### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. LAMO NT 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 defendan t was convicted by a Sumner County

jury of ag

gravated assa

ult and attempted f

irst degree murder. The defendant alleges on appeal that: 1) the evidence was insufficient to es

tablish guilt of aggravated assault; 2) the trial court erred in allowing victim Kevin Wynn to testify that he hadpr eviously seen the defendant with a gun; and 3) the trial court err ed by failing to declare a mistrial after testimony that the drug task force kicked in the defendant’s door on a prior occasion, andafter testimony that

the defendant had previously been arrested. We affirm the judg ment of the trial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed.
R ILEY , J. delivered the opinion of the court, in which W ADE , P.J. and Ogle, J. joined. John Pellegrin (at trial ), Gallat in, Tennessee; a nd David A. Doy

le (on appeal), D

istrict Public Defender, for the appellant, Lamont Harper. Paul G. Summ ers, Atto rney Gene ral and Reporter

; Todd R. Kelley

, Assistant Attorne

y General ; L awre nce Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennesse e. OPINION FACTS The defendant and vi

ctim Kevin Wynn were acquaintances who lived in the same apartment complex. In late November 1997, the defendant gave Wy nn 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 be tween the rows of apartments,

the defendant stepped out from behind some bushes and pointed a gun. The victims then attemptedto flee. However, when Wy nn 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-2-

of Wynn. This case now comes to this court on direct appeal. Specifically, the defendant alleges: 1) the evidence was insufficient to find the defend ant gu ilty 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 afte r testimony that the

drug task force kicked in the defendant’s door on a prior oc casion, a nd the def endant ha d previou sly bee n arreste d. We reject the defendant’s co

ntentions and aff

irm the judgment o

f the trial court. ANALYSIS (1) Sufficiency of Aggravate d Assault Conviction A. Standard of Review When an accused cha

llenges the suff

iciency of the evid ence, thi s Court must review the record to determine if the evidence add uced during t he trial was sufficient "to support the findin gs by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. Ap p. P. 13(e). This rule i s applicable

to findings of guilt predicated upon direct evidence, circu mstantial 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. Ca bbage , 571 S.W.2d 832, 835 (T enn.1978). Nor ma

y this Court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. L iakas 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 a

s all reasonable andlegitimate 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, re solves questions co ncerning the c

redibility of

the witnesses, th e 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 Su preme Court state

d, "[a] guilty

verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for

the State and reso

lves all conflicts

in favor of the theory of the State." 493 S.W.2d 474, 476 (Tenn. 1973).
B. Issue Analy

sis 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 mus t find that the defendant intentionally

or knowingly

caused the victim

to reasonably

fear imminent bodi

ly injury. Assault is upgraded to aggravated assault under Ten n. Code Ann. § 39-13-10 2 (1)(B) when in the course of the-3-

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 s

hot; fled; and heard the gunfire. Further, t wo shell casings were subsequently found at the scene. F rom this evidence a rational trier of fact

could conclude that Stewart reasonably feared imminent bodily

injury as a r

esult 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 cou rt erred in allowing Wynn to testify that he had previously

se en the de fendant with a 9 mm gun. Specifically, the defendant allege s 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 f

rom the defen dant’s girl friend’s ho me that mat ched the 9 mm shell casi ngs found at the scene of th

e crime. When examin

ed in conjunction w

ith the totality

of evi dence presented at trial, testimony

given by Wy

nn was relevant t

o the identity

of the defendant as the perpetrator. The defendant further alleges that this tes timony should n

ot have been allo

wed 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 objectio

ns were raised.

The defendant’ s failure to raise a contemporane

ous objection to this

testimony as b

eing a prior ba

d act effective

ly waives thi

s issue. See Tenn. R. A pp. 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 har mless. 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 ov ert urned on appeal unless it is shown that the trial court abused its discretion. Id

. The defendant alleges that the trial court erred by f ailing to declare a mistrial after Wyn n testified that the drug task force kicked in the defendant’s door on a prior occasion , and after testimonywas given by an office r that the defendant had previously been arrested. While such testimonywas impr oper as noted by the trial c ourt, this court doe

s not believe that th

ere was a manifest necessity t

o declare a mistr

ial. The trial ju

dge sustai ned the defendant’s objections and gavecurative 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 w as no bad faith on the part of the state. Therefore, the trial court did not a

buse its discretion

by refusing

to grant a mistrial.-4- CONCLUSION Based upon our review of the trial record, this court finds that there was sufficient evidence for the trier of fac

t to convict the def

endant o f aggravated as sault; the trial co urt 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.