State v. Robert Mallard

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED FEBRUARY, 1998 SESSION

March 25, 1998

Cecil W. Crowson Appellate Court Clerk

STATE OF TENNESSEE, ) No. 01C01-9705-CC-00181 )

Appellee, )

) Rutherford County

vs. )

) Honorable J. S. Daniel, Judge )

ROBERT LEE MALLARD, ) (Simple Possession of Cocaine, ) Possession of Drug Paraphernalia)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

JEFF BURTON JOHN KNOX WALKUP Asst. Public Defender Attorney General & Reporter 201 W Main est Suite 101, Court Square Bldg. GEORG BLYTHE FELNER IA

Murfreesboro, TN37130 Counsel for the State Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

WILLIAM C. WHITESELL, JR. District Attorney General

DALE ROBINSON Assistant District Attorney General 3rd Floor, Judicial Building Murfreesboro, TN37130

OPINION FILED: ____________________

AFFIRMED PURSUANT TO RULE 20

CURW OOD WITT JUDGE

OPINION

Robert Lee Mallard, the defendant, appeals from his convictions in the Rutherford County

Circuit Court for simple possession of a controlled substance (cocaine) and possession of drug

paraphernalia for which he received concurrent sentences of eleven months and twenty-nine days.

At the time of sentencing, he had served approximately 110 days, and the trial judge immediately

placed himon supervised probation. In this appeal, the defendant contends that the evidence in the

record is insufficient to support his convictions beyond a reasonable doubt.1

Whenreviewingthesufficiency of theevidence we m consider theevidence in the ust

light most favorable to the state. State v. Evans, 838 S.W.2d 185, 190-191 (Tenn. 1992), citing

Jackson v. Virginia, 443 U.S. 307, 99 S. C 1781 (1979). W m afford the state the strongest t. e ust

legitimate view of the proof as well as all reasonable and legitim inferences which may be drawn ate

from the evidence. Evans, 828 S.W.2d at 191. Questions concerning the credibility of the witnesses

are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

In thiscase, theevidence demonstrates that the defendant hadin his possessionboth

the crack cocaine and the paraphernalia for smoking it. A Murfreesboro police officer noticed the

defendant standing on a street corner in an area noted for drug trafficking. The officer continued his

observation for forty minutes and finally decided to make an investigative stop. During the course of

the stop, the officer discovered a bag containing several lighters, a glass tube, an eye-glass temple,

a Brillo pad and a sm rock of crack cocaine in a folded dollar bill. At trial, the jury accredited the all

officer’s testimony and obviously did not believe the defendant’s explanations.2 We find that the

evidence presented at trial is legally sufficient to support the defendant’s convictions. Jackson v.

1 The record indicates that the defendant fled sometim between the filing of the

e

judgment and the hearing on his motion for new trial. The record on appeal does not indicate that he has been returned to custody. The general rule in those cases is that when a defendant becomes a fugitive from justice while his appeal is pending and is at large at the appointed time for the hearing of the appeal, “his appeal should perem ptorily be dismissed on m otion, on the ground that he has thereby waived his right of appeal.” French v. State, 824 S.W.2d 161, 162 (Tenn. 1992); Bradford v. State, 184 Tenn. 694, 202 S.W.2d 647 (1947). Since the state has not raised this issue, we do not address it here.

2 The defendant testified that he found the folded dollar bill and didn’t know about the cocaine. He said that he refilled used lighters and sold themto earn money and that the other item were part of a new filter he was developing for industry.

s

3

Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789; State v. Cazes, 875 S.W.2d 253,

259 (Tenn. 1994); Tenn. R. App. P. 13(e).

Therefore, after thoroughly reading the record and the briefs and after giving careful

consideration to the law governing the issue presented for review, we affirmthe judgm of the trial ent

court pursuant to Rule 20, Tennessee Court of Criminal Appeals.

__________________________

CUR OD W Judge

WO ITT,

CONCUR:

______________________________

GARY R. WADE, Judge

______________________________

WILLIAM M BARKER Judge . ,