State v. Robert Mallard ( 1998 )


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  •            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
    2
    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
    .        ,
    3