            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

               STATE OF TENNESSEE v. LAMONT LEE HARPER

                 Direct Appeal from the Criminal Court for Sumner County
                         No. 30-1998 Jane W. Wheatcraft, Judge



                    No. M1999-00451-CCA-R3-CD - Decided June 9, 2000


The defendant was convicted by a Sumner County jury of aggravated assault and attempted first
degree murder. The defendant alleges on appeal that: 1) the evidence was insufficient to establish
guilt of aggravated assault; 2) the trial court erred in allowing victim Kevin Wynn to testify that he
had previously seen the defendant with a gun; and 3) the trial court erred by failing to declare a
mistrial after testimony that the drug task force kicked in the defendant’s door on a prior occasion,
and after testimony that the defendant had previously been arrested. We affirm the judgment of the
trial court.

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

RILEY, J. delivered the opinion of the court, in which WADE, P.J. and Ogle, J. joined.

John Pellegrin (at trial), Gallatin, Tennessee; and David A. Doyle (on appeal), District Public
Defender, for the appellant, Lamont Harper.

Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General;
Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

       The defendant and victim Kevin Wynn were acquaintances who lived in the same apartment
complex. In late November 1997, the defendant gave Wynn approximately 2 ounces of cocaine to
hold for him. Wynn believed the defendant was trying to set him up and disposed of the drugs.

        During the evening of December 5, 1997, victims Wynn and Runako Stewart were walking
in the apartment complex. As the victims walked down a dimly lit sidewalk between the rows of
apartments, the defendant stepped out from behind some bushes and pointed a gun. The victims then
attempted to flee. However, when Wynn turned to run, he was shot by the defendant in the arm. A
jury convicted the defendant of the aggravated assault of Stewart and attempted first degree murder
of Wynn.

        This case now comes to this court on direct appeal. Specifically, the defendant alleges: 1)
the evidence was insufficient to find the defendant guilty of aggravated assault; 2) the trial court
erred in allowing Wynn to testify that he had previously seen the defendant with a gun; and 3) the
trial court erred by failing to declare a mistrial after testimony that the drug task force kicked in the
defendant’s door on a prior occasion, and the defendant had previously been arrested. We reject the
defendant’s contentions and affirm the judgment of the trial court.

                                              ANALYSIS

                         (1) Sufficiency of Aggravated Assault Conviction

A.      Standard of Review

        When an accused challenges the sufficiency of the evidence, this Court must review the
record to determine if the evidence adduced during the trial was sufficient "to support the findings
by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.
App.1996).

        In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Nor may this Court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the
state the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926,
932 (Tenn. Crim. App.1995).

        The trier of fact, not this Court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated, "[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." 493 S.W.2d 474, 476 (Tenn. 1973).

B.      Issue Analysis

        The defendant alleges that the evidence presented at trial was insufficient to find him guilty
beyond a reasonable doubt of the aggravated assault of Stewart. Tenn. Code Ann. § 39-13-101(a)(2)
sets forth that in order to be convicted of assault, the trier of fact must find that the defendant
intentionally or knowingly caused the victim to reasonably fear imminent bodily injury. Assault is
upgraded to aggravated assault under Tenn. Code Ann. § 39-13-102 (1)(B) when in the course of the


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assault the defendant uses or displays a deadly weapon.

        Stewart testified that he was walking right beside Wynn when the defendant appeared and
pointed a gun. Stewart was “scared;” thought either he or Wynn would be shot; fled; and heard the
gun fire. Further, two shell casings were subsequently found at the scene. From this evidence a
rational trier of fact could conclude that Stewart reasonably feared imminent bodily injury as a result
of the defendant’s use and display of a deadly weapon. Thus, the evidence was sufficient to support
the aggravated assault conviction.

                                      (2) Relevancy of Testimony

       The defendant alleges that the trial court erred in allowing Wynn to testify that he had
previously seen the defendant with a 9 mm gun. Specifically, the defendant alleges that such
testimony was irrelevant and prejudicial.

       Testimony indicated Wynn had been shot by a 9 mm handgun. Further, the police recovered
9 mm shell casings from the defendant’s girlfriend’s home that matched the 9 mm shell casings
found at the scene of the crime. When examined in conjunction with the totality of evidence
presented at trial, testimony given by Wynn was relevant to the identity of the defendant as the
perpetrator.

         The defendant further alleges that this testimony should not have been allowed because it
constituted a prior bad act under Tenn. R. Evid. 404(b). The defendant objected to this testimony
on the ground that it was irrelevant. No other objections were raised. The defendant’s failure to
raise a contemporaneous objection to this testimony as being a prior bad act effectively waives this
issue. See Tenn. R. App. P. 36(a); State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App.
1994). We further conclude that even if the admission of the evidence was error, it was harmless.
See Tenn. R. App. P. 36(b).

                            (3) Failure of Trial Court to Declare Mistrial

        Whether to grant a mistrial lies in the sound discretion of the trial judge. State v. Adkins, 786
S.W.2d 642, 644 (Tenn. 1990). The trial court’s determination will not be overturned on appeal
unless it is shown that the trial court abused its discretion. Id.

         The defendant alleges that the trial court erred by failing to declare a mistrial after Wynn
testified that the drug task force kicked in the defendant’s door on a prior occasion, and after
testimony was given by an officer that the defendant had previously been arrested. While such
testimony was improper as noted by the trial court, this court does not believe that there was a
manifest necessity to declare a mistrial. The trial judge sustained the defendant’s objections and
gave curative instructions which the jury is presumed to have followed. State v. Hall, 976 S.W.2d
121, 148 (Tenn. 1998). The case against the defendant was strong, and there was no bad faith on the
part of the state. Therefore, the trial court did not abuse its discretion by refusing to grant a mistrial.


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                                          CONCLUSION

        Based upon our review of the trial record, this court finds that there was sufficient evidence
for the trier of fact to convict the defendant of aggravated assault; the trial court did not err in
allowing the testimony of Wynn concerning the gun; and the trial court was correct in denying the
defendant’s request for a mistrial. The judgment of the trial court is affirmed.




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