State v. Robert Mallard

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