IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 15, 2005 Session

STATE OF TENNESSEE v. WILLIE JOE FRAZIER

 Appeal from the Circuit Court for Marshall County

No. 8356 Charles Lee, Judge

No. M2003-03014-CCA-R3-CD - Filed July 26, 2005

In 1980, the Appellant, Willie Joe Frazier, was indicted for multiple counts of armed robbery and

related assaults stemming from his participation, along with two other accomplices, in the robbery

of a number of employees and customers of a pharmacy in Lewisburg. However, Frazier escaped

from jail before his scheduled trial and was not apprehended until 2002. In 2003, Frazier was

convicted by a Marshall County jury of two counts of malicious shooting, one count of assault with

intent to commit voluntary manslaughter, one count of assault with intent to commit first degree

murder, one count of aggravated assault, six counts of armed robbery, and two counts of assault with

intent to commit robbery. The jury sentenced Frazier to indeterminate sentences for all the

convictions except the six armed robberies, for which the jury fixed sentences of life imprisonment.

The trial court grouped the thirteen convictions into three categories for purposes of consecutive

sentencing, resulting in six concurrent life sentences consecutive to concurrent sentences of eight

to twenty years and consecutive to a ten to twenty-five year sentence. This resulted in an effective

sentence of life plus eighteen to forty-five years in the Department of Correction. On appeal, Frazier

argues: (1) he was sentenced to crimes for which no guilty verdicts were returned by the jury; (2)

the evidence is insufficient to support his convictions for assault with intent to commit robbery of

Ollie Bagley and assault with intent to commit robbery of Goldie Crabtree; (3) the jury’s sentencing

verdicts reflect two sentences which were not authorized for the crimes for which he was convicted;

(4) his convictions for malicious shooting must be set aside because (a) he was never indicted for

these crimes, (b) they are not lesser offenses of any indicted offenses, and (c) his dual convictions

for malicious shooting and assault with intent to commit voluntary manslaughter of Judy Watson

constitute double jeopardy; and (5) the trial court erred by imposing consecutive sentences.

After review, we find no error with regard to issues (1) and (5). With regard to issue (2), we

conclude that the evidence is insufficient to support his two convictions of assault with intent to

commit robbery; therefore, the convictions are modified to reflect convictions for aggravated assault,

with the respective sentences fixed at not less than two years nor more than ten years. Issue (3) is

rendered moot in view of our holding in issue (2). With regard to issue (4), we conclude that double

jeopardy principles preclude dual convictions for assault with intent to commit voluntary

manslaughter and malicious shooting. Accordingly, we merge the Appellant’s conviction for assault
Co-defendant Fails’ surname is spelled “Fells” in the trial transcript; however, other documents in the record 1

reflect a spelling of “Fails.” Additionally, this court utilized the spelling “Fails” in a decision involving co-defendant

Diane Grooms. See State v. Grooms, 653 S.W.2d 271, 273 (Tenn. Crim. App. 1983).

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with intent to commit voluntary manslaughter into his conviction for malicious shooting and remand

for entry of a single judgment of conviction for malicious shooting.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed in Part; Reversed in Part;

Modified in Part; and Remanded

DAVID G.HAYES,J., delivered the opinion of the court, in which GARY R.WADE, P.J., and THOMAS

T. WOODALL, J., joined.

Merrilyn Feirman, Nashville, Tennessee; and Andrew Jackson Dearing, III, Shelbyville, Tennessee,

for the Appellant, Willie Joe Frazier.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;

W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

The evidence at trial established that on October 11, 1980, the Appellant, along with Jerry

Fails and Diane Grooms, entered H & S Pharmacy in Lewisburg soon after the store’s 8:00 a.m. 1

opening. Fails was armed with a 16-gauge pump shotgun, and the Appellant carried a pistol. The

trio herded store clerk Ann Worley, seventeen-year-old employee Richard Tate, pharmacist Sam

Shelton, bookkeeper Judy Pigg, and eighty-one-year-old deliveryman Ollie Bagley, along with

customers, Jackie Lowe, Dorothy Collins, Goldie Crabtree, Billy Pugh, and Pugh’s grandniece at

gunpoint to a small office at the back of the store. After escorting the victims to the office, Fails

announced that everyone would be shot. Later Fails apparently reconsidered and told the victims

that they would be tied up. However, when the assailants ran out of rope, the victims were again

informed that they would be shot. Fortunately, additional bindings were found. At trial, Worley,

Tate, Pigg, Pugh, and Collins testified that after being ordered to lie on the floor, their jewelry and

wallets were taken. The Appellant told Worley that if she didn’t take her rings off, he would cut off

her fingers. Bagley was kicked to the floor and “stomped” in the head. Lowe testified that no money

was taken from her person. When Pugh’s eighteen-month-old grandniece began to cry, Fails directed

the Appellant to kill the child, but the Appellant refused. While Fails and Grooms were in the

pharmacy area of the store stealing narcotics and a bank deposit bag containing money, the Appellant

remained in the office with the victims.
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Richard and Judy Watson arrived at H & S Pharmacy while the robbery was still in progress.

Mr. Watson left his wife in the car while he went inside the store to purchase a birthday card. As

Mr. Watson was reading cards, Fails approached and pointed a gun at him. Fails then ordered

Watson to “come here,” and, upon compliance, Fails placed the gun barrel next to Watson's left thigh

and pulled the trigger. The shotgun injury required amputation of the leg. Grooms told the

Appellant and Fails, “[Watson] has a wife or a girlfriend in the car,” and one of the men responded,

“we have got to get her in here.” In the meantime, Mrs. Watson, tired of waiting for her husband,

decided to go inside the pharmacy to investigate his delay. As she stepped out of her vehicle, Mrs.

Watson saw the Appellant and Grooms carrying a large box from the store. Grooms looked back

in the store, smiling and waiving, and said, “see you later.” As Mrs. Watson entered the store and

walked toward the card section, Fails pointed a shotgun at her and said, “I got your God damn

husband, and you are going to be next, you white bitch.” After she saw her husband lying in a pool

of blood, she was pulled past the office and into the storage area where Fails told her to lie down and

then proceeded to shoot her in the right leg. The trio then fled in Grooms’ automobile.

Jackie Green, a deputy sheriff with the Marshall County Sheriff’s Department, was on routine

patrol in a vehicle unequipped with a police radio when he noticed an older model, dark green Buick

with Alabama tags speeding down West Commerce. The car eventually pulled over on the shoulder

of the road, and Green pulled behind it. Fails, who was in the passenger seat of the car, exited the

vehicle and fired two shots at Green, shattering his windshield. Fails then got back in the car, and

sped away. Unable to radio for backup, Green stopped at a gas station and called the sheriff’s

department. Grooms’ abandoned vehicle was found several miles away. Soon thereafter, detectives

with the Lewisburg Police Department found the Appellant hitchhiking a short distance from the

abandoned vehicle. His accomplices were arrested the next day. 

While awaiting trial in the spring of 1981, the Appellant escaped from the Marshall County

Jail. In September 2002, the Appellant was stopped by a Vancouver, Washington police officer for

a cracked windshield. A routine computer check of the Appellant’s driver’s license ultimately led

to his arrest and return to Marshall County, Tennessee. Following a jury trial and jury sentencing,

the Appellant was convicted of the following offenses and sentenced as follows: 

1. Malicious shooting of Richard Watson - 4 to 10 years

2. Assault with intent to commit voluntary manslaughter of Judy Watson - 2 to 5 years

3. Malicious shooting of Judy Watson - 4 to 10 years

4. Assault with intent to commit first degree murder of Jack Green - 10 to 25 years

5. Aggravated assault of Jackie Lowe - 4 to 10 years

6. Armed robbery of Sam Shelton - life

7. Armed robbery of Billy Pugh - life

8. Armed robbery of Judy Pigg - life

9. Armed robbery of Dorothy Collins - life

 10. Armed robbery of Ann Whorley - life

 11. Armed robbery of Richard Tate - life

 12. Assault with intent to commit robbery of Ollie Bagley - 10 to 42 years

 13. Assault with intent to commit robbery of Goldie Crabtree - 10 to 21 years
As discussed infra, the trial court did not charge the lesser offense of assault with intent to commit robbery

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by means of a deadly weapon. 

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Analysis

I. Absence of Guilty Verdicts

The Appellant contends that he was sentenced by the jury for crimes for which no verdicts

of guilt were returned. Specifically, he asserts that although he was indicted and sentenced for the

armed robberies of Ann Whorley and Richard Tate, the jury failed to return verdict forms of guilt

for these offenses. The record contains guilty verdict forms for the two respective convictions.

Accordingly, this issue is without merit.

II. Sufficiency of the Evidence

Next, the Appellant argues that the evidence is insufficient to support his separate convictions

for assault with the intent to commit robbery of Ollie Bagley and of Goldie Crabtree. The Appellant

was indicted for the armed robbery of both Crabtree and Bagley; however, at the close of the proof,

the trial court granted a judgment of acquittal on these charges, as no proof was presented that

anything was taken from either victim. The trial court, however, charged the jury on the lesser

included offense of assault with intent to commit robbery. To convict of this crime, the State was 2

required to prove beyond a reasonable doubt the following essential elements: (1) that the defendant

unlawfully assaulted the alleged victim; (2) that the defendant intended to commit the specific

offense of robbery; and (3) that the offense of robbery was not consummated. Tenn. Code Ann. §

39-607 (1980) (repealed 1982).

The Appellant argues that the convicting proof is insufficient because no evidence was

introduced to establish that either Bagley or Crabtree was the intended victim of a robbery. The

record reveals that Bagley was deceased by the time this case came to trial in 2002. Goldie Crabtree

was not a witness at trial, and no explanation was provided for this person’s absence.

Considering this issue, we apply the rule that where the sufficiency of the evidence is

challenged, the relevant question for the reviewing court is “whether, after viewing 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, 99 S.

Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the

strongest legitimate view of the evidence and all reasonable inferences which may be drawn

therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility

of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the

trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not

reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
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“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. Grace,

493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted

defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct

evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990). 

The State argues that the jury could infer from the totality of the evidence that it was the

Appellant’s intent to rob Bagley and Crabtree following their removal with the others to the office

area. We would agree that a conviction may be based entirely on circumstantial evidence where the

facts are “so clearly interwoven and connected that the finger of guilt is pointed unerringly at the

defendant.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). However, it is apparent from the

record that the robbers’ primary purpose for confining the victims in the back office was for the

Appellant to maintain control over their person while the two other robbers collected narcotics and

cash from the pharmacy. Although the majority of those confined in the office testified that they

were robbed at gunpoint, at least one victim testified that the perpetrators at no time attempted to

remove valuables from her possession. At trial, three victims briefly testified regarding the

Appellant’s and Fails’ treatment of Bagley and Crabtree while the two were in the office. However,

no testimony suggested that either Bagley or Crabtree was ever the intended victim of a robbery. In

the absence of any evidence of an intent to rob either Bagley or Crabtree, the Appellant’s two

convictions for assault with intent to commit robbery must be reversed and vacated.

Notwithstanding a lack of evidence for these crimes, the record does establish, through the

testimony of the three witnesses, Sam Shelton, Judy Pigg, and Dorothy Collins, that Bagley was

brutally assaulted by Fails. After the eighty-one-year-old Bagley was removed to the office, his

hands were tied behind his back, and he was ordered by Fails to “get down on the damn floor.”

Shelton testified that after Bagley explained he could not get down on the floor, Fails “knocked him

down.” “When he was lying on the ground (sic), on his stomach, Fails stood above him and stomped

his head as hard as he could. It looked like he meant to kill him.” Pigg added that Bagley was

kicked to the floor, and Collins stated that Bagley had “a gash on his head” and bled “profusely.”

The proof with regard to both Bagley and Crabtree established that they, along with the other

victims, were taken to the office at gunpoint and forced to remain there at gunpoint, while being

subjected to threats of death or bodily harm. 

On the date of these offenses, our code provided, “Anyperson indicted for assault with intent

to kill or assault with intent to commit any other felony may be found guilty of assault or aggravated

assault. . . .” Tenn. Code Ann. § 39-608 (1980) (repealed 1982). The trial court correctly instructed

the jury that aggravated assault was a lesser included offense of assault with intent to commit

robbery. The court specifically charged the jury with that portion of the aggravated assault statute

which provides that before the Appellant could be convicted of aggravated assault, the State was

required to prove beyond a reasonable doubt that: (1) the defendant assaulted another, and (2) the
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defendant displayed a deadly weapon or the victim knew the defendant had a deadly weapon in his

possession. See Tenn. Code Ann. § 39-601(3) (1980) (repealed 1982).

After review of the record, we conclude that the evidence supports convictions for the

aggravated assaults of Ollie Bagley and Goldie Crabtree. Accordingly, we modify the Appellant’s

judgments of conviction to reflect convictions of aggravated assault of Ollie Bagley and aggravated

assault of Goldie Crabtree. When the proof shows the defendant guilty of a lesser offense from that

which he was convicted, which is included in the greater, appellate courts should sustain the

conviction of the lesser offense and at the same time fix the minimum penalty under the lesser

offense. Corlew v. State, 180 S.W.2d 900, 903 (Tenn. 1944); see also Farris v. State, 535 S.W.2d

608, 621 (Tenn. 1976). Therefore, we fix the sentence for each of these offenses at the minimum

sentence of not less than two years nor more than ten years. See Tenn. Code Ann. § 39-601(4).

III. Unauthorized Sentences

As previously noted, the Appellant was convicted by the jury of the assault with intent to

commit robbery of Goldie Crabtree and of Ollie Bagley. The Appellant contends that the jury

improperly sentenced him in both counts for assault with intent to commit armed robbery as opposed

to the jury’s verdict of assault with intent to commit robbery. The State concedes the error, which

resulted from the jury’s being provided with incorrect jury sentencing forms that did not correspond

to the conviction offenses. This issue, however, is rendered moot in view of our modification of

both assault with intent to commit robbery convictions to aggravated assault. 

IV. Unindicted Offenses and Double Jeopardy

The Appellant argues that his conviction for the malicious shooting of Richard Watson

cannot stand because he was never indicted for this crime, and malicious shooting is not a lesser

offense of the indicted offense of assault with intent to commit murder. It is undisputed that

malicious shooting is not a lesser included offense of assault with intent to commit first degree

murder. State v. Max, 714 S.W.2d 289, 294-95 (Tenn. Crim. App. 1986). The Appellant’s argument

is ill-founded, however, as the record plainly shows that he was indicted in separate counts for

assault with intent to commit first degree murder of Richard Watson and the malicious shooting of

Richard Watson.

Similarly, the Appellant argues that his conviction for the malicious shooting of Judy Watson

is invalid because he was never indicted for this offense, and malicious shooting is not a lesser

offense of the indicted offense of assault with intent to commit first degree murder. Again, this

contention is without merit because the Appellant was indicted for both crimes of assault with intent

to commit first degree murder and malicious shooting.

Additionally, the Appellant argues that his dual convictions for both the malicious shooting

of Judy Watson and the assault with intent to commit voluntarymanslaughter of Judy Watson violate

constitutional protections against double jeopardy. Initially, we note that the Appellant has failed
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to cite any authority in support of this argument as required by Tenn. R. App. P. 27(a)(7) and Tenn.

Ct. Crim. App. R. 10(b). Furthermore, the Appellant has not raised the issue prior to this appeal.

Typically under these circumstances, our analysis of an issue is waived. See Tenn. R. App. P. 13(b).

Nevertheless, review of this issue is permitted if plain error exists. Rule 52(b) of the Tennessee

Rules of Criminal Procedure provides that "[a]n error which has affected the substantial rights of an

accused may be noticed at any time, even though not raised in the motion for a new trial or assigned

as error on appeal, in the discretion of the appellate court where necessary to do substantial justice.”

Because a fundamental constitutional right of the Appellant is affected, we elect plain error review.

See State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000). 

To resolve a double jeopardy punishment issue, we must: (1) conduct an analysis of the

offenses pursuant to Blockburger v. United States, 284 U.S. 299 (1932); (2) analyze the evidence

used to prove the offenses according to Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); (3) consider

whether there were multiple victims or discrete acts; and (4) compare the purposes of the respective

statutes. State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996). 

Tennessee Code Annotated section 39-610 (1975) (repealed 1982) provided that malicious

shooting occurs when one person “unlawfully or maliciously shoots or stabs another.” On the date

these crimes were committed, there was no codified crime of assault with intent to commit voluntary

manslaughter. Nonetheless, the provisions of Tennessee Code Annotated section 39-603 (1975)

(repealed 1982) provided:

If any person assault another, with intent to commit, or otherwise attempt to commit,

any felony or crime punishable by imprisonment in the penitentiary, where the

punishment is not otherwise prescribed, he shall, on conviction, be punished by

imprisonment in the penitentiary not exceeding five (5) years, or, in the discretion of

the jury, by imprisonment in the county workhouse or jail not more than one (1) year,

and by fine not exceeding five hundred dollars ($500).

Thus, any person who assaulted another with intent to commit voluntary manslaughter was

guilty of an attempt to commit a felony as provided by Tennessee Code Annotated section 39-603.

Assault with intent to commit voluntary manslaughter occurred (1) when an individual feloniously

and willfully assaulted any person, (2) with intent to commit voluntary manslaughter, and (3) the

specific felony of voluntary manslaughter was not consummated. Malicious shooting, by definition,

required a “shooting” whereas assault with intent to commit voluntary manslaughter did not.

Moreover, assault with intent to commit voluntary manslaughter required proof of an intent to kill

and malicious shooting did not. Thus, there is not an identity of elements. See Max, 714 S.W.2d

at 294-95. 

Next, we consider the evidence utilized to prove the offenses under Duchac. The evidence

relied upon by the State to establish both crimes was the same, i.e., a single gunshot to the victim’s

leg. Thus, there was one discrete act and one victim. Finally, the malicious shooting and assault

with intent to commit first degree murder statutes have the same purpose. Their common purpose
The minimum punishment for assault with intent to commit the felony of voluntary manslaughter was not less

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then one year nor more than five years; whereas, the minimum punishment for malicious shooting was not less than two

years nor more than ten years. Tenn. Code Ann. §§ 39-603, -612.

The State disputes the allegation that the Appellant led a crime-free existence, focusing upon the Appellant’s 4

fraudulent use of identification sources, including the use of his minor son’s Social Security number.

On the date the offenses were committed, consecutive sentencing was governed solely by the guidelines

5

established in Gray.

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is to deter assaultive conduct. Accordingly, we conclude that double jeopardy bars convictions for

both assault with intent to commit voluntary manslaughter and malicious shooting. We modify the

judgments of conviction to reflect merger of the assault with intent to commit voluntary

manslaughter into the conviction for malicious shooting. See State v. Banes, 874 S.W.2d 73, 81

(Tenn. Crim. App. 1993) (under the merger concept, the lesser conviction merges with the greater

offense resulting in one judgment of conviction). 

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V. Consecutive Sentencing

Next, the Appellant challenges the trial court’s imposition of consecutive sentences. In

ordering partial consecutive sentences, the trial court followed the dictates of State v. Gray, 538

S.W.2d 391 (Tenn. 1976), finding the Appellant both a dangerous offender and a multiple offender.

At sentencing, the trial court grouped the Appellant’s convictions of unlawful acts into three groups:

(1) robbery of the victims and assaults during perpetration of the robberies; (2) the assault of the

Watsons, which occurred after the robberies were complete; and (3) the assault of Deputy Green

during flight. The Appellant argues that during his twenty-two years of freedom, he committed no

crimes, which demonstrates “absolute knowledge that the public [was] not at risk.” This argument

is misplaced. While the Appellant’s relative crime-free existence in society is relevant, it is not

dispositive.4

In Gray, the supreme court held, “[a] defendant may be classified as a dangerous offender

if the crimes for which he is convicted indicate that he has little or no regard for human life and no

hesitation about committing a crime in which the risk to human life is high.” 538 S.W.2d at 393

(emphasis added). The central purpose of consecutive sentencing of dangerous offenders is to

protect society against those offenders who commit aggravated crimes which pose a high risk to

human life. It is clear from the holding of Gray that a finding that the defendant is a dangerous

offender may be, and often will be, determined solely from the circumstances surrounding the crimes

for which the defendant is being sentenced. “The decision to impose consecutive sentences when

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crimes inherently dangerous are involved should be based upon the presence of aggravating factors

. . . .” Id. 

The presence of aggravating factors in this case is overwhelming. The Appellant stands

convicted of twelve crimes of violence. His conduct and that of his accomplices directly impacted

the lives of twelve innocent victims. The proof established that the victims of the robberies
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reasonably believed they were going to die. A deputy sheriff was fired upon during the escape with

the shotgun blast striking the deputy’s patrol car. Ollie Bagley was never functional after his brutal

beating. The Watsons were the victims of a senseless assault. Richard Watson’s leg required

amputation. The facts of this case demonstrate a disregard for human life and a willingness to

commit crimes in which the risk to human life is high. The trial court’s sentencing decision is firmly

supported by the law and merciful under the facts.

The Appellant also argues that this state's procedure for the imposition of consecutive

sentences violates Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). He asserts that the

trial court effectively increased the total length of his sentence beyond the statutory minimum by

imposing consecutive sentences without a jury determination. Our supreme court has held that the

Tennessee Sentencing Act does not violate the Sixth Amendment. State v. Gomez and Londono, No.

M2002-01209-SC-R11-CD (Tenn. April 15, 2005). Moreover, our high court has specifically noted

that Blakely does not impact this state's consecutive sentencing scheme. State v. Robinson, 146

S.W.3d 469, 499 n.14 (Tenn. 2004).

CONCLUSION

Based upon the foregoing, we merge the Appellant’s conviction for assault with the intent

to commit voluntary manslaughter of Judy Watson into his conviction for malicious shooting and

direct entry of a single judgment of conviction for malicious shooting. We reverse the Appellant’s

convictions for assault with the intent to commit robbery of Ollie Bagley and Goldie Crabtree and

remand for entry of judgments of conviction for the lesser included crime of aggravated assault of

Ollie Bagley and Goldie Crabtree. The minimum sentence of not less than two nor more than ten

years imprisonment is imposed for each conviction, provided the State indicates its consent. In the

event the State does not consent, the case will be remanded for a new trial upon the two charges of

aggravated assault and any applicable lessers. Imposition of consecutive sentencing is affirmed with

the grouping of all convictionsto remain as originally determined by the trial court, which, in effect,

will result in no change in the Appellant’s initially imposed aggregate sentence. 

___________________________________ 

DAVID G. HAYES, JUDGE