                    IN THE COURT OF APPEALS OF TENNESSEE
                                           AT NASHVILLE
                             Assigned on Briefs November 30, 2012


                      STATE OF TENNESSEE v. JAMES LYON,1 II


                      Appeal from the Circuit Court for Franklin County
                            No. 20004          Hon. J. Curtis Smith, Judge




                                   No. M2012-00357-COA-R3-JV -Filed January 24,                               2013



The appellant, a juvenile, appealed the juvenile court's revocation of his probation and
commitment to the custody of the Department of Children's Services. The trial court, upon
the juvenile's timely appeal, affirmed the ruling of the juvenile court. We affirm.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                      Affirmed; Case Remanded


John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano,
Jr , P.J., and Herschel P. Franks, Sp. J., joined.


B. Jeffery Harmon, District Public Defender, and Robert G. Morgan, Assistant Public
De fender, Jasper, Tennessee, for the appellant, James Lyon, II.


Rcbert E. Cooper, Jr., Attorney General and Reporter, and Clarence E. Lutz, Assistant
Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.


                                                OPINION


                                          I. BACKGROUND


         In October 2011, James Lyon, II ("the Juvenile")2 (D.O.B. 9/6/96), was ordered to be


          The record reveals that the proper spelling of the juvenile's last name is "Lyon," not "Lyons."

         "Several months prior to the events at issue, the Juvenile's mother filed a juvenile court petition
alle ging thather son engaged in "unruly" behavior in that he "is out of control" and "he has repeatedly gotten
intc trouble at school. He screams at his mother and refuses to do as told." The record contains no order

                                                                                                (continued...)
CO
   mmitted to the custody ofthe Tennessee Department of Children's Services ("DCS") "with
sa: d commitment suspended," pending his compliance with placement in the Southeast

Tennessee Human Resource Agency ("SETHRA") Juvenile Community Intervention
Services Program ("JCIS"). Conditions of his placement included "maintaining] a 'C
    jrage and obey[ing]all school rules." In addition, the Juvenile was required to report all
subsequent offenses to his probation officer immediately. The order specifically provided
that "[i]f any rules are violated, a petition will be filed against you and you will be subject
to being placed in detention or jail or into the custody of the State of Tennessee."

        The following month, the Juvenile was charged by petition with delinquency. Shelley
Maguire, a teacher at Franklin County High School and the administrator of the in-school
detention ("ISD") portion of the school's behavior modification program, related the details
of the Juvenile's behavior. Maguire testified that on October 31, 2011, she asked the
Juvenile, who was in detention at that time, to stop talking, as talking is not permitted in ISD.
The Juvenile, however, did not comply with Maguire's entreaties. After several requests,
Maguire asked the Juvenile to move his desk. The Juvenile remarked, "this is f—ing bulls-
t.'f Maguire instructed the Juvenile to refrain from speaking in such a manner. He responded
     slamming his desk to the floor and muttering under his breath. At this point, Maguire had
th   Juvenile removed from ISD.


      Upon James Collins, the Juvenile's probation officer, learning of the incident, he
sought revocation of the Juvenile's probationary placement. At the later hearing, Collins
testified as follows regarding probation:


        A ... Once they violate, and he is under a suspended committal, . . . any
        violation, truancy, one truancy can violate their probation, intensive probation,
        and place them in state custody.




           . . . [H]e must obey all school rules, and he must follow all laws, including
           U.S., state, county, and city laws.


           The juvenile court's order found beyond a reasonable doubt that the Juvenile was
 delinquent," guilty of disorderly conduct, and in violation of the JCIS probation. It noted



        2(...continued)
disposing of that petition. The testimony before the trial court revealed past disorderly conduct and assault
charges.



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"a lengthy history of disruptive behavior and disrespect of authority figures." The trial court,
upon its de novo review, found that the Juvenile had engaged in delinquent, disorderly
conduct by making unreasonable noise and engaging in physically offensive behavior and
th£.t the probation was properly revoked. This appeal ensued.



                                          II. ISSUE


      We restate the issue raised by the Juvenile as whether the court erred when it
determined that the disruptive classroom behavior constituted conduct sufficient to require
the revocation of his probation.



                              III. STANDARD OF REVIEW


       This non-jury matter is reviewed de novo upon the record with a presumption of
correctness of the findings of fact by the trial court. Unless the evidence preponderates
against the findings, we must affirm, absent error of law. See Tenn. R. App. P. 13(d).
However, "if the trial judge has not made a specific finding of fact on a particular matter, we
will review the record to determine where the preponderance of the evidence lies without
employing a presumption of correctness." Forrest Constr. Co., L.L.C. v. Laughlin, 337
S.W.3d 211, 220 (Tenn. Ct. App. 2009) (citing Ganzevoort v. Russell, 949 S.W.2d 293,296
(Tenn. 1997)). Questions of law are reviewed de novo, with no presumption of correctness.
Tenn. R. App. P. 13(d).

        A delinquent act is one that is designated as a crime under the law. Tenn. Code Ann.
  J7-l-102(b)(9). Such an act must be proven beyond a reasonable doubt. Tenn. R. Juv. P.
28(d)(l); State v. Rodgers, 235 S.W.3d 92, 95 (Tenn. 2007). A probation violation is to be
supported by a preponderance of the evidence. Tenn. R. Juv. P. 35(b).

        The review of the trial court's finding of delinquency is accorded the same dignity as
a  ury verdict in a criminal trial. State v. Farrar, 355 S.W.3d 582,585 (Tenn. Ct. App. 2011)
(quoting State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999)). Accordingly, we
dci not reweigh or reevaluate the evidence. State v. Pfeifer, 993 S.W.2d 47, 51 (Tenn. Crim.
Aop. 1998). When the sufficiency of the evidence is challenged, our standard of review is
 whether, after reviewing the evidence in the light most favorable to the [State], any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
Jcckson v. Virginia, 443 U.S. 307, 319, 324, 99 S.Ct. 2781 (1979); State v. Rogers, 188
S. W.3d 593, 616 (Tenn. 2006); see also Tenn. R. App. P. 13(e).




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       An abuse of discretion standard is applied when we review a revocation of probation.
Fcrrar, 355 S.W.3d at 585-86. In order to show that a trial judge abused his or her discretion
by revoking probation, a defendant must show that the record contains no substantial
evidence to support the trial judge's conclusion that a probation violation occurred and that
because of the violation, probation should be revoked. See State v. Harkins, 811 S.W.2d 79,
82 (Tenn. 1991).



                                      IV. DISCUSSION


         In this case, it is alleged that the Juvenile engaged in disorderly conduct, addressed
in   Tennessee Code Annotated section 39-17-305:


         (a) A person commits an offense who, in a public place and with intent to
         cause public annoyance or alarm:


                (1) Engages in fighting or in violent or threatening behavior;

                (2)   Refuses to obey an official order to disperse issued to
                maintain public safety in dangerous proximity to a fire, hazard
                or other emergency; or


                (3) Creates a hazardous or physically offensive condition by any
                act that serves no legitimate purpose.


         (b) A person also violates this section who makes unreasonable noise that
         prevents others from carrying on lawful activities.


         (c) A violation of this section is a Class C misdemeanor.


T^nn. Code Ann. § 39-17-305.
         The Juvenile argues that his conduct at school did not meet the required criteria
denoted in section 39-17-305. He further asserts that the trial court's findings are based on
an erroneous assessment of the proof and, therefore, constitute an abuse of discretion. State
  Phelps, 329 S. W.3d 436,443 (Tenn. 2010). Additionally, he submits that the record lacks
sibstantial evidence to support the trial court's conclusion that a violation of the conditions
     probation occurred. Harkins, 811 S.W. 2d at 82.


         The trial court determined as follows:


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      THE COURT: ... I do find that it was physically offensive, and he was
      making unreasonable noise. You know, he's not six years old. He's old
      enough to know that you don't curse at a teacher, and you don't slam your desk
      around when you're simply asked to quit talking, so I find that the grounds are
       made out for a probation revocation.


        The testimony from Maguire establishes the proof ofdisorderly conduct. The Juvenile
was in a classroom with other students making unreasonable noise that prevented the other
students and Maguire from carrying on the lawful activities of teaching and learning. The
observations of the trial court on the record, when viewed in the light most favorable to the
State, establish a violation ofsubsection (b) ofsection 39-17-305 beyond a reasonable doubt.
The evidence presented to the trial court would lead any rational trier of fact to the
reasonable conclusion that the Juvenile engaged in disorderly conduct.

        Likewise, the trial court properly affirmed thejuvenile court's revocation ofprobation
and placement of the Juvenile in DCS custody. The Juvenile agreed to obey school rules as
a term of continued home placement. As noted by the State, the fact that he was in detention
in the first place suggests that the Juvenile failed to comply with school rules. The testimony
from Maguire demonstrates the Juvenile's disregard not only of the school rules, but also his
contempt for the juvenile court's prior instructions concerning his probation. The record as
a whole supports the conclusion that revocation of the probationary sentence was warranted
because prior less restrictive means had been ineffective to correct the Juvenile's behavior.
No abuse of discretion has been shown.

       Accordingly, we find that the evidence of disorderly conduct is legally sufficient to
support the finding of delinquency and that the Juvenile cannot show a preponderance of
evidence contrary to the trial court's determination that, by engaging in such conduct, the
Juvenile violated the terms of his probation.



                                     V. CONCLUSION


      The decision of the trial court is affirmed. The case is remanded for all further
proceedings as may be necessary. As Mr. Lyon is a juvenile, costs of the appeal are assessed
against the State of Tennessee.




                                                      JOHN W. McCLARTY, JUDGE


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