offenses was affected by his par ticipation in other offenses that

were part of the same criminal transaction. Smith , 24 S.W.3d at 282; see also Tenn. R. C rim. P. 52(a); Tenn. R. App. P. 36(b). Moreover, we have already noted that the evidenc e, including the circumstantial evidence, of the appellant’s guilt of the kidnapping and murder of Glendon Hicks was overwhelmi ng. Id. Finally, under the facts and circumstance of this case, we will presume that the jury followed the lim

iting instr uctions of the trial court. State v. Cauthern , 967 S.W.2d 726, 744 (Tenn. 1998); State v. Butler , 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994). This issue is without merit.

III. Conclusion

For the foreg

oing reasons, w

e affirm the judg

ments of the trial c

ourt.

___________________________________ NORMA McGEE OGLE, JUDGE