FILED

March 25, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

FEBRUARY, 1998 SESSION

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 West Main

Suite 101, Court Square Bldg. GEORGIA BLYTHE FELNER

Murfreesboro, TN 37130 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, TN 37130

OPINION FILED: ____________________

AFFIRMED PURSUANT TO RULE 20

CURWOOD WITT 

JUDGE
1 The record indicates that the defendant fled sometime between the filing of the

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 peremptorily be dismissed on motion, 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 them to earn money and that the other

items were part of a new filter he was developing for industry. 

2

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 him on 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

When reviewing the sufficiency of the evidence we must consider the evidence in the

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. Ct. 1781 (1979). We must afford the state the strongest

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

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 this case, the evidence demonstratesthatthe defendant had in his possession both

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 small rock of crack cocaine in a folded dollar bill. At trial, the jury accredited the

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.
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 affirm the judgment of the trial

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

__________________________

CURWOOD WITT, Judge

CONCUR:

______________________________

GARY R. WADE, Judge

______________________________

WILLIAM M. BARKER, Judge