                                                                                         02/05/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 4, 2018

          STATE OF TENNESSEE v. RICHARD SHANE FRAZIER

                 Appeal from the Circuit Court for Madison County
                     No. 17-326       Donald H. Allen, Judge


                            No. W2018-00225-CCA-R3-CD


A Madison County jury convicted the Defendant, Richard Shane Frazier, of aggravated
assault and violating an Order of Protection. The trial court sentenced the Defendant to an
effective sentence of fifteen years to be served consecutively to previous sentences for
other convictions. On appeal, the Defendant claims that the evidence is insufficient to
sustain his conviction for aggravated assault. After review, we affirm the trial court’s
judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Gregory Doyle Gookin, Jackson, Tennessee, for the appellant, Richard Shane Frazier.

Herbert H. Slattery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General for the appellee, State of Tennessee.

                                       OPINION

       This case arises from the Defendant threatening to kill his ex-wife, the victim, who
had previously obtained an Order of Protection against the Defendant requiring him to stay
away from her. For these offenses, a Madison County grand jury indicted the Defendant
for aggravated assault and violating an Order of Protection.

                                         I. Facts

      At the Defendant’s trial on these charges, the parties presented the following
evidence: The victim testified that she was married to the Defendant from 2009 until 2016
when they were divorced. On January 28, 2017, the victim was at a friend’s house where
she stayed until after dark. The victim left the house with her boyfriend, Eddie Preslar,1
and her daughter. The victim stated that, at the time, she had an Order of Protection
against the Defendant, which she had obtained in September 2016. The Order of
Protection was entered into the record as evidence.

        The victim said that as Eddie was backing the victim’s vehicle out of the driveway,
another vehicle pulled in behind her vehicle, blocking it from leaving. The victim
assumed the vehicle belonged to someone acquainted with the homeowner, so she told
Eddie to pull forward to allow the vehicle to access the driveway. All the victim could see
were the vehicle’s headlights. A person got out of the vehicle and ran to the victim’s car
window, at which point she realized the person was the Defendant. The Defendant was
“yelling and cussing” and banging on the car window. The Defendant yelled, “I’m going
to kill you, bitch.” The victim was “scared to death” and crying “hysterically.” Her
daughter also appeared scared. Eddie opened his driver’s side door and asked the
Defendant to come talk to him in an attempt to “detour” the Defendant away from the
victim. The Defendant went around to Eddie’s side of the vehicle, and the two men “got
into it.” The victim began honking the horn to attract attention. A female got out of the
Defendant’s vehicle and other individuals came out of the house.

       The bystanders managed to get the Defendant away from the vehicle, but the victim
could not remember how. She attended to her “hysterical” daughter and was herself
“hysterical.” At some point the victim looked out of the car window and saw the
Defendant try to run over Eddie with the Defendant’s truck. Eddie was lying on the
ground in a fetal position. The victim never saw a gun, but she heard gunshots and told
her daughter to run into the house. The Defendant got into his truck and pulled out of the
driveway, only to turn back around and drive towards the victim “like he was going to run
[her] down.” Eddie’s son tried to get the keys out of the Defendant’s truck but the
Defendant then drove away from the scene.

       The victim stated that she had been scared that the Defendant was going to kill her.
She testified that she had obtained the Order of Protection against the Defendant because
he was showing up at the victim’s parents’ house, at places she was shopping, and at
friend’s houses. She testified that his rage towards her had gotten “out of control.” The
Defendant would call or send text messages to the victim from different numbers daily.
The victim asked him to stop contacting her. The victim asked friends not to post photos
of her on social media because she did not want the Defendant to know where she was.
The victim assumed that the Defendant left the scene the night of the assault because
someone had called the police.

1
For clarity we will refer to Mr. Preslar and his son, Seth Preslar, who is also a witness, by their first names.

                                                      2
       On cross-examination, the victim said that the Defendant harassed her daily and
followed her many places. He also attempted to contact her by phone or text message
daily, despite the Order of Protection. The victim sometimes contacted the police about
the harassment but not always. The victim stated that, on the day of the assault, she
believed that it was the Defendant’s intention to kill her or hurt her.

       Eddie Preslar testified that he was with the victim on January 28, 2017. The two
had been dating since July of 2016. They were playing board games at the home of the
victim’s friend; the victim’s daughter was also in attendance. Lots of children were
present at the home, and the group shared supper and spent the evening together. At some
point between 10 p.m. and midnight, Eddie, the victim, and the victim’s daughter
attempted to leave the party; Eddie stated that the victim’s daughter was fifteen years old at
the time. They got into the victim’s vehicle with Eddie driving and the victim in the
passenger seat while her daughter sat in the backseat on the passenger side. As Eddie
backed out of the driveway, another vehicle pulled in behind, blocking him. The victim
and her daughter both said it was the Defendant, and the daughter started screaming. The
Defendant went to the passenger side window and started beating on the window and
screaming. The victim appeared scared. Eddie got out of the vehicle and began talking
to the Defendant, and the situation escalated from there. The Defendant came around to
Eddie’s side of the vehicle, followed by the victim, who was telling the Defendant to leave.
The Defendant said, “Do you want to get shot?” and “I’m just going to shoot y’all.” Eddie
was not armed and went into “self defense mode” at that point. He and the Defendant
began fighting, and Eddie was able to get the Defendant on the ground and told him to
leave. At this point, people had come out of the house including “a bunch of little young
kids.”

       Eddie testified that the Defendant got back into his truck, and they continued their
scuffle inside the truck with Eddie trying to take the Defendant’s keys. At some point, the
Defendant jolted the truck by slamming on the brakes, causing Eddie to fall out, at which
point the Defendant tried to run over Eddie; Eddie rolled out of the way, but the Defendant
succeeded in running over Eddie’s right foot. Eddie then heard two gunshots and saw a
flash on the ground; he never saw a gun.

        Seth Preslar, Eddie’s son, testified that he was also at the party that evening. At the
time he was employed as a police officer although he was off duty that evening. Seth
testified to the same version of events as his father. He stated that Eddie gave the
Defendant “numerous opportunities” to leave the scene, and the Defendant continued the
altercation. Seth clarified that, at some point after Eddie’s altercation with the Defendant,
the Defendant reversed his vehicle up the driveway towards the street. He then abruptly
put the vehicle into drive and began racing towards Eddie. Seth knew by the Defendant’s

                                              3
high rate of speed that he intended to strike somebody with the vehicle. The Defendant
again put the vehicle in reverse, and at this point, Seth thought it would not be a good idea
for the Defendant to leave, so Seth tried to stop the Defendant from leaving in his vehicle.
Seth testified that he did not hear any gunshots but that, in his experience as a law
enforcement officer, not hearing a gunshot would be normal in a high stress situation such
as this one.

       Patrick Clayton, Chief of Police in Trimble, Tennessee, testified that he was
employed with the Madison County Sheriff’s Department at the time of this incident, and
in charge of answering calls to the department. He received a “shots fired” call on January
28, 2017, at the home of the victim’s friend. Chief Clayton responded to the residence,
where he came into contact with the victim, Eddie, and Seth. He verified the existence of
the Order of Protection. Chief Clayton then went to the Defendant’s house where officers
took the Defendant into custody.

       The jury convicted the Defendant of aggravated assault and violating an Order of
Protection. The trial court sentenced the Defendant to an effective sentence of fifteen
years to be served consecutively to previous sentences for other unrelated convictions. It
is from these judgments that the Defendant appeals.

                                        II. Analysis

       On appeal, the Defendant contends that the evidence was insufficient to support his
conviction for aggravated assault because of the inconsistent testimony about the presence
of a gun at the scene and the varying accounts of what occurred. The State responds that
the jury resolved the inconsistencies by its verdict and that the State provided sufficient
evidence of aggravated assault. We agree with the State.

       When an accused challenges the sufficiency of the evidence, this court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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 (1979) (emphasis in original);
see Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing
State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be drawn
from such evidence, and the extent to which the circumstances are consistent with guilt and

                                             4
inconsistent with innocence, are questions primarily for the jury.’” State v. Rice, 184
S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn.
1958)). “The standard of review [for sufficiency of the evidence] ‘is the same whether the
conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, 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.” State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). “‘A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.’” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale
for this rule:

              This well-settled rule rests on a sound foundation. The trial judge
       and the jury see the witnesses face to face, hear their testimony and observe
       their demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (Tenn. 1963)). This court must afford the State the “‘strongest legitimate view of the
evidence’” contained in the record, as well as “‘all reasonable and legitimate inferences’”
that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted
criminal defendant bears the burden of showing that the evidence was legally insufficient
to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

       As relevant to this case, “a person commits aggravated assault who, after having
been . . . restrained by an order . . . from in any way causing or attempting to cause bodily
injury or in any way committing or attempting to commit an assault against an individual or
individuals, intentionally or knowingly attempts to cause or causes bodily injury or

                                              5
commits or attempts to commit an assault against the individual . . . . T.C.A. §
39-13-102(c) (2014). A person commits assault who “intentionally or knowingly causes
another to reasonably fear imminent bodily injury.” T.C.A. § 39-13-101(a)(2).

        We conclude that the evidence, viewed in the light most favorable to the State, was
sufficient for a rational trier of fact to find the Defendant’s conduct constituted an
aggravated assault. The victim had obtained an Order of Protection against the
Defendant, prohibiting the Defendant from contacting her or going to her home or
workplace. The order remained in effect on January 28, 2017, the date on which the
Defendant showed up at the victim’s friend’s home where the victim was visiting. There,
the Defendant approached the victim’s car and, while she remained inside, he screamed at
and threatened to kill her while banging on the window of her car. The victim stated that
she believed the Defendant would kill or harm her. This is sufficient evidence from which
a jury could find beyond a reasonable doubt that the Defendant was guilty of aggravated
assault in accordance with section 39-13-102(c). Accordingly, the Defendant is not
entitled to relief on this issue.

                                     III. Conclusion

     In accordance with the foregoing reasoning and authorities, we affirm the
judgments of the trial court.


                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




                                            6
