In the Matter of Wayne H.

IN THE MATTER OF )

WAYNE H. ) Appeal No.

) 01-A-01-9807-CV-00383

)

) Williamson Circuit

)

FILED

No. II-152-698

August 20, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR WILLIAM COUNTY,

AT FRANKLIN, TENNESSEE

THE HONORABLE TIMOTHY EASTER, JUDGE

JOHN P. CAULEY

Assistant Public Defender

407-C Main Street

P. O. Box 68

Franklin, Tennessee 37065-0068

ATTORNEY FOR APPELLANT

PAUL G. SUMMERS

Attorney General & Reporter

DARYL J. BRAND

Associate Solicitor General

425 Fifth Avenue North

Nashville, Tennessee 37243

ATTORNEYS FOR STATE OF TENNESSEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE

OPINION

In April of 1998 Appellant, Wayne H. was a fourteen year old child

enrolled in the Williamson County School District as a special education student.

For reasons not detailed in the record, he had been under the supervision of the

Davidson County Juvenile Court. His case manager, Lloyd Jernigan of the Dee

Dee Wallace Center, arranged for him to live with his maternal grandmother in

Williamson County. Upon moving to his grandmother's home he was enrolled

in Williamson County's Page Middle School in special education class for

children with behavioral problems.

On April 22, 1998, three days after enrolling in Page School, Mrs. Marty

Haselden, Assistant Principal, was informed that Wayne had been seen

displaying a pocket knife in the lunchroom. Page Middle School had a "zero

tolerance" policy regarding weapons at school. In Mrs. Haselden's office Wayne

confirmed that he had a knife and gave it to her. He asserted that he had not

meant to bring the knife to school but had borrowed his cousin's jacket and had

only discovered at lunchtime that there was a knife in the pocket. Mrs. Haselden

then told Wayne that she had heard that two days earlier, on his first day at Page

Middle School, he had been displaying a knife on the school bus. Wayne

admitted that he also had a knife on that day and said that he had brought it to

school to impress people because he was new at the school. He further

acknowledged that he knew it was wrong to have a knife in his possession at

school.

After the Page School incident, Wayne H. was sent to the Alternative

Learning Center which is located in the same building as the Williamson County

Juvenile Detention Center. The ALC is a facility for continuing the education

of students who have been suspended from school for unruliness or similar

problems. Wayne H.'s behavior at ALC was less than satisfactory and he often

cursed and refused to do his school work. He was taking medications for

impulsive behavior and attention deficit disorder. After an incident in which he

cursed his teacher, Ms. Ruth Paily, he was placed in the detention center for a

few hours. His grandmother was not cooperative with the ALC program and it

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was determined that a "home suspension" for him would not be appropriate.

The parties stipulated that Williamson County Juvenile Detention Center

is operated in compliance with and even surpasses the requirements of state and

federal law.

On April 29, 1998, Mrs. Haselden filed a petition in the Juvenile Court of

Williamson County alleging that Wayne H. had committed the delinquent act of

carrying a weapon on school property.

On May 15, 1998, Mrs. Ruth Paily filed a petition alleging that Wayne H.

had violated rules at ALC and his conduct amounted to unruly behavior.

The case was heard on June 11, 1998, in the Juvenile Court of Williamson

County. The ALC determined not to prosecute the unruly behavior petition and

the court then retired the petition. The juvenile court found that upon his plea of

"true" to the charge of carrying a weapon on school property that he was a

delinquent child. The court sentenced Wayne to serve two days in the juvenile

detention center and suspended his driver's license for one year.

Wayne H. timely appealed to the circuit court and a de novo hearing was

held on July 20, 1998. The circuit court found that Wayne had committed the

delinquent act alleged, and affirmed the judgment of the juvenile court including

the disposition of the case. The judgment of the circuit court was entered July

22, 1998 and Wayne H. timely appealed.

The first issue raised on appeal challenges the sufficiency of the evidence

to prove that the appellant possessed the weapon on school property with the

intent to go armed.

The original petition in the juvenile court charged that:

"ON OR ABOUT APRIL 22, 1998 IN WILLIAMSON COUNTY, TN,

SUBJECT WAS FOUND IN POSSESSION OF A POCKET KNIFE AT PAGE

MIDDLE SCHOOL. THIS OFFENSE CONSTITUTES THE DELINQUENT

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CHARGE OF CARRYING A WEAPON ON SCHOOL PROPERTY (Class E

Felony per T.C.A. 39-17-1309, et al)."

The order of the circuit court, following a de novo hearing on appeal from

the juvenile court, provided in part: "The trial court having had the benefit of the

original petition, the testimony of witnesses, argument of counsel for the

respective parties and the entire record in this cause finds that the allegations

contained in said petition are proven beyond a reasonable doubt." Appeal was

taken first to the court of criminal appeals but was transferred to this court

because of Tennessee Code Annotated section 37-1-159.

Tennessee Code Annotated section 39-17-1309 specifically addresses

carrying weapons on school property and declares the carrying of a weapon with

intent to go armed is a Class E Felony. The conduct charged in this case, if

committed by an adult, would subject such adult to criminal liability. Where a

juvenile is concerned violation of Tennessee Code Annotated section 39-17-1309

is a "delinquent act". Tenn. Code Ann. § 37-1-102(b)(9).

Neither Rule 13(d) nor Rule 13(e) of the Rules of Appellate Procedure

envision appellate review of the hybrid created by Tennessee Code Annotated

section 37-1-133 wherein it provides in part: "(a) An order of disposition or

other adjudication in a proceeding under this part is not a conviction of crime and

does not impose any civil disability ordinarily resulting from a conviction or

operate to disqualify the child in any civil service application or appointment."

Rule of Appellate Procedure 13(d) involving appeals in civil actions

provides that in nonjury cases the findings of fact by the trial court are

accompanied by a presumption of correctness unless the preponderance of the

evidence is otherwise. Rule 13(e) of the Rules of Appellate Procedure governs

appeals in criminal actions under which a finding of guilt, either by the trial court

or by a jury, "... shall be set aside if the evidence is insufficient to support the

findings by the trier of fact of guilt beyond a reasonable doubt."

While Tennessee Code Annotated section 37-1-133 specifically mandates

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that a finding of delinquency is not criminal, it is well to observe that common

law, statutory and constitutional principles protect the rights of juveniles in the

same manner as they protect the rights of adults. In State v. Johnson, 574

S.W.2d 739 (Tenn. 1978) it is said:

Despite this stated purpose and the theory underlying the juvenile

court system, however, courts in recent years have emphasized that

in practical effect persons involved in juvenile proceedings may be

deprived of their liberty. Increasingly, concepts of the criminal law,

and in particular constitutional principles designed to protect the

rights of individual charged with crime, have been deemed to be

applicable to proceedings involving juvenile offenders.

574 S.W.2d 739, 741.

Earlier the supreme court in State ex rel. Anglin v. Mitchell, 596 S.W.2d

779 had dealt primarily with the right of a juvenile faced with loss of liberty to

be tried by an attorney judge. The court observed:

This Court unanimously declared in Patrick v. Dickson, 526

S.W.2d 449 (Tenn. 1975):

Indeed, the entire juvenile court structure, despite recent

renovations and innovations, continues to constitute, in a large

measure, a junior criminal court.

This characteristic of these courts was recognized by the Supreme

Court of the United States in Breed v. Jones, 421 U.S. 519, 95 S.Ct.

1779, 44 L.Ed.2d 346 (1975), wherein the Court points out that

"there is a gap between the originally benign conception of the

system and its realities" and observes that recent cases require "that

[the] courts 'eschew the "civil" label of convenience which has been

attached to juvenile proceedings' and that the juvenile process ... be

candidly appraised." 526 S.W.2d at 451.

596 S.W.2d 779, 784.

A delinquent child may be fined, ordered to pay restitution, placed on

probation or committed to the custody of the Department of Corrections. Doe

v. Norris, 751 S.W.2d 834.

Tennessee Code Annotated section 37-1-129(b) demands proof beyond a

reasonable doubt before the court may find delinquency. The "delinquent act"

in the case at bar is a felony when committed by an adult. See T.C.A. § 37-1-

102(b)(9) and T.C.A. § 39-17-1309.

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So it is that in view of Tennessee Code Annotated section 37-1-133, this

hybrid fits directly into neither 13(d) or 13(e) of the Rules of Appellate

Procedure.

Rule 2 of the Rules of Appellate Procedure provides in part: "For good

cause, including the interest of expediting decision upon any matter, the supreme

court, court of appeals, or court of criminal appeals may suspend the

requirements or provisions of any of these rules in a particular case on motion of

a party or on its motion and may order proceedings in accordance with its

discretion, ..."

Rule 13(d) of the Rules of Appellate Procedure provides in pertinent part

"unless otherwise required by statute, ..." review will be in accordance with its

provisions. Proof beyond a reasonable doubt on a delinquency petition is

mandated by Tennessee Code Annotated section 37-1-129(b). It cannot be that

a juvenile is entitled to be judged on a standard of proof beyond a reasonable

doubt in the trial court and then subjected to any lesser standard on appeal. It

may be that review under Rule 13(d) can be made compatible with a reasonable

doubt standard just as it has been made compatible with a "clear and convincing

evidence" standard. See In re: M.D., 658 S.W.2d 112, 115 (Tenn. App. 1983)

and In re: Adoption of Self, 836 S.W.2d 581, 582 (Tenn. 1992). We prefer,

however, to simply apply a reasonable doubt appellate standard whereby the trial

court judgment must be set aside if we find the evidence insufficient to support

guilt beyond a reasonable doubt.

Under the reasonable doubt standard the supreme court has stated:

When the sufficiency of the evidence is challenged, the

relevant question for an appellate court is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979); see Tenn.R.App.P. 13(e). A

jury verdict approved by the trial judge credits the testimony of the

witnesses for the State and resolves all conflict in favor of the

State's theory. State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983),

cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d 753

(1984); State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978). On

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appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable or legitimate inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn.1978). A verdict against the Defendant removes the

presumption of innocence and raises a presumption of guilt on

appeal, State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973), which

the Defendant has the burden of overcoming. State v. Brown, 551

S.W.2d 329, 331 (Tenn.1977).

State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992).

The defendant pleaded "true" in the juvenile court to the allegation that he

carried a knife on school property. The only disputed question is whether or not

the evidence establishes, beyond a reasonable doubt, that he did so with the

intent to go armed.

The mental state of carrying a weapon with intent to go armed may be

proved by circumstances surrounding the carrying of the weapon. Bennett v.

State, 530 S.W.2d 788, 792 (Tenn. Cr. App. 1975). Intent to go armed cannot be

presumed from mere possession of a weapon and it is improper to instruct a jury

regarding such a presumption. Liming v. State, 220 Tenn., 371, 382,417 S.W.2d

769, 774 (1967). Intent to go armed may be inferred by the trier of fact from the

circumstances of the case including the fact of the possession of the weapon.

State v. Washington, 658 S.W.2d 144, 146 (Tenn. Cr. App. 1983); Cole v. State,

539 S.W.2d 46, 49 (Tenn. Cr. App. 1976).

The proof shows that Wayne H. admitted that he possessed the knife on

school premises. He admitted that he had displayed a knife two days earlier on

the school bus. He acknowledged that he knew it was wrong to have a knife in

his possession at school. He explained his earlier possession of the knife by

asserting that he was new and wished to impress people at Page Middle School.

On April 22, he was seen displaying a knife in the school cafeteria. His

explanation about borrowing his cousin's coat would hardly impress any rational

trier of fact.

Viewed as it must be in the light most favorable to the state, the evidence

supports the finding of the trial court beyond a reasonable doubt that Wayne H.

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carried the knife on school grounds with the intent to go armed.

Appellant next asserts that he was denied the right to a fair trial because

the circuit court considered the juvenile court's final order as evidence of guilt.

The record does not support this assertion. It was not the findings of the juvenile

court but the plea of "true" to the charge by the defendant that was the subject of

the inquiry of counsel by the circuit judge. The circuit court conducted a de

novo hearing and heard testimony from witnesses and arguments of counsel for

four and one-half hours before announcing its' findings of guilt.

Appellant was not denied his right to a fair trial.

The next issue raised by Appellant involves the hearsay statements by

which Mrs. Haselden was informed of the previous knife carrying incident two

days earlier on the school bus. It is not the hearsay statements of Mrs. Haselden's

informant but the admission of the defendant in response thereto that

incriminates him. In the sequence of events Mrs. Haselden had brought Wayne

to her office to inquire about the cafeteria incident. He promptly admitted the

incident and turned the knife over to her with his explanation that he had

borrowed his cousin's coat and found the knife in the pocket. It was at this point

that Mrs. Haselden informed him of her information about the school bus

incident two days earlier. He thereupon admitted the school bus knife display

incident and that he was carrying the knife to impress people. These admissions

under Tennessee Rule of Evidence 803(1.2) were not only admissible but were

subject of no objection by counsel. If the statement of Mrs. Haselden's informant

was hearsay, the error is harmless beyond a reasonable doubt and not a basis for

reversal. Rule 36(b) Rules of Appellate Procedure.

The court of criminal appeals has correctly held:

One who wishes his affairs to remain secret should not impart

information concerning them to a friend, a banker, or even a tape

recorder in the Oval Office of the President of the United States.

Once having been voluntarily made, admissions against interest to

a non-privileged party may be used against the declarant whether

the admissions take the form of an oral or written confession, a

letter to a relative, a recorded conversation, a deposit slip given to

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a teller at a bank, or any of the literally hundreds of forms

communications take. While the Fifth Amendment to the United

States Constitution protects one against compulsory furnishing of

evidence against oneself, it does not extend to non-privileged

communications to third parties.

Sheets v. Hathcock, 528 S.W.2d 47, 50 (Tenn. Cr. App. 1975).

This issue is without merit.

Appellant next complains that the use of the juvenile detention center as

a place of confinement is an unlawful use of that facility. First of all the trial

court had found the defendant, guilty beyond a reasonable doubt of carrying a

weapon for the purpose of going armed on school property. The sentence

ordered was a forty-eight hour detention in the juvenile detention center and the

suspension of his driver's license for a period of one year. The court further

found that short-term detention in the juvenile detention center would be suitable

as a rehabilitative effort. Dr. Gail Colvert, director of the ALC, testified that

such short-term detention was not punishment alone but rehabilitative in effect.

It was thus "... a program of treatment, training and rehabilitation ..." See Tenn.

Code Ann. § 37-1-101. Tennessee Code Annotated section 71-3-501 provides:

"'Detention center' means a place or facility operated by any entity or person,

governmental or otherwise, for the confinement in a hardware secure facility of

a child or children who meet the criteria of section 37-1-114(c) or other

applicable laws ..." Tenn. Code Ann. § 71-3-501(b)(16)(Supp. 1998).

Tennessee Code Annotated section 37-1-131(a)(3) is sufficiently broad in

scope to include juvenile detention centers as suitable for juveniles "in need of

legal temporary placement".

This issue is without merit.

Finally, appellant asserts that officials of Page Middle School failed to

comply with the Individuals With Disability's Education Act. ("IDEA") 20

U.S.C. sec. 1400, et seq. and with regulations adopted by the Tennessee Board

of Education pursuant to Tennessee Code Annotated section 49-10-101(c)(1998)

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to effect compliance with IDEA.

This issue is raised for the first time in this Court and was neither

presented to nor adjudicated by the trial court. It has been effectively waived by

the appellant. Tenn. R. App. P. 36(a); Simpson v. Frontier Community Credit

Union, 810 S.W.2d 147, 153 (Tenn. 1991).

Regardless of waiver we find this issue to be without merit. The principal

case relied upon is the unreported decision of the court of appeals in the case of

In re: Tony McCann, C.A. No. 158, 1990 WL 16883 (Tenn. Ct. App. July 30,

1990). In that case, the court was dealing with a de novo review of a finding in

the trial court that a handicapped child was unruly. The court of appeals

reversed, holding that "... school discipline problems and a student's failure to

perform assignments must be addressed within the administrative frame work of

the school system before the school system can resort to court intervention." In

re: McCann 1990 WL 16883 at *3. The McCann case involved only a finding

of unruliness under what is now codified as Tennessee Code Annotated section

37-1-102(b)(23). In this case, the defendant has been found guilty of a

delinquent act under Tennessee Code Annotated section 37-1-102(b)(9). This

delinquent act was a felony, not an unruly disciplinary problem. The appellant

had been a student at Page School only three days when the delinquent act

occurred.

Under Tennessee Code Annotated section 37-1-128(c)(1), the most that

can be said is that evaluation for treatment of special education students may be

undertaken by the trial court before disposition is made of a child who has been

adjudicated delinquent. Tenn. Code Ann. § 37-1-128(c)(1)(1996).

The judgment of the trial court is in all respects affirmed and the case is

remanded to the Juvenile Court of Williamson County. It has now been over a

year since the adjudication of delinquency and the sentence of forty-eight hours

detention. Remand is without prejudice to the right of the juvenile court to

revisit the disposition issue if intervening events justify either reduction of the

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sentence or an evaluation process under Tennessee Code Annotated section 37-1-

128(c)(1).

Costs are assessed against the appellant.

_______________________________________

WILLIAM B. CAIN, JUDGE

CONCURRING UNDER

SEPARATE OPINION

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

____________________________________

BEN H. CANTRELL, P.J., M.S.

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