             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                             FILED
                                                             September 2, 1998
STATE OF TENNESSEE,               )
                                  )
                                                          Cecil W. Crowson
      Plaintiff/Appellee,         )
                                                         Appellate Court Clerk
                                  )        Appeal No.
                                  )        01-A-01-9711-CV-00676
VS.                               )
                                  )        Pickett Circuit
                                  )        No. 896
MARLON MADISON, a child less than )
eighteen years of age,            )
                                  )
      Defendant/Appellant.        )


        APPEALED FROM THE CIRCUIT COURT OF PICKETT COUNTY
                    AT BYRDSTOWN, TENNESSEE

                   THE HONORABLE JOHN MADDUX, JUDGE




JOHN KNOX WALKUP
Attorney General & Reporter

CLINTON J. MORGAN
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, Tennessee 37243-0493
       Attorney for Plaintiff/Appellee

WANDA A. WHITE
P. O. Box 556
Byrdstown, Tennessee 38549

GORDON T. GERMAIN
P. O. box 515
Monticello, Kentucky 42633
       Attorneys for Defendant/Appellant



                           REVERSED AND REMANDED



                                                  BEN H. CANTRELL, JUDGE

CONCUR:
TODD, P.J., M.S.
KOCH, J.
                                  OPINION
              The Juvenile Court of Pickett County found a juvenile to be delinquent

for selling marijuana to a classmate. He appealed to the Circuit Court, which likewise

found him to be delinquent, and placed him on probation with the Department of

Childrens’ Services. We reverse the Circuit Court.



                                          I.



              The undisputed facts of this case are as follows: Marlon Madison was

in the 11th grade at Pickett County High School. He was placed in an alternative

school after an incident involving possession of drug paraphernalia and suspicion of

marijuana use. Shortly after entering the alternative school, Marlon approached

another student and asked him if he wanted to buy marijuana.



              The student told a school official, Vick Lowhorn, about the offer. Mr.

Lowhorn and James W. Taylor, principal of the high school, began an investigation.

They gave the student a $20 bill with which to purchase the marijuana. An exchange

was made in a classroom of the school, with Marlon Madison receiving the $20, and

the other student receiving what appeared to be four or five rolled joints of marijuana

in a plastic bag.



              Delinquent proceedings were subsequently brought against Marlon

Madison in the Juvenile Court of Pickett County. After a non-custodial assessment

of Marlon’s home and family situation, and a hearing before the Juvenile Court, the

young man was found to be delinquent, and was placed on probation. The probation

terms included random drug testing, a drug education program, drug counseling, and

fifty hours of community service.




                                         -2-
              The defendant filed an appeal for a de novo hearing in Circuit Court,

pursuant to Tenn. Code Ann. § 37-1-159. The only witnesses called at the hearing

were James W. Taylor and the student who made the purchase. The defendant

cross-examined these witnesses, but called no witnesses of his own. After the

hearing, the trial court found the defendant to be delinquent “for the act of selling

marijuana upon the school property,” and imposed the same penalty upon him as had

the juvenile court. This appeal followed.



                                          II.



              A minor may be considered delinquent if he has committed a delinquent

act, and is in need of treatment or rehabilitation. A delinquent act is basically an act

performed by a minor, which would be a criminal offense if it were performed by an

adult. See Tenn. Code Ann. § 37-1-102.



              For purposes of the criminal code, marijuana is classified as a Schedule

VI controlled substance. Tenn. Code Ann. § 39-17-415. The sale of “not less than

one-half (½) ounce” of marijuana is treated as a Class D or Class E felony, according

to the actual amount involved. Tenn. Code Ann. § 39-17-417(g). Simple possession

or casual exchange of less than one-half ounce of marijuana is treated as a Class A

misdemeanor. Tenn. Code Ann. § 39-17-418. In either case, it is a criminal offense.



              The appellant argues on appeal that the State failed to prove that the

rolled joints contained marijuana, and thus did not meet the burden of proof required

to find that the defendant had committed an act which would have been a criminal

offense if committed by an adult. He refers us to two cases in the Court of Criminal

Appeals, State v. Hill, 638 S.W.2d 827 (1982) and State v. Doelman, 620 S.W.2d 96

(1981). In both of those cases, the court held that the testimony of a police officer

with several years of experience in detecting marijuana was sufficient to support a


                                         -3-
finding beyond a reasonable doubt that the substance in question was indeed

marijuana.



               Although the prosecution could have easily and inexpensively met its

burden of identifying the substance sold by Mr. Madison, it failed to present any

testimony by a police officer, or by any other expert on the identification of marijuana.

The appellant insists that without such testimony, the court could not find beyond a

reasonable doubt that Marlon Madison had sold marijuana to a classmate.



               We believe that the appellant is correct as to the burden of proof that the

State must carry on the underlying offense in order to support a finding of

delinquency.    In State v. Johnson, 574 S.W.2d 739, 741 (Tenn. 1978), Justice

Harbison wrote:

               “Although juvenile proceedings do, in many ways, partake of
               civil rather than criminal proceedings, the juvenile has a right
               to counsel, confrontation and cross-examination of witnesses,
               the privilege against self-incrimination and the right to have
               guilt established beyond a reasonable doubt. . . . We are of
               the opinion that similar procedure should be followed when a
               juvenile, charged with an offense which would constitute a
               felony under the penal code, appeals to the circuit court for
               trial de novo. . . .”




               The appellant concedes that selling a controlled substance is a

delinquent act, but he does not concede that he was selling a controlled substance.

It thus appears to us that the State did not produce sufficient evidence at the trial of

this case to support a finding beyond a reasonable doubt that Marlon Madison had

sold marijuana to a classmate.



               It is true that another portion of the criminal code makes it a Class E

felony to sell a “counterfeit controlled substance,” that is, a substance which is

represented by the seller to be a controlled substance, even though it is not. Tenn.

Code Ann. § 39-17-423. However, that statute refers only to illegal drugs classified

                                           -4-
as controlled substances under Schedules I, II, III or IV. It does not appear to apply

to marijuana.



                                           III.



                The judgment of the trial court is reversed. Remand this cause to the

Circuit Court of Pickett County for further proceedings consistent with this opinion.

Tax the costs on appeal to the appellee.



                                           _________________________________
                                           BEN H. CANTRELL, JUDGE



CONCUR:



_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



_______________________________
WILLIAM C. KOCH, JR., JUDGE




                                         -5-
             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE

                                                                   FILED
                                                                   September 2, 1998
STATE OF TENNESSEE,               )
                                  )                             Cecil W. Crowson
      Plaintiff/Appellee,         )                            Appellate Court Clerk
                                  )              Appeal No.
                                  )              01-A-01-9711-CV-00676
VS.                               )
                                  )              Pickett Circuit
                                  )              No. 896
MARLON MADISON, a child less than )
eighteen years of age,            )
                                  )
      Defendant/Appellant.        )


                                    ORDER

              On the Court’s own motion the Court orders that the original opinion

filed in this case is withdrawn and the attached opinion is substituted therefor.




                                          _________________________________
                                          HENRY F. TODD, PRESIDING JUDGE
                                          MIDDLE SECTION



                                          _________________________________
                                          BEN H. CANTRELL, JUDGE



                                          _________________________________
                                          WILLIAM C. KOCH, JUDGE
